Summary of textbook "Akehurt's modern introduction to international law"

AKEHURST’S MODERN INTRODUCTION TO INTERNATIONAL LAW

1.INTRODUCTION
1.1.DEFINING INTERNATIONAL LAW
International law is the body of rules binding on States in their relations with one another and determining
their mutual rights and obligations. Although the system of international law also includes non-State
entities such as international organisations, that very system is owed to the existence of the community
of independent sovereign States. The law governing relations between States is international law properly
so-called (public international law), while aspects of a national legal system dealing with private law
relations involving a foreign element are denoted as ‘conflicts of laws’ (private international law).
Ius gentium in ancient Roman law was that part of Roman domestic law applied to legal relations
involving Romans with foreign citizens, as well as relations of Rome with other States. Philosopher
Francisco Vitoria took the conception of ius gentium and applied it to the relations of nations. States were
independent of one another, yet the rules allegedly established by nature governed relations between
them. Vitoria was dealing with the Spanish expansion on the American continent when the need was
encountered to define law applicable to relations between the Spanish and American nations and tribes.
Hugo Grotius (1583–1645): founder of the modern doctrine of international law. Grotius considered that
the existence of natural law was the automatic consequence of the fact that men lived together in a
society and were capable of understanding that certain rules were necessary for the preservation of
society. The prohibition of murder, for instance, was a rule of natural law, independent of any legislation
forbidding murder, because every intelligent man would realise that such a rule was necessary for the
preservation of human society.
Applied to international law, positivism regarded the actual behaviour of States as the basis of
international law. Swiss writer Emerich von Vattel (1714–67) suggested that States were accountable only
to their own consciences for the observance of the duties imposed by natural law, unless they had agreed
to treat those duties as part of positive law. State consent is the basis for validity and legitimacy of
positive international law. The positivist approach requires identifying a legal basis under international
law.
1.2 INTERNATIONAL LAW AS LAW
International law is created by States through their consent, while domestic law is created by the State
authorities binding individuals without their consent. There is no government above States. States are
independent, sovereign and legally unsubordinated either to one another or to any other authority. The
long tradition of questioning the existence of international law should not generate any surprise. There is
an old controversy going back to the writings of Hobbes on whether international law is law properly so-
called. This controversy has focused on the lack of sanctions in cases of violation of international norms. A
central thesis to Hobbes’ legal teaching is the transition of the society from the state of nature (chaos and
lawlessness) to the civil state (law and order). This transition leads to the establishment of sovereign
authority to which people surrender their freedom. From this point onwards, people have duties and
rights granted to them by an authority sovereign, which is free of all legal restrictions. Hobbes suggests
that on the international plane, there is no sovereign above States who can create or enforce
international law.
According to legal philosopher Hart (1907-1992), international law is a primitive legal system which has
primary rules (rules about conduct) but no secondary rules, i.e. rules about how rules are made and
interpreted, or what are the consequences if they are breached. That said, international law does possess
a sufficient number of secondary rules, for instance those regarding conclusion and interpretation of
international treaties.
The realist thesis, developed by Hans Morgenthau, is that international law has no decisive influence on
the policies of States, which are primarily guided by their own national interest. However, the legal
essence of international law does not amount to questioning the nature and power of States. States may
even breach their legal obligations when they find this conducive to their interest.
The lack of central government above States is certainly responsible for international law being less
enforced than national law and for increasing temptation to violate it. However, national law is not
impeccably enforced either. If national law is not impeccably enforced despite having powerful
enforcement machinery at its disposal, and still no one questions its legal character on that basis, there is
no ground for questioning the legal character of international law either. Rules and principles of
international law are accepted in practice as legally binding by States.
1.3 CHARACTERISTICS OF INTERNATIONAL LAW
The legal and binding character of international law is also attested by positive evidence. States recognise
the binding force of international law in their mutual dealings. Disputes between States are usually
accompanied by references to international law. Modern national constitutions frequently contain
references to international law. All of this corresponds to the empirical fact that most States are careful to
observe most obligations of international law, even in the absence of a centralised enforcement agency.
A horizontal system of law is based on principles of reciprocity and consent rather than on command,
obedience and enforcement. International law is a horizontal legal system, lacking a supreme authority
and the centralisation of the three basic functions of law-making, law-determination, and law
enforcement. As there is no government above States, agreement between States is the tool through
which law-making authority is exercised within the international legal system. The United Nations are not

,a world legislature. In terms of enforcement, the Security Council can impose sanctions on a State that
has committed serious breaches of international law, but can do so only in limited circumstances
permitted by the terms of the UN Charter. If one State commits an illegal act against another State and
refuses to make reparation, the sanction available to the injured State is self-help measures, which should
not involve the use of force. The forms of self-help are countermeasures (reprisals) and retorsions.
Retorsion is a lawful act designed to injure the wrongdoing State – for example, cutting off economic aid.
Reprisals are acts which would normally be illegal but which are rendered legal by a prior illegal act
committed by the other State. For instance, if State A expropriates property belonging to State B’s
citizens without compensation, State B can retaliate by doing the same to the property of State A’s
citizens. Reprisals must be proportionate to the original wrong. One disadvantage of retorsion and
reprisals is that the State imposing these measures may injure itself; this is particularly so when one State
cuts off trade with another State. An example has been the reluctance of the US to use trade sanctions to
enforce its criticism of human rights practices in China, in view of the huge Chinese market opportunities
for American companies.
In terms of judicial power, the International Court of Justice (ICJ) can operate only on the basis of the
consent of States to its jurisdiction.
1.4 THE THEORY OF SOVEREIGNTY AND OBLIGATION
To say that a State is sovereign means that it is independent from any other State. No rule of
international law can bind a State without its consent. The use of sovereignty leads to the assumption of
legal obligations by States through the expression of their consent. Of course, there have been treaties
containing far-reaching obligations depriving a State of much of its independence – for instance, a treaty
whereby one State becomes a protectorate of another State. The case of the EU is most prominent. The
idea of a State joining a supranational organisation such as the EU could be seen as loss of independence.
Legally speaking, however, it is merely the giving of sovereign consent. States can, through treaty,
transfer the law-making authority to international institutions. While EU member-States have to obey
legislation enacted by the EU, the latter’s power to enact it derives from the treaty through which
member-States have delegated that power to it.
1.5 NEW DEVELOPMENTS IN THEORY
From the 1950s onwards, the ‘policy-orientated’ approach was founded by the Yale University. The aim of
this theory, at the height of the Cold War, was to legitimise the role of the United States as the leader of
the free world and suggest. This perspective regards international law not as a body of legal rules, but as
a process of authoritative policy decision-making. The problem with this approach is that law has to be
viewed as a body of legal rules if its binding nature is to be secured at all.
A more recent policy-oriented approach is the liberal theory proposed by Anne-Marie Slaughter in the
1990s, as a reflection on the demise of the Socialist bloc and the rising power of the US. The key thesis is
that international law differentiates between the rights of liberal States and non-liberal States, privileging
the former over the latter.
A school of ‘Critical Legal Studies’, which started in the US, has emerged, denying that, in view of its
inconsistency and lack of coherence, international law has a distinct existence of its own. The cause is the
absence of a unified social opinion and a centralised authority over States. The outcome is that legal
answers to the relevant questions are dictated by ideology or a writer’s own perspective.
2.HISTORY
2.2. MIDDLE AGES TO THE PEACE OF WESTPHALIA
Historically, international law is as old as States and their mutual relations. European State practice in the
Middle Ages was familiar with treaty and diplomatic practice. However, medieval Europe was not suitable
for the development of international law as we know it because it was not yet divided into States in the
modern sense. Nowadays, we think of States as having undisputed political control over their own
territory. Medieval kings shared power with their barons and acknowledged some allegiance to the Pope.
Strong centralised States, such as England, Spain, France, emerged and began claiming unrestricted
sovereignty and no longer submitting to a superior external authority. Within Europe, the Peace of
Westphalia in 1648 ended the wars between Catholic and Protestant countries and led to the recognition
of Protestant States independent from the Church. France, Sweden and the Netherlands were recognised
as new major powers. The Holy Roman Empire disintegrated.
2.3. 19th CENTURY: BALANCE OF POWERS AND THE CONGRESS SYSTEM
Since the Peace of Westphalia, balance of power has become the prevailing principle in foreign relations
of European States. No European State should be allowed power such as to endanger the independence
of other European States. This system was interrupted by the conquest of much of Europe by Napoleon.
The French Revolution of 1789 profoundly challenged the basis of the existing system by advocating
ideas of freedom and self-determination of peoples which proposed to deny the rights of monarchs to
dispose of State territory and population according to their own discretion.
The notion of ‘European international law’ was propagated by academic writers who provided systematic
arguments justifying the interests of European powers in relation to colonisation in Africa and Asia. This
theory presented Asians and Africans as inferior and uncivilised.
2.4. COLONISATION AND RELATIONS BETWEEN EUROPEAN AND NON-EUROPEAN POWERS
European expansion abroad, in the interest of trade and commerce, was promoted in England, the
Netherlands and France by profit-making companies, enjoying privileges which permitted them to perform
State functions in overseas territories. The Europeans recognised, and dealt with, the Mogul Empire in
India, the Ottoman Empire, Persia, China, Japan and Ethiopia as established political entities. China

,preferred isolation from foreigners. After the Opium War of 1842, fought on the premise of securing the
sale of the drug in China, the Treaty of Nanking compelled China to surrender the island of Hong Kong to
Britain. Japan ended the infiltration by Christian missionaries and cut itself from all alien contact, the only
exception being Dutch merchants who were permitted to continue trading. It took until the 19 th century
for European powers to re-establish trade with China and Japan with the threat and use of force, invoking
the alleged legal principle of freedom of trade.
By about 1880, Europeans had subdued most of the non-European world. In the case of old powers
(Turkey, China, Japan), western States relied on treaties which exempted Europeans from local
jurisdiction. In the case of communities without sufficient central authority, the method was simply
conquest and appropriation. By the 18th century, European trade was covering not only goods, but also
human beings. It was based on a lucrative triangular trade transporting African slaves to the plantations
in America, and products and raw materials from America to Europe. The first treaty to condemn the slave
trade was concluded between France and Britain in 1814. This humanitarian principle was also adopted in
the Vienna Congress of 1815 and in the General Act of the Brussels Conference. The Act was ratified by all
European States, the USA, Persia, Turkey, Congo, Zanzibar. This Act provided military and legal measures
to terminate the slave trade, although the status of domestic slavery remained unaffected.
2.5. THE WESTERN HEMISPHERE
The American Declaration of Independence of 1776 led to the recognition of the mother country as a new
subject of international law followed by the independence of Latin American States from Spain and
Portugal. The dissociation from Europe was expressed in the doctrine proclaimed by President Monroe in
1823 against European intervention in the Western hemisphere. South American States attempted to
protect themselves from European dominance by formulating a new regional American international law.
The United States was engaged in forcibly opening up China and took the Philippines in 1898. Argentina
attempted at the beginning of the 20th century, unsuccessfully, to change the practice of powerful
European States using armed force to achieve payment from other States for damage caused to them.
The Venezuelan government refused to accept full compensation of the European claims and the
European claimant States sank three Venezuelan ships and imposed a naval blockade upon Venezuela.
The USA pointed out that foreign intervention would not occur if Latin American countries respected their
international obligations concerning the protection of foreign property.
2.6. DEVELOPMENTS AFTER THE FIRST WORLD WAR
The end of the WWI led to basic changes in the international legal system. Defeated Germany lost its few
colonies as well as one-third of its territory in Europe. Following the Russian Revolution of 1917, the
Russian Government declared itself at odds with the existing system of international law, but eventually
came to some form of accommodation in order to be able to maintain economic and political intercourse
with the outside world. The revolutionary new State originally denied that there could be one system of
international law that applied equally to capitalist and socialist States.
2.7. THE LEAGUE OF NATIONS AND ITS FAILURE
From 1919 onwards, a fundamental transformation of the international system took place with the
attempt to organise the international community and to ban the use of force. The creation of the League
of Nations was a revolutionary step in inter-state relations. Responsibilities were assumed by the League
in the field of the treaty-based protection of minorities in Europe and in social matters.
Another major institutional innovation was the creation in 1921 of the Permanent Court of International
Justice (PCIJ) in The Hague, the forerunner of the present International Court of Justice. In the field of
peace and security, the refusal of the US to join the League made it harder to achieve its objectives. The
League subsequently came to be controlled by the interests of France and Britain. In the Spanish Civil
War, which was viewed as a threat to world peace because of the intervention of several States, the
League affirmed the principle of non-intervention (the obligation of States not to intervene in the internal
affairs of other States), but the League’s resolutions had little effect. Japan’s renewed aggression against
China in 1937 merely produced a condemnation by the League of the aerial bombardment of undefended
towns. The last major action of the League was to expel the Soviet Union in 1939 because it refused to
accept mediation of its claim against Finland.
2.8. DEVELOPMENT AFTER THE SECOND WORD WAR
The Nuremberg and Tokyo Trials affirmed the individual responsibility of German and Japanese leaders for
committing crimes against peace, war crimes and crimes against humanity. The United Nations Charter
was signed by 51 States at the San Francisco Conference in 1945. It was designed to introduce law and
order and an effective collective security system into international relations. The main innovation was to
introduce:
 a comprehensive ban on the use of force, with the exception of the right of States to self-defence
against an armed attack
 the Security Council action through the enforcement system.
The recognition of the special status of great powers was built into the voting procedure of the Security
Council, giving the United States, Russia, Britain, France and China as “permanent members” the right to
veto any decision they disliked.
2.9. DECOLONISATION AND CHANGE IN THE COMPOSITION OF THE INTERNATIONAL COMMUNITY
The composition of the international community started to change after the WWII. The Soviet Union
created the ‘socialist bloc’ under its hegemony. The decolonisation process started, based on the principle
of self-determination. The colonial empires were often confronted with liberation movements. The
decolonisation process was basically completed by the 1960s, after the landmark of the adoption by the

, UN General Assembly in 1960 of the Declaration on the Granting of Independence to Colonial Countries
and Peoples. The increase in the number of newly independent States had a profound impact on the
international legal system.
2.10. ATTITUDES OF THIRD WORLD STATES TOWARDS INTERNATIONAL LAW
The newly independent States do not form a block in any real sense because they are not united by
common ideology. The relative homogeneity of interests of these States is dictated by their forming part
of the Global South, which accounts for their distinctive attitude towards international law, driven by the
fact that most developing countries played no part in shaping the international legal standards and by a
feeling of resentment for the exploitation these countries had experienced. Leaders of developed
countries argued that they were not bound by rules which they had not helped to create. Western States
were anxious not to drive Third World States into the arms of communist States, and therefore agreed to
accommodate their interests.
2.11. RULE OF LAW, MULTILATERAL INSTITUTIONS AND UNILATERALISM
The Friendly Relations Declaration was adopted by the UN General Assembly by unanimous consensus in
1970.
The Declaration constitutes an authoritative interpretation of the relevant provisions of the UN Charter
and of customary international law. These principles include:
 the prohibition of the threat or use of force by States;
 the peaceful settlement of disputes between States;
 the duty not to intervene in matters within the domestic jurisdiction of any State;
 the duty of States to cooperate with one another in accordance with the Charter;
 the principle of equal rights and self-determination of peoples;
 the principle of sovereign equality of States;
 the principle that States shall fulfil in good faith the obligations assumed by them.
Factors reinforcing the normative coherence of international law have been the demise of the socialist
bloc and the proliferation of international courts and tribunals. One area witnessing conflict of interest has
been international investment law. The investment arbitration process consists of multiple ad hoc and
mutually unsubordinated tribunals operating under Bilateral Investment Treaties (BITs), in which
observing the uniformity of law has not always been met. However, the review mechanism under the
International Centre for Settlement of Investment Disputes (ICSID) Convention has served as an important
equalising factor. The practice of World Trade Organization (WTO) dispute settlement organs has been
more robust in ensuring coherence in international trade law. The adoption of the Statute of the
International Criminal Court in 1998 and of climate change agreements by conferences held in 1998 in
Kyoto and 2015 in Paris, have strengthened the trend of States to rely on international law to resolve
global problems.
The growth of Western power in the 1990s led to the popularity of the hegemonic theory of ‘European
international law’, which sought to enhance the perspective of Western dominance and unilateral action
in international law. The law of the use of force is an area where the conflict of interests have been
obvious. This was manifested by:
 attempts to promote the legality of “democratic intervention”, i.e. intervention to support a
democratic system in another State against illegitimate regimes.
 In 1998, the use of force professed as a unilateral enforcement of Security Council resolutions
against Iraq.
 In 1999, by “humanitarian interventions”, essentially the armed aggression against Yugoslavia,
were carried out by NATO States without the approval of the Security Council.
3.SOURCES OF INTERNATIONAL LAW
3.1. GENERAL CONCEPT
The term “source of law” refers to the medium through which the rules of international law are created
and accepted as valid and binding. The doctrine of the sources of law is codified in Article 38(1) of the
Statute of ICJ, which provides that: “The Court, whose function is to decide in accordance with
international law such disputes as are submitted to it, shall apply:
 international conventions establishing rules expressly recognized by the contesting States;
 international custom, as evidence of a general practice accepted as law;
 the general principles of law;
 judicial decisions and the teachings of the most highly qualified publicists of the various nations,
as subsidiary means for the determination of rules of law.
While sources of law immediately create the rules of law, subsidiary means provide the evidence or
describe the process of the creation of those rules.

3.2. TREATIES
Synonyms of treaties are agreement, pact, convention, protocol, charter, statute, act, covenant,
declaration. They all have the same legal weight. Treaties are the major instruments of international
cooperation. There are 2 kinds of treaties:
 law-making treaties → conclude an agreement on universal legal principles (e.g. human rights
treaties, the Genocide Convention).
 contract-treaties → resemble contracts (for instance, a treaty whereby one State agrees to lend a
certain sum of money to another State). Some scholars argue that they are not sources of law,