Public International Law

Chapter One
Introduction

Adigrat University, 2016

School of Law
Mussie M. (LL.B, LL.M)
 Characteristics of International Law
• Whereas every day newspapers report crimes, it is
usually only when a flagrant breach of international law
occurs that the media take notice of international law.
• This can give a distorted impression of the nature of
international law.
• International law has no ready sanction for its breach.
• Because there is no international police force or army
that can immediately step in, international law is often
perceived as not really law.
• Yet the record of even the most developed domestic
legal systems in dealing with crime does not bear close
scrutiny.
 Characteristics…
• There are several ways to think about law.
• In the domestic legal system, we think of law as the
rules that the government issues to control the
lives of its citizens.
• Those rules are generally created by the legislature,
interpreted by the judiciary, and enforced by the
executive branch, using the police, if necessary, to
force citizens to obey.
• What is law for the international community if
there is no one legislature, judiciary, executive
branch, or police force?
 Characteristics…
• In short, a national legal system is a hierarchical
legal system.
• In sharp contrast, international law regulates
relations between States: it is a horizontal legal
system.
• It recognizes that all States are equal and
sovereign.
• The international legal system does not have a
central legislature nor a court endowed with
compulsory jurisdiction to resolve legal disputes.
 Characteristics…
• The fact that there is no overall authority to force
compliance with the rules does not necessarily
mean that there is no law.
• Law still exists in this setting, though it may be
practiced and enforced in different ways.
• Consequently, international law is a very different
kind of “law” from national law.
• It can therefore be called “real law,” but with
different characteristics from the law practiced in
domestic legal system settings, where there is a
legislature, judiciary, executive, and police force.
 Characteristics…
• Of course, when we look at the sources of
international law,
--Its binding force does not come from the existence of
police, courts and prisons;
--It is based on the consent (express or implied) of states,
and national self-interest:
 Characteristics…
Moreover, there are many motivating factors for
compliance, in particular:
• Desire for Order & Predictability
• Consent & Obedience
• Enlightened Self-Interest
• Credibility & Reputation
• Law Habit
• Reciprocity
• World Opinion
 Characteristics…
• In addition, a state which violates an
international obligation is responsible for the
wrongful act towards the injured state, or,
under certain circumstances, to the
international community as a whole.
• The available remedies include ADR, legal
proceeding, self-help, economic sanctions,
group sanction such as the UN
 International Law as “Law”
• There is an old dispute going back to the early
writings of Hobbes, reinforced in the 19th C. by
Austin’s influential legal theory, on the issue
whether international law may be properly called
‘law’.
• The controversy has focused on the relevance of
the lack of sanctions in cases of violation of
international norms as compared to municipal law
and it has often confused the question of whether
international law is ‘law’ with the problem of the
effectiveness and enforcement of international law.
 International Law…
• Defining law as the command of a sovereign creates a
problem for international law.
• Hobbes, for example, concludes that law is possibly
only within a state and that relations between states
are relations of force, not law.
• John Austin, international law is not a law, but ‘positive
morality’
• Certainly, the actual role and capability of international
law in governing the relations between states must not
be exaggerated, in view of the decisive significance of
military, economic, political and ideological factors of
power.
 International Law…
• Its function in structuring the international
system has been enhanced because of
increasing global interdependence and the self-
interest of states in regulating their intercourse
rationally on the basis of reciprocity.
• Therefore, disputes between states are usually
accompanied by—in a given case naturally often
conflicting— references to international law.
• There are also several evidences that qualify
international law as a law. These includes…
 International Law…
• Foreign ministries, national and international
courts and IO’s apply it on a daily basis
1. legal departments giving legal advice on the
application of international law
2. use of legal concepts and language
3. states consider to be bound to act on a certain
manner and from time to time consider some
other state not to act in conformity
4. International Court of Justice renders legal
judgments
 International Law…
INTL rules are followed systematically in state
practice
1. Violations tend to crowd the international
publicity rather than the routine everyday
practice, illusion of inefficiency although it is a
question of deviating from the normal – an
exception
2. National legal systems have similar inefficiencies –
cannot totally prevent crimes or violations of law
3. Most of the rules of international are followed for
the most of the time
 International Law…
In all international legal systems there is an
established system for solution of disputes
concerning points of law and facts
• International law is organized more loosely
• legal bodies for the purposes international
disputes: ICJ, international arbitration, war
crimes tribunals (Yugoslavia, Rwanda, ICC),
WTO
• Regional: ECHR, ACHR
 International Law…
Other available evidences:
• States continuously conclude and implement bilateral
and international treaties and establish and operate
international organizations.
• Serious efforts are being made to codify international
law.
• Modern national constitutions usually contain
references to international law.
• Spectacular cases of violation of international law, which
attract the attention of the media more than regular
conduct, are exceptional and should not be confused
with the ordinary course of business between states.
 General and Regional IL
• General international law’ refers to rules and
principles that are applicable to a large
number of states, on the basis of either
customary international law or multilateral
treaties.
• For example, the UN Charter, ICCPR, CEDAW
• On the other hand, regional international law
applies only to certain groups of states.
• For example, IGAD, AU, EU, COMESA, EAC
 Scope of International Law
• Shifts have been recorded from diplomatic relations and
war among states, to a universal system of cooperation
in numerous fields between quite different entities.
• The increasing global economic and political
interdependence and the inability to address problems
within a national framework have provided opportunity
for the widening scope of international law.
• In particular, in the fields of communications,
international trade, economics and finance,
environment and development, or the massive problem
of refugee flows.
 Scope…
• The concept of ‘sovereignty’ of states, is being
diminishing in view of the globalization of the economy
and increasing interdependence of states.
• International law now covers vast and complex areas of
transnational concern, including traditional topics, such
• State Succession,
• State Responsibility,
• Peace and Security,
• The Laws of War,
• The Law of Treaties,
• The Law of the Sea,
 Scope…
• The Law of International Watercourses,
• The Conduct of Diplomatic Relations,
• International Organizations,
• International Economy and Development Law,
• Nuclear energy,
• Air law and Outer Space Activities,
• The Use of the Resources of the Deep Sea,
• International environmental Law,
• Communications, and
• International Human Rights Law.
 Scope…
• This development has resulted in increasing
specialization in both academia and legal
professions in practice.
It is no longer possible for a ‘generalist’ to cope
with the volume and complexity of the various
branches of international law. Increasingly, the
professional international lawyer, whether
practitioner or scholar, is a specialist in a particular
branch of the law and each branch develops its own
complicated and often arcane doctrine.
Oscar Schachter, IL Scholar