For it is not the business of a private individual to declare war, because he can seek for redress of his

rights from the tribunal of his superior. Moreover it is not the business of a private individual to summon
together the people, which had to be done in wartime. And as the care of the common welfare is
committed to those who are in authority, it is their business to watch over the common weal of the city,
kingdom or province subject to them.

European states were engaged in the international system, as were states/kingdoms from the Far East.
China was cowed through the use of gunboat diplomacy, leading to the Treaties of Beijing in 1860.
Japan, by contrast, engaged in a controlled opening of the west, with British naval advisers and an early
transition of Wheaton’s International Law.

A few Asian nations were able to maintain their autonomy, either because it was convenient for the
colonial powers or because the state succeeded in internal modernizing. Ethiopia was also able to
maintain autonomy at the expense of Italy following the latter’s defeat in Adowa in 1896.

“Scramble for Africa” was divided between Great Britain, France, Belgium, Germany, Spain, Portugal and
Italy following the Berlin Conference in 1884.

“modern structure” of the aw of nations was recognizably in place. The system of diplomatic relations,
recognition, international organizations, treaties, and customary international law had taken essentially
modern contours.

By 1920s, it was thought intl law was dependent on consent of states – express or implied and was
applicable to states alone. However, at this point in time, the Permanent Court of Intl Justice had
indicated that rights under intl law could be conferred on individuals.

International organizations emerged by the 19 th century. States moved from bilateral treaty and reliance
on diplomatic contact to other forms of co-operation.

The Congress of Vienna heralded an era of intl conferences and multilateral treaties. After the League of
Nations and then the UN provided a more developed attempt at universal peacekeeping arrangements,
and many specialized institutions concerned with technical, economic, and social cooperation were
established. Permanent organizations with executive and administrative organs paralleled but did not
completely replace the system of ad hoc diplomacy and conference.

By the 20th century, intl law underwent a profound process of expansion. Developments such as the
creation of intl organizations of universal membership with treaty-making powers, a detailed
elaboration of the law of the sea, the establishment of permanent bodies [or at least permanently
available institutions] for the settlement of international disputes, including ‘mixed’ disputes between
states and private parties, the prohibition on the use of force by states, the emergence of various sub-
disciplines or specialist areas of work and study; notably human rights, intl environmental law, intl
economic law, intl criminal law, and progress towards the codification of intl law, principally through the
work of the International Law Commission.
INTERNATIONAL LAW IS DERIVED FROM FOUR SOURCES:

1) Treaties
2) Customary international law
3) General principles of law
4) Judicial decisions and the teachings of the most highly qualified publicists of the various nations,
as a subsidiary means for the determination of rules of law

The Peace of Westphalia in 1648 started the development of international law. Grotius depicted intl law
as the gradual development of universal principles of justice which could be deciphered through human
agency.

The law of nations was a system of norms whether derived from a universally applicable, “natural”
morality or attested by the “consent of nations”. Wolff argued that collective society could not be
promoted unless states formed a universal political entity, “supreme state” from which would proceed
the law of nations.

All the nations scattered throughout the whole world cannot assemble together, as is self-evident, that
must be taken to be the will of all nations which they are bound to agree upon, if following the
leadership of nature they use right reason. Hence it is plain, because it has to be admitted, that what has
been approved by the more civilized nations is the law of nations. [WOLFF]

However, Vattel preferred instead to see the European state system as a collective capable of acting in
the common interest.

A political system in which the nations of the world are bound by their relations and various interests
into a single body. It is no longer a confused heap of detached parts, each of which had little concern for
the lot of others, and rarely troubled itself over which did not immediately affect it. The constant
attention of sovereigns to all that goes on, the custom of resident ministers, the continual negotiations
that take place, make of modern Europe a sort of Republic, whose members – each independent but all
bound together bu a common interest – unit for the maintenance of order and the preservation of
liberty. Hence arose that famous scheme of the political balance, or the equilibrium of power. [VATTEL]

Immanuel Kant proposed an international federation of republican states, backed by coercive rules, as
the only method by which a secure and lasting peace could be achieved.

Just like individual men, they must renounce their savage and lawless freedom, adapt themselves to
public coercive laws and thus form an international state, which would necessarily continue to grow
until it embraced all the peoples of the earth. But since the will of nations…

Early modern period also saw the emergence of ‘sovereign states’ from the claims of Empire, secular or
religious. States emerged as material, independent entities and international law was one of the ways
they developed of managing their relations.

The apparent paradox of how law could operate between sovereigns is resolved by the priority given to
consent in the formation of legal obligation and the role of co-operation in interstate affairs – combined
with the insight that sovereignty includes the capacity to make commitments not merely temporary in
character. The law itself begins to say what it takes to become a state and what, as a matter of law, it
means to be a state.

Applied to jurisprudence, positivism was distinguished by the notion that ONLY positive law – that is, law
which had in some form been enacted or made by authority – could be considered true law.

Positivism saw the law as creation of power, a command of a sovereign enforced by a sanction.
International law was not law above states, but law between states, enforceable, short of war, by way
of moral opprobrium or by reciprocal denial of benefits.

John Austin: The law obtaining between nations is not positive law; for every positive law is set by a
given sovereign to a person or persons in a state of subjugation to its author. The law obtaining between
nations is law [improperly so-called] set by general opinion. The duties which it imposes are enforced by
moral sanction; by fear on the part of nations, or by fear on the part of sovereigns, of provoking general
hostility and incurring its probable evils, in case they shall violate maxims generally received and
objected.

The international system has no sovereign, thus no command, and sanctions were decentralized and
sporadic.

Jeremy Bentham had no issue with international law because he thought that national sovereigns, just
as they could proclaim laws for the benefit of their own communities, could also together promulgate
international law; they were not disabled from collective action.

Positivist legal theory, Hart distinguished three categories of rules:

a) Primary rules, concerning human action and interaction

b) Secondary rules [rules of adjudication, enforcement, and change] which underpin and operate in
relation to the primary rules;
c) The master ‘rule of recognition’, which enables the observer to identify the components of the
system and to treat them as legal

What mattered was not the acceptance of primary rules but their acceptance of the system by which
those rules were generated and applied: it was the combination of primary and secondary rules which
was the essence of law.

Hart saw international law as a marginal form, possessing some bit not all the characteristics of a
developed legal system and then only imperfectly. It had only rudimentary institutions of adjudication,
no legislature, a frail internal attitude on the part of officials; no other social rules are so close to
municipal law as international law, but social rules remained.

Brownlie criticized the aforementioned position, arguing that whatever the theoretical overlay of
law/not law imposed by Hart [and positivists in general], the reality of intl law told a different story:

The lack of compulsory jurisdiction and a legislature is regarded by Hart not as the special feature of a
system which operates in conditions of a certain kind, but as the marks of an outcast, of a butterfly
which is not wanted for a predetermined collection. Yet, the stability of intl relations compares quite
well with internal law, given the grand total of municipal systems ruptured by civil strife since 1945. And
whilst intl law lacks secondary rules, this matters less if one accepts the view that secondary rules do not
play such a decisive role in maintaining the more basic forms of legality in municipal systems.

Question is whether the rules, traditions, and institutions of a given system enjoy at least some salience
within the relevant society, meet its social needs, and are applied through techniques and methods
recognizably legal – as distinct from mere manifestations of unregulated force. There is no reason to
deny to such systems the classification of being legal – recognizing however that this leaves many
questions open.

John Finnis defends the idea of international law – particularly customary international law – which is
able to emerge without being made by anyone with authority to make it, and without the benefit of
Hart’s secondary rules for the authorized generation and alteration of rules:

The general authorativeness of custom depends upon the fact that custom-formation has been adopted
by the international community as an appropriate method of rule creation. For, given this fact,
recognition of the authorativeness of particular customs affords all states an opportunity of furthering
the common good of the international community by solving interaction and coordination problems
otherwise insoluble. And this opportunity is the root of all legal authority, whether it be the authority of
rulers or of rules.

Once statehood is generally recognized, a new situation arises: the new state is ‘sovereign’, has
‘sovereignty’ and this is true no matter how fragile its condition or diminutive its resources. In this
respect, sovereignty has not evolved much from Vattel’s position of equality in rights and obligations.

With the emergence of privatization and globalization as influential forces within the world economy, it
is argued, sovereignty bears less resemblance to the way things are, a perception heightened when
viewed against a background of anti-formalism and rule skepticism: from that perspective, sovereign
equality, a forma rule if ever there was one, is an obvious target.

Kingsbury emphasizes the disadvantages of any normative transformation:

As a concept, sovereignty carries limited substantive consequences and is consistent with a range of
internal forms of government. It is also capable of responding to developments on the international
plane, as seen with the rise of international organizations. The relationship is a symbiotic one, with
institutions like the Intl Criminal Court bolstering the internal competence of sovereignty through the
principle of complementarity, at least in theory.
INSTITUTIONAL STRUCTURE

League of Nations [Peace of Versailles 1919] -> United Nations [Charter of the UN 1945]

LN did not outlaw war per se, as distinct from limiting the circumstances of resort to war. It sought to
use the institution of war as a response to the violations of its provisions.

UN was created independent of any peace treaty, avoiding the unfortunate associations with a punitive
peace that had dogged the League. The close connection between commitment and sanction that
characterized the Covenant was ruptured and replaced by a broad discretionary power of the Security
Council.

Where the Covenant overtly attempted to guarantee international law, backed by a system of collective
security, the Charter outlawed the unilateral use of force outright save in defined and limited
circumstances.

The Charter gave the Security Council power to respond or not respond limited by the deliberately
vague need to identify a ‘threat to or breach of the peace or act of aggression’. Where the League
required consultation and unanimity in the decision-making process, the Charter withdrew the veto
from all EXCEPT the five Permanent Members – the US, the UK, France, China, and Russia. The veto
ceased to be a concomitant of sovereignty and became a guarantee that the five major powers could
not be outvoted on key issues.

A SYSTEM OF INTERNATIONA LAWS

Almost all nations observe almost all principles of international law and almost all of their obligations
almost all of the time. Like transportation of people daily by and across state boundaries; those
boundaries are determined and extended; the resources are allocated and extracted and sold across
boundaries and states are represented and committed.

The law delimits the competence of States. No journey by air could take place in reasonable limits if it
were not for a network of legal structures involving the jurisdiction of States, the agreements of States
and various procedures and standards.

The absence of any forma hierarchy – the negation of which is the point of the established doctrine of
the equality of states – the basis of obligation in international law is found in the practice of states,
which regard certain processes as generating legal rights and obligations and conduct themselves with
international legal rules in mind: obtaining legal advice about making and complying with the law;
instructions to state officials about their obligations under international law; applying international law
domestically [including making multiple modifications of domestic law].

International law has the characteristics of a system, not just a random collection of rules: the basic
constructs of personality, sources [including treaties], interpretation, and responsibility, provide a
framework within which rules may be generated, applied and, increasingly, adjudicated upon.

However, the system is institutionally deficient. The absence of legislature with universal authority
and the consensual basis for juridical jurisdiction reinforce the voluntarist and co-operative character
of most international law most of the time.
TRAJECTORY OF INTL LAW

The power structures within the international system are such that sovereignty and statehood remain
the basic units of currency. Thus, states may use their power to modify the law to make rules about
statehood itself – and they had done, notably about colonial self-determination.

They may qualify aspects of their sovereignty on an institutional basis by becoming members of
international organizations or accepting the jurisdiction of international tribunals. And such
undertakings are no longer exceptional; there is no longer a presumption against commitment. These
developments have greatly expanded the content of intl law and in so doing have diminished the sphere
of domestic jurisdiction. The demands of international cooperation to give effect to the widening range
of international obligations has both enhanced the rights of states and given them more obligations to
fulfill. But they have not altered the character of the state nor the basis for the obligation to comply with
intl law.

Standard international legal relation remains bilateral rights and duties between two states. It
corresponds to a simple civil obligation in domestic legal systems, however, the simplified version of intl
law is beginning to change. It is in part of the commitment of states to international orgs, in part to the
use of intl law to create obligations in the general interest [at least of those states which accept the
obligations], such as for the protection of human rights or of the environment.

There is no international criminal law which applies to states as accused, but there is an increasing body
of rules, administered in part by international tribunals, which subjects the conduct of individuals to
international criminal law.

These developments, particularly to human rights, have added another category of personality to those
within the international legal system, namely individuals and sometimes corporations created by
national law. It is no longer possible to deny that individuals may have rights and duties in international
law; but what rights and duties they do have depends upon the operation of particular rules of
international law and not on any notion of natural personality operating with the legal system.

Thus it is maintained that egregious violations of fundamental rules of human rights have constitutional
consequences for an errant state, beyond those prescribed by the standard law of state responsibility.

The possibility has encouraged speculation about the ‘constitutionalization’ of international law, a
concept which would appear to imply that statehood is something which is conferred by the
international system [which could also be taken away], rather than predominantly the consequence of
material facts of which the law takes account.

SCEPTICISM AND IDEALISM

The gap between the rich and the poor is growing and the absence of anything approaching an
international constitution based on democratic principles allows tyrants to safely graze.

To show that international law exists, with some degree of reality, the modern lawyer needs to show
that the law is simultaneously normative and concrete – that it binds a state regardless of that state’s
behavior, will or interest but that its content can nevertheless be verified by reference to actual state
behavior will or interest.
It is easy to be skeptical of the claims of international law given the discrepancies between the power of
states, the complexity of modern military systems and, more generally, the scope of the enterprise of
international relations. It is also facile. No doubt we should be critical – and even skeptical – in our
approach to particular questions and proposals. The fact remains however that there are things which
manifestly need to be done which can be done only be collective action.

In sum, international law provides a set of techniques for addressing the huge collective action problems
presented by the co-existence of nearly 200 sovereign states. Despite its critics, it provides a normative
structure for a rules-based system of international society.

Jurists and legal commentators questioned the existence of any set of rules governing inter-state
relations, its entitlement to be called ‘law’, and its effectiveness in controlling states and other
international actors in ‘real life’ situations.

It is said that international law is failing in one of its primary purposes – the maintenance of an ordered
community where the weak are protected from arbitrary action by the strong. 21 st century should
accept a new reality where intl law is accepted as a political and moral force, but not a legal discipline.

International law is not a perfect legal system, but neither is the national legal system of any state.

Whether international law exists as a system of law.

International law is compared to national legal systems. National law and its institutions – courts,
legislative assemblies and enforcement agencies – are held up as the definitive model of what ‘the law’
and ‘a legal system’ should be like. Then because intl law sometimes fails short of theses ‘standards’, it is
argued that it cannot be regarded as ‘true’ law. Yet, it is not at all clear why any form of national law
should be regarded as the appropriate standard for judging international law, especially since the
rationale of the former is fundamentally different from that of the latter.

National law is concerned primarily with the legal rights and duties of legal persons [individuals and
companies] within a body politic – the state or similar territorial entity. This law is derived from a legal
superior, recognized as legally competent by the society to whom the law is addressed, and in situations
where the governing power has both the authority and practical competence to make and enforce that
law.

International law, at least as originally conceived, is different. It is concerned with the rights and duties
of the states themselves. In their relation with each other, it is neither likely not desirable that a
relationship of legal superiority exists. States are legal equals and the legal system which regulates their
actions between themselves must reflect this. Such a legal system must facilitates the interaction of
these legal equals rather than control or compel them in a poor limitation of the control and compulsion
that national law exerts over its subjects.
The recasting of international law as a system based less on state sovereignty and more on individual
liberty is an aim of many contemporary international lawyers and there is no doubt that very great
strides have been made in this direction in recent years. The establishment of the Intl Criminal Court is
the most powerful evidence of this development.

The very heart of the international law system is a set of rules deigned to regulate states’ conduct
with each other.

Rules of international law covers almost every facet of inter-state and international activity. It is a
primary tool for the conduct of international trade. It is concerned with nationality, extradition, the use
of armed force, human rights, protection of the environment, the dignity of the individual and the
security of nations.

International law is the vital mechanism without which an interdependent world could not function. In
this sense, international law facilitates the functioning of the international community, of which we are
all a part and on which we all depend.

Modern international law seeks to control states by inhibiting or directing their conduct both in their
relations with other states and in relation to individuals, both individuals of other states and its own
nationals. It is the evolution of international law from a system that was concerned primarily with
facilitating international cooperation among its subjects, to a system that is now much more engaged in
the control of its subjects that is the preeminent feature of the history of international law in the last 75
years.

THE EXISTENCE OF INTL RULES AS A SYSTEM OF LAW

 That members of the international community recognize that there exists a body of rules
binding upon them as law. States believe international law exists.

Many states condemned invasions and use of force, with the UN imposing sanctions on delinquent
states. Those arguing in support of the use of force justify the invasion as lawful under legal rules
concerning collective security and self-defense.

Even the international actors who engage in potentially unlawful activity do not deny the relevance of
international law or its prescriptive quality. This is powerful evidence that states follow rules of
international law as a matter of obligation, not simply as a matter of choice or morality. If this were not
so, there would be no need for states to justify their action in legal terms when they departed from a
legal norm.

International law is practiced on a daily basis in foreign officers, national courts and other governmental
organs of states, as well as in international organizations.

Another convincing evidence of the existence of international law is that the overwhelming majority of
international legal rules are consistently obeyed.

Although international law has tried and failed to solve disputed questions of fact and law, it is no
reason to doubt its validity as a system of law. Rather, it suggests that if international law is to be on par
with national law, it needs to develop better institutions responsible for law creation and enforcement.
In comparison to national law, international law may be regarded as weak, not because of a problem
with its binding quality, but because of its less organized approach to the problems of adjudication and
enforcement.

The potential for widespread harm beyond those engaging in the unlawful activity is something which
national law does not have to deal with. It may be that the best way to regulate state conduct is to
proceed on the basis of a system of law that is voluntarily accepted and voluntarily enforced. In areas
where intl law does function in a similar manner to national law – as where individuals are given
enforceable rights or are subject to personal obligations – international law has developed institutional
mechanisms similar to those existing in national legal systems.

ENFORCEMENT OF INTERNATIONAL LAW

When the UN has acted, it is more in the way of keeping or restoring the peace than of enforcing the
law.

National law -> generally accepted as such by the community to whom it is addressed: the local
population.

The validity of law may depend on the way it is created, that being the method regarded as authoritative
by the legal subjects to whom it is addressed.

In international law, the fact that rules come into being in the manner accepted and recognized by
states as authoritative is enough to ensure that ‘law’ exists.

States who flout the law – more about that state’s motive for compliance with law, NOT THE QUALITY
AS LAW.

ENFORCRMENT PROCEDURES

Under the UN Charter – the Security Council may take action against a state when it poses a threat to
the peace or has committed an act of aggression or breach of the peace. As well as non-state entities,
imposing financial and economic sanctions against Al-Qaeda and the Taliban.

Their power is designed primarily to preserve the peace rather than enforce the law, although it can
sometimes coincide.

Another METHOD is to ensure that any violation of law results in the loss of corresponding legal rights
and privileges. In a bilateral level, there may be termination of diplomatic relations, restriction of
economic aid or cancellation of supply agreements.

JUDICIAL ENFORCEMENT

International Court of Justice and the International Criminal Court deals with serious violations of
international law by individuals. While a state cannot be compelled to use the ICJ for the resolution of a
legal dispute, if a matter is referred to it, its award is binding on the parties and must be carried out.

The ICJ is primarily concerned with the enforcement of international rights and duties, even though the
procedure by which states can be compelled to carry out awards of the Court is limited.

Matters of legal obligation can become entwined with political necessity in the system of international
law.
EFFECTIVENESS OF INTERNATIONAL LAW

1) Based on common self-interest and necessity. International law is needed in order to ensure a
stable and orderly international society. It is in every state’s interest to abide by the rules of
international law for they lay down orderly and predictable principles of the conduct of
international relations and international commerce. It provides a stable and authoritative
regime for the conduct of international relations and the regulation of global issues in an
increasingly interdependent world.
2) The psychological force of international rules as a system of law is a reason in itself why
international law is obeyed.
3) Practitioners of international law may have a ‘habit of obedience’ derived from their own
training as national lawyers which serves to encourage respect for international law.
4) In international law, the flexible or open-ended nature of the rules means that disputes are less
likely to be seen as right versus wrong. The absence of rigid and precise obligations leads to
modest claims and, because there may be no objectively right answer, there is a premium on
compromise. The flexible nature means that a state may be able to choose from a range of
policies, all of which will be legal. The fact that international law rarely leaves the state with only
one course of action is a great advantage for a system so bound up with politics and diplomacy.
5) REPERCUSSIONS. The loss of influence and the loss of trust consequent upon a breach of the
law may mean a reduction in overseas trade, loss of foreign aid or a refusal to enter into
negotiations over some other matter.
6) Sanctions play some part in ensuring that the law is obeyed. They represent one more motive
for compliance.

WEAKNESS OF INTERNATIONAL LAW

1) Lack of institutions. The absence of a central organization responsible for law creation may be a
disadvantage when there is a need to develop a comprehensive and general body of rules.
Absence of a compulsory court structure means that some disputes may persist for decades to
the detriment of all concerned.
2) Lack of certainty. The system of flexible and open-ended rules produce many disputes between
states precisely because the rule of international law governing conduct is not clear.
3) Vital interests. Since international law lacks formal enforcement machinery, the temptation and
opportunity to violate the law is greater than in other systems. When a state believes that its
vital interests are threated, it is not certain that international law will be able to prevent illegal
conduct. However, it may also soften the state’s reaction to a crisis. It may be said that the
purpose of international law is not to resolve major political and diplomatic problems at all or to
be inhibitive in the same way as national law, its first task is to ensure that the international
community runs on orderly and predictable lines.
4) Vital rules. International law is unable to prevent or control outbreaks of violence. However,
aggression between states is something different from acts of violence between individuals. The
violence used by an individual in a society can be overwhelmed easily by the forces at the
disposal of the central authority with very little chance of major disruption to the state itself. In
intl society, an act of aggression by one state against another state has far greater consequences
 and the costs of controlling it forcefully are exceptionally high. It is therefore a suggestion that
because of the field of operation of international law, rules of physical enforcement are not as
desirable or practical as they are in other legal systems.

JURIDICAL BASIS OF INTERNATIONAL LAW [THEORIES]

1) Command theory. John Austin views ‘law’ as a compilation of a series of commands or orders
issued by a sovereign and backed by the threat of sanctions if the commands were disobeyed.
Unless they were a collection of orders backed by threats from a sovereign, they were not
‘positive law’. For Austin, international law is NOT POSITIVE LAW because it does not result from
the commands of a sovereign. Customary law develops through state practice and treaty law
develops through consent. Therefore, international law is properly regarded as ‘positive
morality’.
2) Consensual theory. Existence of law flows from the consent of states. No international law can
be created without the consent of the state which is to be bound. International law is said to
flow from the will of the state. It is created by what actually goes on [consent] rather than
according to some higher moral principles.

Pacta sunt servanda – states are bound by their treaty obligations. It seems to be based on
consent because treaties are generally binding on a state only if it deliberately and positively
accepts the terms.

Similarly, customary law may be regarded as being consensual, for consistent state practice may
be tantamount to agreeing to be bound by the rule that then develops.

There are certain difficulties – one, it is not clear why states can be bound only be self-imposed
obligations; second, on a practical level, consent does not explain the existence of all legal
obligations.

3) Natural law. This presupposes the ideal system of law founded on the nature of man as a
reasonable being. The rules are derived from the dictates of nature as a matter of human
reason. [as differentiated from consensual [positive] law, it is based on the actual practice of
states while natural law is based on objectively correct moral principles.]

Concrete rules of intl law are derived from what states actually do. However, natural law may be
a good descriptive label for such concepts as equity, justice and reasonableness which have
been incorporated in substantive rules of law.

4)