What is International

Law?
Foundations of International Law 2021-22
© Dr Kieren McGuffin
Running Order
• Definitions
• Domestic and International Law Contrasted
• Is International Law, Law?
• Is International Law Necessary?
• A (Very) Brief History of International Law Part 1
Well… What is it?
Public International Law (PIL)
• International law may be defined as that body of law which is
composed for its greater part of the principles and rules of
conduct which states feel themselves bound to observe, and
therefore, do commonly observe in their relations with each other,
and which includes also…
Continued…
• 1. the rules of law relating to the functioning of international
institutions or organisations, their relations with each other, and
their relations with states and individuals; and
• 2. certain rules of law relating to individuals and non-states so far
as the rights or duties of such individuals and non-state entities
are the concern of the international community
• (Ivan Shearer in JG Starke and Ivan Shearer (eds), Starkes’s
International Law (Butterworths, 1994)
Private international law?
• Private International Law - a body of legal rules used to resolve
disputes between private individuals that cross international
boundaries
• Not studied on this module
• You will take a dedicated module on Private International Law in
the third year
Domestic and International Law
• Domestic (municipal) legal system is vertical
 Top-down
 Single Sovereign Power
 Court system with compulsory jurisdiction
 State powers of enforcement

• International legal system is horizontal

 Law created (primarily) by ‘equal’ states (consent)
 Multiple sovereigns
 No ‘world court’ with compulsory jurisdiction
 Enforcement?
Is International Law, Law?
• Sceptics
• John Austin The Province of Jurisprudence Determined (1832)
• Law = orders backed by threats
• International Law = positive morality
• International law may be ‘binding’ on states but only as a matter
of morality or politics, not truly as a matter of law.
• Decentralised/no single sovereign, inadequate enforcement
mechanisms
A Response…
• “[That] the law is normally observed … receives little notice because the
interest of most people in international law is not in the ordinary routine of
international legal business, but in the occasions, rare but generally sensational,
on which it is flagrantly broken.” (H. Waldock, J. Brierley’s The Law of
Nations, 6th Ed.) 72-73.
• “The reality of international law, that is to say, the actual use of rules described
as rules of international law by governments, is not to be questioned. All
normal governments employ experts to provide routine and other advice on
matters of international law and constantly define their relations with other
States in terms of international law.” (I. Brownlie ‘The Reality and Efficacy of
International Law’, 52British Yearbook on International Law (1981) 1-8, 1)
Why Do We Have/Need International
Law?
“Ubi homo, ibi societas.
Ubi societas, ibi ius.
Ergo: ubi homo, ibi ius”
(Cicero, drawing on Aristotle, Nichomachean Ethics)

‘The existence of international relations of whatever kind, entails

the existence of international law’
(Jan Klabbers, International Law)
INTERNATIONAL
LAW: A (VERY)
BRIEF HISTORY
Foundations of International Law 2021-2022
© Dr Kieren McGuffin
PART 1: 17 TH

CENTURY
Politics - The Peace of Westphalia
Intellectual developments – On the Law of War and
Peace
Click icon to add picture

THE PEACE OF
WESTPHALIA
1648
From Empire
to State
Sovereignty?
POLITICS: THE PEACE OF
WESTPHALIA
 Marked the end of the 30 yrs war
 In 17th Century Papacy & Emperor claim authority of internal & external affairs of
communities in Europe – including over religion
 By 17th Century ‘proto-states’ emerging to challenge Papacy & Holy Roman Empire
 Peace of Westphalia signed in 1648 marking end of 30yr War
 Creation of new political order of formally equal sovereign States?
 States determine own religion, negotiate and sign treaties etc…
INTELLECTUAL
DEVELOPMENTS: ON THE LAW
OF

WAR AND PEACE
Hugo Grotius (1583-1645) – On the Law of War and Peace (1625)
 A bridge between classical (natural law) conceptions of the law of nations, and
modern (positivist) system
 Built on work of Theologian predecessors:
 Francisco de Vitoria (1483-1546)
 Francisco Suárez (1548-1615)
 https://
www.oxfordhandbooks.com/view/10.1093/law/9780199599752.001.0001/la
w-9780199599752-e-47
NATURAL LAW
 Origins in Classical Greece (Aristotle)
 Medieval Europe – Catholic Natural Law Tradition (Aquinas)
 …natural law searches for principles of law and justice deducible from natural reason, ethics,
morality or religion, and can rationalise rules and principles that could be relevant on the
international plane aw well as in international relations. On the whole, natural law reasoning
queries whether a rule or outcome it envisages is good, useful, necessary or desirable.
(Alexander Orakhelashvili, Akehurst’s Modern Introduction to International Law)
 A teleological system – law as road-map to eternal salvation… Strong ‘moral’ character
ON THE LAW OF WAR AND
PEACE
 Grotius was ‘natural’ lawyer, but…
 On the Law of War and Peace distinguished Jus gentium (Law of Nations) from natural law
 Law of nations is derived from nations within international community of nations
 Law of nations is based on state consent
 Law of nations is secular
 ““But as the Laws of each State respect the Benefit of that State; so amongst all or most States
there might be, and in Fact there are, some Laws agreed on by common Consent, which
respect the Advantage not of one Body in particular, but of all in general. And this is what is
called the Law of Nations, when used in Distinction to the Law of Nature…”
SUMMARY – 17 TH
CENTURY
 Political – Movement away from ‘empire’ (hierarchical model)
towards community of states.
 Intellectual – First steps away from religious, natural law towards
secular, positive law
 These two developments are mutually supportive
 A note of caution…