International Law: The Basics

Session 1: The Basics

• Laws regulate behavior.
• Legal systems are processes addressing grievances and enforcing laws.
• National legal systems are vertical, while international systems are horizontal among equal states.
• Common law is based on judicial precedents/rulings.
• Civil law is based on codified statutes/legal codes.
• Theocratic law is based on religious doctrines/principles.
• International public law reflects the status quo in international affairs and serves as a correctional mechanism for international actors.
• International relations involve regulation vs. invasion, business protection vs. abuse, and society/order.
• The international legal system governs the law of war, peace, or trade, involving interaction among states and horizontal structure, with limited enforcement and voluntary obligations.
• Jus gentium, Latin for "law of nations," refers to legal principles applicable to both Romans and non-Romans in Roman law, influencing international law governing relations between states.

History of International Law

• Ideas of jurisdiction stem from Jesus and Pilate.
• Citizenship and protection are factors.
• Natural law, respect for ancestral traditions/customary law, and treaty law are factors.
• Some vocabulary includes: Amisticia, pax, dedito, foedus etc.
• Cannon Law and the Holy Roman Empire were factors in the Middle Ages and Renaissance.
• Socio-political changes in Europe led to the first notions of the Nation state and sovereignty.
• Francisco de Vitoria and Hugo Grotius founded modern international law.
• XIX century international law concepts include the French Revolution and the American Constitution.
• The democratic thinking led Napoleonic Wars and the Code Civile.
• Vienna Congress (the Concert of Europe) began a New International Order.
• First International Organizations inter alia Universal Postal Union evolved.
• Treaties defined "International Waters".
• Henri Dunant and the International Committee of the Red Cross was the First International Humanitarian NGO.
• The Geneva Conventions and the foundation of International Humanitarian Law was the most important Impact
• Soviet theories emphasize it is shaped by class struggles and serves dominant economic and political systems, especially in socialist frameworks.
• Kelsen approaches it as a hierarchical, normative system independent of politics, with a foundational "Grundnorm" governing legal validity.
• McDougal behavioral theory argues it evolves dynamically through social processes, influenced by power, values, and human behavior.

Important Organizations

• The Hague Peace Conferences and the Geneva Conventions are important organizations.
• The Permanent Court of Arbitration was formed in 1889/1907.
• The League of Nations was the first international intergovernmental organization, formed at the Paris Conference in 1919.
• The Permanent Court of International Justice was formed in 1920.
• ILO and other international organizations were formed.

Post WWII Law

• The Charter of the United Nations was formed in 1945.
• The United Nations was the first Universal International Organization.
• New countries and emerging concepts evolved.
• A new era emerged for international law.
• The International Court of Justice succeeded the Permanent Court of International Justice.
• There was a proliferation of international treaties.
• The UN serves as an international treaties depositary.
• It is recognized as a subject of International Law, per the ICJ's 1949 Advisory opinion, which has set a precedent affecting all international organizations.

Basic Terminology/Concepts

• Some basic terminology/concepts are: the United Nations Charter Inter alia
• Some basic terminology/concepts are: Peaceful co-existence
• Some basic terminology/concepts are: Non-intervention in internal affairs (sovereignty)
• Some basic terminology/concepts are: Territorial integrity (jurisdiction)
• Some basic terminology/concepts are: Right to self-determination
• Some basic terminology/concepts are: Protection of the individual

Session 2: Sources of International Law

• The Statute of the ICJ, article 38 (1) defines the sources of international law
• Sources are defined as: a) International conventions, b) International custom, c) General principles of law, d) judicial decisions and teachings of highly qualified publicists.
• Recognition by all UN member states ipso facto of this definition ( some non UN member, e.g. Switzerland up to 2002 recognized it expressly)
• Ipso facto: "by the fact itself"—indicating something occurs automatically due to its nature, without needing further action.
• Switzerland remained neutral and was not a UN member until 2002.
• It still recognized certain UN principles and engaged with international law independently due to neutrality and a public referendum.
• Law-creating procedures create treatues, customs and general princples.
• Law-determining agents define courts, tribunals, scholars, and international organizations.
• The ICJ practice, inter alia, is generally accepted as law- creating.
• A very fine and sometimes ambiguous line between those elements.
• Formal sources: The constitutional mechanism for identifying law.
• Where the law comes from, how does the rule become a law?
• Define the legal authority and processes through which laws gain validity, such as treaties, customs, and general principles.
• Material sources: The essence of the regulations.
• Refers to the underlying social, political, and historical factors that influence the content and development of legal rules
• Where did the context of the law come from?

Source #1: Custom

• It is of primary importance as its history goes back to Session 1, and due to having the longest existing source of law across different socio-political regimes both at national and international level.
• Reflects the decentralized and horizontal nature of international law.
• Living tradition in the International Law is defined by states behavior.
• A custom in international law is defined by state behavior because it emerges from the consistent and general practice of states, followed out of a sense of legal obligation (opinio juris).
• Distinctions between behavior because of law from behavior to other factors is important.
• Distinguish customs from other factors using the elements of customs as a check and balance
• Distinguish between legal custom and mere social acts.
• The state believes that the custom is an act of law (on an international level)
• Duration depends on the nature of the act (ex, law of the sea), some uniformity is necessary during certain period.
• Consistency and Repetition helps distinguish between the state situation and nature of the act.
• States repeatedly engage in the same conduct across different situations without major contradictions (consistency and repetition).
• Practices persist long enough to demonstrate legal acceptance (duration).
• Abstention is a factor, when material possibility for this act exists, and in such case abstention is regarded as conscious duty (Permanent Court of International Justice).
• General acceptance means that a state consistently avoids a certain action due to a sense of legal duty, rather than by chance or lack of capability, its abstention can help form a legal custom.
• Complements the consistency/refers to the number of the states that apply it and the major actors participating in it.
• The understanding that certain practice is “generally accepted as law."
• There is a difference that makes the state between courtesy and obligation.
• ICJ approaches include:
  • Assuming as general practice various evidences and literature (Recognizing a general practice through multiple sources, such as state conduct, diplomatic exchanges, legal scholarship, and UN resolutions)
  • Uses various materials to distinguish between courtesy and obligation/Infer a widespread pattern of behavior and legal acceptance (opinio juris)
• Other approaches include: more rigorous requirements – depends on the case, the nature of the contention and the discretion of the Court

Custom State Law

• A state law can contribute to customary international law if it is widely adopted and recognized by other states as legally binding.
• In The Scotia (1871), the U.S. Supreme Court ruled that British maritime regulations on lighting for ships had become customary international law because they were widely accepted and followed by many states, including the U.S.
• The case shows that a domestic law can evolve into an international custom if other states adopt and recognize it as a legal norm.
• Scotia vs Berkshire (1971) included State Practice (Consistency and Repetition) and generality.
• Court recognized that the British orders and U.S. Congress Act on navigation lights were widely adopted by over 30 principal maritime states, establishing a repeated and consistent practice across different states.
• Opinio Juris (Belief in Legal Obligation): The Court emphasized that these rules were "accepted as obligatory" by the international community, meaning that states did not follow them merely out of courtesy or convenience, but because they recognized them as a legal obligation.
• Duration and Repetition are factors that the Court mentions that by 1864, these practices had been widely accepted.
• Custom was not just a fleeting temporary measure but had gained sustained, long-term acceptance among maritime nations, also contributed to its establishment as customary international law.
• Judicial Notice of Custom: The Court's ability to take judicial notice of this practice (without needing each nation to prove its adherence), indicates that the practice had become so widespread and accepted that it was recognized as a customary rule of international law.
• Reflects how customary law can be acknowledged by judicial bodies when a practice is universally accepted and viewed as legally binding. Other elements to be considered:
• Persistent objector: In the process of formation, a state may contract out, object, and it must be clear and explicit
• If Custom is already firmly established and recognized as binding, later objection may not be sufficient to avoid the rule.
• Bilateral relations history A state's historical bilateral agreements or interactions can alter obligations under cIL if generalized
• Regional and local customs may develop within a specific region or among a group of states with shared interests, leading to regional or local customs. (These customs may be different from general international customs but still recognized as binding for the states involved.)

Source #2: General Principles of Law

• General principles of law are recognized by civilized nations per the Statute of the ICJ, article 38 (i)
• Civilized: origins, reasoning and opinions, Natural Law concept
• Civilize: origins, reasoning and opinions Elements that exist in most national legislations of the civilized nations (XIX century idea), Gaps in International Law that might be filled by certain national legal solutions Definition includes Jurisdictional principles and practices transported from national jurisprudences, Gaps in International Law that might be filled by certain national legal solutions Examples: Consent, reciprocity, good faith, equality of states, finality of awards and settlements, validity of agreements, recognition of domestic legislation, freedom of the seas etc.

Session 3: Sources of International Law II

• Statute of the ICJ defines treaties in Article 38
• Treaties function as an elaborated, explicit, and superior form of declaration of international obligations.
• They are widely used in international affairs (both politics and business). Pacta sunt servanda (Obligations must be kept).
• Vienna Convention on the Law of Treaties, 1969
• It is a Codifying role regarding customary international law
• Highlights include:
  • A. Preamble: principles of consent, good faith and pacta sunt servanda.
  • B. "Each state has the right to be a party to a treaty."
  • C. Mechanics of adoption, entry into force, scope and termination of international treaties.

Reservations/Declarations

• Reservations and Declarations in multilateral Legal instruments Art s.2 (1) (d) and 19-23, Vienna Convention of the Law of Treaties 1969A reservation is a declaration made by a state by which it purports to exclude or alter the legal effect of certain provisions of the treaty in their application to that state.
• A reservation enables a state to accept a multilateral treaty as a whole by giving it the possibility not to apply certain provisions with which it does not want to comply.
• Reservations can be made when the treaty is signed, ratified, accepted, approved or acceded to.
• Reservations must not be incompatible with the object and the purpose of the treaty. Furthermore, a treaty might prohibit reservations or only allow for certain reservations to be made. Declarations
• States make "declarations” as to their understanding of some matter or as to the interpretation of a particular provision. (clarify not change)
• Unlike reservations, declarations simply clarify the state's position and do not purport to exclude or modify the legal effect of a treaty.
• Usually, declarations are made at the time of the deposit of the corresponding instrument or at the time of signature

Jus Cogens

• Jus cogens voids a treaty
• Norms are peremptory
• Vienna Convention on Law of the Treaties, Art. 53 “A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. Peremptory Norm, a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted (Only a subsequent more can change it)
• Examples: Principle of International Law, traditionally customary international law
• Prohibition of child prisons and torture of minors

Specific treaty methods

• Classifications Orientative approach might vary due to circumstantial or conceptual reasons
• Treaty is a legally binding international instruments.
• Charter – a treaty of foundation nature with strong legal weight
• Convention normally international multilateral treaty of significant importance (Setting a standard (broader in scope than a covenant and used to set specific rules)
• Agreement a treaty dealing with specific issues (Specific treaty), generally a bilateral, though in some fields like trade, widely used in multilateral context e.g GATT.
• Other Instruments include: treaties, pacts, statutes or covenants
• Some specific methods for legally binding, more dynamic, interaction between states:

Treaties

• Declarations might be only political, but might have legally binding elements or fully binding as the Paris Declaration 1856 /depends on the language (more flexible)
• Memorandum of Understanding is a LOW level FUNCTIONALITY instrument. Only the parties to it could define its scope and level of obligations.
• Distinguish between Law-making treaties and contract type treaties:
• Examples: additional elements include treaties, declarations, exchange of notes

Examples:Law

• Law making treaties exist.
• A Historically
• Declaration of Paris (on neutrality in maritime warfare), 1856 are factors
• Hague and Geneva Conventions and Optional Protocols are factors Codification treats
• B Normally, already existing customary law norms assembled and agreed on universal level, e.g by putting them into written
• UN resolutions and decisions do not automatically qualify as customary international law or treaty law, but they can serve as evidence of international legal norms ( can help interpret)

ICJ Advisory Opinion

• During construction of the Wall in Palestine, the International Court of Justice (ICJ) stated that UNGA and UNSC resolutions are not automatically binding law but just constitute evidence of international legal principles and to an extent rules. UN resolutions may NOT directly create legal obligations (like treaties), and indicators of the international community views

Unilateral Declarations

• It is well recognized that declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations.
• ICJ 1974 case:
  • France made a unilateral declaration to stop atmospheric nuclear tests in the South Pacific
  • ICJ considered declaration legally binding, even though it wasn't part of a treaty
  • Unilateral declarations can create legal obligations if the state's intent to be bound is clear.

Sources of law

• Judicial Decisions is a source
• Sources of law come from rulings and judgments come
• by courts, particularly international courts (like the ICJ), also serve to apply international law.
• Decisions not creating binding laws provide customs.
• can act as precedent & influence

International Court of Justice (ICJ)

• International Court of Justice is a successor of the Permanent Court of International Justice, founded – 1948/1949 and Composition, as the the ICJ comprises fifteen judges elected to nine-year terms, selected by the UNGA, and UNSC from a list nominated by national groups in the Permanent Court of Arbitration.

Session 4: National and International Law

• Municipal Law from Shaw refers to a sovereign government.
• National Law from Evans is the system of the country that encompasses the borders.
• Domestic Law from Dixon describes activity within the jurisdiction.
• Montesquieu's Doctrine on Separation of Powers and the International Law Obligations on National Level are divided.
• Legislative: creates.
• Executive: enforces.
• Judicial: interprets.

Theories of national law

• Theories of national law and international law are or are not "one soul”
• Monist theory that international law and national law are "one soul” and prevails.
• Dualist Theory NL and iL are 2 separate legal spaces with strict regulation
• Third Path that denies superiority of any of the system

Law Machinery

• Legal machinery is designed to implement international obligations within the national legal system
• I. MATERIAL LAW
• Material Law with direct application

Ties of obligations

• Ties country's international obligations to a legal machinery ensuring execution
• 2 the government works to to ensure legal and executive actions
• Ii the judicial system in international law does not do that unless national action to implement
• National law rules role in international law:

International law

• Sources case Scotia vs Berkshire or concept of limited liability in Barcelona
• A state cannot plead provisions of its national law (sources of evidence is key)
• Transformation in laws and evidence depends on Logically the theoretical doctrine -
• A. Automatics- no adoption needed
• No automatic and that’s it within system

Session 5: Subjects of International Law I’

• Legal personality refers to capacity of duty
• Subject of International Law that entails what’s right vs what’s wrong
• Definition of a Statehood is the qualifications

Montevideo Convention Qualifications

• Definition of a Statehood was the rights granted
• A there is a stable community and criteria
• Requirements of existing human factor are in place
• B. There must be a defined territory of community in criteria, whether the government acknowledges.

Government criteria

• Operational government includes state structure and mechanisms.
• The Alland islands emphasized the effectiveness of that state's laws as long as others help.
• There must be the capacity to enter relations with other states

Other elements

• Other basic elements condicio sine qua non includes :
  • independence.
  • Sovereignty - manner of attainment capacity to enter legal relations
  • Right that is from colonial evolution

Fundamental right of states

• There are simultaneous action obligations
• There is an existing means to act like legal system
• There is a non intervention principle
• There is peaceful Co existence that has from India since 1954
• States include different actions

Session 6 – Subjects of International Law II

• Federal states: Countries where power and authority are divided between a central government and regional or state governments, Particularity composition, political and conceptual, and
• the a) Could different components of a Federation enter into legally binding international commitments?
• depends on their constitutional arrangement
• US vs Switzerland is used , and the unitary

Other cases for review

• Association includes bigger states and even smaller states
• In a Protectorate relationship there must be a transfer between 2 states
• 4 other cases, includes palestine’s application and the status

Kosovo and Taiwan applications

• Kosovo’s declaration was not valid and a few rejected
• Taiwan included the states but the USSR did not approve with China

5. Territorial Entities

• Condominium- 2 counties share sovereign Powers over a country

6. Territories under International Administration - UN

• Examples includes East tamor a UN transitional admin with the secrutiy council

UN specific

• In many regions that were specific including Kosovo, many took over

Session 7- general principles

• Recognition means general is a political consideration

Recognition: General situation

• Constitutional
• state can exist but operate
• Legal Impacts of recognition includes effects of compliances