concept and nature of international law

7/29/2019 Concept and Nature of International Law

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“Concept and Nature of International Law” Driven by his curiosity, man wandered off the earth. Eventually, he discovered that

the earth is not flat. State A began to interact with State B. State C began to trade with State X

and State Y. The growing complexities in the synchronization in all international relations

among the States brought forth the need of international law.

I

What is International Law?

According to Oppenheim, the Law of Nations or International Law is the name for

the body of customary and treaty rules which are legally binding by States in their intercoursewith each other. 1 It is legally binding precisely because such rules must be observed. He

called the body of rules which are binding upon “all” States as universal International Law. If

such rules bind only two or a few States, it is particular International Law. However, if the

body of rules is binding upon a great many States, including leading States, it be called as

general International Law.

He even distinguishes public international law from private international law. The

latter deals mainly with matters between the individuals as fall at the same time under the

jurisdiction of two or more different states. It is also known as conflict of laws. While he

describes that the former is identical with the Law of Nations.

On the other hand, Brierly adopts that international law means a body of

principles which regulates the conduct of states in their relations with one another, and

regulates the conduct of states in their relations with one another, and we are not yet entitled

to assume that the problem of finding a basis for the binding force of these principles isidentical with that of finding basis for the binding force of the law of the state.2

1 International Law, Vol. 1, p. 4 (8th ed., 1958, by Lauterpacht)2 The Basis of Obligation in International Law, p. 48 (1958)



For Soviet jurist Tunkin, international law is a unit, an aggregate of legal norms in

interaction. Further he said that international law is a system of legal norms and that

international law should be taken as a unit, each element of which is interrelated with other

parts of a unit3. International law is predicated upon various norms woven together.

He presented the principle of jus cogens. Jus Cogens, latin for “peremptory norms”,

are fundamental principles embodied in the law of nations which is accepted by the

international community of states as a norm that cannot be violated by any country. .

While Brownlie opines that international law is essentially a law between States

and these remains true in spite of the appearance of various international organizations and

the significance of human rights standards.4 In other words, international law is the best tool

available for dealing with certain affairs between or among the States. Further, he asserted

that International law is not perfect. It has inescapable features of political landscape, which

means that rules are basically made for the government. Like Higgins, he refers to

international law as a part of the normal process of decision-making.

Whereas Higgins perceives international law as an authoritative system of

decision-making available in a decentralized system to all authorized decision-makers.5

International law is a process, not rules. The latter are just accumulated past decisions. Judges

make choices and they do not find rules. Past decisions only assist the judges in solving a

controversy.

And Baxter talks about customary international law found in international

agreements, in which two or more States have agreed upon the formulation of certain norms

that will be given application between or amongst them.6

International law is bounded byagreements arising in the customs practiced by the States.

3International Law in the International System, p. 79, 147 Recueil des Cours (1975, IV)

4 The Reality and Efficacy of International Law. 52 BYIL 1 (1981)5 Problems and Process: International Law and How We Used It (1994) p. 106 International Law in “Her Infinite Variety”, 29 Int‟l & Comp. L.Q. 549 (1980), p. 549



Customary law is something done as a general practice plus opinion juris, which is

the belief that a certain form of behavior constitutes a legal obligation. Baxter contends that

there are agreements between States that do not create enforceable rights and duties. He

described them as soft law and hard law comprising treaty rules which States are required to

comply and carry out. He characterized international agreements as political treaties. These

treaties whereby States enter into alliances or agree to coordinate and lay out agreed policies.

When parties decide that they would resort to an instrument other than a formal

treaty or binding unilateral declaration, it is called a soft law. Example of soft law are (1)

pactum de contrahendo, which is an agreement to make a contract in the future; (2) the non-self-

executing article of a treaty requiring further agreements to giver it effect and; (3) hortatory

provisions. But if parties decide to bind themselves in international legal norms or those

which have coercive character, then it is called a hard law. A good example is the Vienna

Convention.

II

Subjects of the Law of Nations

International Law applies to: (a) States in their relationship with each other; (b)

International Organizations and; (c) in some circumstances to individuals.

Stats are the normal subjects of the Law of Nations. It is actually a law solely and

exclusively for the internationally conduct of States, and not of their citizens. However, there

are instances where international law may treat individuals as subjects of the law nations. For

example, persons engaged in hostis humani generis crimes, such as piracy and genocide.



III

Is International law a true law?

If we adhere to the positivist perspective wherein law is defined as a body of rules

for human conduct set and enforced by a sovereign political authority, international law is

not law because it does not emanate from a sovereign.

However, if we follow Oppenheim‟s definition of law as a body of rules for

human conduct within a community which by common consent of this community shall be

enforced by external powers, then, we can say that international law is a law.

Though the individual States are sovereign and independent of each other, though

there is no international Government above them, there exists a powerful unifying factor,

namely, their common interest.7 There can be no law binding all the sovereign states.

However, States abide the rules of the law of nations because states believe that they do it out

of a sense of legal obligation.

Answer to this question lies in the principle of pacta sunt servanda (latin for

“agreement must be kept”). Under this principle, every treaty in force is binding upon the

parties to it and must be performed by them in good faith.8

IV

The Basis of International Law

What is it that makes states regard international law as “binding”? Higgins

responded using various schools of thought. To an Austinian positivist, the concept of law is

7 Oppenheim, International Law, p. 128

Article 26 of the Vienna Convention on the Law of Treaties (1969)



that of a sovereign command made effective by the application of sanction.9 However,

sanction plays a minute part in the international legal system. Thus, it is not accurate to call

international law as a law proper. Norms are binding because there exists a sense of

obligation and the states are required to comply with them in their behavior.

In line with the socialist perspective, international law is made by the concordance

of the wills of states; and that is enough for it to follow that this brings „mandatory legal rules‟

into existence.10 In other words, consent is the basis of international law. Higgins asked why

we should deem even the expression of consent, pacta sunt servanda, as binding. Using

Fitzmaurice words, he retorted that the only answer was an infinitely regressive concept of

the consent of the states, anterior to the international law system itself.11

Through Koskenniemi‟s view, she reiterated that if states simply want to obey, the

basis of obligation is apologist, which is merely providing a semblance of justification and

legitimation for what the States choose to do. However, if it is claimed that norms exist and

the states are not prepared to obey them, then the basis of obligation is utopian.

Higgins perceive international la as a system in which the norms arise either

through express consent or because no one opposed. She opined that aside from consent,

reciprocity is also a basis of international law.

What is consent then? Common consent means the express and tacit consent of

such an overwhelmingly majority of the members that those who dissent are of no

importance as compared with the community viewed as an entity in contradistinction to the

wills of its single members.12

9 Higgins, Problems & Process: International Law and How We Used It, p. 1310 Higgins, p. 14 11 Higgins, p. 1512 Oppenheim, p. 17



Concurring with Oppenheim, Brierly believed that a state can be obliged only by

its own consent. However, he maintained that by the definition of common consent given by

Oppenheim, it can be implicitly understood that such a doctrine would deny that the consent

of a state once given may be revoked by will, is not a purely consensual doctrine; for both

assume the existence of a factor, other than the consent of the individual state, from which

obligation may arise when that consent is not forthcoming, and a doctrine which leaves the

factor unexplained is not satisfactory.

V

Conclusions

To establish peace and order in the community of nations and to prevent the

employment of force including war, States need international law. International Law is the

body of legal rules which deals with the conduct of the states and international organizations

as to how they relate with each other and, in some instances to their relationship towards

individuals.

International law is a body of rules and, at the same time, it can also be a process.

It is a rule well-established that there are no stare decisis in international law; however,

judges applied them for convenience. It would also be considered as a process because judges

make choices.

Although, individual States are sovereign and self-governing of each other, they

adhere to the international law because of their common interest. Therefore, the basis of the

law of nations is consent, either express or implied. There is no denying that international

law is a vital player in every State-to-state dealings.

Amie Roxylen T. de Luna

LLB-II

concept and nature of international law

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