HI - Week I - International Law - Introduction

International Law ;
Introduction
Siti Noor Malia Putri

Definition :
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Jeremy Bentham 1780
World Wars  law that governs the relations
between states among each other.
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Only states  subjects, ILP, and possessing
rights and duties, and to bring claims
Holy see? International organizations ?,
individuals? Companies?

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International Law
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Conflict of laws or private international law :
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Cases
Particular legal system which foreign elements obtrude
Application of the foreign law

Public international law

General International Law :
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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.
If its binding  universal international law
Regional law  EU

Characteristic of IL :
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Legal regulation of the international intercourse of
states which are organized as territorial entities
Limited to a certain number
Horizontal legal system

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Lacks of supreme authority
Centralization of the use of force
Differentiation of three basic functions  law making, law
determination, and law enforcement.

Self-help countermeasures :
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Retorsion : injuring the wrongdoing state 
cutting off economic aid
Reprisals : rendered legal by a prior illegal
act committed by other state

Is international law, law?

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Controversy over :
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Lack of sanction
enforcement?

Schools of International
Law :
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Realist School :
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The role of power and national interest in
international relations;
Limited but significant
Self-interest of states in regulating their
intercourse rationally on the basis of reciprocity
Since then, disputes often refer to international
law to be settled

Scope of International Law :
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Process of IL  limited  diplomatic
relations and war
Progressing in numerous fields of
Covers vast and complex areas of
transnational concerns  state responsibility,

peace and security, the laws of treaties, air
and outer space activities, etc.

Origin of International Law :
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Peace of Westphalia 1648  concluded the
30 years war in Europe between Catholic and
Protestant countries and led to the
recognition of Protestant powers.
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Germany divided into a number of small states
France, Sweden and the Netherlands recognized
as new big powers
Switzerland and the Netherlands were recognized
as neutral states

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Peace of Westphalia envisaged :
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Collective security  defend its provision against
all others
Peaceful settlement or judicial adjudication
No solution within 3 years, gives assistance to the
injured party and allows the use of force  never
put into practice  balance of power between
European states

French Revolution 1789
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Freedom and self-determination of people
To be implemented beyond the territory of
France.
Denied the rights of monarch

Vienna Congress 1815 :
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Again, envisaged collective security  more
successful  Paris treaties created an antirevolutionary alliance between Austria,
Prussia, Russia and England

Theories of IL :
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Naturalists :
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Scholars : Hugo Grotius, Suarez, Gentili, Zouche,
Vitoria
Law derived from principles of justice which had a
universal and eternal validity and which could be
discovered by pure reason, law was to be found
not made  natural law

Positivists :
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Actual behavior of states as the basis of
international law

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Combination of naturalists and positivists was made
by Emerich von Vattel  inherent rights which
states derived from natural law, but they were
accountable only to their own consciences for the
observance of the duties imposed by natural law
unless they had expressly agreed to treat those
duties as part of positive law.
Theory of sovereignty

Legal result of the period of the
WW I :
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The unlimited right to use force
 Did not place any restriction to use force or to go to war 
considered an inherent attribute of the sovereignty and equality
of states
The peaceful settlement of disputes
 Negotiations
 Mediations
 Conciliation
 arbitration
Prohibition on the slave trade
Humanization of the law of warfare
 Agreements in military field concerning prisoners of war, the
wounded and sick and the protection of the military hospitals

The Hague Peace Conferences
1899 and 1907 :
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Tsar Nicholas II & Theodore Roosevelt
The 1899 Conference :
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Law of land warfare
Law of sea warfare
Peaceful settlement of disputes
The establishment of the Permanent Court of
Arbitration
Adopted non binding resolution on military
expenditure of parties

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The 1907 Conference :
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The 1899 proven to be failed
Thus, failed to the outbreak of the WW I
Germany was punished under the treaty of
Versailles article 231

The League of Nations :
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Woodrow Wilson; the establishment of a
general association of nations… under
specific covenants for the purpose of
affording mutual guarantees of political
independence and territorial integrity to great
and small states alike”
Attempt to restrict the use of force;
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The cooperation and the achievement of peace
and security by the acceptance of state parties 
not to resort war

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War was only permitted after three months of
a decision adopted.
State that failed under this provision will
make, other members entitled, not obliged, to
go to war with that failed state.
Kellog-Brian Pact ( the Paris Pact of 1928 on
the Banning of War), initiated by France and
the US, attempted to achieve a broader
prohibition on the use of war though it failed
to establish an enforcement mechanism.

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The League of Nations also attempted to
promote disarmament and open diplomacy to
abolish the practice of secret treaties.
Conclusion :
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Neither the League of Nations and Paris Pact
were effectively succeed by replacing the old
customary rule on the right of states to use armed
forces.

The United Nations :
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The prohibition on the use of force and
collective security
Decolonization and change in the
composition of the international community