This chapter explores the relationship between international and national law, discussing both the common law tradition and the civil law tradition. It suggests that each system is supreme in its own field; neither has hegemony over the other. And yet any generalities offered can only provide a background to the complex relations between the national and international systems. Three factors operate. The first is organizational: to what extent are the organs of states ready to apply rules of international law internally and externally? The second factor is the difficulty of proving particular rules of international law. Third, courts, national and international, will often be concerned with the question of which is the appropriate system to apply to particular issues arising. The question of appropriateness emphasizes the distinction between organization, that is, the character of the jurisdiction as ‘national’ or ‘international’, and the character of the rules of both systems as flexible instruments for dealing with disputes and regulating non-contentious matters.
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3. The relations of international and national law
Chapter
4. Subjects of international law
This chapter on subjects of international law discusses established legal persons and special types of personality. Established legal persons cover states, entities legally proximate to states, entities recognized as belligerents, international administration of territories prior to independence, international organizations, and individuals. Special types of personality cover public and private corporations, non-self-governing peoples, and entities sui generis.
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10. Jurisdiction
Christopher Staker
This chapter focuses on the principles of international law that govern the right of States to apply their laws to conduct and events occurring within or outside their own territories; the resolution of disputes arising from overlapping jurisdictional claims; and the problems of enforcing national laws. The discussions cover the meaning of ‘jurisdiction’; the significance of the principles of jurisdiction; doctrinal analysis of jurisdiction; the territorial principle; the national principle; the protective principle; the universal principle; treaty-based extensions of jurisdiction; controversial bases of prescriptive jurisdiction; types of jurisdiction; limitations upon jurisdiction; inadequacies of the traditional approach; and the fundamental principle governing enforcement jurisdiction.
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17. Countermeasures and Sanctions
Nigel D White and Ademola Abass
This chapter focuses on the issue of enforcement by means of non-forcible measures. Two legal regimes are considered: non-forcible countermeasures taken by States (countermeasures) and non-forcible measures taken by international organizations (sanctions). Discussions cover emergence of a restricted doctrine of countermeasures as the modern acceptable form of self-help; partial centralization of coercion in international organizations; problems within each of these regimes along with limitations placed upon their application; coexistence of countermeasures based on a traditional view of international relations, alongside post-1945 development of centralized institutional responses. State and institutional practices that lie between the basic right of a State to take countermeasures to remedy an internationally wrongful act, and the power of international organizations to impose sanctions in certain circumstances are discussed. Finally, the legality of continued use by States of non-forcible reprisals, retorsion, and wider forms of economic coercion; and collective countermeasures imposed either multilaterally or institutionally are considered.
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19. The International Court of Justice
Hugh Thirlway
The International Court of Justice (ICJ), which is defined in the UN Charter as the ‘principal judicial organ’ of the United Nations, is a standing mechanism for the peaceful settlement of disputes between States. It may also give advisory opinions on the law, at the request of the Security Council and General Assembly, or of other UN organs and specialized agencies that are so authorized by the General Assembly. No dispute can be the subject of a decision of the Court unless the States parties to it have consented to the Court’s jurisdiction over that specific dispute. This chapter discusses the history, structure, and composition of the Court, the ways in which jurisdiction is conferred upon it, its procedure, and the nature and effect of decisions (judgments and advisory opinions) of the ICJ.
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21. The Law of the Sea
Malcolm D Evans
This chapter explores how international law has responded to the increasing complexity of the uses of maritime space, focusing particularly on recent trends and developments. It considers the nature of the sovereign rights which States exercise over both space and living and non-living resources, and the extent to which control may be exercised over other users of the seas. It provides an introduction to the basic rules concerning the principal zones of maritime jurisdiction and looks at the rules for the construction of baselines and the problem of determining boundaries where claims to zones overlap. It also considers trends in governance over fisheries and over the deep seabed. While the law of the sea has undergone a remarkable transformation in the last 50 years, much more needs to be done to balance the competing demands of access to ocean space whilst recognizing the need to preserve order and good governance.
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5. Soft Law in International Law-Making
Alan Boyle
From a law-making perspective the term ’soft lawʼ is in most cases simply a convenient description for a variety of non-legally binding instruments used in contemporary international relations by States and international organizations. Soft law in this sense can be contrasted with hard law, which is always binding. Non-binding soft law instruments are not law per se, but may be evidence of existing law, or formative of the opinio juris or State practice that generates new customary law. They may additionally acquire binding legal character as elements of a treaty-based regulatory regime, or constitute a subsequent agreement between the parties regarding interpretation of a treaty or application of its provisions. Other non-binding soft-law instruments are significant mainly because they are the first step in a process eventually leading to conclusion of a multilateral treaty, or because they provide the detailed rules and technical standards required for the implementation of a treaty. An alternative view of soft law focuses on the contrast between ’rulesʼ, involving clear and reasonably specific commitments which are in this sense hard law, and ’normsʼ or ’principlesʼ, which, being more open-textured or general in their content and wording, can thus be seen as soft even when contained in a binding treaty. It is a fallacy to dismiss soft law because it does not readily fit a theory of what is ‘law’: properly understood, it can and does contribute to the corpus of international law-making.
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9. The Individual and the International Legal System
Robert McCorquodale
This chapter examines the role of the individual in the international legal system. It considers the direct rights and responsibilities of individuals under the international legal system; their capacity to bring international claims; and their ability to participate in the creation, development, and enforcement of international law. Particular examples from a wide range of areas of international law, including international human rights law, international criminal law, and international economic law, are used to illustrate the conceptual and practical participation of individuals in the international legal system. It is argued that individuals are participants in that system, and are not solely objects that are subject to States’ consent, though their degree of participation varies depending on the changing nature of the international legal system.
Book
James Crawford
Serving as a single-volume introduction to the field as a whole, Brownlie’s Principles of Public International Law seeks to present international law as a system that is based on, and helps structure, relations among states and other entities at the international level. It aims to identify the constituent elements of that system in a clear way. This ninth edition has been completely updated to take account of the many developments in international law that have occurred since the 8th edition (2012).
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1. Introduction and Overview:
The Ambit of International Law
Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This book is a text about international law, not a text of international law. It tries to explain what international law does and how the international legal system operates, but not to set out a comprehensive or systematic account of what the rules of international law are. This introductory chapter provides a brief outline of the scope and nature of international law. It discusses the changing scope of international law; the emergence of international organizations; the emergence of new international actors; why people should comply with international law; and how international law is invoked and applied.
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9. Postscript
Celebrated for their conceptual clarity, titles in the Clarendon Law Series offer concise, accessible overviews of major fields of law and legal thought. This chapter presents some brief, final thoughts concerning the declining influence of the individual nation-State. It suggests that the power of the State is in decline when measured against the increasing power of other actors, such as international and supranational organizations. The result, however, is not so much an expansion in the scope of international law so as to claim all these other actors as its own, but rather that the boundaries between international law and neighbouring legal subjects are breaking down. The most important point is that all of the ground occupied by international law is shared with others who are not lawyers but men and women in the vast range of other professions and businesses whose cumulative efforts shape the world. While lawyers have a contribution to make going about resolving some of the most crucial problems that face the world, it is only one way among many.
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1. Fundamentals of international criminal law
Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting
International criminal law (ICL) is a body of international rules designed both to proscribe certain categories of conduct (war crimes, crimes against humanity, genocide, torture, aggression, international terrorism) and to make those persons who engage in such conduct criminally liable. These rules consequently either authorize states, or impose upon them the obligation to prosecute and punish such criminal conducts. This chapter discusses the main features of ICL; the sources of ICL; and the notion of international crimes.
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24. Nationality of corporations and assets
The assignment of persons (including corporations) and property to states, in particular for the purposes of diplomatic protection, is normally approached through the concept of nationality, yet the problem must be solved in a variety of contexts, including jurisdiction. This chapter reviews international law governing the nationality of corporations, nationality of ships, nationality of aircraft, nationality of space objects, and state property in general.
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25. The conditions for international responsibility
This chapter discusses the basis and character of state responsibility, attribution to the state, breach of an international obligation, and circumstances precluding wrongfulness. This chapter focuses on the articulation of the law of responsibility through the ILC’s Articles on Responsibility of States for Internationally Wrongful Acts.
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12. Immunities Enjoyed by Officials of States and International Organizations
Chanaka Wickremasinghe
This chapter examines the immunities enjoyed by various categories of officials of States and international organizations. It identifies jurisdictional immunity as one of the key legal techniques by which diplomatic relations and, more broadly, international relations and cooperation can be maintained. It recognises that recent developments in international law have increasingly required that immunities be scrutinised and justified, particularly where they impact on individual rights. Among the most striking of such challenges to immunities are those that have arisen in relation to measures which seek to bring an end to the impunity of persons who commit the most serious international crimes, including measures such as the development of extraterritorial jurisdiction and the establishment of international criminal tribunals. A range of judicial decisions is reviewed in order to determine how international law has attempted to reconcile such conflicting priorities in this respect.
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14. The Character and Forms of International Responsibility
James Crawford and Simon Olleson
This chapter begins with an overview of the different forms of responsibility/liability in international law, and then focuses on the general character of State responsibility. The law of State responsibility deals with three general questions: (1) has there been a breach by a State of an international obligation; (2) what are the consequences of the breach in terms of cessation and reparation; and (3) who may seek reparation or otherwise respond to the breach as such, and in what ways? As to the first question, the chapter discusses the constituent elements of attribution and breach, as well as the possible justifications or excuses that may preclude responsibility. The second question concerns the various secondary obligations that arise upon the commission of an internationally wrongful act by a State, and in particular the forms of reparation. The third question concerns issues of invocation of responsibility, including the taking of countermeasures.
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15. Issues of Admissibility and the Law on International Responsibility
Phoebe Okowa
This chapter examines the legal regime governing the admissibility of claims in international adjudication. Particular attention is paid to the modalities of establishing legal interest in respect of claims brought by States in their own right and on behalf of their nationals. The role of nationality is examined and the problems posed by competing claims in relation to multiple nationalities are explored. The unique nature of the problems raised in extending diplomatic protection to corporations and shareholding interests is considered in light of the jurisprudence of international tribunals. The final section considers the ambit of the rule on exhaustion of local remedies and its effect on the admissibility of claims. The parameters of the rule are explored and circumstances when, as a matter of policy, it ought to be regarded as inapplicable are discussed.
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16. The Responsibility to Protect
Spencer Zifcak
This chapter discusses the responsibility to protect, which has become the primary conceptual framework within which to consider international intervention to prevent crimes against humanity; it provides the background to the new doctrine’s appearance with a survey of the existing law and practice with respect to humanitarian intervention. It traces the doctrine’s intellectual and political development both before and after the adoption of the World Summit resolutions that embodied it. Debate about the doctrine has been characterized by significant differences of opinion and interpretation between nations of the North and the South. In that context, the chapter concludes with a detailed consideration of the contemporary standing of the doctrine in international law.
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18. The Means of Dispute Settlement
John Merrills
This chapter discusses the various methods available for the peaceful settlement of international disputes. These include diplomatic methods (negotiation, mediation, inquiry, and conciliation), and legal methods (arbitration, the International Court of Justice, other courts and tribunals, and the place of legal methods). The role of the United Nations and regional organizations is also considered.
Discussion covers the role of international law and its place in international relations, and dispute settlement generally. The text is illustrated with analysis of current and past disputes in which the various methods have been used—either successfully or unsuccessfully. The historical record shows first, that over the last two hundred years huge progress has been made in developing and refining the methods for handling international disputes, and secondly, that despite, or perhaps because of, differences between the various methods, their interaction and use in combination are often important factors in determining their effectiveness in practice.
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20. The Use of Force and the International Legal Order
Christine Gray
This chapter examines the law on the use of force. It discusses the UN Charter scheme; the Prohibition of the Use of Force in Article 2(4) of the UN Charter; intervention, civil wars, and invitation; self-defence; the use of force under Chapter VII of the UN Charter; UN peacekeeping; and regional action under Chapter VIII of the UN Charter. The UN Charter provisions on the use of force by States, Article 2(4) on the prohibition of force, and Article 51 on self-defence, have all caused fundamental divisions between States. There is disagreement as to whether the prohibition on force should be interpreted strictly or whether it allows humanitarian intervention, as in Kosovo. There is also disagreement over the scope of the right of self-defence. The response to the 9/11 terrorist attacks has led to a fundamental reappraisal of the law in this area.
