Introduction and Overview of International Law

Introduction and overview of international law  

The nature of international law

Objectives

On the completion of this topic you should be able to:

• understand the parameters of this subject; and
• discuss some important characteristics of the present day status of international law.
• discuss the different theories of international law including positivism and natural law approaches and criticism of these approaches;
• recognize the wide range of approaches used by the international lawyers to characterize international law; and
• appreciate the relevance of international law to nation states.

Contents

1.        Introduction

2.        Present day status of international law

3.        Overview of the topics covered in this unit

4.        What is international law?

5.        Theories of international law

6.        Positivism and natural law approaches

7.        New approaches

8.        Criticism of Western legal concepts

9.        Is international law really law?

Reading

Prescribed text

Mitchell & Beard (2009), International Law in Principle, Chapter 1.

Hall, Stephen (2003), Public International Law, LexisNexis, Australia, Chapter 1, pp. 1 -24.

Additional reading

Harris, D.J., (2004), Cases and Materials on International Law, (5th edn), Sweet & Maxwell, London, pp. 1 -17.

Anton, D.K., Mathew, P. & Morgan W., International Law: Cases and Materials (OUP, 2005) Chapter 1, “Nature, System, Actors”, pp. 1 – 136.

Other reading

Reading 1.1        Purvis, N. (1991), “Critical legal studies in public international law”, Harvard International Law Journal, Vol.32, No.1, pp.81-90.

Reading 1.2        Jenks, C., Friedmann, W., McDougal, M., & Weston, B. (1980), “The concept of international law”. In B. Western, R. Falk, & A.D’Amato, (Eds), International Law and World Order, West Publishing, St. Paul Minnesota, pp.9-14.

Reading 1.3        Falk, R. (1985), “The Grotian quest”. In R. Falk,  F. Kratochwil, & S. Mendlovitz, (Eds), International Law: A Contemporary Perspective, Westview Press, Boulder, pp.36-42.

Reading 1.4        Charlesworth, H., Chinkin, C. & Wright, S. (1991), “Feminist approaches to international law”, The American Journal of Intrnational Law, Vol.85, No.4, pp.621-630.

Reading 1.5        Cassese, A. (1986), “Attitudes of states toward international law”, International Law in a Divided World, Oxford University Press, Oxford, pp.105-112, 114-123.

Reading 1.6        Bedjaoui, M. (1985), “Poverty of the international order”. In R. Falk, F. Kratochwil, & S. Mendlovitz, (Eds), International Law: A Contemporary Perspective, Westview Press, Boulder, pp.152-154.

Reading 1.7        Mullerson, R.A. (1989), “Sources of international law: new tendencies in Soviet thinking”, The American Journal of International Law, Vol.83, No.3, pp.496-499.

Reading 1.8        D’Amato, A. (1987), “Is international law really ‘law’?” In A. D’Amato, (Ed), International Law: Process and Prospect, Transnational Publishers Dobbs Ferry, New York, pp.1, 13-26.

1.        Introduction

The purpose of this topic is to provide a brief overview of public international law and policy including a brief comment on each of the topics in this unit.

This unit is about public international law and policy. It is important for you to understand what is meant by public international law and policy.

Public international law and policy is a system of law and policy which is separate from domestic legal systems and domestic policies. It operates, primarily, to govern the following three types of relationships:

(i)        between nation states;

(ii)        between nation states and international organisations; and

(iii)        between nation states and individuals.

Its rules, we will see, in certain instances can become part of domestic law but even if they do, international law and policy remain separate entities. The terms ‘nation state’ and ‘state’ are used interchangeably(可交换的) throughout these materials. For a definition of the term ‘state’ (and therefore of ‘nation state’ too) see Harris at (pp.102-104). However, for our purposes, the term ‘state’ refers to independent sovereign states like Australia, but does not refer to smaller less independent states within a federation, like Victoria, New South Wales, etc.

Public international law must also be distinguished from private international law. Private international law, unlike public international law, is not a separate system of law, but is a branch of a particular country’s domestic law. It is that part of domestic law that provides special rules for dealing with cases where a foreign element is involved.

2.        Present day status of international law

As indicated above, we know that today international law is an indispensable（不可缺少的） body of rules regulating different types of relationships, without which it would be virtually impossible to maintain steady and frequent intercourse（交往） between nation states. The 20th century has seen the globalisation of many activities, particularly in relation to the interaction between nation states. This is in part due to the major changes that have occurred in the area of information technology. Globalisation has meant that there has been the need to enhance and develop the rules of international law. In particular, new rules are needed for new situations. Previously one could rely on the slow progress of customary international law (see Topic 3) to develop international law but today with modern situations and problems arising there is a call for speedier methods.