Ostoni Monica IPLE 2023/2024
INTERNATIONAL LAW
Prof Pedrazzi
1
,Ostoni Monica IPLE 2023/2024
What is international law?
«International law» designates:
A legal system, which is separated and different from all other legal systems
The norms belonging to that legal system
Hierarchy: Principles > norms > rules
- A Norm is a command generally coming from an authority from which rights and obligations for the
subjects of that legal system are defined. It poses obligations and grants rights.
- A Rule is a very specific indication
- Principles are the broad, fundamental concepts on which the whole legal system is based
THE INTERNATIONAL LEGAL SYSTEM
Ubi societas ibi ius (wherever there is a society, there is a law)?
Undoubtedly, ubi ius ibi societas (wherever there is a law, there is a society):
- In international law we have a society and we have a law
- National societies are essentially composed of individuals, their law is the State legal system
- The international society is a totally different society, which is based on States (not physical persons).
However, it has evolved quite a lot in the recent years and other actors have entered the scene à
international organizations (e.g. the UN), individuals, etc.
Therefore, international law is, essentially, the law (the legal system) governing the relations
among States (that remain the fundamental actors of the society).
The relations between states are not only connected on the conduct of a state towards the others but they also
take into account the way a state behaves towards its own territory and population because there are
international regulations and obligations to be followed (e.g. about climate change, human rights etc.). That’s
why it is difficult to define a list of topics dealt by international law à it has a very broad field of application.
Origins of the term “International law”:
In Ancient Rome there was a division between “ius civile” (norms regarding only roman citizens) and “ius
gentium” (= law of people; norms common to all people, foreigners tooà it was the law dealing between
Roman citizens and foreigners).
It evolved in the modern era (Renaissance) as “ius inter gentes” (law between people). From both terms the
final designation is reached, in French: droit des gens, law of nations, Völkerrecht à Ius inter gentes,
translated in English becomes international law (used for the first time by Jeremy Bentham (1748-1832),
Introduction to the Principles of Morals and Legislation, 1780) [droit international, derecho internacional,
direito internacional, diritto internazionale, mezhdunarodnoe pravo…].
The object of international law:
There are some aspects that are typical of international law (exclusively gathered by it) à War, treaties, rights
of foreigners, rules on international markets (trade), diplomacy (disputes among states), issues concerning
nuclear weapons, protection of the environment and so on…
Nowadays these issues are only a minimal part of international law.
PRIVATE INTERNATIONAL LAW:
International law (or «public international law» ≠ public law) ≠ private international law.
2
,Ostoni Monica IPLE 2023/2024
(Public) International Law is rather more similar to private law than to public law because you do not have
authorities; it regulates relations “inter pares”. It is sometimes called public in order to distinguish it from
private international law.
Private international law (or «conflict of laws»), instead, is the (domestic) law regulating those
relationships between individuals (and companies), which possess transnational elements (e.g.: marriage
between 2 persons of different nationality, or marriage of 2 persons of the same nationality in a country
different from their motherland). It deals with 3 issues, determining:
1) Whether the local courts have jurisdiction (“ius dicere”) to deal with the case
2) Which law has to be applied (the local law or a foreign law) à “conflict of laws”
3) Whether it is possible to recognize and enforce the judgments issued by other jurisdictions
There are international conventions (and EU rules) that deal with private international law.
What is the relationship between EU law and international law? The latter laid the foundations for the EU
(which was indeed originated by international treaties) and therefore for its law (EU law, a very special kind
of supranational law = an internal law applicable in all the member states of the EU in the same way).
Is International law, law?
Question coming from positivism à positivists are those legal thinkers who consider law only as those
commands which have been enacted by the authorities. However, in international law there is no authority,
therefore it cannot correspond to this model.
John Austin (1790-1859): international law is not law, it is positive morality
“… The law obtaining between nations is not positive law: for every positive law is set by a given
sovereign to a person or persons in a state of subjection to its author…
“… The law obtaining between nations is law (improperly so called) set by general opinion. The duties
which it imposes are enforced by moral sanctions: by fear on the part of nations, or by fear on the part
of sovereigns, of provoking general hostility, and incurring its general evils, in case they shall violate
maxims generally received and respected…”
Set of moral rules agreed by states that if not followed, generate an hostile reaction from the other states
(e.g.: sanctions) à view of the international law by a very strict positivism.
International law is law, because it is perceived as such by States
States consider and accept international law rules as binding. It is very different from State law: it knows «ni
loi, ni juge, ni gendarme» = no laws (intended as binding acts), no courts (in the national sense, according to
which judges express judgements that must be accepted), no police (nor army) à it lacks any superior
authority.
Authority is vested in States themselves, which are the subjects of the law à it is an horizontal legal system
(all functions, such as legislation, settlement of disputes, enforcement (sanctions), are exercised by the
subjects of the law, i.e. States, directly or indirectly).
Primitive legal system?
Life in a primitive society with no chief authority.
International law is a primitive legal system à system in which no one has become dominant in a legal sense,
formally they are all equal and none has established its authority and order over the others (although some
might be more influent than others).
There are enforcement problems (bigger with powerful states), but they are not absent in domestic legal
systems + there are egregious violations (e.g.: Russian invasion of Ukraine), but: «Almost all nations
3
, Ostoni Monica IPLE 2023/2024
observe almost all principles of international law and almost all of their obligations almost all of the time”
(Louis Henkin, How Nations Behave: Law and Foreign Policy, 2nd ed., 1979).
à SINCE STATES THEMSELVES MAKE INTERNATIONAL LAW, THEY HAVE LITTLE INCENTIVE
TO BREAK IT
Different theories and concepts of international law:
The tension between «NATURAL LAW» and «POSITIVE LAW»
Positive law theory à theory of John Austin (see above) = law is only the one that is enacted in a
formal way, it is the will of the sovereign (or of the states, in the case of int. law) that is imposed on
the subjects. A law that is discoverable through a scientific, objective or empirical process.
Natural law theory à law has its basis in the consciousness of people, it corresponds to some natural
precepts that everyone possesses (in pre-exists and waits to be discovered by men). Doctrine that
poses a close link between norms in the legal sense and moral ethic.
At the beginning (16th – 18th centuries) natural law was prevailing, although intermingled with elements of
positive law (e.g. Hugo de Groot (Grotius, the «father of international law», 1583-1645)); + it often had a
religious background, since it was seen as the law given by God. In the 19 th century positivism became the
dominant perspective = law was separated from morality and established by sovereign decision, not nature
anymore.
Since the 20th century (and the development of the prohibition against crimes against humanity and genocide)
the tension has become palpable again, especially in some fields of international law where the idea that
there are laws of humanity that are immutable and give rise to rights and obligation that transcend the
conscious or positive acts of states, might still play an important role (e.g. human rights).
HISTORY
Ancient times: conclusion of international agreements, development of practices/rules related to diplomatic
missions, adjustment of borders, exchange of prisoners, extradition of fugitives etc. [between ancient empires
(Egypt, Greek, Roman)].
European Middle Ages: some similar relations with extra-European entities; also within Europe, where,
however, two entities advanced claims to supreme authority (the Holy Roman Emperor and the Pope, always
fighting for supremacy over Europe).
Only in the Modern era (14th-17th century) the modern States were born, forming the society of States which
has gone through many changes, but is still existing today: international law is the law that was developed to
govern that society; therefore we may say that (today’s) international law was born in that period.
Hence, Modern International law was born in Europe: «European public law» (Carl Schmitt) à it was born
especially in the relations established by European states among themselves between the 14 th and the 17th
century.
Peace of Westphalia, 1648 (treaties of Münster and Osnabrück which concluded the 30-years war) à “Th
transition from empire to sovereignty” – Gerry Simpson
Symbolic moment of a process that started much before
The 30years war was a confrontation between protestants and catholic states (who tried to “stop” the
reformation” preventing it to spread all over)
Westphalia peace confirmed, in a formal and official way, the division of Europe à “Cuius regio, Eius
regio” = the leaders in each state became sovereign authorities over each one’s respective lands (de-
facto disintegration of the Empire) and the Pope lost his political authority over Europe.
4
INTERNATIONAL LAW
Prof Pedrazzi
1
,Ostoni Monica IPLE 2023/2024
What is international law?
«International law» designates:
A legal system, which is separated and different from all other legal systems
The norms belonging to that legal system
Hierarchy: Principles > norms > rules
- A Norm is a command generally coming from an authority from which rights and obligations for the
subjects of that legal system are defined. It poses obligations and grants rights.
- A Rule is a very specific indication
- Principles are the broad, fundamental concepts on which the whole legal system is based
THE INTERNATIONAL LEGAL SYSTEM
Ubi societas ibi ius (wherever there is a society, there is a law)?
Undoubtedly, ubi ius ibi societas (wherever there is a law, there is a society):
- In international law we have a society and we have a law
- National societies are essentially composed of individuals, their law is the State legal system
- The international society is a totally different society, which is based on States (not physical persons).
However, it has evolved quite a lot in the recent years and other actors have entered the scene à
international organizations (e.g. the UN), individuals, etc.
Therefore, international law is, essentially, the law (the legal system) governing the relations
among States (that remain the fundamental actors of the society).
The relations between states are not only connected on the conduct of a state towards the others but they also
take into account the way a state behaves towards its own territory and population because there are
international regulations and obligations to be followed (e.g. about climate change, human rights etc.). That’s
why it is difficult to define a list of topics dealt by international law à it has a very broad field of application.
Origins of the term “International law”:
In Ancient Rome there was a division between “ius civile” (norms regarding only roman citizens) and “ius
gentium” (= law of people; norms common to all people, foreigners tooà it was the law dealing between
Roman citizens and foreigners).
It evolved in the modern era (Renaissance) as “ius inter gentes” (law between people). From both terms the
final designation is reached, in French: droit des gens, law of nations, Völkerrecht à Ius inter gentes,
translated in English becomes international law (used for the first time by Jeremy Bentham (1748-1832),
Introduction to the Principles of Morals and Legislation, 1780) [droit international, derecho internacional,
direito internacional, diritto internazionale, mezhdunarodnoe pravo…].
The object of international law:
There are some aspects that are typical of international law (exclusively gathered by it) à War, treaties, rights
of foreigners, rules on international markets (trade), diplomacy (disputes among states), issues concerning
nuclear weapons, protection of the environment and so on…
Nowadays these issues are only a minimal part of international law.
PRIVATE INTERNATIONAL LAW:
International law (or «public international law» ≠ public law) ≠ private international law.
2
,Ostoni Monica IPLE 2023/2024
(Public) International Law is rather more similar to private law than to public law because you do not have
authorities; it regulates relations “inter pares”. It is sometimes called public in order to distinguish it from
private international law.
Private international law (or «conflict of laws»), instead, is the (domestic) law regulating those
relationships between individuals (and companies), which possess transnational elements (e.g.: marriage
between 2 persons of different nationality, or marriage of 2 persons of the same nationality in a country
different from their motherland). It deals with 3 issues, determining:
1) Whether the local courts have jurisdiction (“ius dicere”) to deal with the case
2) Which law has to be applied (the local law or a foreign law) à “conflict of laws”
3) Whether it is possible to recognize and enforce the judgments issued by other jurisdictions
There are international conventions (and EU rules) that deal with private international law.
What is the relationship between EU law and international law? The latter laid the foundations for the EU
(which was indeed originated by international treaties) and therefore for its law (EU law, a very special kind
of supranational law = an internal law applicable in all the member states of the EU in the same way).
Is International law, law?
Question coming from positivism à positivists are those legal thinkers who consider law only as those
commands which have been enacted by the authorities. However, in international law there is no authority,
therefore it cannot correspond to this model.
John Austin (1790-1859): international law is not law, it is positive morality
“… The law obtaining between nations is not positive law: for every positive law is set by a given
sovereign to a person or persons in a state of subjection to its author…
“… The law obtaining between nations is law (improperly so called) set by general opinion. The duties
which it imposes are enforced by moral sanctions: by fear on the part of nations, or by fear on the part
of sovereigns, of provoking general hostility, and incurring its general evils, in case they shall violate
maxims generally received and respected…”
Set of moral rules agreed by states that if not followed, generate an hostile reaction from the other states
(e.g.: sanctions) à view of the international law by a very strict positivism.
International law is law, because it is perceived as such by States
States consider and accept international law rules as binding. It is very different from State law: it knows «ni
loi, ni juge, ni gendarme» = no laws (intended as binding acts), no courts (in the national sense, according to
which judges express judgements that must be accepted), no police (nor army) à it lacks any superior
authority.
Authority is vested in States themselves, which are the subjects of the law à it is an horizontal legal system
(all functions, such as legislation, settlement of disputes, enforcement (sanctions), are exercised by the
subjects of the law, i.e. States, directly or indirectly).
Primitive legal system?
Life in a primitive society with no chief authority.
International law is a primitive legal system à system in which no one has become dominant in a legal sense,
formally they are all equal and none has established its authority and order over the others (although some
might be more influent than others).
There are enforcement problems (bigger with powerful states), but they are not absent in domestic legal
systems + there are egregious violations (e.g.: Russian invasion of Ukraine), but: «Almost all nations
3
, Ostoni Monica IPLE 2023/2024
observe almost all principles of international law and almost all of their obligations almost all of the time”
(Louis Henkin, How Nations Behave: Law and Foreign Policy, 2nd ed., 1979).
à SINCE STATES THEMSELVES MAKE INTERNATIONAL LAW, THEY HAVE LITTLE INCENTIVE
TO BREAK IT
Different theories and concepts of international law:
The tension between «NATURAL LAW» and «POSITIVE LAW»
Positive law theory à theory of John Austin (see above) = law is only the one that is enacted in a
formal way, it is the will of the sovereign (or of the states, in the case of int. law) that is imposed on
the subjects. A law that is discoverable through a scientific, objective or empirical process.
Natural law theory à law has its basis in the consciousness of people, it corresponds to some natural
precepts that everyone possesses (in pre-exists and waits to be discovered by men). Doctrine that
poses a close link between norms in the legal sense and moral ethic.
At the beginning (16th – 18th centuries) natural law was prevailing, although intermingled with elements of
positive law (e.g. Hugo de Groot (Grotius, the «father of international law», 1583-1645)); + it often had a
religious background, since it was seen as the law given by God. In the 19 th century positivism became the
dominant perspective = law was separated from morality and established by sovereign decision, not nature
anymore.
Since the 20th century (and the development of the prohibition against crimes against humanity and genocide)
the tension has become palpable again, especially in some fields of international law where the idea that
there are laws of humanity that are immutable and give rise to rights and obligation that transcend the
conscious or positive acts of states, might still play an important role (e.g. human rights).
HISTORY
Ancient times: conclusion of international agreements, development of practices/rules related to diplomatic
missions, adjustment of borders, exchange of prisoners, extradition of fugitives etc. [between ancient empires
(Egypt, Greek, Roman)].
European Middle Ages: some similar relations with extra-European entities; also within Europe, where,
however, two entities advanced claims to supreme authority (the Holy Roman Emperor and the Pope, always
fighting for supremacy over Europe).
Only in the Modern era (14th-17th century) the modern States were born, forming the society of States which
has gone through many changes, but is still existing today: international law is the law that was developed to
govern that society; therefore we may say that (today’s) international law was born in that period.
Hence, Modern International law was born in Europe: «European public law» (Carl Schmitt) à it was born
especially in the relations established by European states among themselves between the 14 th and the 17th
century.
Peace of Westphalia, 1648 (treaties of Münster and Osnabrück which concluded the 30-years war) à “Th
transition from empire to sovereignty” – Gerry Simpson
Symbolic moment of a process that started much before
The 30years war was a confrontation between protestants and catholic states (who tried to “stop” the
reformation” preventing it to spread all over)
Westphalia peace confirmed, in a formal and official way, the division of Europe à “Cuius regio, Eius
regio” = the leaders in each state became sovereign authorities over each one’s respective lands (de-
facto disintegration of the Empire) and the Pope lost his political authority over Europe.
4
