Public International law Chapter one Lecture

The nature and development of international law International law is the body of rules that states and other subjects of international law consider to be binding in their mutual relation. This chapter start with an explanation of what international law is and strikes a comparison between international law and national legal system. It also deals with the question of whether international law is really law and the issue of enforcement

The nature of international law States, like individuals, cannot live I isolation . just as men cannot live together in a society without laws to regulate their actions, so also states cannot have mutual intercourse without international law to regulate their conduct. Therefore, international is a necessity. International law can also be called law of nations or inter-state law.

Definitions Traditionally, international law was defined as “ the law that governs states in their relation with other” however, this traditional definition does not reflect reality in modern times. International law is no longer the exclusive domain of states. New actors have emerged on the international plane. Such as Public international organization, non-governmental corporations (NGO).

Cont… According to Oppenheim, International law is the body of rules which are legally binding on states in the intercourse with each other. Von Glahn defines international law as “a body of principle, customs and rules recognized as effectively binding obligation by sovereign state and such other entities as have been granted international personality.

Public and Private international Law International law is sometimes referred to as “ Public international law” to distinguish it from the so called “Private international law” the term Private international law was actually coined by some jurist to denote rules of ‘conflict of laws’. In modern times, Private internationals are not staying in one state only. Many people go overseas countries for a variety reasons . companies and corporations are doing business in foreign countries. Dispute may arise from these transactions with foreign elements

Distinction between International law and National legal system International law has characteristic making it completely different from highly developed national law. In national laws there is government that exercise authority (sovereignty) over all person and thing within the territory of the state. Government has courts, prison. International law on the other hand, is primarily concerned with the legal regulation of the international intercourse of state which consider themselves as sovereign equal(No central authority). Therefore international law is a horizontal legal system lacking a supreme authority, and the UN is most certainly not a world police nor the security council a world legislature.

The juridical basis of international law If international law is law then what is the juridical basis, why is it law,the following are some of the theories developed to explain. Consensual theory: this theory also called Positive theory regards actual practice of state as the foundation of international law. The basic issue is the binding character of international law flows from ‘consent’ “Jus cogens” meaning agreed norms. Natural law theory: the theory stipulates that rules of law are derived from the application of the law of nature as a matter of human reasoning. Ubi societtas,ibi jus. Meaing “ law can only exist in a society, and there can be no society without a system of law to regulate their relation

The weakness of international law A serious weakness of international law is its lack of effective enforcement system The other weakness is also the reluctant of states to obey and comply with international law when their vital interest is at stake. This is especially true of violation of the rule prohibiting the use of force by some powerful states. International law seems powerless to prevent major incidents involving these states. What makes the matter worse is the veto power of the Big five by virtue of this veto power, no enforcement can be taken against any of the big five or any state, which is close ally to them.

Why do states observe international law States observe international law for the following reasons Sense of obligation, states feel obligated to honor rules of international because this rules have come into existence on the basis of their consent. Common self-interest, the international community is more independent today than ever before. It needs international law to be stable and maintain law and order. Political and economical cost. A state can lose much through a violation of international la, beside the legal sanction that might be imposed, there are political and economical cost to paid.

Enforcement of international law Despite the fact that there is lack of effective enforcement machinery, international law can never the less be enforced. Peaceful means of enforcement Article 2(3) of the charter of the united nation obliges member states to settle international dispute by peaceful means. The peaceful means of dispute resolution are enumerated in article 33 of the charter as negotiations, enquiry, mediations, conciliations, arbitrations, judicial settlement..so on As far as the judicial enforcement is concerned states can have recourse to the international court of justice ( ICJ)

Cont.. Coercive means of enforcement ( sanctions) Failure to achieve compliance with international law through the normal method for peaceful settlement of dispute can lead the use of coercive means of enforcement or imposition of sanctions. There are two means of coercive enforcement: Non-military means Self-help Counter measures disruption of diplomatic ties Reprisal consificating sate A citizen’s property Military means Article 2(4) of the charter of the UN prohibits the use of force. There are two exceptions to this articles Right of self-defence under article 51 of the unilateral use of force Enforcement measures by the security council under chapter V11 ( Articles 39 to 50) of the charter ( collective use of force)  

End chapter one

Chapter Two THE SOURCES OF INTERNATIONAL LAW

2.1 ARTICLE 38 OF THE STATUTE OF THE ICJ The starting point for any study of the sources of international law is Article 38 of the Statute of the International Court of justice, which provides: The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: International conventions, whether general or particular, establishing rules recognized by the contesting States;

Cont… International custom, as evidence of a general practice accepted as law; The general principles of law recognized by civilized nations; Subject to the provisions of article 59, judicial decision and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of the rule of law.

Summary The Sources of Public International Law are as explained in article 38 of ICJ 1. Treaties 2.International customs 3. General principle of law 4. JUDICIAL DECISIONS AND WRITINGS OF JURISTS 5.Other sources.. a) General Assembly Resolutions (UN) B) Equity C) Soft Law