I LAW A Law or Not

Dedefo Bedaso ⁎ 1
Istanbul Aydin University
lemmialelu@gmail.com
March 25, 2020
⁎ (LLB) Jimma University, College of Law (Ethiopia)

⁎ (MA, overdue) Istanbul Aydin University (Turkey)
Electronic copy available at: https://ssrn.com/abstract=3588897

Contents
1. Introduction: Definition
2. Nature of International law: Is International Law a Law?...............................
a. Phase I: International law is not a prefect system ……………………….
b. Phase II: International Law is Law ………………………………….......
c. Phase III: My take ……………………………………………………….
3. Application of International Law ……………………………………………
4. References …………………………………………………………………...
Abstract
The general understanding of law is that, it is ‘a body of rules’ or ‘social order’ that regulate the
relations in human community, various entities, societal harmonization and individuals to govern
their respective mutual understanding. The law defines and regulates societal relationships. It “is
an element, the only one, by which we are able to differentiate definitely and successfully between
a legal, moral and religious order.”2 It is a balancing technique of the rights and obligations of
humans in their daily life. The term law is a “grand norm” and thus, a general concept replacing
all kinds of “laws”; It could be municipal law of states such as civil law, criminal law, liberal law,
business law, intellectual property law, economic law, feudal law, socialist law, law, medical law,
land law, media law, etc. Municipal law is a domestic law, or name used in replace of the national,
statutory, internal law or domestic law of states. It applies to nationals, body of politic and others
within state in that limited territorial jurisdiction. The legislative organ of state has supreme power
to enact and enforce such laws in the country. The municipal law of the state is usually limited in
the scope to nations and regulates the domestic issues, international law is a beyond that. On the
other hand, there are certain areas of law developed at international level. These are; private
international Law, international human rights law, international humanitarian law, international
criminal law, refugee law, international environmental law, international economic & trade law,
international space law, and Islamic law [Sharia law] is among few to mention. Municipal law and
international law share something communal (or have similar normative conducts as being a law
and regulate certain acts). Laws, whether national or international are not permanent; it can be
made, amended, reformed and altered at any time. There is no clear way to measure law, its
purpose and identify clear line between them to develop a certain model for each of them. The
question may arise does international law satisfy legal requirements or normative standards to be
2
Kelsen, Hans. Principles of international law. The Lawbook Exchange, Ltd., 2003, P. 3

considered as [international] law? Some legal scholars and jurists argue ‘if international law can
be entitled as a true law or not’. To know whether international law is a true law or not it is would
be nice to know the nature and functions of international law. Those who accept the legality of
international law consider it as a prefect law with similar footing as the municipal law. Is
international law a law? Those who support this view says, it is law because it doesn’t have another
name than to be considered as [international] law; it is law because it has a certain procedural and
substantive rules to follow; it is a law because, it regulates certain international acts conducted
worldwide; it is a law because municipal law is usually limited to a territorial jurisdiction and do
not reach for international remedies; it is a law because world nations have something to use
separately and to share communally based on general principles of international law; international
law regulates the relationship between states, international organizations and individuals across
the globe; international law is designed in its own way, applies among sovereign states, and usually
applied by international tribunals; international laws are sometimes practiced in national courts, in
foreign offices, in international organization offices, and in regional organization offices.
Therefore, international law exists as a law, even as a perfect law. International law is a prefect
legal system has yet to develop and it doesn’t have to be seen through the ‘eyeglass’ of the
municipal law of the states. Thus, the purpose of this article is to elaborate the views regarding this
issue and to forward different legal arguments. Under the following title, I have provided three
topics. Opposing view, proponents, my take regarding these views and application of international
law.

INTRODUCTION
1. Definition: What is international law?
The terminology ‘international law’ was first coined by Jeremy Bentham in 1780.3 Consequently,
there are various terminologies used to define the term ‘international law’. These are; international
law, public international law, universal law, global law and law of nations or interstate law. There
are no basic differences among these names, and they can be used interchangeably. International
law is defined as ‘… the general principles of law recognized by the civilized nations’. 4 It can also
be regarded as a body of rules ultimately accepted by independent sovereign states and binding on
their mutual relationships5. International law is a ‘the vital mechanism without which an
independent world would not function’6. Hans Kelsen defined “international law or Law of
Nations is the name of a body of rules of which – according to the usual definition – regulate the
conduct of the states in their intercourse with one another”.7 Stark also defines it as, “that body of
law which is composed of the principles and rules of conduct which states themselves bound to
observe in their relations with each other”.8 Robert Jennings and Sir Arthur Watts consider
international law as ‘the body of rules which are legally binding on states in their intercourse with
each other’9. English philosopher, John Austin argue against international law as effective law, as
there is no command of sovereign in international law and cannot be enforced against entire nation
and, thus not binding law. For J. Austin, international law is just positive morality, rather than
law.10 The Oxford English Dictionary defines, “International law, the law of nations, under which
nations are regarded as individual members of a common polity, bound by a common rule of
agreement or custom; opposed to municipal law, the rules binding in local jurisdictions.” Philip C.
Jessup suggested that, international law should be defined as ‘law applicable to states in their
mutual relations and to individuals in their relations with states’11. Similarly, James Brierly
explained international law as, “The law of nations, or international law, may be defined as the
body of rules and principles of action which are binding upon civilized states in their relations with
one another”.12 The American Law Institute defined it as, “International law in restatement consists
of rules and principles of general principles of general application dealing with the conduct of
3
Hall, The Law of Nations, 6th Ed., P. 1; Malanczuk, Peter. Akehurst's modern introduction to international law.
Routledge, 2002., P. 1
4
Articles 1 and Article 38 (1) of United Nations Charter, 1945
5
Frederick Edwin Smith Birkenhead. International Law, 4th Ed., ( Michigan University, 1911) P. 1
6
Dixon, Martin. Textbook on international law. Oxford University Press, 2013, P. 3
7
Kelsen, Hans. Principles of international law. The Lawbook Exchange, Ltd., 2003, P.3
8
Starke's International Law, 11th Ed., (1994), P. 2
9
Sir Robert Jennings and Sir Arthur Watts (Eds.), Oppenheim’s International Law, I, 9th Ed., London: Longman,
1996, p. 4
10
The Province of Jurisprudence Determined (London, 1954)
11
Philip C. Jessup. A Modern Law of Nations, (New York: Macmillan, 1948) P. 16–17
12
J.L. Brierly, The Law of Nations, 6th Ed., edited by H. Waldock (1963) P. 1

states and of international organizations and with their relations inter se as well as with some of
their relationships with persons, whether natural or juridical13. Therefore, all the definitions
provided the international law recognizes it as a body of legal rule between sovereign states and
other entities (could be international organizations or individuals) with their relations inter se.
Based on above definitions and the function it provides, it can be regarded as law.
2. Nature of International Law: Is International law a law?

It has been a point of debate among international legal scholars and jurists whether international
law can be considered as a true law or not. Some consider it as a true law while others doubt its
legality. For them, international law is a law and not necessary to assimilate or completely equate
it with the municipal law of states. Some other rejects this view. What are the lines of argument?
Is this due to the enforcement limitation, procedural deficiency, absence of judicial system,
absence of a supreme legislative power or territorial jurisdiction limitation, or what else? The
argument goes through theoretical debate and functional based views. For instance, international
traffic aviation and travel in the high seas are the concern of international law, while issues like
nationality and traffic violation are regulated by municipal law. There are two schools of thought
regarding the legality of the law. The natural law theory and positivist theory. These theories try
to provide the legal requirements to be considered. There are also scholars who accept the middle
ground. The meaning also depends on the school of thought adopted and principle they follow.
Phase: 1
International law is not a prefect System

For those who criticize it, international law has been presumed as the imperfect law. I.e., it cannot
be considered as a true law. The critics lays on absence of legislative power, law enforcement
capacity and single judicial system among the ‘other’ reasons14. The law enforcement capacity of
the Security Council itself is very limited politically and legally15. It is not a law in a perfect sense
for different reasons. They consider international law as moral rules with no binding force 16 due
to the absence of coercive acts of states, non-interferences in the domestic affairs of other states
and the absence of judicial system. Those who accept international law as a law consider the state
13
American Law Institute, restatement of the Law, Third, The Foreign Relations Law of the United States (1988)
Para. 102, 222.
14
International law is considered to be Imperfect law due to sovereignty issue, complexity (heterogeneity) of legal
system, ideological differences, unbalanced world power, diversity of socio-economic and political attitudes and
difficulty in law enforcement capacity.
15
Malanczuk, Peter, and Michael B. Akehurst. Akehurst's Modern Introduction to International Law. London:
Routledge, 1997 P. 58 - 60, 254 - 72
16
Diversion of Water from Meuse (Neth. v. Belg.), 1937 P.C.I.J. (ser. A/B) No. 70 (June 28) [or (1937) PCIJ Ser.
A/B, X/0, 70, p. 7]

practice,17 customary international law, general principles, international legal practitioners,
international judicial tribunals and international conventional agreements as exemplary role. For
instance, Oppenheim,18 Jeremy Bentham, political philosopher of England was the first person
who introduced and used the term ‘international law’ in 1789. 19 He considered international law
as a law. The nature of international law must not be assimilated with domestic law of states but
studied separately in the context of the international community. It mainly regulates the
relationship between states, international organizations and individuals with their international
capacity. According to them, there are multiple roles of international law, especially in human
right, humanitarian role, in bilateral and multilateral role between states, protect vulnerable groups,
set procedures on how to bring wrongdoer to justice, ameliorate harm and facilitate socioeconomic
and political relationship between international communities. The subjects of international law are
legally and morally obligated to obey international law. It could be easy to write down various
rules of international law, but it cannot be easily functioned easily and effectively against the world
community as desired. The world system is built up of heterogeneous system. There are various
political interests, economic power, ideological orientation, territorial size, population size and
structure, religious and social structure. Such diversity may affect the application, interpretation
and enforcement of international law20. Traditionally, or according to the positivist doctrine of 19th
and early 20th century, states were assumed the only subject of international law,21 and states were
the only sovereign entity, but today other entities, individuals and the international organizations22
can be subject to international law and capable of possessing international rights and duties. For
instance, belligerents, insurgents and the Holy See can be recognized as subjects of international
law. There were three theories developed regarding the explanation of the view, whether
international law is a law or not law. These are natural law theory, positivist law theory and middle
ground (eclectic) theory.
Natural Law Theory: ‘The term Natural Law is here evidently used for those rules of justice,
which ought to govern the conduct of men, as moral and accountable beings, living in a social
state, independently of positive human institutions and which may more properly be called the law
of God, or the divine law, being the rule of conduct prescribed by Him to his rational creatures,
and revealed by the light of reason, or the sacred scriptures’.23 Natural law theorist’s view that
there is a natural law which applies to the states, like it applies to the individuals and other
creatures. The naturalist says, it is the law of nature which regulates the relationship between
17
ICJ Reports (1969), p. 3 at P. 46-5
18
P.B. Rathod, International Law: Theory and Practice (Commonwealth Publishers, New Delhi, 2008) P. 15
19
Hall, The Law of Nations, 6th Ed., P. 1
20
E. McWhinney, United Nations Law Making: Cultural and Ideological Relativism and International Law Making
for an Era of Transition, 1984; A. Cassese, International Law in a Divided World, 1986
21
Malanczuk, Peter. Akehurst's modern introduction to international law. Routledge, 2002., P. 1; P.B. Rathod,
International Law: Theory and Practice (Commonwealth Publishers, New Delhi, 2008) P. 2
22
The Vienna Convention on the Law of Treaties between States and International Organizations or Between
International Organizations, March 21, 1986
23
Wheaton, Henry. Elements of international law. Sampson Low Son & C., 1863, P. 2-3

humans, states and the validity of man-made law is tested based on the natural law. The natural
law as the school of thought had emerged from the Roman philosophical tradition of law and the
Roman Catholic Church. It was inspected under the legacy of ancient Stoic and Rome legal
traditions, but it was developed under the umbrella of the catholic church.24 The natural law
theorists argue international law is a moral rules with no binding force.25 However, there is no state
machinery, command of sovereign and universal in nature, it has no place and time specific. The
naturalists believe that international law is identified with nature and a rule of natural law and it is
the only source of law. The Stoic philosopher Cicero stated the natural law as ‘spread through the
whole human community, unchanging and eternal’.26 The German scholar Samuel Pufendorf
(1632 – 1964) had his work De Jure Naturae et Gentium (1672) espoused the view as natural law
was the source/bases of international law. The problem with this theory is that, it doesn’t accept
the law developed by custom or made by either state or individual to govern the relationship
between them. According to natural law theory, natural law is the supreme law and, any law against
it becomes void.
Positivist Law Theory: According to the positivists perspective, the law is a man-made
instrument, it is a command of sovereigns, a conduct of human community (custom) and or
established based on the conventional agreements.27 States are obligated to obey the international
law and it can be derived from the consent of sovereign states and states have consented to be
bound by it.28 What states do or practice becomes what constituted the rise of international law.
For instance, the law of nations or the law of sovereignty is created by man. Man-made laws are
purely human creation, temporal, subject to alteration, vary from place to place and from time to
time, a product of human will and initiative.29 For positivist, the rules of international law emanates
from customs and international treaties, and these are the basis of international law. 30 They reject
the notion of natural or higher law and saw law as a creation of power mean a command of
sovereign followed by sanction. John Austin was the father and well-known exponent of the
positive law theory. For him, “Every positive law, or every law simply and strictly so called, is set
by a sovereign individual or a sovereign body of individuals, to a person or persons in a state of
subjection to its authority”. 31 John Austin defined law as a command of sovereign entity which has
to be followed by sanctions and he doesn’t believe in international law as there is no sovereign
body to make sanctions on it unlike domestic law. Therefore, international law is not law for him.
Today, there is no international legal system with supreme legislative power, command of
sovereign and followed by sanction. Thus, under international law positivism theory fails to meet
requirements stated by John Austin.
24
Malcolm D. Evans. International Law. 4th Ed., (Oxford University Press, 2014) P. 6
25
Diversion of Water from Meuse (Neth. v. Belg.), 1937 P.C.I.J. (ser. A/B) No. 70 (June 28) [or (1937) PCIJ Ser.
A/B, X/0, 70, p. 7]
26
Cicero, Republic, P. 68 – 69
27
28
Oppenheim, 'International Law', Vol. I, 8th Ed., p. 56
29
Francisco Suarez. Treatise on Laws and God the Lawgiver, (published in 1612).
30
United Nations General Assembly Resolution, 50/44
31
John Austin, Lectures on Jurisprudence or the Philosophy of Positive Law, 5 th Ed., 1885, London: John Murray at P. 34.

Mixed (Eclectic) Theory: Mixed theory is the middle ground that lies between natural and
positivist law theories. This can be considered as the pluralist outlook view. The eclectic theory
accepts the positive views from both theories.
International law has no consistent and effective, centralized institution to enforce international
rules. Those with opposing argument, assume as international law is not a perfect system. They
argue as its substantive and procedural application is predetermined on its subjects. There is even
a counter argument which opposes as the international law is not really a law in the strict sense.
Their opposing argument lies in the absence of centralized legislative body, no command rule, its
horizontal nature, absence of supreme authority, enforcement mechanisms, absence of sanction
force and lack of universal applicability. The [absence of] formal legal institutions, the internalized
nature of norms, automatic operation of judicial elements is the other reason why international law
fails to be effective law. In the absence of such role, international law cannot be considered as true
law.
A. No parliament/centralized Legislative body: There is no centralized legislative
organ or parliament recognized by ‘all nations’ in the international legal system. The superior
sovereign legal authority with concurrent wills of states that bind their mutual relations is
important. The states agreement or the treaty made between states cannot qualify the law-
making process in international law. States should have established the supreme authoritative
organ where the international law could derive. The absence of constitutionally based law-
making process within states in their reciprocal relationship makes the legality of international
law questionable. The treaty made by states under international law only binds signatory states,
and that specific matter in their agreement. There is hope as the international organizations,
international non-government organizations, United Nations and international law
commissions plays great role in developing international law. But not effective due to political
and social reasons. The international law-making authority should develop by these institutions
and all states must respect and abide by such mutual agreement. For instance, The International
Law Commission (ILC) was formed by the United Nations (UN) to develop the international
law and its codification.32
B. No Universal application/enforcement limitation: International law lacks

perceived global role as one, unified system of law. International law is the body of rules that
usually applies to the states but doesn’t bind them. For instance, if the majority of states signed
treaty and unanimously adopted it, that doesn’t mean it will have a binding effect in all the
states, non-state entities and individuals. If international law is accepted as ‘global law’ it
should have to be accepted by international government, international civil servant and the
enactment of judicial government by ‘world government’. There are the critics as international
law would infringe the state sovereignty and national autonomy33. Thus, it is biased on the side
of powerful states. Such states are mostly the champions of international law. For instance,
32
Article 13 (1) (a) of United Nations Charter, 1945
33
Al. Bolintineanu and D. Popescu, "New trends in public international law in a changing world", No. 1 (1994), P.
29 and 30; United Nations charter (General Assembly resolution 2625 (XXV))

there is one negative vote by member states the draft resolution will fail on such situation. The
states plays a decisive role in creation, development and enforcement of international law.
International law experts, such as Westlake,34 Schwarzenberg35 and James Brierly36 agree as
international law only applies to sovereign states. There is no standardized procedure about its
application. In earlier times, states were only subject of international law, individuals and
international organizations were not regarded as subjects of international law. It defines the
rights and procedures among sovereign states, not individual persons.37 States where the
ultimate law makers and enforcers of it at international level. 38 This has been changed now as
international law applies to individuals, international organizations and on other entities with
international personalities. However, The institution like the United Nations Security Council
was established to protect international peace and security across the globe, but not established
to enforce the international law. Its role is more of keeping or peace, restoring effect than the
law enforcing effect.
C. No International Court System/No judicial system: There is no centralized and

effective court system, the absence of penalty procedure, lack of judicial proceeding and
sanction force in international law makes it the imperfect system. Under municipal law, states
use monopoly force, standing army and state bureaucracy39 while the international system
lacks automatic application of such system. There are no security forces, regular police forces,
effective court system and law enforcement mechanism at the international level. The existing
ICJ court operates under a consensus on limited jurisdiction. The jurisdiction of international
criminal court (ICC) is also limited only to try serious international crimes. The decision of
ICJ has a binding effect on parties signed and only in the particular case at hand.40 It doesn’t
have a precedent effect unlike domestic courts. There are also some special ad hoc tribunals
like the ICTY and ICTR established for specific criminal trials in Yugoslavia and Rwanda.
None of them is unanimously accepted as a world court recognized by all countries. Within
municipal law of states there is usually a mandate from national constitution and judicial
enforcement is based on the court system. It is hard to get such proceeding within the
international legal system. All the existing international courts are not compulsory on all states,
except on signatory states and, it lacks a plenary jurisdiction over disputes that arise under
international law. The judicial decision made by the ICJ is legally binding to the parties under
the dispute.41 For instance, in municipal law if somebody steals property of the other person
he/she may be caught and brought before justice. Then the judicial proceeding continues until
final judgment is served. In such case we say the law is effective enforcement, but in the case
of international the law, there is no effective court system to bring law breaker before the law.
Thus, its effectiveness is weaker than that of the domestic judicial system. This is why
34
Westlake, international law, 1894, Cambridge: Cambridge University Press
35
Cited on Oppenheim, 'International Law', Vol. I, Ninth Edition (1992), p. 7
36
J.L. Brierly, The Law of Nations, 6th Ed., edited by H. Waldock (1963) P. 1
37
Oppenheim, 'International Law', Vol. I, Ninth Edition (1992), p. 5
38
Dordrecht, Practice & Methods of International Law (1984) P. 2
39
H. Spruyt, The Sovereign State and Its Competitors, 1995
40
Article 59 of United Nations Charter, 1945
41
Article 34(1) of United Nations Charter, 1945

international law lacks credibility in having international judicial authority. Therefore, the
opponent criticizes International law as generally the imperfect law. The international law are
a horizontal system with no single unified rules accepted by all nations. It is not made up of a
unified system of law in general. It doesn’t follow the law-making, law enforcement
mechanism by executive organ and law interpretation of the judicial organ as the municipal
courts do. Due to the absence of detailed substantive and procedural rules, enforcement
mechanisms and legal enforcement agencies, international law is not a perfect system of law.
The existence of international judicial institutions, security council and other dispute resolution
mechanisms are not unified, strong and well developed. The rules, moral acts and legal or
judicial decisions are sparsely exists, they may even change and updated regularly. The
majority of international laws are law at will, which means it is up to states, to accept, not
accept or observe the international law. 42 Thus, states have full authority to obey or disobey
international law, except where the undisputed peremptory status of customary international
law exists. The international law can be effective and [may] get prefect status, if states should
accept, develop it and apply it as a binding legal instrument. This usually happens through
signing treaty or as a conventional agreement between world community of nations. That will
not be enough by itself, and they must be committed to enforce them and abide by its judicial
system. For instance, in the municipal legal system the constitution, penal law, administrative
laws and judicial system are mandatory and applies to all nationals and non-nationals within
the territory. The application is automatic and doesn’t require a special stipulation. Therefore,
the observance and acceptance of municipal law is compulsory. 43 In similar fashion, there
should be an effective international law-making institutions, law implementing and effective
judicial system. Therefore, due to the above and some other reasons they consider international
law as the imperfect law.
42 International Law, Vol. I, 9th Ed., (1992), p. 9

43
International Law, Vol. I, 9th Ed., (1992), p. 9

Consesual law
[based on resiprocity principle]
[No command rule]
Lacks centeral judicial No single judicial system

system [No judicial proceeding]
Why
international
law is not
Horizontal legal system prefect law? Law at will
[No supreme authority] [No authoritative legislator]
Mix of major legal syatem

- Traditional practices No centralized use of force Hetrogenity of global system
- Anglo-Saxon [United Nations Security council is [There are various lelgal
- Civil law politically and legally limited] systems]
- Sharia law
Diagram: The drawbacks with the international law
Phase II
International Law is Law

The second viewpoint supports the idea international law is considered a law with equal footing in
municipal law. For them, the absence of international legislator, judicial system, command rule
and obedience role doesn’t halt the status of international law as law. There is optimism where the
international law could be grown into a ‘prefect system of law’ and could possibly be addressed
the important global issues. The proponent of this argument belief that, the world communities are
in an effort to increase engagement in the social, political and economic relations, international
financing and human right related coordination. There is a possibility where the state could
establish a strong legal system out of international law. The international law system is made
available international communities of the state. Thus, states can make international rules and
control their activities in global engagement. For instance, it can establish peace and order, avoid
use of force, protect human rights, promote friendly relationship, ensure cooperation, manage
relations between states, elevate the common sprit of the states and attempts to build a global legal
order. In today’s world, there are various circumstances which indicate the roles of international
law beyond states’ territorial jurisdiction. International law provides rights and obligations in all
subjects of international law, international organizations, practiced daily in national and
international courts, in foreign offices and with other government organ of the state. The state
believes the existence of international law can provide the check and balance process, decisive
international judicial system and well developed law-making and implementing procedures. Then,
the essential functions of international law will be promoted and served. Under the following
paragraphs the possible potentials of international law are provided. These functions of

international law proves the legal capacity of international law. These are; nations communal
interest, the existing states legal practice, psychological Rubicon with the states, existing
international entities as the subjects of international law, the automatic applications of some of the
international law principles and the development of human right instruments that provide
individuals to get an automatic role in the international law system.
A. States Communal Interest: The world communities of states are tied together due to
socioeconomic, cultural, political, legal and globalization process. The states share something
in common (it could be legal standard, moral values or ideology, economic resource,
technology etc.) by accepting the rules of international law at least morally and technically. To
facilitate such relationship, states have to make treaties or other special agreements. That
becomes part of international law. The United Nations is considered to be a center for
“harmonizing the actions of nations in the attainment of … common ends”.44 The international
law cannot be easily applied without the support, cooperation and willingness of world
communities work together. There is a situation where the wrongdoing state becomes held
responsible for its evil act toward the victim state or the world communities of states. The
international laws are made by states, reflect their communal interest and governed equitably.
It also a serves societal need both at the local and international level as deemed necessary.
Therefore, international law is universal in its nature, and applies to all the mankind, without
any discrimination. The existence of human right instruments, humanitarian law and
international criminal laws, space law, trade law and other international laws clearly shows the
necessity of international law in the communal interest of states. Therefore, all the states are
obligated act jointly or separately to the protection of human right 45 and abide by the rules of
international laws. The existence of communal state interest automatically validates the
existence of international law.
B. Existence of international legal practices: There are customs, traditions, moral

principles, legal rules and actions of states exist among the world communities in their daily
socioeconomic and political relationship. These legal practices are part of international law
and exist as sources of international law. Such rules may exist under written agreements or
informally via practice by states. States should recognize these international rules as binding
norm and accept them as international law rules. Especially, the mandatory principle of
international law called peremptory norms must be respected by all states. International law is
developing area of law; it may change, altered and developed through time. The peremptory
norms itself can be changed to the new peremptory norm. In the absence of a police force or
militia to keep order when international laws is broken, there is still “outcasting”, which
“involves denying the disobedient benefits of social cooperation and membership” 46. This is a
psychological barrier against breaking international law. States are not at free will to break
44
Article 1 (4) of United Nations Charter, 1945
45
Article 55 – 56 of United Nations Charter, 1945
46
Hathaway, Oona, and Scott J. Shapiro. “Outcasting: enforcement in domestic and international law.” Yale Lj, 121
(2011): P. 252

international norms and there is always fear of breaking the international law. The fear could
be against retaliation, self-help and compulsive force of reciprocal, political or economic
sanction. The violation of international law obligation makes the wrongful state to act toward
injured state, entity or in certain circumstances against the world community as a whole. There
could also be a loss of foreign aid, trade restriction, loss of trust and imposition of war on the
wrongdoing state. The existence of such international legal norms are a true reflection of
international law.
C. Functioning of International and Municipal law: International law is a growing

and intertwined part of the domestic legal system. There is not exclusively self-enforcing, even
though there is no proper harmonization role between national and international laws. That
means, domestic and international laws are not totally exclusive, both systems of laws can
possibly work together to certain extend. There are constitutionally based connection47, global
commons, humanitarian related, and connection based on human rights and others. Thus, there
is a possibility where international law rules, whether in formal or informal way exist both at
the national and international level. In such cases, if the judicial issue arises within the
international system, then the court trial goes to international judicial tribunals, court of justice
or any other special ad-hoc tribunal to be established for that specific purpose. If the legal issue
happens at the state level or with territorial jurisdiction, the municipal laws applies to it. The
national authorities and domestic court may enforce them, based on judicial authority or based
on references from international tribunal. There is also the permissive and a prohibitive role of
a law, references from national constitutions, nations vested interest on particular cases, global
commons and human right issue made necessary for states to work together both at the national
and international level. The disobedience of international law may cause diplomatic untie,
reprisals, protest, economic boycott, sanctions and military interference in domestic affairs.
States can usually establish legal agreement in how to avoid their hostile relationship. The
United Nation Charter recommends member states not to declare war on the other sovereign
states. States can also make law to regulate their behavior to be effective on its citizens both
locally and internationally. The cases related to private international law, contract, extradition,
immunity and nationality are usually administered jointly, based on states mutual consent,
constitution, special agreement or based on national jurisdictional authority. For instance, if
the injury happened to individual protected under diplomatic relations, it is considered as injury
happened to state where he/she is a national48. The domestic courts can apply international
laws in some cases where treaty law recommends, and the general customary international law
allows. International law can be applied formally via treaties and informally based on general
principles and customary international law 49. The absence of legislation and enforcement
mechanism doesn’t bar its status as a true law. States should furnish their international
obligations based on good faith and international legal procedures. States are also at liberty to
47
Article 13 (2) of Federal Democratic Republic of Ethiopia Constitution, 1995; article II, SEC 3 of 1935 Philippine
constitution
48
The Nottebohm Case (Lichtenstein v. Guatemala), 1955 ICJ 4
49
Article 38 (1) (a-c) of International Court of Justice, 1946

choose or not to choose from which modality to accept or not to accept. The national court
may apply international law when the rules of international law are considered as part of the
law of the land. For instance, the pirate, terrorism and slave trader can be captured by any
vessel by any state, whatever its nationality is and from wherever he/she is. These are a clear
reflection where international law is functioning both at the national and international level,
and states have been applying them on the daily basis. Therefore, the existence of international
law among states is real.
D. Existence of International Law Subjects: States, international organizations and

individuals are the existing subjects of international law. Subjects of international law are the
entities with legal personality and the main actors of rights and duties under international
system of law. In principle, all states have equal rights to bring their claim before the
International Court of Justice. These entities have legal personality to maintain international
rights and can bring international claims under international courts and tribunals 50. Today there
is the possibility where justice, equity, equal representation is served by such entities. For
instance, the United Nations General Assembly contains all states equally represented51 and
only state can be a member of the United Nation. The United Nations General Assembly may
be termed as ‘world legislative organ’, this is because it represents almost all international
states with equal representation under the UN charter with one vote. Thus, there is a potentiality
where states can establish strong institution where they can build strong international legal
system. There are also many instances where a private individual can be involved in
international law. For instance, rights and duties imposed on individual under international
law, individual right to stand before international judicial and quasi-judicial courts to claim
his/her right under international law, direct application of rules of international law upon
private individual and individual participation in international law-making capacity. There is
also a possibility when private individual can be held liable for breaches of international law,
irrespective of local states will or its national law. The private individual responsibility is
relatively developed better in the area of human rights law or in the criminal law field. For
instance, it was decided on Dazing Railway officials’ case 52 and LaGrand case53 as the
individuals can hold rights under the international law. The international law is the only
mechanism which ties and enables these entities work together at international level. It also
proves their existence. Thus, to regulate the relationship among these entities, international law
is very important.
E. The necessity of justice and individual right: Justice is fundamental human right
that must be served both at the local and international level. At the local level, constitution,
statutory laws and the judiciary are guarantees of justice. Justice must not be delayed at
50
Reparations for Injuries Suffered in the Service of the United Nations, ICJ Reports, 1949, p. 179; F. L.
Oppenheim, International Law (London: Longmans Green & Co., 1905, Para. 290, P. 344
51
Article 9 (1) of United Nations Charter, 1945
52
Advisory Opinion on the Jurisdiction of the Courts of Danzig (1928) PCIJ Series B No. 15, P. 17–18; Sir Robert
Jennings and Sir Arthur Watts (eds.), Oppenheim’s International Law, I, 9th Ed., London: Longman, 1996, P. 847
53
LaGrand case (Germany v. USA), 27 June 2001

international level too, and international laws, international courts and judicial tribunals must
exist to serve a judicial role. There is notion by William E. Gladstone, “Justice delayed is
justice denied”54, if the municipal law denies providing justice the remedy will be to seek from
international court based on international law. But this happens when the issue relates to
international law. In such cases the exhaustion of local remedy allows states to solve their
internal problems based on constitutional procedures. The scope is a little bit different, only
individuals, not states are criminally prosecuted under international criminal law as part of
international law. There is also a possibility handing over (extradition) of the individual
criminal from one state to the other for trial and punishment. Currently, extradition involves
the rendering of accused individuals to an international criminal tribunal. The main purpose of
extradition is designed to secure criminal justice and minimize of denying criminal fugitives a
safe place, lack of witness or evidences and to bring them to justice (not to allow criminal
unpunished) through the orderly procedures of transnational cooperation. The retribution and
general deterrence are the two most prominent punishment rationales in international criminal
law55. Thus, the role of private individual in the global arena reflects the necessity of
international law. For instance, international contractual and investment laws are made by
private individuals, development of international legal order (criminal law), the emergence of
humanitarian principles and rules, the primacy of international law over domestic law
(especially in the areas of human right) and the regulation of individuals rights and duties of
international law (e.g. immunity or piracy). These areas of law reflect the existence of
international law in relation to private individuals. United Nations charter under its articles56
recognized the role of private individual under international system.
54
Cited on, Burstyner, Naomi & Sourdin, Tania. (2014). Justice Delayed is Justice Denied. Victoria University Law
and Justice Journal. 4. 10.15209/vulj.v4i1.61.
55
Mark A. Drumbl. Atrocity, Punishment, and International Law. 1 st Ed., (Cambridge University Press, 2007) P. 60
& 150; Ralph Hingham, Conceptualizing Access to Justice and Victims’ Rights in International Sentencing, 13(1)
Social & Legal Studies 27, 36 (2004).
56
Article 10, 13 (1) and 63 (2) of United Nation Charter, 1945

Phase III
My take on whether “international law is a law or not?”
The question “Is international law a law or not”? Is not a proper question. It is not clear from what
perspective the answer to this question is requested. It would have been said ‘can international law
be an effective system of law or not’. The status of international law as a law must be accepted,
the only question needs to be addressed is how effective system of law we should build. To create
a strong and an effective system of law is possible. This must depend on whether states can agree
to make a stronger international legal system or not based on their mutual understanding. Should
the absence of ultimate international lawmaker and enforcement limitation questions the legality
of international law? I think we should accept the international laws with its current status and
must work to create stronger legal system. The existing limited general functions of international
law such as law-making capacity, judicial proceeding and law administration capacity, it would
not be necessary to doubt its validity as a binding system of law. States are the ultimate law-making
agents, law enforcer and disposer of international law. They [States] can develop better institution
that creates and enforce international law. The international law will not be applied to the sky,
there will not be an opportunity where it does not touch the sovereign power of any individual
state. The state creates international law, define it, control it and regulates states behavior based
on consensual agreement on it. International law becomes a prefect law, but the prefect system has
not developed yet. There are conflicts anywhere from local to international level, the international
law is made to provide a framework for the peaceful dispute settlement at global level. It regulates
extreme evil on humankind. There are so many opportunities as the world communities are coming
together via globalization process, international socioeconomic, political relations and building
international communal system. The United Nations system was a good start and establishment of
recent judicial tribunals are another development. International Law Commission and Vienna
Convention on the Law of Treaties are also another good development. There are series efforts in
the process of making to codify the international law. It would be possible to create strong national,
regional and the international legal system for the world communities. If substantive issues,
history, identity and culture related issues are exclusively left for municipal laws, the economic
aspect, political, trade, human right and security related issues may be left to the regional level. It
is not necessary to assume international law should imitate and follow the footsteps of municipal
law in its formation, application and law enforcement procedure. It would be possible both legal
system develops separately and works separately and effectively based on their area of coverage.
The diagram below shows the global system of law where we can witness the international law is
not a single legal system. Thus, it consist a variety of laws, agreements, institutions, norms, judicial
institutions and general norms agreed on by all states. In general, we can classify the whole system
of international law into; customary law, national law, regional laws and [purely] international law
are the existing features of the international legal system. Under these elements there are elements
of international law.

[Traditional & religious laws]
Customary Law
Same globe, but multiple laws No global unifying force
Regional Law National Laws

Global
[Laws with certain regional states] System
[Domestic law of states]
of Law
Complex, but growing part of law Better practice than better law
international law
Purely
Diagram: The overall structure or scope of International Law
International law is ‘a law’ and it can furnish equivalent function of municipal law, but a different
legal system. As all states have their own domestic laws, constitutions, statutes, penal laws, civil
codes and particular enforcement procedure, so international laws do have a source of law,
enforcement procedure and developing law-making procedures. Almost all nations in the world
do not have exact same law and domestic legal enforcement mechanisms are not expected to be
the same. For instance, in England Anglo-Saxon common law, in Europe civil law legal tradition,
in America commonwealth legal tradition, in Arab world Islamic or Sharia legal system, in Asia
and Africa customary laws are prevalent. These areas of law its own unique character and follow
different procedures. The municipal law states depend on their domestic constitutional principles
or any other domestic statutes basically not new from their preexisting legal tradition. Thus, the
international laws are not the same and follow different paths, based on treaty stipulation and the
purpose of their establishment. For instance, the international human right, international trade law,
the United Nation Charter and world intellectual property do not function the same. They depend
on particular agreement and membership roll to that specific treaty.

Why it is [Could be] perfect law?
The international law is made by the states agreement and it will become a strong legal system
based on their desired application effort. In principle international law is universally applicable to
all states because states come together, sign treaty and decide to get ruled by international law.
Therefore, due to the interconnectedness of the global system international law opens door for all
states to come together and ruled by the same system of universal law. Moreover, international
law becomes the guardian rule for all states and other international entities of the world. The
mandatory obligations that all states or other international entities must follow are listed below.
These guiding principles are a true reflection of the status of international law. They have also
proven, the international law exists, or it would become a perfect legal system.
 Existence of Peremptory Norms: The peremptory norms, also called ‘jus cogens’. It
is a higher principle of public policy that contains the highest rule and the most fundamental
norm under international law. No rules or any acts of states or legal subjects can be contrary
this rule. Thus, the ‘Jus cogens’ are indisputable and cannot be set aside or derogate by any
treaty or acquiesce of state and no legal derogation is permitted under this norm and states are
obliged to respect peremptory norms. States do not necessarily have to sign to be a signatory
to such norms by international agreements or by consenting capability, it applies to them
automatically. For instance, the prohibition against genocide, piracy, torture, slavery is
considered as ‘jus cogens’ norm. If state ‘X’ didn’t sign “the 1948 genocide convention”, it
shouldn’t have to commit the genocide crime both in its own territory or in the territory of
other states. A treaty concluded in violation of such norm becomes void 57. The peremptory
norms can be modified or derogated only when norms of similar kind or structure established
in the future.58. Therefore, such general norm where all subjects of international law
unanimously accept as a binding norm is a true reflection of the status of international law.
 Binding Nature of International law: There are some binding laws accepted by states
in their international relations. For instance, human right, peremptory norms and major treaty
laws. Such rules are accepted as part of treaty agreement or generally applies to states as
binding. The principles of international law imposes mandatory obligation on states whether
they signed, consented or agreed to it or not59. For instance, “International law consists in
certain rules of conduct which modern civilized states regard as being binding on them in their
relations with one another with a force comparable in nature and degree to that binding the
conscientious person to obey the laws of the country, and which they also regard as being
enforceable by appropriate means in case of infringement”60.
57
Article 53 of Vienna Convention on the Law of Treaties, 1969
58
Article 53 and 64 of Vienna Convention on the Law of Treaties, 1969
59
Article 38 (1) (c) of International Court of Justice, 1946
60
WE Hall, A treatise on international law, 3rd Ed., 1890, oxford: clarendon press.

 Open (Accessible) Treaties: A treaty is , “an international agreement concluded between
states in written form and governed by international law, whether embodied in a single
instrument or in two or more related instruments and whatever its particular designation” 61.
Treaties are the most important legal tool between states to create a moral, legal and social
obligations in their international relations. It forms binding legal obligation between a treaty
signing states62, with the possibility of extension to third parties or entities. For instance, the
private individuals and international organizations can also get access to some treaty
provisions63. Hague Conventions of 1907, European Convention on Human Rights of 1950,
European Communities Treaty of 1957, Optional Protocol to the Covenant on Civil and
Political Rights (1966) and the Convention on the Settlement of Investment Disputes (1965)
are accessible to private individuals. The treaty has also been promoting social integration,
facilitate international trade and cooperation among sovereign states. The phrase under the
Vienna Convention on the Laws of Treaties impliedly indicate as treaty can be ‘governed by
international law’64. Therefore, the existence of treaty under international law is very important
and it is a true reflection of the existence of international law.
 Membership to United Nations: The United Nations charter is accepted as ‘covenant’

document for all member states. Once statehood criteria are met any state can join and becomes
a member of the United Nations. All nations, whether they are big, small, rich or poor are
equally represented by the United Nations General Assembly. The Montevideo Convention on
the rights and duties of states recognize the state as juridical equal, enjoy the same right, have
equal capacity to exercise and exist as a person65. They are sovereign equal, enjoy legal
personality and subject to international law. The United Nations General Assembly recognizes
international law principles as ‘A United Nations decade of International Law’ in 1989 66.
States are the sole maker of law and the international itself is made with the consent of states67.
State “possess the totality of rights and duties recognized by international law” 68. The practice
and conduct of states in making international law are greater than any other subjects of
international law. For instance, individual persons and international organizations can get
derivative role that exists from the formal decision of the state. Therefore, the charter of the
United Nations is an important international law document that binds every member states.
Under United Nations system the International Court of Justice (the partially judicial role) and
United Nations Security Council (the partial executive role) was established. The International
Court of Justice plays great role in the promotion and development of international law. It is
the ‘principal judicial organ’ under the United Nations system69. It can be considered as the
61
Article 2 (2) of Vienna Convention on the Law of Treaties, 1969
62
63
Article 7 (2) of Vienna Convention on the Law of Treaty, 1969
64
Fourth Report on the Law Treaties, YBILC (1965), Vol II, P. 12
65
Article 4 of Montevideo Convention on Rights and Duties of States, 1933
66
United Nations General Assembly, United Nations Decade of International Law: resolution / adopted by the General
Assembly, 9 December 1991, A/RES/46/53, available at: http://www.refworld.org/docid/3b00efdb58.html [accessed
20 March 2020]
67
Starke's ‘International Law’, 11th Ed., (1994), p. 100
68
Reparation for injuries suffered in the service of the United Nations, Advisory Opinion: I.C.J. Reports 1949, p. 180
69
Article 92 of United Nations Charter, 1945

main international judicial organ over any issues of international matters. The United Nations
members are ‘ipso facto’ parties to the International Court of Justice70. The non-member states
to the United Nations Charter can adhere to the International Court of Justice statute if they
choose71 upon United Nations General Assembly decision. The International Court of Justice
can also provide an advisory opinion for states, united nations organs, international
organizations and other special agencies. Moreover, the United Nations Charter state that, the
International Court of Justice “decide, in accordance with international law, such disputes as
are submitted to it”72 and the judgement is ‘final and without appeal’73. “The court may give
an advisory opinion on any legal questions at the request of authorized by or in accordance
with the charter of the United Nations to make such request”74. However, the advisory opinions
are not binding on all states. The conscious decision can be brought to the International Court
of Justice by international organizations, transnational corporations and non-government
organizations and private individuals 75. The International Court of Justice doesn’t have law-
making power, and it doesn’t shape the status of international law and it is not a supreme court
of states and it doesn’t have the power to interpret the United Nations Charter. Thus, ‘only
states may be parties in cases before the Court’76 and decision of the International Court of
Justice will not have a binding effect except between parties 77.
 International Criminal Court: International Criminal Court (ICC) has the power to
exercise jurisdiction over persons and most serious crimes of international concern 78 such as
War Crimes, War of Aggression, Genocide, Crimes against Humanity 79. This court also
exercises jurisdiction over non-consented member states, over the atrocity by any virtue of
United Nations Security Council referral80. Pirates, terrorism and slave trader can be captured
in any vessel by any state, whatever its nationality. The problem with this court is limiting its
scope of application to only signatory member states and application on few heinous crimes.
It would be better if it applies to all cases, all nations and universal in its application and [may
be] considered as the global supreme criminal court.
 Role in Human Right Protection: The protection of basic human right is the essential
concern of international law. The major human right instruments like UDHR, CEDAW,
70
Article 92, 93 (1) of United Nations Charter, 1945
71
Article 35 (2) International Court of Justice Statute, 1946
72
Article 38 (1) of International Court of Justice Statute, 1946
73
Article 60 of the International Court of Justice Statute, 1946
74
Article 65 of United Nations Charter, 1945; Mahasen Mohammad Aljaghoub, The Advisory Function of the
International Court of Justice 1946-2005 (Heidelberg: Springer, 2006).
75
Article 35 (1) International Court of Justice Statute, 1945
76
Article 38 of the International Court of Justice Statute, 1946
77
Article 59 of International Court of Justice Statute, 1946
78
Article 1 of Rome Statute of the International Criminal Court, as corrected by the proce` s-verbaux of 10
November 1998 and 12 July 1999, A/CONF.183/9
79
Article 5 of the Statute of International Criminal Court, 1998
80
Article 13 (b) of ICC; Mark A. Drumbl. Atrocity, Punishment, and International Law. 1st Ed., (Cambridge
University Press, 2007) P. 135

ICCPR, ICESCR, CAT, immigration laws, refugee laws and the immunity laws provides
international human right protections. The violation of such basic human rights will lead to
international legal remedy. These are the international laws areas that govern an individual
right at global level.
 Global Commons: International law is very wide and complex area of law. It regulates the
relations of the state in their international relationship. There is a process of globalization
where states pull resources, economic, finance and services together. They come together,
work together and support each other as world communities of states. International law is
important to facilitate such relationships. It provides the authoritative and stable regimes for
the conduct of states under international relations and global issues in the current
interdependent world. States are united, balance its power, established diplomacy, collective
security and international judicial tribunals to avoid or minimize their dispute. There is also
strong cooperation and subordination between states in social, economic and political spheres.
This happens due to the existence of international law between them. The rules of international
law cover the sea, land territory, outer space and Antarctica which extend from space
regulation, protection of the environment, ocean floor, human right issues, management of the
international financial system, environmental protection and protection of international peace
and security. States have a moral obligation to respect and abide by international laws as ‘they
are members of an existing international community’ 81. There are huge natural resources which
are communal to every states. For instance, clean environment, climatic management, high
seas, the moon, arctic regions and other bodies must be protected and used equitably. They
have a moral responsibility to cooperate and equitably use them, and no one is allowed to hurt
the other to use such resources. Air space is an area above national airspace and international
airspace. Humankind is capable of living on earth, exploring and using outer space. It was
mysterious what outer space was looks like until at the time Grotius, Copernicus, Newton and
Galileo began to understand the nature of outer space during the 1960s Sputnik for the first-
time space visit. Currently, space law has developed, and important issues of international
space law have engaged the attention of scholars, experts and decision makers. There are three
international space (Antarctica, outer space and high seas) and cyberspace becomes fourth for
the juridical analysis. The outer space constitutes a res communis which mean common
heritage of mankind. A region beyond earth’s atmosphere is free to all state. It’s not susceptible
to a national appropriation. The area of space may not be appropriated of any state and its
exploration should be conducted based on the international law and the principles of the charter
of the United Nations82. The Antarctic treaty states that no territorial jurisdiction is possible
and the outer space including moon is not subject to any claim of sovereignty by states 83.
Therefore, international law bases on common self-interest or common conviction and
necessity of the states. It must be developed and made available to all.
81
R. Jennings/A. Watts (eds), Oppenheim’s International Law, Vol. I, Part 1, 9 th Ed., 1992 p. 8 -12
82
United Nations General Resolution 1962 (XVIII) 13 December 1963
83
Article II of Antarctica Treaty

 International Legal Functions: International law has external relevance for states in
their international relations. International rights or claims are inevitable. As far as there are
international claims, there must be international law. A world government will be impossible
without world law84. It provides international rights, state duties, individual right and duties,
provide protection of peace and security. International law is also a system of law governing
the relationships between two or more states, international organizations, individuals and other
participants under international organizations interacting between individuals and states,
individuals in relation to its human right or the most commonly termed as dealing with
international crimes. For instance, International Monetary Fund (IMF) to ensure currency
stability, World Bank (WB) to protect, to promote foreign investment and foster economic
development, International Trade Organization (ITO) to oversee trade liberalization,
International Law Commission (ILC), Law of the sea convention was established in 1958 and
replaced in 1982, Diplomatic and consular covenants established in 1966, Two international
covenants [ICCPR & ICESCR) of 1966 and Law of treaties was established in 1969. The states
shouldn’t have to invoke their own domestic laws and procedures to justify and comply with
their obligations under international law. The practical application of international law gets
wide recognition after creation of World Trade Organization (WTO), Campaign against South
African apartheid, end of the cold war, expulsion of Iraq from Kuwait, establishment of an
International Criminal Court (ICC), Humanitarian intervention in Kosovo and overthrowing
Haitian undemocratic government. Some of the treaties are in principle only binding only on
the parties.
Area coverage
SUBJECTS OF INTERNATIONAL LAW State responsibility
Law of war
Law of treaty
Status of states Law of sea
All sovereign states under UNGA Law on diplomatic relations
Only state can be member of UN Law on outer space
Environmental law
Only state bring contentious case States Non-states Human right law
States call UNSC if threat to peace & security Law of peace and security
Only states can claim on behalf of national
International organizations
Law on economy & trade
International
Individuals
Organizations
General Organs Special Organs

• Governmental Organization • Minorities
•Non-Governmnet Organs • Terrorist Organizations Private (Natural ) Legal (Artificial)
• Libration movements • Trust Territories or Colonies Person Person
• International Administrative Bodies • Indeginous Pepoles
• Multinational Companies • Malta, Holy see and Vatican City
84
The Declaration on the Granting of Independence to Colonial Countries and peoples of 1960

Diagram: The structure of subjects of International Law
3. Application of International Law
International law consists the unique rules, principles and procedures of its application in the
relations between states. As we have already discussed on the first phase of this article the relations
between municipal laws of state and international laws among states are developed based on
monist and dualist theories. These theories were developed mainly to determine the relationship
between domestic/municipal and international law. The monist theory assumes both international
municipal laws are single components of body of legal knowledge or as a single legal system85.
This theory follows the unitary principle by where municipal and international law have to exist
together and form part of the same universal legal order86. According to this theory, when both
areas of law have to apply together, the municipal law applies to private individuals while
international law also applies to individual through states mechanism. Under this theory, if the
domestic legal issue became not covered by international law, then the reference will be made to
the relevant rules of municipal law87. On the contrary, when necessary the international rules can
be applied to domestic courts without the need of any transformation88, or if the apparent
contradiction international law prevails 89. The international human rights law also resides at the
apex and prevails over the domestic laws of states90. For Hans Kelsen, the monist theory is when
international law prevails, and directly applicable to the domestic spheres state laws 91. The
International Law Commission (ILC) and Vienna Convention on the Law of Treaties (VCLT)
reflects the principle of monist approach. The Draft Declaration in the Rights and Duties of states
prepared by the International Law Commission (ILC) stated that, ‘Every state has the duty to carry
out in good faith its obligations arising from treaties and other sources of international law, and it
may not invoke provisions of its constitutions or its laws as an excuse for failure to perform this
duty’92. Similarly, the Vienna Convention on the Law of Treaties (VCLT) states that, ‘party may
not invoke the provisions of its internal law as justification for its failure to perform a treaty’ 93.
The monist approach is criticized due to the following three reasons;
a) It create complete separation between national and international laws.
b) International law regulates the relationship between state, non-states and individuals.
c) There is legally binding rule [peremptory rule] on states, not only limited to the pacta sunt
servada.
85
General Assembly Resolution 94(1) dated December 10, 1946
86
87
Barcelona Traction, Light and Power Company Ltd Case (Belgium v Spain)
88
General Assembly Resolution (174) (II), dated November 21, 1947
89
Certain German Interests in Polish Upper Silesia (Polish Nationals in Danzig) Case, PCIJ Ser A/B (1932) No.
44,24
90
Article 13 (2) of Federal Democratic Republic of Ethiopian Constitution, 1995
91
Kelsen, General Theory of Law and the State, 1945, Cambridge, Mass: Harvard University Press at pp 367–68
92
UNGA Resolution 375 (VI)
93

The second approach to the study of the relationship between municipal and international law is
based on the dualist, or pluralist theory. This theory is based on the dichotomy, “horizontal legal
order based on and regulating mainly the relations and obligations between independent and
theoretically equal sovereign States.”94. According to this theory, municipal and international laws
are two distinct, self-contained, separated legal order and they exist independent of each other95.
They have no direct or automatic effect on each other, no supremacy of one system over the other,
not alter and challenge the rules of each other and do not function as a dual legal system. According
to this theory, international law is intrinsically different from the municipal law of states. The
international law applies only between the sovereign states and depends on the common will of
those contracting states. On the other hand, the domestic/municipal law applies within the state
itself for regulating the activities of citizens in the same country. The international law becomes
binding and enforceable, if it has been directly incorporated under the domestic legal system of
states. Whenever, municipal law and international law come into conflict the municipal law has to
be given a priority by court application96. The matters related to international law have to be
decided based on international tribunals. The application of international law is mainly based
through the mechanism of the United Nations (UN), Organization of American states (OAS),
World Trade Organizations (WTO), judicial enforcement and or based on self-help by sovereign
states. The international and regional organizations may adopt its own measures which help them
to compel compliance of states or other international organizations with international obligations,
if wrongful acts has committed. However, these mechanisms are not enforceable like executive
organ does at local level. The United Nations under its Charter VII allows the Security Council to
take an enforcement measures, when there is a threat to the peace, security and breach of peace or
the act of aggression occur. On the other hand, the power to see the international cases is given to
the International Court of Justice, which is a judicial organ of the United Nations. The International
Court of Justice provides a binding decision and that decision only binds the parties to a dispute.
Even if the nature of international law is different from how national law is operated domestically.
Article 13 of international law commission draft declaration on the rights and duties of states 1949
and article 27 of the Vienna convention on the law of treaties 1969 show the possibility when
international law applies at local level. For instance, if dispute occurs between private individual
and states or between government and multinational company then the domestic court may apply
the substantive rules of international law. On the other hand, the international tribunals may also
take into consideration the domestic legislation when applying the general principle of
international law. The application of international law at the domestic court usually goes through
the treaty process.
The practice shows that, different states have adopted either monist or dualist approach and some
others adopted middle ground. Modern nations constitution consists the references to international
law. For instance, in the Netherlands the legislative power controls and approval of all treaties
before it becomes part of the law and becomes bound. Treaties and resolutions of international
94
Eileen Denza. The Relationship between International and National Law, in International Law 415, 421 (Malcolm
D. Evans ed., 2003)
95
96
I. Brownlie; Principles of Public International Law. 7th Ed. (Oxford University Press, Oxford, 2008) P.32

organizations are only binding after they are published 97. In Germany, international law constitutes
an integral part of federal law and decision of the federal constitutional court is called
undesverfassungsgericht that binds all state organs. In France, the national constitution should not
be contradicted. In Russia, the constitution gives chambers of parliament to give consent to treaties
by federal law. Also, the general principles of international law and treaties constitute part of the
legal system and treaty must be published to have binding force. International law is not superior
to the national constitution of Russia 98. In the USA, international law is part of federal law and it
can be accepted as part of federal law without necessarily need incorporation by congress or the
president. Article VI Section 2 of the USA constitution states that, ‘This Constitution, and the
Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or
which shall be made, under the authority of the United States, shall be the Supreme Law of the
Land, and the Judges in every State shall be bound thereby, anything in the Constitution or Laws
of any State to the Contrary notwithstanding99. In the UK, Parliament has the supreme power to
establish and change the law of United Kingdom. Government can conclude treaty or terminate it
as deemed necessary. It is accountable for parliament to their conduct of foreign affairs. Customary
international law is part of law of England and government do not direct courts on the question of
international law. The treaty is under the law of United Kingdom. In Ethiopia, “The Constitution
is the supreme law of the land. Any law, customary practice or a decision of an organ of state or a
public official which contravenes this Constitution shall be of no effect”100, and “All international
agreements ratified by Ethiopia are an integral part of the law of the land”101. Thus, the constitution
is the higher law, except where international human right gets priority over the constitution after
adoption.
The monist approach supports the prevalence of international law in the case of contradiction,
while dualist approach supports the parallel existence of both systems. It is not easy to choose one
theory over the other and it would be better if we find the way how they can work together without
contradiction102. If not easy to eliminate contradiction, then it would be better to apply judicial
reasoning to mediate/harmonize their contradiction since neither national nor international law has
the supremacy over the other103. How to avoid contradiction? – Based on harmonization theory. If
conflict existed they should be harmonized 104. The harmonization could be either by elimination
of contradiction base on juristic reasoning or based on the domestic legislation system in a way to
contradict international law and whenever contradiction exists there should be an amendment
provision to avoid such contradiction105. For instance, if the areas of law related to territory,
culture, identity and procedural matters must be given to local level. The human right, jus cogens,
global commons, immunity and other laws related to international relations must be managed by
international laws. The Ethiopian constitution seems followed somewhere in the middle ground
97
Article 93 of Netherlands Constitution, 1987
98
Article 15.4 of Russian Constitution, 1993
99
Article VI, Section II of USA Constitution, 1787
100
101
102
General Assembly Resolution 40/72 dated December 11, 1985
103
Yearbook of the International Law Commission, 1949, P. 36
104
Oppenheim, 'International Law', Vol. I, 9th Ed., (1992), p. 37
105
Oppenheim, 'International Law', Vol. I, 9th Ed., (1992), p. 45 – 50

where its article 9 (1) talks about supremacy of constitution over “any laws or customary
practices”. This adopted dualism, where domestic law precedes over international law. The same
constitution under its article 13 (2) states’ treaty signed in relation to human right precedes over
any domestic law. This article seems adopted monism theory. From these articles it seem Ethiopia
adopted a middle ground106.
Substantive Funcions Procedural Roles Judicail Agencies
•Commercial •WTO •ICJ

Transcacions •UNESCO •ICC
•Environmental •UNICEF •UNCITRAL
Protection
•United Nations •African Court on
•Social Relationship (UN) Human and
•Humanitarian •Environmental Peoples' Rights
Services Impact Assesement •Inter-American
•International •UDHR Court of Human
Relations Rights
•International Red
•Peace and Security Cross and Red • European Court of
•Commercial Crescent Human Rights
Transactions Movement
•Globalization
Process
Diagram: The application of international law, the enforcement mechanism and applicable legal institutions
106
Article 9 (1) and Article 13 (2) of Federal Democratic Republic of Ethiopia Constitution, 1995

International
Judicial System
• International Legal Issues

• Regional Legal Issues
• General Binding principles
International Judicial Regional Judicial
Institutions Institutions
• PCIJ [1922] • ECtHR

• Nuremberg Trials [1947] • ACtHR
• ICJ [1948] • Court of Justice of the European
Communities (1994)
• ICTR [1994]
• ICTY [1993] • Inter – American Court of human right
• ICC [1998] • Has limited jurisdiction
• ICT Bangladesh [2012] • Has competence on matters of

international law or case
• International Tribunal for the Law of the Sea [1982]
Diagram: The development of International judicial Institutions
To conclude, international law is very complex and yet developing area of law. Within its current
status and development, it cannot be considered as true international law and an effective legal
system. There are a lot to be done yet. For instance, there is no universally accepted standard of its
application, no well-developed law-making procedure, no hard and fast rule on which states has
to act, no law-interpretation and judicial procedure, less effective at national level, no efficient
international police force, powerful nations are game changers, no unanimity in accepting
universal international treaties, do not take immediate and effective measures if international rules
are breached, no rules of decision making (e.g. criminal act bench rules), global power is not
balanced, major agreements are treaty based, usually there is no automatic responsibility for
violation of international laws, most of its rules are left unapplied or uncertain, no clear line
between national and international laws, nature of international law is too political, not all states
are equitably playing role under international system, some rules (e.g. theft,) are not defined nor
its prosecution procedure and it unnecessarily generalize the punishment. For instance, foreign aid
cut, embargo, economic sanction and blockage hurt the whole community for the wrong done by
state representatives. Why the whole community held liable for the violence made by a single
entity or state? – It’s not clear why the sanction is imposed on the whole country while wrong doer
is a certain group or single government. Even though the international legal system is geared
toward the international community of states as it was represented by their governments, it cannot

be easily and persuasively apply equivalent against an entire nation. Despite such limitations,
international law is a law, a developing law and promising area of law in the future.
References
1. Case, Asylum. “Judgment of 20 I November 1950.” ICJ Rep 266 (1950): 277-278
2. Brownlie I. (1998). Principles of Public International Law, 5 th Ed. (Oxford: Clarendon Press)
3. Brownlie, I. (2008) Principles of Public International Law, 7th ED., (Oxford University Press)
4. Crawford, James. Brownies principles of public international law. Oxford University Press, USA,
2019.
5. D’Amato, Anthony. "Is International Law Really “Law”?. On The Nature of International Law,
pp. 137-158. Routledge, 2017.
6. Federal Democratic Republic of Ethiopia Constitution, 1995
7. Philip C. Jessup. A Modern Law of Nations, (New York: Macmillan, 1948) P. 16–17
8. Malkolm D. Evans. International Law. First edition (Oxford University Press, 2003)
9. Malcolm Shaw, International Law. 6th Ed., (Cambridge; New York: Cambridge University Press,
2008
10. United Nations, Charter of the United Nations, 24 October 1945, Available at;
http://www.refworld.org/docid/3ae6b3930.htm
11. UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966,
United Nations, Treaty Series, vol. 999
12. UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III)
13. International Law Commission, 1948
14. P.B. Rathod, International Law: Theory and Practice (Commonwealth Publishers, New Delhi,
2008)
15. Philip C. Jessup. A Modern Law of Nations, (New York: Macmillan, 1948)
16. Oppenheim, International Law, Vol. I 8th Ed., (1955)
17. Oppenheim, International Law, Vol. 1, 9th Ed., (1992)
18. Jeremy Bentham. Principles of Morals and Legislation, 1789
19. Evans, M.D., Mennecke, M. and Tams, C.J., 2002. I. Lagrand Case (Germany v United States of
America). International & Comparative Law Quarterly, 51(2), pp.449-455.
20. Statute of International Criminal Court, 1998
21. Starke, Joseph Gabriel. Starke's international law. Butterworth-Heinemann, 1994.
22. Yearbook of the International Law Commission, 1949
23. Vienna Convention on the Law of Treaties, 1969
24. Vienna Convention on the Law of Treaties between States and International Organizations or
Between International Organizations, March 21, 1986

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Dedefo Bedaso ⁎ 1

Istanbul Aydin University

March 25, 2020

⁎ (LLB) Jimma University, College of Law (Ethiopia)

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1. Definition: What is international law?

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2. Nature of International Law: Is International law a law?

International law is not a prefect System

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B. No Universal application/enforcement limitation: International law lacks

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C. No International Court System/No judicial system: There is no centralized and

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42 International Law, Vol. I, 9th Ed., (1992), p. 9

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Lacks centeral judicial No single judicial system

Mix of major legal syatem

Diagram: The drawbacks with the international law

International Law is Law

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B. Existence of international legal practices: There are customs, traditions, moral

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C. Functioning of International and Municipal law: International law is a growing

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D. Existence of International Law Subjects: States, international organizations and

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My take on whether “international law is a law or not?”

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Regional Law National Laws

Diagram: The overall structure or scope of International Law

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 Membership to United Nations: The United Nations charter is accepted as ‘covenant’

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General Organs Special Organs

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3. Application of International Law

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Substantive Funcions Procedural Roles Judicail Agencies

•Commercial •WTO •ICJ

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• International Legal Issues

• PCIJ [1922] • ECtHR

• ICTY [1993] • Inter – American Court of human right

• ICC [1998] • Has limited jurisdiction

• ICT Bangladesh [2012] • Has competence on matters of

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