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CHAPTER 1 Introduction - States channel the pursuit of most of their individual

interests through multilateral institutions

The Law of Nations (Brierly)
Austinian Handicap (Is International law law?)
- Law of nations is necessarily determined by that of the
- John Austin defines that laws (properly so-called) as
society within which it operates, and neither can be
commands and positive law which is regarded as the
understood without the other
appropriate matter of jurisprudence as the commands
- When there is a breach of international law the
of the sovereign
defense has always been to attempt to prove that no
o Sovereign person who received the habitual
rule has been actually violated and not on the
obedience of the members of an independent
morality of the action
political society and who, in turn, did not owe
such obedience to any other person
Sir Frederick Pollock said that the essential condition for the
- Rules of international law did not qualify as rules of
existence of IL are the existence of a political community and
positive law by this test and not being commands
recognition by the members of the settled rules binding upon
of any sort, were placed by Austin in the category of
them in that capacity
laws improperly so-called
- Although IL is not law under Austins test, most
- Imperative character of law is felt so strongly and
international lawyers would at least dispute that
obedience to it has become so much of a matter of
the test is more helpful than certain others
habit within a highly civilized state that national law
developed a machinery of enforcement which
Law Habit
generally works smoothly though never so smoothly as
- In terms of the number, as opposed to political
to make breaches impossible
importance, of the occasions on which international
law is complied with/honored more than breached
Shortcomings of the present system
o Wars, breaches of treaties, and oppression of
- Rudimentary character of the institutions which exists
the weak by the strong are the headlines of
for the making and application of the law
the daily press and of the history textbooks
- Narrow restrictions on its range
- John Bassett Moore has recorded his observation that
- No legislature to keep abreast of new needs in the
as a whole, international law is as well observed as
international society
national law
- No executive power to enforce the law
o Those who make light of treaty commitments
- Certain administrative bodies have been created are
in general seem to ignore the fact that vast
far from being adequate for the mass business which
majority of such engagements are
ought to be treated today as of international concern
continuously, honestly, and regularly
- Convenient machinery for arbitration of disputes and
observed even under adverse conditions
standing court of justice but the range of action is
- While there is clearly some merit to this law habit view,
limited because resort to them is not compulsory
some States committing breaches or violations of
international law while condemned by the United
BUT the restricted range of international law is the counterpart
Nations has not been brought to answer for its
of the wide freedom of independent action which states
violations of its obligations
claim by virtue of their sovereignty
- Law will never play a really effective part of IR until it
can annex to its own sphere some of the matters which Politics among Nations (Morgenthau)
at the present lies within their domestic jurisdictions - Great majority of rules of international law are
- It is not the nature of any law to provide generally observed by all nations without actual
mathematically certain solutions of problems compulsion
which may be presented to ituncertainty cannot be o Generally, the interest of all nations
eliminated from law concerned to honor their obligations under
- Difficulty of formulating the rules of international law international law
with precision is a necessary consequence of the - Nation will hesitate to infringe upon the rights of foreign
kinds of evidence upon which we have to rely in diplomats residing in its capital for it has an interest
order to establish them identical with the interests of all other nations
- A nation will be reluctant to disregard its obligations
(International attitude to the legality of war) The success or under a commercial treaty since the benefits that said
failure of international law can only be determined based upon nation expect are complementary to the expectations
what we assume to be its aim of the other party
- International law has not failed to serve the purpose for - Most rules of international law formulate in legal terms
which the states have chosen to use it identical or complementary interests
o Majority of rules of international law are
Problem of International Law is the reluctance of the states to generally unaffected by the weakness of its
surrender their sovereignty (De Visscher) system of enforcement, for voluntary
- There will be no international community so long as compliance prevents problem of enforcement
the political ends of the State overshadow the from arising altogether
human ends of power
The Foundations of the Authority of International
Lotus principle (states are only bound by their express consent) Law and the Problem of Enforcement (Fitzmaurice)
are now giving way to a more communitarian and more highly - Enforceability is a necessary characteristic of any
institutionalized international law system of law and international law possesses this

characteristic even if only in a rough and rudimentary - Consider the activities of NGOs (Greenpeace,
form Amnesty International, etc.) must also be considered in
the imposition of sanctions
[Law is] a body of rules for human conduct within a community
which, by common consent of this community shall be enforced
by external power. (Oppenheim) The Development of International Law

Law is a coercive order providing socially organized sanctions A. Generally

and this can be clearly distinguished from a religious order on - Modern international law has its origins in Europe
the one hand and merely a moral order on the other. (Kelsen) - Resort to war has been made illegal and a system of
- As a coercive order, law is that specific social collective enforcement of peace and security has been
technique which consists of attempts to bring initiatednot very successful through the UN in order
about the desired social conduct of men through a to replace self-help
threat of a measure of coercion which is to be taken in - Change in the balance of interests and values in
case of legally wrong conduct the world resulting from the independence since
o Decentralized societies enforcement of law 1945 of colonial and similar territories has had an
is accomplished through the application of the effect in shaping or reshaping international law
principle of self-help rules.
o Oppenheims doctrine that states are the sole
The Self-Help Doctrine subject of international law is slowly
- International law is true law because, broadly speaking, abandoned
it provides sanctions (adoption of reprisals, wars, use - Development of international law of human rights and
of force) and makes the employment of these sanctions international environmental law are notable examples
lawful as a counter-measure against a legal wrong of the more community-minded kind of law
but unlawful in all other cases - Science added 2 more territorial areas: outer space
o Doctrine of self-help is generally frowned and deep sea bed
- The real foundation of the authority of international law B. Impact of developing States
resides similarly in the fact that States making up the How Nations Behave (Henkin)
international society recognize it as binding upon - Reasons why new nations accept international law is
them and as a system that ipso facto binds them as because they came into an established system
members of the society irrespective of their own wills accepted by all nations including revolutionary
- Self-help is the result of the general absence of a governments and many small powers which had
compulsory judicial or arbitral remedies and the supported their struggle for self-determination
decentralized nature of the international o Acceptance into that society as an
community independent equal was the proof and
o It is the option that is most likely to be crown of their successful struggle
available to a state when faced with a breach - Explosion of new states made it yet more difficult to
of international obligation owed to it by make new law
another state o Multilateral conventions have become the
- May take the form of countermeasures or acts of principal form of general law-making because
retorsion experience taught them that universality will
o Countermeasure act not involving the use be hard to come by
of armed force that is contrary to international o Customary law cannot long retain validity if a
law but that is rendered lawful as substantial number of states reject it
proportionate response to a prior illegal act by - 3rd world has succeeded where it was united and
another state and is intended to induce determined
compliance with its international law
obligations C. The end of the Cold War
o Retorsion acts, although unfriendly are not International Law: Politics and Values (Henkin)
illegal under international law - International system substantially changed from what it
Unfriendly acts in response to both was a century ago.
unlawful acts and lawful but - World order is shaped by the different changes which
unfriendly acts the world has undergone (demise of Communism,
disintegration of the Soviet empire, fragmentation of
- Sanctions organized through the international the Soviet Union, etc)
community UN General Assembly - International political system is no longer characterized
o But are subject to the veto of the Security by intense bipolarism and moved into a field of more
Council fluid political forces
- National interest of the defaulting state in - New array of forces in the system (US as the sole
continued participation must be at least as great as superpower, 3rd world having solidarity forged by a
that in the court of action that caused it to default common colonial history and common problems of
for such a sanction to be effective. (Friedman) underdevelopment) will surely have an effect on the
- Effective way of enforcing international law is through content of international law and on compliance with the
the national court, whose judgments are backed by the law
power of the State