Video Lecture 1:

What is International Law?

What are the objective (public) international law?

What is IL?
-Regulation is a general characteristic of Law.
-Law is prescriptive which means that how we ought to act in our relations with others.
-International law has both a regulative and prescriptive character.
-States are the primary subjects of international law but they are no longer its only subjects.

*Contemporary IL compromises those rules and norms that regulate the conduct of states and
other entities that have international personality.

The Roots of International Law

-The roots of law lies in the ancient times.
-With the advent of great universal religions, broadly-based systems of world order became
possible.
-Main distinction that lawyers make is between jus naturale(natural law) and jus gentium(law
of people).
Jus Naturale is more broad and applicable to all including the animal kingdom, is universal
and eternal, its basis is reason and humans did not make this law but they can apply their gift
of rationality to realise its content.
Jus Gentium is the human component, is seen as universal in the human world, is a purely
human creation, a product of human will and initiative, is subject to alteration from time to
time and can vary from place to place, is created by and applicable to states, constitutes
international law in the modern sense of the term.

Evolution of IL
-During the Middle Ages state practice was built on traditions inherited from Ancient times.
The idea of diplomatic immunity is started to be practiced and European States began to
conclude bilateral treaties of guaranteeing fair treatment to each other.
-In the meanwhile the law of war began to developed. During the classical age which refers to
1600 and 1850 philosophers of law such as Francisco Suarez, Emmerich de Vattel and Hugo
Grotius contributed to the development of laws.
-In general terms in terms of the historical revolution of IL we see that war and peace
settlement led to further development of IL and with the establishment of LoN right after the
WWI and its legal institution the Permanent Court of International Justice and 1929 Geneva
Conventions we see further development of IL and we see a move from custom international
law into written international law. With the establishment of the UN and its legal organ the
International Court of Justice we see contemporary IL at its peek in terms of the development.

What is IL for?
There are different views. Cynics do not considered it as law to begin with to a certain extent
or some others exceed a way to impose control over weaker states. Others plays a lot of
importance on it. For instance realists argue that IL is made by powerful states to assert their
influence and to serve their interests. But for liberal institutionalism and English School, IL is
a standard of criticism and it means of controlling those in powerful positions so it is a means
of maintaining and preserving international peace and security.
Basic assumption: IL operates in an anarchic international system.
From the view point of mainstream IR theories we live an anarchic world. States conduct their
own relations and there is no higher authority to control their behaviour in that specific
regard. But in contemporary IR we do have IOs and mainly intergovernmental organisations
and they can exerts some influence over states. Also states do exerts some influence over each
other. So it is not necessarily possible for us to say that there is no law. Because in they
contemporary area States are willingly entering into international relations and they are
entering into treaty obligations and they conduct treaties.
International Conventions are the basic source of IL and international conventions give us the
written parts of the IL.
Nullum crimen sine lege: no crime without law: If we have define laws then we can define the
crimes. In that regard when a state commits an act of aggression which is considered to be a
crime against peace for instance then there are consequences because IL prohibited
aggression. So there is law, there is crime and then there is also sanctions. These sanctions can
be applied by states individually, collectively or by IOs. Despite the fact that we are living in
an anarchic world this does not mean there is no law, no crime, no punishments. So
considering the fact that law by itself cannot course state or for states issues which are
primarily political then maybe those cynics who consider IL not to be a law they simply have
over expectations about the IL. On the other hand we also cannot expect IL to determine the
specific policies of states on it own. We cannot see law as a remedy or a solution in itself. But
it tells us how to behave, how we ought to act in out ir.

Objectives of IL
-By setting the rules of the relationship IL aims to promote international cooperation and
create an environment of peace and security and justice. Yet the problem with public IL is that
it is still dependent on the will of the state.
The Relationship between IR and IL
They are separate disciplines but they do overlap with the each other. IL and IR have
common concerns as well as key differences. But basically at the core of both at the beginning
of the IR discipline and the very aim of IL is the wars, how can we stop war. So well IR to
begin with has studied how to prevent war, IL gives us the tool to do so and to achieve peace.
In that regard both IR and IL study behaviour of states. One tries to understand the behaviour
well the other tries to exert some limitations over the behaviour of the states in order to create
an environment of coexistence and peace and justice.

?????
What is the main purpose of IL and can we say that IL achieve these objectives? Can we say
that IL is being effectively applied? ?Can we say that IL functions affectively?

Video Lecture 2:
Sources of International Law
2 classification: Formal and Material Sources
-Formal Sources of IL: refer to legal procedures and methods for the creation of rules of
general application which are legally binding. They are law-creating.
-Material Sources of IL: are not concern the formal act of law creation. They provide
evidence of the existence of rules which when proved how the status of legally binding rules
of general application. They are law-identifying.

Charter of the United Nations and Statue of International Court of Justice. Article 38(1)- The
Court, whose function is to decide in accordance with IL such disputes as are submitted to it,
shall apply:
-International conventions, whether general or particular, establishing rules expressly
recognized by the contesting states,
-International custom, as evidence of a general practice accepted as law,
-The general principles of law recognized by civilized nations
-subjects to the provisions od Article 59, Judicial decisions and the teachings of the most
highly qualified publicists of the various nations as subsidiary means for the determination of
rules of law.
Article 38(2)
If the parties agree to do so, the Court has the power to decide a case ex aequo et bono.
Case ex aequo et bono which means on the basis of what is considered as fair and equitable.
Fair and equitable treatment standard.

Nevertheless, Article 38 neither gives us the complete list of sources nor indicate a certain
hierarchy among them. In fact while drafting a statute such prioritization was purposefully
avoided. As it was argued that the code could considered each source simultaneously.
Only differentiation that is made as with reference to the subsidiary sources to which we can
add resolutions and decisions of IOs and Soft Law.
The only clear cut of prioritization is that Jus cogens norms come first. Jus cogen norms:
peremptory rules of IL from which no derogation is possible.

International Conventions/Treaties
-are the only way states can create IL consciously.
-A treaty is in essence a bargain between legal equals and it may cover any aspect of
international relations.
-Treaties are the means by which states can create certain and specific obligations.
We can simply classify treaties into 2 groups:
1) According to number of its parties as Bilateral(has two parties) and Multilateral(has
more than two parties)
2) Contract-making and Law-making treaties
In this point our focus will be multilateral treaties which are of law-making character.
-Treaties are voluntary, and thus, no state can be forced into being bound by a treaty without
its consent. (!)exception: treaty codifying existing customary law.
-Once a state consents to be bound by a treaty, it is bound by the terms of the treaty towards
all other parties to the treaty. (!) Pacta sund servanda: treaties shall be complied with.
Furthermore many multilateral treaties are a mixture of codification of current customary law
and progressive development of law. So they can create new law to regulate the future
conduct of states if it is the intention of the state parties. Some treaties codify customary law
making it part of regulatory law, some can resulting creating new rules of customary law. If
this happens non-state parties to the treaty will be bound by the new customary law.
International Custom
Custom refers to the rules of acceptable behaviour in a society that has developed that an
early stage. This applies to IL as well.
Customary IL has evolved from state practice or customs of states.
In general terms, customary IL is a practice followed by those concerned because they legally
filled obliged to do so. In these regard we can talk about 2 elements of Customary Law:
-Material Element which refers to the state practice
-Pyschological Element which refers to as Opinio juris sive necessitatis.

Material Element- State Practice

We can speak of 4 main components
-Evidence of practice
-Consistency of practice
-Generality/extent of practice
-Duration of practice

Evidence of Practice
State practice is includes but it is not limited to act and omissions which means that is what
states do or choose not to do. It also includes statements made concerning specific situations
of disputes, statements of legal principles. Practically documentary records of practice give us
the evidence to prove the existence of state practice.

Consistency of Practice
Which refers to the existence of a constant and uniform usage/practice. The consistency of a
practice can tells us of the states engaging in the practice in question in a like manner and
those demonstrate it conformity. If there are differing practices we cannot talk about
uniformity. As for changing in existing customary law state practice needs to be developed.
Unlawful practice cannot excused by arguing that it was intended merely to change or clarify
existing customary law.

Generality/extent of practice
Different than a local or regional custom which is binding only for a number of states for a
universal rule of customary law to develop practice must be fairly general. Thus the question
is how many state must involved in a practice in a particular practice before it can be accepted
as custom. The answer is not a universal practice. Rather than the exact number of states what
is more determining is the behaviour/attitude of those states whose interests are actually
affected. *Those states whose interest are directly affected would contributed to development
of customary law.
*Important exception is the existence of a persistent objector. This refers to the case of the
state which objects to in other words opposes a rule of customary IL and expresses opposition
to that rule from time of the rules inception which means the coming into existence of the
rule. Therefore if a state without an exception persistently objects to the rule from the very
beginning even though this rule becomes a rule of customary international law the state will
not be bound by the rule. However dissent which is expressed only after the rule has become
established does not grant such exemption to the dissenting state. So the state will be bound
by the set rule but still dissent is important because it is shows that in reality attaining states
consent is not practical.

Duration of Practice
The ICJ itself does not provide clear guidelines for the time require for a practice that is
consistent and general to evolve or maturity of customary law. So there is no golden rule of
the duration and there is no specific requirement that practice should be engaged since time
immemorial(time out of mind). Time is the least important component in determining state
practice, and is dependent on the factors of the activity concerned. Instant custom is a
possibility.

Psychological Element-Opinio juris sive necessitatis

On a daily basis states engaging activities which are not required of them legally. Therefore
speaking of customary law we need to distinguish the rules which are regarded by states as
legally binding upon them. This is why opinio juris was introduce as a legal formula in an
attempt to distinguish legal rules from mere usage or habit.
State practice must be accompanied by a belief that the practice is obligatory, rather than
merely convenient or habitual. This belief in the obligatory nature of the practice is called
opinion juris. Nevertheless, a fundamental problem with opinio juris is how can we establish
a states conviction. Answer of this question lies in the fact that establishing the state
acceptance recognition as to the binding character of the rule in question.
Opinio juris and state practice are complementary in terms of the formation of International
Custom.
Having set this an important question to as is it possible to change international customary
law and the answer is yes. Then how does customary law change?
* In order for a new customary law to replace an existing one first of all there must be
sufficient state practice contrary to the existing rule and this practice must be supported by
opinio juris.
If there is continued and sustained criticism of the contrary state practice, this constitutes clear
evidence that the existing rule will not be modified or abandoned.

Video Lecture 3
The Sources of IL Part 2

General Principles of Law

According to paragraph 1 of Article 38 The Court may considered to general principles of law
recognized by civilized nations.
-In general terms general principles of law serve to ‘plug the gaps’ and to avoid an
undermining of international law in non-liquet(refers to a situation where there is no
applicable law) situations. There is also ambiguity as to whether general principles refers to
those are international or domestic systems. But such ambiguity gives us room for
maneuverer.
-General principles are those which are common to the major legal systems of the world,
mainly the civilian legal system and the common law system.
Examples of principles applied by international tribunals, the ICJ and the PCIJ;
-estoppel: personal bar
-Nemo judex im sua causa: no one can be his own judge in his own case.
-The principle of reparation
Principles of Equity:
-Principles of equity in the sense of fairness, justice and reasonableness are akin to general
principles.
-Equity plays a subsidiary role in supplementing existing rules, and is different from the
power of the ICJ to decide a case ex aequo et bono. Where the court may apply equity in
precedence over all over the rules and for this court needs the consent of the parties.

Judicial Decisions
-Judicial decisions are one of the subsidiary means for determination of law. They do not
make law but are declaratory of pre-existing law.
-Art 59 of the Statute of the ICJ establishes that ‘the decision of the Court has no binding
force except between parties and in respect of that particular case.’ (!)Stare decisis: to stand
by things decided, i.e. binding precedent.
Writings of Publicists
-They serve as subsidiary sources
-They are material or evidentiary sources only.
-Philosophers of law such as Vattel, Grotious, they were figures who were instrumental in
establish in the very idea that there was a set of binding rules that could govern the relations
of sovereign and independent states. During the formative period of IL because of insufficient
state practice writers were able to help determine, shape and articulate the scope of content
and the basic principles of IL. In time the role of writers decrease substantially. But still
writers may contribute to assessment of the aims and values of IL as well as affect state
practice with the adversary roles that the assume.

Resolutions and Decisions of IOs

-Resolutions of IOs, by themselves, do not create binding law.
-They are material or evidential sources.
- They may accelerate the formation of customary law as well as provide evidence of opinio
juris.
Example of the UN, specifically General Assembly (GA): In essence resolutions of the
Assembly are not binding, in other words they are recommendary. But such generalization
councils the great practical importance of GA resolutions as well as their moral force. First
GA resolutions can be declaratory of existence of customary law. So although the resolution
itself is not what creates legal obligation this is where we can find the principle. Second GA
resolutions may crystalized state practice leading to a new rule of international custom. In a
similar manner GA resolutions may lead to abandoning or modifying an existing rule of
customary law. So in that regard they can play a crucial role.

Soft Law
Soft law is the generic term used to describe non-legally binding international instruments but
which contains norms, principles, commitments or standards expected to be comply with by
states as well as non-state actors.
Soft law describes two different but related phenomena.
1) Normative rules of IL that do not stipulate concrete rights or obligations for the legal
persons to whom they are addressed.
2) Those values, guidelines, ideas and proposals that may develop into rules of IL but
have not yet done so, i.e. de lege ferenda(future law)
**International Law Commission(ILC)
Established in 1946.
-Its task is furthering the progressive development and codification of IL
-As the Statue of the ILC states ‘codification is the more presice formulation and
systematisation of rules of IL in fields where there already has been extensive state practice,
precedent and doctrine. ‘ In that regard ILC plays an important role formally which was
heavily relying on the codification of existing law and now more in terms of progressive
development of IL.

*Conclusion*
Formal sources along with material sources gives us the basis of contemporary IL. So when
we are dealing with matter of IL these are the sources that we need to or can look at.

Video Lecture 4
Subjects of International Law ( International Personality)
-States
-International Organizations
-Individuals
-Other non-state actors

Despite the fact that states are traditionally primary subjects of IL and accepted as the only
subjects of IL. This is no longer the case.
Who are the Subjects of IL?
International personality which means that an entity is a subject of IL ‘capable of possessing
international rights and duties, and has the capacity to maintain its rights by bringing
international claims.’
In this regard a subject of IL on the one hand has responsibilities/duties to the international
community and on the other hand it enjoys rights and the has the capacity to maintain its
rights by bringing international claims.
States as Subject of IL
-States contributed to the formation of customary IL
-States are generally accepted to be sovereign that is they do not need any other authority
from above or from anyone else unless they choose to do so.
With respect to states in order to be able to consider an entity as a state we have to look at the
4 components of statehood.
(!) 1933 Montevideo Convention on Rights and Duties of States enlists the requirement of
statehood as:
-Permanent Population
-Defined territory
-Functioning government
-Capacity to enter into ir
*Permanent Population: States are a totality of individuals. In order for an entity to be
considered as a state it needs to have a population which is permanent and which multiplies
itself. The size of the population is not important and there is no defined minimum population.
*Defined Territory: States are territorial units and territorial sovereignty involves the
exclusive right to display activities of a state. As well as an obligation to protect within
territory to rights of other state. On their defined territory, states exercise jurisdiction over all
the inhabitants. There is no minimum requirement for geographical size. Disputable borders
do not negate statehood, what is important is the existence of a core territory.
*Effective Government: An effective government, that is independent of any other authority,
which enjoys legislative and administrative competence is a requirement for statehood. So this
component mainly comes as a result of the colonial times and the independence of state and
the government being able to conduct its internal and external relations is an important
component in that regard. So the main idea is that a state can be accepted as such only when it
is in a position to guarantee that law and order will be upheld regardless of the type of the
regime. The type of regime is not important, effective government refers to a control over the
territory being able to have a position to guarantee law and order for its population.
*Capacity to Enter Into International Relations(ir) with other states: This component was
highly important during the period of colonialism as colonised states were not independent in
their external affairs. Colonised territories enjoys considerable autonomy in their internal
affairs, they were typically not considered capable of entering into international relation with
other states without consent from the metropolitan states. An entity needs to have full
autonomy in its internal and external affairs in order to have a capacity to enter into
international relations without getting the consent of another state. Another important point is
the distinguish capacity enter into ir from recognition of a states and governments. A legal
affects of recognition of a state and government are different.
-Recognition is a essentially political act that is guided by political motivations. The value of
recognition is symbolic; one state accepts the other entity as one of its equals. Nevertheless,
many states have relations with entities they are reluctant to recognize. Entering into treaty
relations does not constitute implied recognition. Recognition is a unilateral act but it effect
on bilateral relations.
The recognition of a state means the formal acknowledgment by another state that the entity
has the attributes of statehood. State recognition is a one-off act, and cannot be withdrawn
unless the state in question loses its attributes of statehood.
The recognition of a government means that the regime in question is considered to be the
effective government. Recognition of government can be dethrone and it can happening with
different ways. Recognition of government can take place in two ways: de jure and de facto.
De jure means in/concerning law and it refers to a legal recognition of the government in
question and signifies that this government has reason to power in a legitimate way. So there
is a full recognition in terms of the legitimacy of the existent government. On the other hand
de facto means concerning fact/in practice. It refers to a provisional or in other words a
temporary recognition extended to the government.

Recognition and non-recognition firs and foremost affects on individuals. *passports,

administrative acts.
Recognition is a political act, therefore for an entity to have all the components of statehood
does not warrant that it will be recognised by other states.

Video Lecture 5
Subjects of International Law Part 2

International personality, IOs, Individuals, other non-state actors.

Statehood: Continuity and Change
Reduce effectiveness of a government does not effect the entity statehood even though from a
political view it may be considered as a failed state. Statehood may change in cases of
secession, decolonisation, merger/unification, dissolution
-Secession: In the case of secession, the old parent state continues to exist, and continues to
do so under the same name and with the same legal identity but with a reduced territory and
possibly with reduced population.
-In the case of decolonisation, the defining distinction from secession is that the former
colonies are based elsewhere in the world and not contiguous with the metropolitan area.
-Merger/unification: In the case of merger, entities which already formed a unity at some
point in history are reunited.
-Dissolution: In the case of dissolution, the expected status is the total break-up of the
previous state, with none of the new states continuing the identity of the old state.
(!) Newly independent states may start with a tabula rasa(clean slate).
In cases of merger or unification the presumption is that the existing treaties continue to
remaining force unless the parties agreed for another solution. And as much the same applies
to cases of separation.
(!) States successions do not affect boundary treaties or other territorial regimes.
(!) In general terms a succession of states not only affects treaty relations but it also affects
such matters as a state’s property, debts, archives.
(!) Once a state ceases to exist, so does its nationality. Individuals will have the nationality of
the state on whose territory they habitually reside in.
(!) Once a state ceases to exist, so does it membership of international organisations(except
for financial institutions)

International Organisations
-Among non-state actors IOs, transnational cooperation and individuals are efforted a decree
of international personality.
-An IOs specifically of the intergovernmental type for the purposes of IL, is an entity
established by agreement and which has states as its principal members. There are global or
open organisations such as UN enjoying almost universal membership whereas there are also
regional or closed organisations.
-Depending on the type and membership of the organisation the decree of International
personality enjoy by the IOs.
-IOs are governed by the principle of speciality. There are invested by state which create them
powers the limits of which are function of the common interests whose promotion those states
entrust to them. So in fact these organisations are created by states and empowered by states
to the limit that they allow them to function.
-IOs may have the capacity to own acquire and transfer property and to enter into contractual
agreements and international agreements with states and other IOs. They may pursue legal
remedies and may enjoy rights and duties under IL which are basically definition of
international personality.
-Every IOs is limited by its constitute Charter. They are restricted by their constituent charter,
that is, the agreement establishing the organisations.
-Personality may only be implied from the constitution document and also consolidated
through the practice of the organisation.
*UN was established aim of maintaining and preserving international peace and security
193 Member States- currently : for these states UN Charter functions as the constitution of the
Community of States and within its structure UN has 6 principle organs are which the GA,
SC( as the executive organ, 5 permanent member states and 10 non-permanent member states
which are elected for a period of 2 years representing the worlds geographical regions.)

Individuals
-Individuals have limited legal personality, though they may possess both international rights
and duties.
-Individuals can initiate claims alleging breaches of the Convention by their national state. So,
in this regard individuals are given the right to bring cases against states before the European
Court of HR. But in the case of the ICJ individuals do not have local standi(the right to bring
an action) before the ICJ.
-While on the one hand individuals can enjoy certain rights, on the other hand individuals can
also had responsible for certain acts or certain conducts as well as the development of
individual criminal responsibility.
-International responsibility derives from international law, and is independent of the law of
any state.

Other Non-state Actors

-Non-state actors do not possess international legal personality as a right but they may enjoys
certain rights, define capacities as well as locus standi.
-Some of these non-state actors participate in international life actively and influence the
creation and development of IL.
-Insurgent and rebel groups(not have locus standi) , national liberation movements, the Holy
See, NGOs(non-lucrative, non-profit) , Transnational Corporations.