The laws of state responsibility are the principles governing when and

reflecting the growing view that state responsibility encompasses the

how a state is held responsible for a breach of an breach of an international obligation.[6]
international obligation. Rather than set forth any particular obligations,
The ILC's first special rapporteur on state responsibility, F.V. García
the rules of state responsibility determine, in general, when an
obligation has been breached and the legal consequences of that
Amador of Cuba, appointed in 1955 noted, "It would be difficult to
violation. In this way they are "secondary" rules that address basic issues find a topic beset with greater confusion and uncertainty."[7] García
of responsibility and remedies available for breach of "primary" Amador attempted to return to the traditional focus on responsibility
or substantive rules of international law, such as with respect to the use for injury to aliens but his work was essentially abandoned by the ILC
of armed force. Because of this generality, the rules can be studied when his membership ended in 1961. His successor, Roberto
independently of the primary rules of obligation. They establish (1) the Ago of Italy, reconceptualised the ILC's work in terms of the
conditions of actions to qualify as internationally wrongful, (2) the distinction between primary and secondary rules, and also
circumstances under which actions of officials,[1] private individuals and
established the basic organisational structure of what would become
other entities may be attributed to the state, (3) general defences to
liability and (4) the consequences of liability. the Draft Articles. By focusing on general rules, stated at a high level
of abstraction, Ago created a politically safe space within which the
Until recently, the theory of the law of state responsibility was not well
ILC could work and largely avoid the contentious debates of the day.
developed. The position has now changed, with the adoption of
From 1969 until his election to the ICJ in 1980, Ago completed work
the Draft Articles on the Responsibility of States for Internationally
Wrongful Acts ("Draft Articles") by the International Law on part 1 of the draft articles, addressing the origin of state
Commission (ILC) in August 2001.[2] The Draft Articles are a combination responsibility. Most of the thirty-five articles adopted during his
of codification and progressive development. They have already been tenure are reflected in the final draft.
cited by the International Court of Justice[3] and have generally been well
received. Work on the remainder of the articles proceeded slowly throughout
the 1980s and early 1990s. Willem Riphagen of the Netherlands, who
Although the articles are general in coverage, they do not necessarily
served as special rapporteur to 1986, stressed that particular primary
apply in all cases. Particular treaty regimes, such as the General
Agreement on Tariffs and Trade and the European Convention on rules may specify the consequences of their breach - an idea
Human Rights, have established their own special rules of responsibility. conveyed by the articles through the recognition of lex
specialis. Gaetano Arangio-Ruiz, special rapporteur from 1988,
History
helped clarify the consequences of breaches of international
Codification obligations. Over the next eight years, the ILC completed its first
reading of parts 2 and 3.
The topic of state responsibility was one of the first 14 areas
provisionally selected for the ILC's attention in 1949.[5] When the ILC In 1995, the United Nations General Assembly adopted a resolution
listed the topic for codification in 1953, "state responsibility" was in effect pressing the Commission to make progress on the state
distinguished from a separate topic on the "treatment of aliens", responsibility articles and other long-pending projects.[8] James
Crawford of Australia, appointed as special rapporteur in 1996, fundamental interests of the international community that its breach
approached the task pragmatically. The ILC moved rapidly through a is recognized as a crime by that community as a whole constitutes an
second reading of the draft articles, adopting what it could agree on international crime.
and jettisoning the rest, most notable of which was Article 19 on state
3. Subject to Paragraph 2, and on the basis of the rules of
crimes and the section on dispute settlement.
international law in force, an international crime may result, inter
Draft Articles alia, from:

The final text of the Draft Articles was adopted by the ILC in August (a) a serious breach of an international obligation of essential
2001, bringing to completion one of the Commission's longest importance for the maintenance of international peace and security,
running and most controversial studies. On 12 December 2001, such as that prohibiting aggression;
the United Nations General Assembly adopted resolution 56/83,
(b) a serious breach of an international obligation of essential
which "commended [the articles] to the attention of Governments
importance for safeguarding the right of self-determination of
without prejudice to the question of their future adoption or other
peoples, such as that prohibiting the establishment or maintenance
appropriate action."[9]
by force of colonial domination;
Crawford notes that the rules are "rigorously general in
(c) a serious breach on a widespread scale of an international
character,"[10] encompassing all types of international obligations.
obligation of essential importance for safeguarding the human being,
Internationally wrongful acts such as those prohibiting slavery, genocide and apartheid;

According to the Draft Articles, an internationally wrongful act must: (d) a serious breach of an international obligation of essential
importance for the safeguarding and preservation of the human
 be attributable to the state under international law; and
environment, such as those prohibiting massive pollution of the
 constitute a breach of an international obligation of the atmosphere or of the seas.
state.[11]
4. Any internationally wrongful act which is not an international crime
International crimes in accordance with paragraph 2 constitutes an international delict.[12]

Earlier drafts of the Articles on State Responsibility contained Article Article 19 was deleted from the final Draft Articles.[13]
19, which provided for "state crimes".[12] Article 19 included the
Attribution
following provisions:
Before a state can be held responsible for any action, it is necessary
2. An internationally wrongful act which results from the breach by a
to prove a causal connection between the injury and an official act or
State of an international obligation so essential for the protection of
omission attributable to the state alleged to be in breach of its
obligations. This has become an increasingly significant If the general elements to establish state responsibility are
contemporary issue, as non-state actors such as Al established, the question arises as to whether any defences may be
Qaeda, multinational corporations, and non-governmental available to the respondent state.
organisations play greater international roles, and as
These include force majeure (Article 23), distress (Article 24), state of
governments privatise some traditional functions.
necessity (Article 25) and counter measures (Articles 49-52), self-
The state is responsible for all actions of its officials and organs, even defence (article 21) and consent (article 20).
if the organ or official is formally independent[14] and even if the
Consequences of breach
organ or official is acting ultra vires.[15] Persons or entities not
classified as organs of the State may still be imputable, when they are The breach of an international obligation entails two types of legal
otherwise empowered to exercise elements of governmental consequences. Firstly, it creates new obligations for the breaching
authority, and act in that capacity in the particular instance. Persons state, principally, duties of cessation and non-repetition (Article 30),
or entities not performing public functions may equally be imputable, and a duty to make full reparation (Article 31). Article 33(1)
if they in fact acted under the direction or control of the characterises these secondary obligations as being owed to other
State.[16] Where there is a breakdown of normal governmental states or to the international community as a whole. Articles
authority and control, such as in so-called "failed states", the actions indirectly acknowledges in a savings clause also that states may owe
of those acting as the "government" in a de facto sense will be acts secondary obligations to non-state actors such as individuals or
of the state.[17] The acts of an "insurrectional or other movement that international organisations.
becomes the new government of an existing state or succeeds in
establishing a new state" can also be attributed to the state.[18] This Second, the articles create new rights for injured states, principally,
is also the case where a state acknowledges and adopts the conduct the right to invoke responsibility (Articles 42 and 48) and a limited
of private persons as its own.[19] right to take countermeasures (Articles 49-53). These rights,
however, are heavily state-centred and do not deal with how state
Despite their apparent concreteness, the standards stated in some responsibility is to be implemented if the holder of the right is an
rules involve important ambiguities, and their application will often individual or an organisation. The principal element of progressive
require significant fact-finding and judgment. Most rules state development in this area is Article 48, which provides that certain
responsibility involving private acts already arise under primary rules. violations of international obligations can affect the international
For example, environmental and human rights agreements require community as a whole such that state responsibility can be invoked
states to prevent abuses by private parties. by states on behalf of the larger community. This provision picks up
on the ICJ's celebrated suggestion in Barcelona Traction that some
Defences
obligations are owed erga omnes, toward the international
community as a whole.[20]
Reparation are attributable to the State even in instances where they
contravene their instructions, or exceed their authority as a
If illegal actions are continuing, the state has a duty to cease.[21] The
matter of national law [4] . No distinction is made based on the
state also has duties to make reparation, which could
level of the particular organ in the organizational hierarchy of
involve restitution, compensation, or satisfaction. Remedies will be
the State; State responsibility can arise from the actions of a
dependent on the particular forum, such as the United
local policeman, just as it can from the actions of the highest
Nations, International Court of Justice, World Trade
officials, for instance a head of state or a foreign minister. Nor
Organization, International Tribunal for the Law of the
Sea, International Criminal Court, and on the purpose of
is any distinction made upon the basis of the separation of
reparation.[22]
powers; State responsibility may arise from acts or omissions of
the legislature and the judiciary, although by the nature of
The Elements of State Responsibility things it is more common that an internationally wrongful act
is the consequence of an act or acts of the executive. Second,
the rules of attribution cover situations in which individuals, not
The starting point of the articles is that “every internationally
otherwise State organs, are exercising “elements of
wrongful act of a State entails the international responsibility
governmental authority” at the time that they act [5] . Third,
of that State” [2] . The act or omission of a State will qualify as
acts of private individuals are attributable to the State if those
an “internationally wrongful act” if two conditions are met.
individuals are acting on the instructions of the State, or under
First, the act or omission must constitute a breach of an
its effective direction or control [6] . Fourth, in exceptional
international obligation, or, as the articles put it, must be “not
circumstances in which there is an absence or default of
in conformity with what is required” by the international
governmental authority, the acts of private individuals may be
obligation [3] . This implies that the obligation in question must
attributable to the State if those individuals, in effect, step into
be binding on the State at the time of the conduct, which is said
the breach and perform necessary governmental functions [7] .
to constitute a breach. Second, the act or omission must be
“attributable” to the State.
With regard to certain obligations, a State may incur
responsibility even though actions have been carried out by
The general rule is that a State is not responsible for the acts of
private individuals, because the essence of the obligation was
private individuals. The State is of course an abstract entity,
to ensure that a given result occurred. For instance, if a foreign
unable to accomplish any physical act itself. Just as in domestic
embassy is overrun by a mob, or harm is done to diplomatic
law corporations act through their officers and agents, so in
staff by private individuals, as occurred with the U.S. embassy
international law the State normally acts through its organs and
in Tehran during the Iranian revolution of 1979 to 1980, a State
officials. The first, and clearest, case of attribution is that of the
may incur responsibility, even if those individuals act on their
organs of the State (e.g., police officers, the army) whose acts
own initiative. Equally, under Article V of the 1948 Convention attributed to the State as if the movement had been the
on the Prevention and Punishment of the Crime of Genocide, government at the time of its acts, even though, if the
the obligation of a State to punish those responsible for insurrection had failed, no attribution would be possible. In the
genocide earlier on related to genocide may be breached in case of the establishment of a new State, the effect is even
instances in which a State fails to punish any person responsible more drastic because acts are attributed to the State
for the genocide, “whether they are constitutionally retrospectively to a time when it did not yet definitively exist.
responsible rulers, public officials, or private individuals.” There
is probably a similar rule in general international law in relation Except in this case, there is no established machinery for
to crimes against humanity. In both cases, the basis of attributing collective responsibility (e.g., for war crimes,
responsibility here is not the attribution to the State of the acts genocide, or crimes against humanity) to an armed opposition
of the individuals; it is the failure by the State as an entity to group. In such circumstances individual responsibility is the
comply with the obligations of prevention and prosecution only possibility at the international level of ensuring a degree
incumbent on it. of responsibility for criminal acts.

A somewhat anomalous instance of attribution is that covered Certain circumstances may serve to preclude the wrongfulness
by Article 10. As was noted above, in the normal course of of a breach of international law by a State, in much the same
events, a State is not responsible for the acts of private way that defenses and excuses work in national criminal law. In
individuals; a fortiori, it is not responsible for the acts of international law these are termed “circumstances precluding
insurrectional movements, because, by definition, an wrongfulness” [8] . For instance, the consent of the state to
insurrectional group acts in opposition to the established state which the obligation was owed will prevent the breach being
structures and its organization is distinct from the government wrongful, as will, under certain restrictively defined conditions,
of the State to which it is opposed. However, Article 10(1) force majeure, distress, and necessity. Finally, a State taking
provides that “the conduct of an insurrectional movement countermeasures (defined as the nonperformance of an
which becomes the new government of a State shall be obligation in response to a prior wrongful act of another State,
considered an act of that State under international law.” Article in order to induce that State to comply with its obligations) may
10(2) provides for a similar rule with respect to an mean that what would otherwise be a breach of an
insurrectional movement that succeeds in establishing a new international obligation is not in fact wrongful. However, quite
State within the territory of a pre-existing State. The effect of apart from the strict procedural conditions with which the
the rule is to attribute retrospectively the conduct of the taking of countermeasures is hedged, it should be noted that
movement in question to the State. In the case of a successful certain obligations may not be the object of countermeasures.
insurrectional movement, the acts of the movement are Among these are the obligation to refrain from the threat or
use of force, obligations for the protection of fundamental
human rights, obligations of a humanitarian character addition, although any state could take unfriendly measures
prohibiting reprisals under peremptory norms of general that did not constitute the breach of an international obligation
international law (jus cogens). This last limitation in fact applies owed to the State at which they were directed (retorsion), the
generally to circumstances precluding wrongfulness: it is never taking of countermeasures was commonly understood as being
possible to plead that a breach of a peremptory norm was limited to these “injured States.”
justified.
The first major move away from the strict bilateralism of
The Content of International international law was the judgment of the International Court
of Justice in the Barcelona Traction, Light and Power Company
Responsibility Limited (Belgium v. Spain) case. In that case, the court stated:

Upon the commission of an internationally wrongful act, new [A]n essential distinction should be drawn between the
legal obligations come into existence for the State responsible obligations of a State towards the international community as
for that act. First, that State is under an obligation to make full a whole, and those arising vis-à-vis another State in the field of
reparation for the injury caused by the internationally wrongful diplomatic protection. By their very nature the former are the
act. Reparation may take one of three forms: restitution, concern of all States. In view of the importance of the rights
compensation, or satisfaction (or some combination of them). involved, all States can be held to have a legal interest in their
Traditionally, restitution has played the primary role, although protection; they are obligations erga omnes [9] .
in instances in which restitution is materially impossible, the
injured State may have to content itself with compensation or In the next paragraph, the court went on to state that “such
satisfaction. Second, the responsible State is under an obligations derive, for example, in contemporary international
obligation to conclude the internationally wrongful act if it is law, from the outlawing of acts of aggression, and of genocide,
continuing, and in an appropriate case, may be required to as also from the principles and rules concerning the basic rights
make assurances and guarantees of non-repetition. of the human person, including protection from slavery and
racial discrimination.” This distinction between obligations of
The Articles mark a decisive step away from the traditional which only the injured State may complain, and those in the
bilateralism of international law and toward what has been observance of which a wider community of States have an
called “community interest” in the provisions dealing with the interest, is reflected in Articles 42 and 48, although it should be
States that are entitled to react to the breach of an stressed that the latter provision is undoubtedly one of the
internationally wrongful act. Traditionally, only the State that clearest examples of progressive development to be found
was directly injured, or in some way “targeted,” by the breach within the articles. It seems indisputable that all other States
of an international obligation could demand reparation. In have an interest in the observance by other States (and
individuals) of the prohibitions of genocide and crimes against (Bosnia and Herzegovina v. Yugoslavia [Serbia and
humanity. However, the exact implications of this interest Montenegro], 1993 onward; Croatia v. Yugoslavia, 1999
require further working out in the light of State practice. onward), concerned situations involving allegations of
genocide and crimes against humanity that were concurrently
The Relationship between State the subject of investigation and prosecution of individuals
before the International Criminal Tribunal for the Former
Responsibility and Individual Yugoslavia (ICTY). Other cases [11] alleged, among other things,
Responsibility violations of the 1948 UN Genocide Convention, serious
violations of human rights, and war crimes that had not been
the subject of international prosecution. At the preliminary
The relationship between State responsibility and individual
objections stage of the case (mentioned above) between
responsibility has until recently been a neglected issue,
Bosnia and Serbia-Montenegro, the respondents argued for a
principally due to the late development of international
individual criminal responsibility. restrictive interpretation of the jurisdictional provision
contained in Article IX of the 1948 UN Genocide Convention.
In 1947 the International Military Tribunal at Nuremberg stated Article IX provides as follows:
that “crimes against international law are committed by men,
Disputes between the Contracting Parties relating to the
not by abstract entities, and only by punishing individuals who
interpretation, application or fulfillment of the present
commit such crimes can the provisions of international law be
Convention, including those relating to the responsibility of a
enforced” [10] . This statement says much about perceptions of
State for genocide or for any of the other acts enumerated in
the international legal system in the immediate aftermath of
Article III, shall be submitted to the International Court of
World War II; however, insofar as it seems to assert that
Justice at the request of any of the parties to the dispute.
observance of the rules of international law prohibiting
atrocities can only be achieved through the prosecution of
Serbia-Montenegro argued that the provision only conferred
individuals, the assertion no longer holds true.
jurisdiction on the court in relation to responsibility for failure
to comply with the obligations to prevent and punish genocide,
During the 1990s a number of inter-State cases alleging State
as contained in Articles V, VI, and VII of the convention, and not
responsibility for violations of the international rules concerned
to State responsibility for violations of the substantive
with the outlawing of atrocities were brought before the
prohibition of genocide contained in Article III. Accordingly, it
International Court of Justice. Some of these cases, in particular
those between the States that had emerged after the was argued, as the jurisdiction of the court is based on consent,
the court had no jurisdiction in relation to the allegations made
disintegration of the Socialist Federal Republic of Yugoslavia
by Bosnia and Herzegovina of violations of the prohibition of
genocide by individuals whose acts were attributable to Serbia- Conversely, the ICTY has made reference to State responsibility
Montenegro. in elucidating the law relevant to the international criminal
responsibility of individuals. In the Furundzija case the Trial
The court dealt with the point briefly, observing: Chamber held that the international legal norms prohibiting
torture arising from human rights law and international
[T]he reference in Article IX to “the responsibility of a State for humanitarian law “impose obligations upon States and other
genocide or for any of the other acts enumerated in Article III,” entities in an armed conflict, but first and foremost address
does not exclude any form of State responsibility. Nor is the themselves to the acts of individuals, in particular to State
responsibility of a State for acts of its organs excluded by Article officials or more generally, to officials of a party to the conflict
IV of the Convention, which contemplates the commission of or else to individuals acting at the instigation or with the
an act of genocide by “rulers” or “public officials” [12] . consent or acquiescence of a party to the conflict” [14] . As a
consequence,
Accordingly, it held, a dispute existed between the parties on
this point, as well as on the “the facts of the case, their Under current international humanitarian law, in addition to
imputability, and the applicability to them of the provisions of individual criminal liability, State responsibility may ensue as a
the Genocide Convention,” and was sufficient to its result of State officials engaging in torture or failing to prevent
jurisdiction [13] . Two points bear emphasizing. First, the torture or to punish torturers. If carried out as an extensive
argument of Serbia-Montenegro did not have as a necessary practice of State officials, torture amounts to a serious breach
premise that State responsibility for actual acts of genocide on a widespread scale of an international obligation of essential
attributable to a State does not exist; rather, the argument was importance for safeguarding the human being, thus
that State responsibility of this type did not fall within Article constituting a particularly grave wrongful act generating State
IX. Second, the decision of the court at the preliminary responsibility [15] .
objections stage of the case did not definitively decide whether
breach of the 1948 UN Genocide Convention by an individual It is therefore now generally accepted that a single act can give
necessarily involves State responsibility if the relevant acts are rise to “two distinct types of responsibility coming under
attributable to a State, as the only hurdle that had to be mutually autonomous legal regimes” [16] . The ILC intentionally
surmounted was whether there was a dispute between the left the question of the interplay of the two bodies of law open
parties as to the interpretation or application of the for future development, inserting a saving clause as Article 58,
convention. However, the tone of the court’s judgment seems ARSIWA, which reads, “These articles are without prejudice to
to suggest that State responsibility does arise in these any question of the individual responsibility under international
circumstances, and this would be consistent with general law of any person acting on behalf of a State.” Similarly, the
principle. Rome Statute of the International Criminal Court (ICC) provides
in its Article 25(4) that “[n]o provision in this Statute relating to of the group if he could, and thus arguably has the required
individual criminal responsibility shall affect the responsibility specific intent. A certain amount of concertation is necessary,
of States under international law.” and there is a certain threshold of scale both for genocide and
crimes against humanity (of which, ultimately, genocide is a
However, although the rules constituting the general- species).
framework of State responsibility and international criminal
responsibility may constitute distinct bodies of law, there are In relation to crimes against humanity, Article 3 of the Statute
inevitably certain overlaps or points of contact between the of the International Criminal Tribunal for Rwanda (ICTR)
two systems due to the fact that at the root of both are the requires that the acts have been committed as part of “a
same norms of substantive international law, that is, those widespread or systematic attack against any civilian population
prohibiting anyone from committing genocide, crimes against on national, political, ethnic, racial, or religious grounds,”
humanity, and so on. whereas Article 5 of the Statute of the ICTY, which only requires
that the acts have been committed “in armed conflict, whether
Most obviously, for instance, it is clear that an individual cannot international or internal in character, and directed against any
be found guilty of genocide if he did not have the “specific civilian population” has been interpreted by the ICTY as
intent” to “destroy in whole or part, a national, ethnical, racial, requiring that there be a widespread or systematic attack. In
or religious group, as such,” required by Article II of the 1948 similar fashion, Article 7 of the Rome Statute of the ICC imposes
Genocide Convention. Equally, in seeking to establish State the slightly different requirement of “a widespread and
responsibility for genocide, it seems clear that at least one systematic attack directed against any civilian population” in its
person, if not more, whose acts are attributable to the State definition of crimes against humanity. As with genocide, the
should have the requisite specific intent. In this sense, the 1948 requirement of “a widespread or systematic attack” implies an
Genocide Convention operates as a lex specialis in relation to element of scale or of planning, and will in most cases involve
the generally applicable rules of international law, in which structures and apparatus that will normally only be disposed of
culpa or intention is not generally required. by a State or by an armed opposition group, although proof of
a plan or policy is not a necessary part of the definition of the
Second, although the definition of genocide is not expressed in crime.
such terms, the logistical and organizational structures
necessary for the commission of the crime inevitably involve It was for reasons of this kind that the ILC included in its articles
State or para-statal structures. A person who murders a single a provision dealing specifically with the issue of responsibility
person on the basis of the national, ethnic, racial, or religious for what are termed composite acts—that is, acts wherein the
group to which that person belongs does not commit genocide, gist of the wrong is the combination of individual acts that are
even though it may be that he would murder all of the members
not in themselves necessarily wrongful or criminal as a matter of commission extends over the whole period during which any
of international law. Article 15 of ARSIWA provides as follows: of the acts was committed, and any individual responsible for
any of them with the relevant intent will have committed
1. The breach of an international obligation by a State, through genocide. [17] .
a series of actions or omissions defined in aggregate as
wrongful, occurs when the action or omission occurs which, The Distinction between Commission and
taken with the other actions or omissions, is sufficient to
constitute the wrongful act. Failure to Prevent or Punish
2. In such a case, the breach extends over the entire period The 1948 UN Genocide Convention distinguishes between the
starting with the first of the actions or omissions of the series basic prohibition of genocide and conduct ancillary to
and lasts for as long as these actions or omissions are repeated genocide—incitement, conspiracy, and so on [18] , and the
and remain not in conformity with the international obligation. question of prevention and punishment [19] . Persons
committing genocide (whether or not State officials) are to be
According to the commentary, this has specific application to punished. The State is under an obligation not merely to enact
crimes against humanity and genocide. laws prohibiting genocide [20] , but also to prevent and punish
actual violations occurring within its territory. Thus, there is a
Even though it has special features, the prohibition of genocide, distinction between the criminal act, which is committed by
formulated in identical terms in the 1948 Convention and in individuals and is punishable accordingly, and the State’s
later instruments, may be taken as an illustration of a obligation to prevent and punish—failure to do which is not as
composite obligation. It implies that the responsible entity such criminal, but amounts to a breach of an international
(including a State) will have adopted a systematic policy or obligation. In the Application of the Genocide Convention case,
practice. According to Article II(a) of the Convention, the prime as noted already, Yugoslavia (Serbia and Montenegro) argued
case of genocide is “killing members of [a national, ethnical, that the only obligation that had been incumbent upon it under
racial or religious group]” with the intent to destroy that group the convention was to prevent genocide and punish acts of
as such, in whole or in part. Both limbs of the definition contain genocide occurring on its territory; the court rejected this
systematic elements. Genocide also has to be carried out with argument, affirming that the jurisdictional provision did not
the relevant intention, aimed at physically eliminating the exclude “any form of State responsibility” [21] . The court left
group “as such.” Genocide is not committed until there has to the merits phase of the case the question of the scope of the
been an accumulation of acts of killing, causing harm, etc., obligations under the convention, and accordingly the extent of
committed with the relevant intent, so as to satisfy the State responsibility falling within the jurisdictional provision.
definition in Article II. Once that threshold is crossed, the time However, leaving aside the technicalities of jurisdiction, the
better view is that—whether under the convention or as a another, giving rise to the duty to give reparation. The wrongful
matter of general international law—a State is responsible for act that is attributable to a State, committed by its agencies or
any act of genocide committed by one of its organs or by other officials or in the exercise of its authority, constitutes a breach
persons whose conduct in the relevant respect is attributable of international obligation that is binding at the time the act is
to the State. committed.Such a classic formulation of international
responsibility is premised on inter se relations of States; an act
As indicated by the or omission of one State in breach of an obligation defined by
Bosnia case, it is international custom or convention, which it owes to another
arguable that, in State. However, progress in the theory and practice of
these as in other international responsibility has gone beyond the scope of
respects, there may bilateral relations. The developments towards the
be a distinction consolidation of the institutions making up the International
between on the one Community of States as a whole have broadened in significant
hand the scope of scale.
responsibility (and
accordingly of Principles of Public International Law
jurisdiction) under
the convention, and on the other the scope of the obligations, International humanitarian law (IHL) is a branch of public
and of responsibility under general international law. For international law. To fully understand how IHL works and operates, it
example, national jurisdiction to try persons suspected of is important to understand the basic structures, principles and rules
genocide is limited by Article VI to genocide committed on the of public international law.
territory of the implicated State. It is inconceivable that What is public international law?
jurisdiction is so limited under general international law, given
such developments as the extension of national jurisdiction Public international law is a combination of rules and customs
over international crimes in general (including crimes less governing relations between states in different fields, such as armed
serious than genocide). conflict, human rights, the sea, space, trade, territorial boundaries,
and diplomatic relations.

Conclusion The United Nations Charter sets out the fundamental principles of
modern public international law, notably:
Therefore, in international law, responsibility pertains to a
 Promotion of human rights;
State which commits an internationally wrongful act against
  The strict limitation on the right to use force against other an “international” component. For example, if a Chinese company
states; was to sign a contract with the United States, private international
 The strict prohibition on the acquisition of territory by force. law would regulate the applicable law if that contract was violated.

Subjects of international law Relationship between domestic and international law

States are the primary subject of international law. However, The relationship between domestic and international law on a
international law can also regulate the actions of other entities, procedural level can be complex, particularly where a national court
namely: international organisations, non-state actors (including is applying international law directly. It is important to remember
national liberation movements and individuals), international non- that domestic law cannot be used as a justification for a failure to
governmental organizations, and multinational companies. All can be meet an international responsibility.
defined as subjects of international law, and can be considered as
In the words of Hersch Lauterpact, who is recognised as one of the
having legal personality. This means that they have both duties and
founders of modern international law:
rights provided for by international law.
"The self-evident principle of international law that a State cannot
Public international law and the protection of human dignity invoke its municipal law as the reason for the non-fulfillment of its
international obligations.”
Several branches of public international law combine to protect
universal values relating to human dignity. Each represents a tool of Sources of international law
protection and all should be considered as complementary and must
The norms and rules of international law are codified in a range of
be applied comprehensively. These branches are: international
treaties and other materials. The main sources of international law
humanitarian law, international refugee law, international criminal
are:
law and international human rights law.
Treaty law: Such as the United Nations Charter and the Geneva
What is the difference between public international law and private
Conventions;
international law?
Customary international law: Established by state practice and legal
Public international law comprises a body of rules which is concerned
intention;
solely with the rights and obligations of sovereign states. For example
the United Nations Charter is a central instrument of public General principles of law recognised by civilised nations: Seen as
international law. inspirational rather than direct sources of the law. Examples of this
are the principles of estoppel and equity.
Private international law, also referred to as ‘conflict of laws’,
consists of rules which govern relations between private entities and
decide which domestic law and/or courts can adjudicate issues with
 The violation of a number of provisions under international law -
usually those that are categorised as jus cogens rules - gives rise to
State responsibility
"erga omnes" obligations. Erga omnes is a Latin concept that
One of the fundamental principles of international law provides that translates as "towards all". When fundamental principles of
any state that violates its international obligations must be held international law are violated, an erga omnes obligation arises,
accountable for its actions. More concretely, according to the notion meaning that all states have the right to take action. Examples of
of state responsibility, states that do not respect their international acts that would give rise to erga omnes obligations include piracy,
duties are obliged to immediately stop their illegal actions and make genocide, slavery, torture and racial discrimination.
reparations to the injured parties. The principle of state responsibility In July 2004 the International Court of Justice found "the right of
forms part of international customary law and is binding upon all peoples to self-determination" a be an erga omnes norm of
states. international law.

Third States also have an obligation not to assist other states who are Sources of International Law
violating international law, and have a legal duty under Common
The main sources of international law are treaty law, international
Article 1 of the Geneva Conventions to ensure respect for IHL.
customary law and general principles of law recognised by civilised
Grave violations of international Law: Jus cogens and erga omnes nations.
obligations
Treaty law
A number of rules of international law reflect "jus cogens" norms,
Treaties and Conventions are written agreements that states
also referred to as peremptory norms of international law.
willingly sign and ratify and as such are obliged to follow. Such
Jus cogens status is reserved for the most fundamental rules of
agreements, which are also called statutes or protocols, givern the
international law, which are recognised and accepted by the
mutual relations between states. They are, however, only binding
international community as rules of which no exceptions are
on those states that have signed and also ratified the particular
allowed (article 53 of the Vienna Convention on the Law of
treaty.
Treaties). All states are obliged to adhere to jus cogens rules at all
times, regardless of the circumstances, and these rules cannot be The Vienna Convention of the Law of Treaties of 1969, sets out the
superceded by international agreements or treaties. fundamental legal rules relating to treaties. The Vienna Convention
defines a treaty, identifies who has the capacity to conclude a
Examples of jus cogens norms include the right of all peoples to self-
treaty, and outlines treaty interpretation, disputes, and
determination, the prohibition on the acquisition of territory by
reservations.
force and the prohibition on genocide, slavery and torture.
The basis of treaty law is ‘pacta sunt servanda’, which means that
Erga omnes agreements must be honoured and adhered to.
Reservations, declarations and derogations armed conflict. However, some rights can never be derogated from
under any circumstances, notably the prohibition on torture,
Many states are involved in the process of drafting a treaty, which
inhumane and degrading treatment.
often includes stark disagreement on the scope and content of the
agreement. In order to increase the number of signatories and For more on derogations and human rights law see the website of
ratifications of a treaty, and hence global order, international law the Rule of Law in Armed Conflict Project.
does allow for states to limit the full application of a treaty, or clarify
It is important to note that international humanitarian law (IHL) does
their specific understanding of the legal content. This is done through
not have a system of derogations, as it is a body of law specifically
reservations, declarations and derogations.
designed to provide minimum protections during armed conflict.
Reservations are defined by the Vienna Convention as:
Customary international law
A unilateral statement, however phrased or named, made by a
State, when signing, ratifying, accepting, approving or acceding to a Customary international law is made up of rules that derive from "a
treaty, whereby it purports to exclude or to modify the legal effect of general practice accepted as law". Customary international law is
certain provisions of the treaty in their application to that State. comprised of all the written or unwritten rules that form part of the
(Article 2 (1)(d)) general international concept of justice.
Only specified reservations are permitted and they cannot Unlike treaty law, which is only applicable to those states that are
undermine the object and purpose of the Treaty. parties to the particular agreement, customary law is binding upon
For more information on treaty reservations see the website of all states, regardless of whether they have ratified a treaty.
the International Law Commission.
Unlike treaty law, customary international law is limited in that it is
Declarations, unlike reservations, do not affect legal obligations, but not codified in a clear and accessible format and the content of the
are often made when a State expresses its consent to be bound by a rules is generally less specific that what you may find in a treaty.
specific treaty. The State uses the declaration to explain or clarify its However, as a source of IHL, customary international law is of
understanding of particular aspects of the treaty text. fundamental importance in armed conflict due to the limited
protections afforded to internal conflicts by treaty law and the lack
For examples see the reservations and declarations made to the
of ratification of key treaties. Customary international law exists
Fourth Geneva Convention.
independently from treaty law and in 2006 the Independent
Some treaties, especially human rights treaties, provide for Commission of the Red Cross (ICRC) published a collection of the rules
a derogations system, which allow for a state party to temporally of IHL considered to be customary in nature. They identified 161
suspend or limit their legal obligations in exceptional circumstances, Rules of customary international law.
for example during armed conflict or national emergency. For
To the ICRC Customary International Law Database
example, the freedom of assembly may be limited during times of
How does a rule become customary international law? UN Charter definition

When states respect certain rules consistently in their international In the opening chapter of the UN Charter, respect for the right to self-
and internal relations, with legal intentions, these practices become determination of peoples is presented as one of the purposes of the
accepted by the international community as applicable rules of United Nations. The right to self-determination of all peoples was
customary international law. confirmed by the United Nations General Assembly (GA) in the
Declaration of Friendly Relations, which was unanimously adopted in
There are two criteria for identifying a rule as part of customary
1970 and is considered an authoritative indication of customary
international law: state practice (usus) and legal nature of that
international law. Article 1, common to the International Covenant
practice (opinion-uris)
on Economic, Social and Cultural Rights (ICESCR) and the
State practice (usus) - Customary law is confirmed through the International Covenant on Civil and Political Rights (ICCPR), reaffirms
behaviour of states (objective criteria), manifested through their the right of all peoples to self-determination, and lays upon state
official statements and actions. parties the obligation to promote and to respect it.

Legal nature of practice (Opino Juris) is the expressed opinion of The right to self-determination was first recognised in the context of
states, individually or collectively, that their actions have a legal and decolonisation. However, numerous human rights instruments,
not a mere policy basis. including conventional law, as well as several GA Resolutions and
state practice, have extended its application beyond the colonial
In short, customary international law is based on consistent actions context, for example to South Africans under the apartheid
by the majority of the international community. Examples of regime. Some scholars also affirmed its application to analogous
customary international law are the prohibition on the arbitrary cases, such as peoples under belligerent occupation.
deprivation of life, the prohibition on torture, and the rule that
civilians and civilian objects cannot be the subject of direct attacks Criteria for the right to self-determination
during armed conflict.
A people can be said to have realised its right to self-determination
International Law and Self-Determination when they have either (1) established a sovereign and independent
state; (2) freely associated with another state or (3) integrated with
The right of all peoples to self-determination is one of the core another state after freely having expressed their will to do so. The
principles of international law and, by virtue of its erga omnes definition of realisation of self-determination was confirmed in the
status, it is the responsibility of all states to ensure that this right is Declaration of Friendly Relations.
realised. The obstruction or violation of this principle, particularly
through the use of force, constitutes a very serious violation of The principle of self-determination outlines not just the duty of states
international law. to respect and promote the right, but also the obligation to refrain
from any forcible action which deprives peoples of the enjoyment of
such a right. In particular, the use of force to prevent a people from In addition to setting out prohibitions, such as torture or targeting
exercising their right of self-determination is regarded as illegal and civilians in an armed conflict, international law also outlines the legal
has been consistently condemned by the international community. ramifications for states when such acts occur.
The obligations flowing from the principle of self-determination have
Under international law, legal consequences can be broadly divided
been recognised as erga omnes, namely existing towards the
between state responsibility and individual responsibility.
international community as a whole. The International Court of
Justice (ICJ) has recently reiterated the erga omnes status of the State responsibility
general principle of self-determination in its Advisory Opinion on
the Wall. Additionally, scholars and commentators have indicated Enforcement of international law can be divided into what the
that the principle has acquired the status of jus cogens – a violating state must do itself and what others, namely states, must
peremptory norm of international law. do.

Enforcement of International Law The norms on state responsibility can be broken into two categories:

Pacta sunt servanda  Firstly the rules relating to all violations of international law;

 Secondly, the elevated level of rules especially directed

A State is bound to act in accordance with international customary
law, and follow any international treaty it has signed and ratified. This towards third states when dealing with particularly serious or
is a fundamental principle in international law called “pacta sunt grave violations of international law.
servanda” - agreements must be respected - which follows both from i. General Rules on State Responsibility
the Vienna Convention on the Law of Treaties, and international
customary law. International humanitarian law (IHL) conventions and Before the consequences of violations are discussed it is important
human rights treaties are examples of sources of a state’s to remember that obligations must be respected. Without respect,
international obligations. rules becomes meaningless. The notion of respect for international
obligations finds expression in the Vienna Convention on Law of
Looking at the events taking place across the globe today it is clear Treaties (1969). The notion of respect extends beyond the basic
that a large number of states are repeatedly violating their obligation to refrain from illegal conduct. Many international
international obligations. In the absence of a global police, states at treaties include obligations to ensure respect for the law.
times act as if they are above the law. However, international law
does set out clear consequences for when the law is broken, and 1. What are the general responsibilities of a state violating
these consequences are on both the collective and individual level. international law?

The basic principle of “state responsibility” in international law

provides that any state that violates its international obligations
must be held accountable for its acts. More concretely, the notion from within its territory?
of state responsibility means that states that do not respect their • May a state be responsible for violations committed by private
international duties are obliged to immediately stop their illegal security firms?
actions and make reparations to the injured.
The general rule is that a state is responsible for all actions of its
The rules on state responsibility identify when a state can be held officials, de facto and de jure. In addition, states have positive
responsible for violating those obligations, and what the obligations to prevent abuses from being committed against people
consequences are if it fails to fulfill its responsibility. under their jurisdiction. For example, in the event that a life is lost
as a result of violence between two gangs, the state may be in
Key questions
violation of its international obligation to respect the right to life if it
1. When does a state violate international law? fails to undertake a serious and effective investigation into the
killing.
A state violates international law when it commits an
“internationally wrongful act", a breach of an international The complexities of the issue would also need to be considered on a
obligation that the state was bound by at the time when the act case by case basis to decide if the state is responsible, by act or
took place. A state is bound to act according to international omission, for the given action of an individual or group.
treaties it has signed as well as rules of customary international law.
4. What should a state do if it violates international law?
2. Towards whom is a state responsible?
If a state violates international law it is responsible to immediately
States have legal responsibilities both towards other states and cease the unlawful conduct and offer appropriate guarantees that it
individuals according to different sources of international law. will not repeat the illegal actions in the future. The state also has a
• Read more about towards whom states are responsible. responsibility to make full reparations for the injury caused,
including both material and moral damages.
3. For whose actions is a state responsible?
5. What should third states do if another state violates international
In international society it is not always easy to identify who is law?
committing a violation of international law. As a consequence,
questions may arise as to which actions exactly is a state liable. Third states violate international law if they aid or assist violations
These questions may include: of international law committed by another state. International
Humanitarian Law (IHL), through Common Article One of the
• May a state be held responsible if its soldiers, in situations of Geneva Conventions, sets out the obligation on third states to
armed conflict, commit rape or other sexual assaults even when ensure respect for IHL in all circumstances.
they are off duty?
• When may a state be responsible for terrorist groups operating ii. Serious Violations of International Law and State Responsibility
International law also sets out obligations that arise when a state Persons who aid, abet, order, supervise and jointly perpetrate
commits a serious breach of international law. These obligations are international crimes can be held individually responsible.
triggered when the serious breach constitutes the violation of a
peremptory norm of general international law. Peremptory norms
are norms accepted and recognised by the international community
of states as a norm from which no derogation is permitted and
which can be modified only by a subsequent norm of general International crimes are divided in three groups:
international law having the same character. • War Crimes (serious violations of IHL)
Third states have elevated obligations where peremptory norms are • Crimes Against Humanity
breached. The seriousness of the violation of a • Genocide
peremptory norm necessitates a collective response to counteract Private international law
the effects of the breach of international law. These obligations
include: Is a body of rules used to resolve legal disputes between private
individuals who cross international boundaries. Where a dispute is
Non-recognition; between two parties in different countries with different legal
Non-assistance; systems, private international law helps a court determine which
country's substantive law will be used to decide the
Cooperate to bring to an end the violation in question. matter. Although it is called 'international law' it is in fact a body of
domestic law, and each country has its own set of private
The rationale for these heightened obligations is the gravity of
international law. It is distinguished from public international law,
breaches of peremptory norms which affect the international
which is the law which governs relations between States (nations).
community as a whole.
Although private international law is a domestic body of law, a lot of
The Geneva Conventions through its grave breaches regime sets out
work has been done by various international bodies to try to
specific obligations for third states when grave breaches of IHL
harmonise private international law around the world. This
occur.
harmonisation effort is designed to minimise the impact of
b. Individual responsibility international legal disputes and in so doing to promote international
trade and commerce.
Legal consequences of violations of international law are not limited
to those under the purview of state responsibility. Certain violations Private international law governs civil and commercial law
of international law can entail individual criminal responsibility. transactions and disputes that contain international elements.
The Private International Law Section serves as the National Organ  Ordinance: The technical term for the "law" issued by a
to the Hague Conference on Private International Law. municipality.

The section is also the Central Authority for the Hague Convention: Practice Area Notes

 on the Service Abroad of Judicial Extrajudicial Documents in Most attorneys who handle municipal law cases are hired by the
Civil or Commercial Proceedings 1965 and municipalities themselves. The attorneys may even work as
corporate counsel for the cities, which means that the attorney
 on the Taking of Evidence Abroad in Civil or Commercial
works for that particular city exclusively.
Matters 1970
Local city or town councils are primarily responsible for creating
Definition of Municipal Law
municipal law. Since council members are elected from the town's
Municipal Law is the law specific to a particular city or county residents, local residents have great control over municipal law,
(known legally as a "municipality"), and the government bodies which can vary greatly between municipalities. If you believe you
within those cities or counties. This can cover a wide range of have a municipal law issue, be sure to consult an attorney familiar
issues, including everything from police power, zoning, education with the ordinances in your area.
policies, and property taxes.
Related Practice Areas
Terms to Know
 Land Use Laws: Municipalities are largely responsible to
 Bylaws: A set of rules by which a municipality conducts its setting land use policy.
business. Bylaws tend to govern activities such as meetings,
 Real Estate: Property taxes and zoning issues, which
votes, record taking, and budgeting.
affect real estate cases, are set by municipalities.
 Land Use: Otherwise known as zoning, land use laws govern
 Small Business: Many municipalities require small
the purposes for which land may be used.
businesses to file local business licenses, and zoning laws
 Municipal Charter: A municipality's founding document. can affect where and how small businesses operate.

 Municipal Corporation: The legal structure assigned to a  Taxes: Property taxes are usually set by a municipal taxing
municipality which allows it to buy and sell property, and authority, and the city council often decides what the
sue or be sued. municipality uses those taxes for.

 Police Power: The legal term for the ability to use police to  Education Law: The local board of education is responsible
regulate the behavior of a municipality's residents. for setting a large portion of education policy.
 Civil Rights: Local police, who must abide by federal civil
rights laws, are employed by municipalities. The
municipalities typically pay any damages resulting from civil
rights abuses at the hands of police.

Principle of Ubi Societas Ibi Jus

 that its importance and
effect has been
exaggerated. The
neoliberal argument is
focused on neorealists'
alleged
underestimation of
"the varieties of
cooperative behavior
possible within ... a
decentralized
system."[3] Both
theories, however,
Neoliberalism consider the state and its interests as the central subject of analysis;
neoliberalism may have a wider conception of what those
In the study of international relations, neoliberalism refers to a
school of thought which believes that states are, or at least interests are.
should be, concerned first and foremost with absolute
gains rather than relative gains to other states. Neoliberalism is a Neoliberalism argues that even in an anarchic system of
revised version of liberalism. autonomous rational states, cooperation can emerge through the
cultivation of mutual trust and the building of norms, regimes and
Alongside neorealism, neoliberalism is one of the two most
influential contemporary approaches to international relations; the institutions.
two perspectives have dominated international relations theory for
In terms of the scope of international relations theory and foreign
the last three decades.[1]
interventionism, the debate between Neoliberalism and Neorealism
Activities of the international system[edit] is an intra-paradigm one, as both theories are positivist and focus
Neoliberal international relations thinkers often employ game mainly on the state system as the primary unit of analysis.
theory to explain why states do or do not cooperate;[2] since their Development[edit]
approach tends to emphasize the possibility of mutual wins, they
are interested in institutions which can arrange jointly profitable Robert Keohane and Joseph Nye have been considered the founders
arrangements and compromises. of the neoliberal school of thought; Keohane's book After
Hegemony is a classic of the genre. Other major influences are
Neoliberalism is a response to neorealism; while not denying the hegemonic stability theory of Stephen Krasner and the work
the anarchic nature of the international system, neoliberals argue of Charles P. Kindleberger, among others.
Contentions[edit] Finally, the use of military force is not exercised when complex
interdependence prevails. The idea is developed that between
Keohane and Nye[edit]
countries in which a complex interdependence exists, the role of the
Robert O. Keohane and Joseph S. Nye, in response to neorealism, military in resolving disputes is negated. However, Keohane and Nye
develop an opposing theory they dub "Complex interdependence." go on to state that the role of the military is in fact important in that
Robert Keohane and Joseph Nye explain, "... complex "alliance's political and military relations with a rival bloc."
interdependence sometimes comes closer to reality than does
Lebow[edit]
realism."[4] In explaining this, Keohane and Nye cover the three
assumptions in realist thought: First, states are coherent units and Richard Ned Lebow states that the failure of neorealism lies in its
are the dominant actors in international relations; second, force is a "institutionalist" ontology, whereas the neorealist thinker Kenneth
usable and effective instrument of policy; and finally, the Waltz states, "the creators [of the system] become the creatures of
assumption that there is a hierarchy in international politics.[5] the market that their activity gave rise to." This critical failure,
according to Lebow, is due to the realists' inability "to escape from
The heart of Keohane and Nye's argument is that in international
the predicament of anarchy." Or rather, the assumption that states
politics there are, in fact, multiple channels that connect societies
do not adapt and will respond similarly to similar constraints and
exceeding the conventional Westphalian system of states. This
opportunities.[6]
manifests itself in many forms ranging from informal governmental
ties to multinational corporations and organizations. Here they Mearsheimer[edit]
define their terminology; interstate relations are those channels
Norman Angell, a classical London School of Economics liberal, had
assumed by realists; transgovernmental relations occur when one
held: "We cannot ensure the stability of the present system by the
relaxes the realist assumption that states act coherently as
political or military preponderance of our nation or alliance by
units; transnational applies when one removes the assumption that
imposing its will on a rival."[7]
states are the only units. It is through these channels that political
exchange occurs, not through the limited interstate channel as Keohane and Lisa L. Martin expound upon these ideas in the mid
championed by realists. 1990s as a response to John J. Mearsheimer's "The False Promise of
International Institutions," where Mearsheimer purports that,
Secondly, Keohane and Nye argue that there is not, in fact, a
"institutions cannot get states to stop behaving as short-term power
hierarchy among issues, meaning that not only is the martial arm of
maximizers."[8] In fact Mearsheimer's article is a direct response to
foreign policy not the supreme tool by which to carry out a state's
the liberal-institutionalist movement created in response to neo-
agenda, but that there are a multitude of different agendas that
realism. The central point in Keohane and Martin's idea is that neo-
come to the forefront. The line between domestic and foreign
realism insists that, "institutions have only marginal effects ...
policy becomes blurred in this case, as realistically there is no clear
[which] leaves [neo-realism] without a plausible account of the
agenda in interstate relations.
investments that states have made in such international institutions other European states by linking the issues at hand to the EC.
as the EU, NATO, GATT, and regional trading organizations."[9] This Mearsheimer purports that the United States was not a member of
idea is in keeping with the notion of complex interdependence. the EC and yet the US and Britain managed to cooperate on
Moreover, Keohane and Martin argue that the fact that sanctions, creating an ad hoc alliance which effected change. "...
international institutions are created in response to state interests, Issue linkage was a commonplace practice in world politics well
that the real empirical question is "knowing how to distinguish the before institutions came on the scene; moreover, Britain and other
effects of underlying conditions from those of the institutions European states could have used other diplomatic tactics to solve
themselves."[8] The debate between the institutionalists and the problem. After all, Britain and America managed to cooperate
Mearsheimer is about whether institutions have an independent on sanctions even though the United States was not a member of
effect on state behavior, or whether they reflect great power the EC.
interests that said powers employ to advance their respective
Realism
interests.[10]
is a school of thought in international relations theory, theoretically
Mearsheimer is concerned with 'inner-directed' institutions, which
formalising the Realpolitik statesmanship of early modern Europe.
he states, "seek to cause peace by influencing the behavior of the
Although a highly diverse body of thought, it can be thought of as
member states." In doing so he dismisses Keohane and Martin's
unified by the belief that world politics ultimately is always and
NATO argument in favor of the example of the European
necessarily a field of conflict among actors pursuing power. Crudely,
Community and the International Energy Agency. According to
realists are of three kinds in what they take the source of
Mearsheimer, NATO is an alliance that is interested in "an outside
ineliminable conflict to be. Classical realists believe that it follows
state, or coalition of states, which the alliance aims to deter, coerce,
from human nature, neorealists focus upon the structure of the
or defeat in war." Mearsheimer reasons that since NATO is an
anarchic state system, and neoclassical realists believe that it is a
alliance it has special concerns. He concedes this point to Keohane
result of a combination of the two and certain domestic variables.
and Martin.[11] However, Mearsheimer reasons, "to the extent that
Realists also disagree about what kind of action states ought to take
alliances cause peace, they do so by deterrence, which is
to navigate world politics and neorealists are divided
straightforward realist behavior."[12] In essence, Mearsheimer
between defensive realism and offensive realism. Realists have also
believes that Keohane and Martin "are shifting the terms of the
claimed that a realist tradition of thought is evident within the
debate, and making realist claims under the guise of
history of political thought all the way back to antiquity
institutionalism.[12]
to Thucydides.
Mearsheimer criticizes Martin's argument that the European
Jonathan Haslam characterizes realism as "a spectrum of
Community (EC) enhances the prospects of cooperation, particularly
ideas."[1] Regardless of which definition is used, the theories of
in the case of Great Britain's sanctioning of Argentina during
realism revolve around four central propositions:[2]
the Falklands war, where it was able to secure the cooperation of
  That states are the central actors in international politics 1. The international system is anarchic.
rather than individuals or international organizations,
 No actor exists above states, capable of regulating
 That the international political system is anarchic as there is their interactions; states must arrive at relations
no supranational authority that can enforce rules over the with other states on their own, rather than it being
states, dictated to them by some higher controlling entity.

 That the actors in the international political system are  The international system exists in a state of
rational as their actions maximize their own self-interest, constant antagonism (anarchy).
and
2. States are the most important actors.
 That all states desire power so that they can ensure their
3. All states within the system are unitary, rational actors
own self-preservation.
 States tend to pursue self-interest.
Realism is often associated with Realpolitik as both are based on the
management of the pursuit, possession, and application of  Groups strive to attain as many resources as
power. Realpolitik, however, is an older prescriptive guideline possible (relative gain).
limited to policy-making (like foreign policy), while realism is a
particular paradigm, or wider theoretical and methodological 4. The primary concern of all states is survival.
framework, aimed at describing, explaining and, eventually,  States build up military to survive, which may lead
predicting events in the international relations domain. The theories to a security dilemma.
of Realism are contrasted by the cooperative ideals of liberalism.
In summary, realists think that mankind is not inherently
Realism is one of the dominant strains of thought in modern foreign benevolent but rather self-centered and competitive. This
policy. As an academic pursuit, realism is not tied to ideology; it perspective, which is shared by theorists such as Thomas Hobbes,
does not favor any particular moral philosophy, nor does it consider views human nature as egocentric (not necessarily selfish) and
ideology to be a major factor in the behavior of nations. Priorities of conflictual unless there exist conditions under which humans may
realists have been described as "Machiavellian", with the primary coexist. It is also disposed of the notion that an individual's intuitive
focus being increasing the relative power of one's own nation over nature is made up of anarchy. In regards to self-interest, these
others individuals are self-reliant and are motivated in seeking more
Common assumptions power. They are also believed to be fearful. This view contrasts with
the approach of liberalism to international relations.
Realism is a tradition of international theory centered upon four
propositions.[4]
The state emphasises an interest in accumulating power to ensure state or trans-state actors are viewed as having little independent
security in an anarchic world. Power is a concept primarily thought influence. States are inherently aggressive (offensive realism) and
of in terms of material resources necessary to induce harm or obsessed with security (defensive realism), and that territorial
coerce other states (to fight and win wars). The use of power places expansion is only constrained by opposing powers. This aggressive
an emphasis on coercive tactics being acceptable to either build-up, however, leads to a security dilemma whereby increasing
accomplish something in the national interest or avoid something one's security may bring along even greater instability as an
inimical to the national interest. The state is the most important opposing power builds up its own arms in response (an arms race).
actor under realism. It is unitary and autonomous because it speaks Thus, security becomes a zero-sum game where only relative
and acts with one voice. The power of the state is understood in gains can be made.
terms of its military capabilities.
Realists believe that there are no universal principles with which all
A key concept under realism is the international distribution of states may guide their actions. Instead, a state must always be
power referred to as system polarity. Polarity refers to the number aware of the actions of the states around it and must use a
of blocs of states that exert power in an international system. A pragmatic approach to resolve problems as they arise.
multipolar system is composed of three or more blocs, a bipolar
Democratic theory
system is composed of two blocs, and a unipolar system is
dominated by a single power or hegemon. Under unipolarity realism Democratic theory is an established subfield of political theory that
predicts that states will band together to oppose the hegemon and is primarily concerned with examining the definition and meaning of
restore a balance of power. Although all states seek hegemony the concept of democracy, as well as the moral foundations,
under realism as the only way to ensure their own security, other obligations, challenges, and overall desirability of democratic
states in the system are incentivised to prevent the emergence of a governance. Generally speaking, a commitment to democracy as an
hegemon through balancing. object of study and deliberation is what unites democratic theorists
across a variety of academic disciplines and methodological
States employ the rational model of decision making by obtaining
orientations. When this commitment takes the form of a discussion
and acting upon complete and accurate information. The state is
of the moral foundations and desirability of democracy, normative
sovereign and guided by a national interest defined in terms of
theory results. When theorists concern themselves with the ways in
power. Since the only constraint of the international system is
which actual democracies function, their theories are empirical.
anarchy, there is no international authority and states are left to
Finally, when democratic theorists interrogate or formulate the
their own devices to ensure their own security.
meaning of the concept of democracy, their work is conceptual or
Realists believe that sovereign states are the principal actors in the semantic in orientation. Democratic theories typically operate at
international system. International institutions, non-governmental multiple levels of orientation. For example, definitions of democracy
organizations, multinational corporations, individuals and other sub- as well as normative arguments about when and why democracy is
morally desirable are often rooted in empirical observations or hegemon.[1] Thus, the fall of an existing hegemon or the state of
concerning the ways in which democracies have actually been no hegemon diminishes the stability of the international system.
known to function. In addition to a basic commitment to democracy When a hegemon exercises leadership, either through diplomacy,
as an object of study, most theorists agree that the coercion, or persuasion, it is actually deploying its "preponderance
concept democracy denotes some form or process of collective self- of power." This is called hegemony, which refers to a state's ability
rule. The etymology of the word traces back to the Greek to "single-handedly dominate the rules and arrangements ...[of]
terms demos (the people, the many) and kratos (to rule). Yet international political and economic relations."[2] HST can help
beyond this basic meaning, a vast horizon of contestation opens up. analyze the rise of great powers to the role of world leader or
Important questions arise: who constitutes the people and what hegemon. Also, it can be used to understand and to calculate the
obligations do individuals have in a democracy? What values are future of international politics through the discussion of the
most important for a democracy and which ones make it desirable symbiotic relation between the declining hegemon and its rising
or undesirable as a form of government? How is democratic rule to successor.[3]
be organized and exercised? What institutions should be used and
Research on hegemony can be divided into two schools of thought:
how? Once instituted, does democracy require precise social,
the realist school and the systemic school. Each school can be
economic, or cultural conditions to survive in the long term? And
further sub-divided. Two dominant theories have emerged from
why is it that democratic government is preferable to, say,
each school. What Robert Keohane first called the "theory of
aristocracy or oligarchy? These questions are not new. In fact,
hegemonic stability,"[4] joins A. F. K. Organski's Power Transition
democratic theory traces its roots back to ancient Greece and the
Theory as the two dominant approaches to the realist school of
emergence of the first democratic governments in Western history.
thought. Long Cycle Theory, espoused by George Modelski,
Ever since, philosophers, politicians, artists, and citizens have
and World Systems Theory, espoused by Immanuel Wallerstein,
thought and written extensively about democracy. Yet democratic
have emerged as the two dominant approaches to the systemic
theory did not arise as an institutionalized academic or intellectual
school of thought.[5]
discipline until the 20th century. The works cited here privilege
Anglo-American, western European, and, more generally, Charles P. Kindleberger is one of the scholars most closely
institutional variants of democratic theory, and, therefore, they do associated with HST, and is regarded by some as the theory's
not exhaust the full range of thought on the subject. father.[6] In the 1973 book The World in Depression: 1929-1939, he
argued that the economic chaos between World War I and World
Hegemonic stability theory (HST)
War II that led to the Great Depression was partly attributable to
is a theory of international relations, rooted in research from the the lack of a world leader with a dominant economy. Kindleberger's
fields of political science, economics, and history. HST indicates that reasoning touched upon more than economics, however: the
the international system is more likely to remain stable when a central idea behind HST is that the stability of the global system, in
single nation-state is the dominant world power,
terms of politics, international law, and so on, relies on the Thirdly, a hegemon must have will to lead, and the will to establish a
hegemon to develop and enforce the rules of the system.[7] hegemonic regime, as well as the capability to lead and enforce the
rules of the system. After World War I, Great Britain possessed the
In addition to Kindleberger, key figures in the development of
will to lead, but lacked the necessary abilities to do so. Without the
hegemonic stability theory include Robert Gilpin, Joanne
ability to force stability on the international system, Great Britain
Gowa, Robert Keohane, Stephen Krasner, George Modelskiand
was able to do little to prevent the onset of the Great Depression or
others.[8][9]
World War II.
Hegemonic rise
Finally, a hegemon must commit to the system, which needs to be
In order for a nation-state to rise to the level of hegemon, there are perceived as mutually beneficial for other great powers and
some attributes it must or is more advantageous to have.[10] important state-actors.

First of all, it must have political strength, military force, and Long cycle theory
superior national power that is necessary for its ability to forge new
George Modelski, who presented his ideas in the book, Long Cycles
international laws and organizations. In terms of military force, a
in World Politics (1987), is the chief architect of long cycle theory. In
standing defensive army is not enough. A superior navy, or air force
a nutshell, long cycle theory describes the connection between war
is. This explains why many hegemons have been geographically
cycles, economic supremacy, and the political aspects of world
situated on peninsulas or islands. Peninsularity and insularity
leadership.
provide added security, and, where naval power is necessary, the
ability to project military forces. In some cases, hegemons have not Long cycles, or long waves, offer interesting perspectives on global
been insular or peninsular. The United States of America, for politics by permitting "the careful exploration of the ways in which
instance, has become a virtual island. It has two massive seaboards, world wars have recurred, and lead states such as Britain and the
and its neighbors are strong allies, and relatively reliable. Also, the United States have succeeded each other in an orderly manner."
modern invention of nuclear weapons, and the presence of a Not to be confused with Simon Kuznets' idea of long-cycles, or long-
superior air force provide highly reliable security for the country, swings, long cycles of global politics are patterns of past world
setting it apart from the rest of the world. politics.[12]

Secondly, a hegemon must have a large and growing economy. The long cycle, according to Dr. Dan Cox, is a period of time lasting
Usually, unrivaled supremacy in at least one leading economic or approximately 70 to 100 years. At the end of that period, "the title
technological sector is necessary. of most powerful nation in the world switches hands.".[13] Modelski
divides the long cycle into four phases. When periods of global war,
The first and second refers to a state having the attribute of the
which could last as much as one-fourth of the total long cycle, are
capability to enforce the rules of the system.
factored in, the cycle can last from 87 to 122 years.[14]
Many traditional theories of international relations, including the Other views of hegemonic stability
other approaches to hegemony, believe that the baseline nature of
The neorealist interpretation[edit]
the international system is anarchy.[15] Modelski's long cycle theory,
however, states that war and other destabilizing events are a Neorealists have been focusing on this theory recently, the main
natural product of the long cycle and larger global system cycle. proponent of it being John J. Mearsheimer who is trying to
They are part of the living processes of the global polity and social incorporate it into 'offensive realism'.[18] In his book 'The Tragedy of
order. Wars are "systemic decisions" that "punctuate the Great Power Politics' Mearsheimer outlines how the anarchic
movement of the system at regular intervals." Because "world system that neorealists subscribe to (see Kenneth Waltz for original
politics is not a random process of hit or miss, win or lose, theory) creates power hungry states who will each attempt to install
depending on the luck of the draw or the brute strength of the themselves as regional and global hegemons.[19] His theory is not
contestants," anarchy simply doesn't play a role. After all, long widely embraced by fellow realists who argue that the hegemon
cycles have provided, for the last five centuries, a means for the supports the system so long as it is in their interests.[citation needed] The
successive selection and operation of numerous world leaders.[16] system is created, shaped and maintained by coercion. The
hegemon would begin to undermine the institution when it is not in
Modeslki used to believe that long cycles were a product of the
their interests. With the decline of a hegemon, the system descends
modern period. He suggests that the five long cycles, which have
into instability. Other realists argue that the anarchic system does
taken place since about 1500, are each a part of a larger global
not actually give causal motivation to aid the creation of
system cycle, or the modern world system.
hegemons.[citation needed]
Under the terms of long cycle theory, five hegemonic long cycles
The neoliberal interpretation
have taken place, each strongly correlating to economic Kondratieff
Waves (or K-Waves). The first hegemon would have been Portugal Neoliberals argue that the hegemon wishes to maintain its
during the 16th century, then the Netherlands during the 17th dominant position without paying enforcement costs, so it creates a
century. Next, Great Britain served twice, first during the 18th system in which it can credibly limit the returns to power (loser
century, then during the 19th century. The United States has been doesn't lose all) and credibly commit to neither dominate nor
serving as hegemon since the end of World War II. abandon them. This is done through institutions, which are sticky,
(hard to change, more convenient to continue using than to
The traditional view of long cycle theory has evolved somewhat, as
revamp.) These institutions favor the hegemon, but provide
Modelski now suggests that Northern and Southern Sung China,
protection and a stable world order for the rest of the world. The
Venice and Genoa were each the dominant economic powers
more open this world-order, the less likely that there will be a
during medieval long cycles. However, he does not classify any of
challenger.[20] With the decline of the hegemon, institutions don't
these states as world powers. Only when Portugal gained hegemony
automatically die, because they were constructed in a way that
after 1500 is that distinction made.[17]
benefited all stakeholders; instead, they take on a life of their own latter’s governmental—e.g., regulatory—relations with private
(see regime theory).[21][22] parties. Private international law thus emphasizes the differences
between national legal systems: although the term private
The classical liberal interpretation
international law may aptly describe the subject matter, it may also
It is motivated by 'enlightened self-interest'; the hegemon takes on mislead by suggesting that there is an international body of rules to
the costs because it is good for all actors, thereby creating stability bridge differences between legal systems. This is emphatically not
in the system, which is also in the interests of all actors. the case. The term conflict of laws refers primarily to rules that are
solely national in origin and are explicitly not part of international
Defining Conflict Of Laws law (except insofar as countries have concluded treaties concerning
Each country’s legal system reflects its society’s values. As a result, them).
national laws and the structure of domestic judicial systems vary Conflicts law must address three principal questions. First, when a
considerably from country to country. Nevertheless, many kinds of legal problem touches upon more than one country, it must be
legal situations or events, such as marriage, decedents’ determined which court has jurisdiction to adjudicate the matter.
estates, torts, and business transactions, often are not confined to a Second, once a court has taken jurisdiction, it must decide what law
single country or even to a single jurisdiction within a country. The it should apply to the question before it. The rules governing the
courts of each involved country may claim jurisdiction over the court may direct it to apply its own law or call for the application of
matter, and the laws of each involved country may be applicable the law of another country. Third, assuming that the court
under certain circumstances. When such conflicts, or differences, ultimately renders a judgment in favour of the plaintiff, conflicts law
exist, procedures need to be in place to resolve them; the must address the enforcement of the judgment. In the event that
term conflict of laws (sometimes also conflicts or conflicts law) the defendant has insufficient assets locally, recognition and
describes the body of law of each country or state that is designed enforcement of the judgment must be sought in a country where
to resolve problems arising from the differences between legal assets do exist.
systems. Conflict of laws is a term used primarily in the United
States, Canada, and, increasingly, the United Kingdom. In most
other countries (and historically in the United Kingdom), the
term private international law is used. The latter term derives from
the civil-law distinction between private and public law, whereby Common Principles
private law addresses the legal relationships between and among
Although few uniform international conflicts rules exist, there are a
individuals, corporations, and even the state in its relations with
number of common principles that are recognized to varying extent
individuals and corporations when it is not acting in a governmental
throughout the world. The ancient international principle of
capacity (for example, in the conclusion of contracts), while public
comity—which, like the biblical Golden Rule, posits that
law deals with the law governing state institutions as well as the
even sovereign states should extend courtesies and privileges to EU, there is now a trend to change to the place-of-incorporation
each other—explains why one country would give effect to the law rule.
of another. A formal requirement of reciprocity could actually limit
Especially with respect to commercial transactions (e.g., contracts),
the extent of these courtesies and privileges to those that the other
modern conflicts law emphasizes flexibility. This quality is evident in
state is willing to extend. Party autonomy (i.e., the freedom of
Article 4 of the Rome Convention, which first established the
parties to decide what court shall hear their case and what law shall
general principle that the applicable law should be that to which the
govern it) is recognized by most countries, those of Latin America
contract has the closest connection. Although the article provided
being a notable exception.
some presumptions regarding what law that might be, it concluded
Legal systems have established different criteria for the selection of by making it possible for the court to correct the result: if the court
one country’s law over that of another for application to a particular found that, exceptionally, another law was more closely connected
case or problem. There are, however, some widely (albeit not to the contract or to one of its issues, then it should apply that law.
uniformly) shared principles. For questions of family The convention’s successor, the Rome I Regulation, replaces the
law, inheritance, and (in limited types of cases) even liability in tort, presumptions with specific rules for a number of contract types and
legal systems will consider the nationalityor, retains the general reference to the most closely connected law for
alternatively, domicile or habitual residence of a person. For all other contracts
commercial transactions, a transaction’s “closest connection” to a
Conflict of laws
legal system may be emphasized over traditional connecting factors
such as where the transaction was concluded. Factors determining a It concerns relations across different legal jurisdictions between
close connection to a particular state and its law may be the place natural persons, companies, corporations and other legal entities,
of business or principal residence of the party that is to effect the their legal obligations and the appropriate forum and procedure for
performance in question, the language used by the parties in their resolving disputes between them. Conflict of laws especially affects
negotiations and contract formation, the currency and modalities of private international law,[1][2][3] but may also affect domestic legal
payment specified, and other factors that are not as incidental as disputes e.g. determination of which state law applies in the United
the place of contracting may be (e.g., when a contract is concluded States, or where a contract makes incompatible reference to more
in a hotel or other meeting place because both parties are in than one legal framework.
transit). For cases involving legal persons (corporations), many
countries, particularly those of the common-law tradition, refer to Choice of laws
the law of the state where the entity is incorporated, but others, Courts faced with a choice of law issue have a two-stage process:
especially those employing civil-law principles, refer to the law of
the corporate “seat,” defined as the place of central management 1. the court will apply the law of the forum (lex fori) to all
and decision making. Among the latter countries, especially in the procedural matters (including the choice of law rules);
 2. it counts the factors that connect or link the legal issues to when married couples enter a property agreement (agreement for
the laws of potentially relevant states and applies the laws the division of property at the termination of the marriage),
that have the greatest connection, e.g. the law stringent requirements are imposed, including notarization,
of nationality (lex patriae) or the law of habitual witnesses, special acknowledgment forms. In some countries, these
residence (lex domicilii). (See also 'European Harmonization must be filed (or docketed) with a domestic court, and the terms
Provisions': "The concept of habitual residence is the civil must be "so ordered" by a judge.[citation needed] This is done in order to
law equivalent of the common law test of lex domicilii".) ensure that no undue influence or oppression has been exerted by
The court will determine the plaintiffs' one spouse against the other. Upon presenting a property
legal status and capacity. The court will determine the law agreement between spouses to a court of divorce, that court will
of the state in which land is situated (lex situs) that will be generally assure itself of the following factors: signatures, legal
applied to determine all questions of title. The law of the formalities, intent, later intent, free will, lack of oppression,
place where a transaction physically takes place or of the reasonableness and fairness, consideration, performance, reliance,
occurrence that gave rise to the litigation (lex loci actus) will later repudiation in writing or by conduct, and whichever other
often be the controlling law selected when the matter is concepts of contractual bargaining apply in the context.
substantive, but the proper law has become a more
Contracts
common choice.[4]
Many contracts and other forms of legally binding agreement
Private international law on marriages and legal dissolution of
include a jurisdiction or arbitration clause specifying the parties'
marriages (divorce)
choice of venue for any litigation (called a forum selection clause).
Conflict of marriage laws In England and the EU, this is governed by the Rome I
Regulation. Choice of law clauses may specify which laws the court
In divorce cases, when a court is attempting to distribute marital
or tribunal should apply to each aspect of the dispute. This matches
property, if the divorcing couple is local and the property is local,
the substantive policy of freedom of contract and will be
then the court applies its domestic law lex fori. The case becomes
determined by the law of the state where the choice of law clause
more complicated if foreign elements are thrown into the mix, such
confers its competence. Oxford Professor Adrian Briggs suggests
as when the place of marriage is different from the territory where
that this is doctrinally problematic as it is emblematic of 'pulling
divorce was filed; when the parties' nationalities and residences do
oneself up by the bootstraps'.[5]
not match; when there is property in a foreign jurisdiction; or when
the parties have changed residence several times during the Judges have accepted that the principle of party autonomy allows
marriage. the parties to select the law most appropriate to their transaction.
This judicial acceptance of subjective intent excludes the traditional
Whereas commercial agreements or prenuptial agreements
reliance on objective connecting factors;[6] it also harms consumers
generally do not require legal formalities to be observed,
as vendors often impose one-sided contractual terms selecting a supranational effect. Article 177 would give the Court of Justice
venue far from the buyer's home or workplace. Contractual clauses jurisdiction to interpret and apply their principles so, if the political
relating to consumers, employees, and insurance beneficiaries are will arises, uniformity may gradually emerge in letter. Whether the
regulated under additional terms set out in Rome I, which may domestic courts of the Member States would be consistent in
modify the contractual terms imposed by vendors.[7] applying those letters is speculative.[citation needed]

Harmonization of laws International Law vs Municipal Law

To apply one national legal system as against another may never be Understand the concept of public international law. When
an entirely satisfactory approach. The parties' interests may always questions and conflicts arise in the relationships between sovereign
be better protected by applying a law conceived with international nations, they are solved under the rules of public international law.
realities in mind. The Hague Conference on Private International This body of law consists of the treaties and legal decisions
Law is a treaty organization that oversees conventions designed to interpreting those treaties.[2]
develop a uniform system. The deliberations of the conference have
 International law assumes that all the parties, as sovereign
recently been the subject of controversy over the extent of cross-
states, are equals.
border jurisdiction on electronic commerce and defamation issues.
There is a general recognition that there is a need for an  Conflicts arising under public international law can be
international law of contracts: for example, many nations have settled either through diplomatic negotiations or in the
ratified the Vienna Convention on the International Sale of Goods, International Court of Justice.[3] This is the court of the
the Rome Convention on the Law Applicable to Contractual United Nations. Fifteen judges, elected by the UN General
Obligations offers less specialized uniformity, and there is support Assembly, use international legal precedent to issue
for the UNIDROIT Principles of International Commercial Contracts, advisory opinions and solve legal disputes between
a private restatement, all of which represent continuing efforts to governments.[4]
produce international standards as the internet and other
 The International Court of Justice has jurisdiction in two
technologies encourage ever more interstate commerce.[citation needed]
types of cases. The first is where the two countries agree to
Other branches of the law are less well served and the dominant submit the conflict to the court. The second is when a treaty
trend remains the role of the forum law rather than a supranational specifies the court as the legal authority over disputes.
system for conflict purposes. Even the EU, which has institutions
 When citizens of different states have a legal dispute, there
capable of creating uniform rules with direct effect, has failed to
produce a universal system for the common market. Nevertheless, is often a question about what law applies. This choice of
the Treaty of Amsterdam does confer authority on the community's law question in civil issues, ranging from contracts to family
institutions to legislate by Council Regulation in this area with law, is discussed in the Hague Conference on Private
International Law.
 In general, courts will first defer to any contract or most common law, often called judge-made law, is referred
agreement clauses that identify what courts will have to during legal issues such as contract law or disputes
jurisdiction.[7] In the absence of explicit choice of law between domestic businesses.
language, the court will look to the overall circumstances of  Look at how the laws were created. There are no
the contract, the behavior of the parties in creating the international statutes. The United Nations agrees on
contract (called parol evidence) and if the parties can agree conventions that member nations may choose to ratify and
on jurisdiction. abide by, but there is no international governmental body.
 The customary international law[9] is codified in the Vienna International law is created by treaty, by custom, and by
Convention on the Law of Treaties.[10] Under this custom, agreements between nations. This is in stark contrast to the
states consistently adhere to certain practices out historical legislative process that creates the internal municipal laws
and legal obligation of nations and states.
 Define municipal law. In common usage, especially in the  International treaties are legally binding agreements
United States, municipal or municipality, refers to a city or between nations. In a nation like the United States, a treaty
town. However, in the realm of international law, municipal is an agreement ratified by Congress. Once it has been
refers to any sovereign entity, including countries, states, ratified, it holds the same status as federal legislation (i.e.,
counties, provinces, cities, and towns. In short, municipal statutes). Therefore, treaties can mean different things
refers to the internal law of a sovereign government. depending on the nation or international body discussing
 There are two primary forms of municipal, or domestic, law. them.[18] An example of a treaty is the Treaty of Versailles,
The first is civil law, composed of the statutory law and which was the peace settlement signed after World War
regulations to administer those laws.[13] Statutes are I.[19]
passed either by the legislative bodies of the state or by  International agreements are usually less formal than
popular vote.[14] Domestic law is also formed by the treaties, although the international community often sees
common law, which is law handed down by the lower and them on the same level as treaties. In the United States, an
upper courts of the country.[15] international agreement does not need to be ratified by
 Common types of municipal law are criminal statutes, traffic Congress and they are only applicable in domestic law (i.e.,
laws, and government regulations. Basically, municipal law they are not enforceable themselves).[20] An example of an
regulates the relationship of citizens with the government. international agreement is the Kyoto Protocol, which sets
 Understand the enforcement mechanisms of municipal international emissions reductions with the hope of curbing
law. Civil and common law are enforced in very different climate change.[21]
ways. For example, law enforcement agencies, ranging from  International customs are created when a nation generally
local police to the federal investigative branches, have and consistently adheres to a certain practice due to a
jurisdiction over civil criminal statutes. On the other hand, sense of legal obligation. They are not necessarily written
 down and are the least formal of all the sources of would say municipal law regulates the conduct of people
international law.[22] within a sovereign state.
 There is no police agency with complete international  If you are a dualist, you would likely say the two barely
jurisdiction. Even INTERPOL, the organization with 190 interact at all. However, if they do, it would usually be when
member countries, acts only as a coordination agency, municipal law is recognizing and incorporating the rules of
passing information and training to municipal police international law. Therefore, the national law would have
forces.[23] When there is a dispute between nations, the supremacy over the international law. In case of conflict
international law is enforced through treaties, United between international and municipal law, a national court
Nations conventions, and the ICJ. would apply municipal law.
 In municipal law legal disputes, the case will be decided  Scrutinize the connection from a "monist"
based either on the civil laws, in the form of statutes, or by perspective. Monists believe international law and
the body of common law in the forum state. municipal law are all part of one legal system. To them,
 If the two sides in the legal dispute are sovereign nations, both laws are based on the same premise, which is
you can assume that international laws, enforcement regulating the conduct of people and things.
methods, and dispute resolution will apply. Conversely, if  If you are a monist, international law will trump municipal
both parties are citizens of the same nation, municipal law law, even in national courts
enforcement, court systems, and jurisdictional rules will be  While nations are under a general obligation to follow
used to settle the dispute. international law, there is usually a great amount of leeway
 When the citizenship is mixed, such as individuals of in how they choose to do so. Nations are generally free to
different countries or an individual in a dispute with a decide how they incorporate international law into
government of another sovereignty, the courts will look to municipal law. While different nations handle this issue in
any treaties, UN conventions, or contracts that may shed different manners, the prevailing position seems to be
light on the jurisdiction before agreeing to accept dualist. Therefore, most nations require the formal
jurisdiction. integration of international law through the passage of
 Analyze the relationship from a "dualist" perspective. Many some municipal law.[26]
people in the international community see international  Assess how international law interacts with municipal
and municipal law as two separate entities. These people law. In the international sphere, international law wins out
would say each system regulates separate subject matters over municipal law. However, municipal law is useful
and each exists in its own sphere. They would say evidence of international customary law and general
international law regulates the conduct of states and their principles of law. In addition, international law often leaves
interactions with one another. On the other hand, they questions to be answered by a nation's own laws.
Therefore, if you found yourself in international court, you
 might use municipal law to help you decide whether there international law. The municipal courts have a law enforcement arm
has been a breach of international law. An international which helps require those it determines to follow the rules, and if
court may even look to municipal law to help them they do not they are required to attend court. The international
interpret international law. court system has no enforcement and must rely on the cooperation
 In the municipal (i.e., national) sphere, the interaction is of other countries for enforcement.
more difficult to assess. In general, less formal international
Article VIII
agreements and customs are accepted and followed so long
as there is no conflict with municipal law. If there is a Judicial Department
conflict, municipal law will usually win. However, more
formal treaties, so long as they are self-executing (i.e., Section 1. The judicial power shall be vested in one Supreme Court
operate within a nation automatically), are usually seen as and in such lower courts as may be established by law.
being on par with municipal law. However, some nations Section 5. The Supreme Court shall have the following powers:
take different views
(1) Exercise original jurisdiction over cases affecting ambassadors,
Summary other public ministers and consuls, and over petitions for certiorari,
International Law is the law which governs the Relations of prohibition, mandamus, quo warranto, and habeas corpus.
sovereign independent States inter se Municipal law or State law or (2) Review, revise, reverse, modify, or affirm on appeal or certiorari
national law is the law of a State or a country and in that respect is as the law or the Rules of Court may provide, final judgments and
opposed to International Law which consists of rules which civilized orders of lower courts in:
States consider as binding upon them in their mutual relations.
Kelsen observes that national law regulates the behavior of (a) All cases in which the constitutionality or validity of any treaty,
individuals International law the behavior of States or as it is put international or executive agreement, law, presidential decree,
whereas national law is concerned with the international relations proclamation, order, instruction, ordinance, or regulation is in
the so called domestic affairs of the State. question.

(b) All cases involving the legality of any tax, impost, assessment, or
Legislature and court systems are different on the international and toll, or any penalty imposed in relation thereto.
municipal levels. Where the municipal level uses a legislature to
help enforce and test the laws, the international court system relies (c) All cases in which the jurisdiction of any lower court is in issue.
on a series of treaties without a legislature which, in essence, makes
(d) All criminal cases in which the penalty imposed is reclusion
all countries equal.
perpetua or higher.

Enforcement is a major difference between municipal and (e) All cases in which only an error or question of law is involved.
lex posterior derogat (legi) priori earlier treaty applies only to the extent that its provisions
are compatible with those of the later treaty.
 A later law repeals an earlier (law).”A maxim meaning that a
 As noted earlier, the mechanical lex posterior rule does not
legal rule arising after a conflicting legal rule .
work well for conflicts between EU and WTO law or
 A later statute takes away the effect of a prior one. But the
between GATT and multilateral environmental treaties and
later statute must either expressly repeal or be manifestly
leads to surprising and often unconvincing results.
repugnant to, the earlier one
 Indeed, it appears scholars often want to see international Lex Specialist
law as a system (rather than a pluralist or fragmented
The principle of harmonization. It is a generally accepted principle that
agglomeration) in part because this makes it possible to
when several norms bear on a single issue they should, to the extent
apply traditional conflict of norms rules (such as the
principles of lex posterior or lex specialis). possible, be interpreted so as to give rise to a single set of compatible

 Under the rule of lex posterior derogat lege anterior, a later obligations.
rule is presumed to trump an earlier rule.
 Similar limitations exist for the lex posterior rule. 2. The maxim lex specialis derogat legi generali
 1 of the 1982 UN Convention on the Law of the Seas
(UNCLOS) (64) confirms the lex posterior principle when (5) General principle. The maxim lex specialis derogat legi
stating that "[t]his Convention shall prevail, as between generali is a generally accepted technique of interpretation and conflict
States Parties, over the Geneva Conventions on the Law of resolution in international law. It suggests that whenever two or more
the Sea of 29 April 1958. norms deal with the same subject matter, priority should be given to the
 A broader application of the intra-systemic lex norm that is more specific. The principle may be applicable in several
posterior rule is found in Article 30 paragraph 3 of the
contexts: between provisions within a single treaty, between provisions
Vienna Convention: for parties bound by two treaties, "the
within two or more treaties, between a treaty and a non-treaty standard,
as well as between two non-treaty standards.1 The source of the norm

1
For application in relation to provisions within a single treaty, see Beagle Channel No. 300, p. 37, para. 98 and Nikolova v. Bulgaria, Judgment of 25 March 1999,
Arbitration ECHR 1999-II, p. 25, para. 69. For application between different instruments, see
(Argentina v. Chile) ILR vol. 52 (1979) p. 141, paras. 36, 38 and 39; Case C-96/00, Mavrommatis Palestine Concessions case, P.C.I.J. Series A, No. 2 (1924) p. 31. For
Rudolf Gabriel, Judgment of application between a treaty and non-treaty standards, INA Corporation v.
11 July 2002, ECR (2002) I-06367, pp. 6398-6399, paras. 35-36 and p. 6404, para. 59; Government of the Islamic Republic of Iran, Iran-US C.T.R. vol. 8, 1985-I, p. 378. For
Brannigan and McBride v. the United Kingdom, Judgment of 28 May 1993, ECHR application between particular and general custom, see Case concerning the Right of
Series A (1993) No. 258, p. 57, para. 76; De Jong, Baljet and van den Brink v. the Passage over Indian Territory (Portugal v. India) (Merits) I.C.J. Reports 1960, p. 6 at
Netherlands, Judgment of 22 May 1984, ECHR Series A (1984) No. 77, p. 27, para. 60; p. 44. The Court said: “Where therefore the Court finds a practice clearly established
Murray v. the United Kingdom, Judgment of 28 October 1994, ECHR Series A (1994) between two States which was accepted by the Parties as governing the relations
 (whether treaty, custom or general principle of law) is not decisive for (8) Functions of lex specialis. Most of international law is
the determination of the more specific standard. However, in practice dispositive. This means that special law may be used to apply, clarify,
treaties often act as lex specialis by reference to the relevant customary update or modify as well as set aside general law.
2
law and general principles.
(9) The effect of lex specialis on general law. The application of
(6) Contextual appreciation. The relationship between the lex the special law does not normally extinguish the relevant general law. 3
specialis maxim and other norms of interpretation or conflict solution That general law will remain valid and applicable and will, in
cannot be determined in a general way. Which consideration should be accordance with the principle of harmonization under conclusion (4)
predominant - i.e. whether it is the speciality or the time of emergence above, continue to give direction for the interpretation and application
of the norm - should be decided contextually. of the relevant special law and will become fully applicable in situations
not provided for by the latter.4
(7) Rationale of the principle. That special law has priority over
general law is justified by the fact that such special law, being more (10) Particular types of general law. Certain types of general law5
concrete, often takes better account of the particular features of the may not, however, be derogated from by special law. Jus cogens is
context in which it is to be applied than any applicable general law. Its expressly non-derogable as set out in conclusions (32), (33), (40) and
application may also often create a more equitable result and it may
often better reflect the intent of the legal subjects.

between them, the Court must attribute decisive effect to that practice for the human rights law and the laws of armed conflict in the following way: “… the
purpose of determining their specific rights and obligations. Such a particular protection of the International Covenant of Civil and Political Rights does not cease
practice must prevail over any general rules.” in times of war, except by operation of article 4 of the Covenant … The test of what
2 is an arbitrary deprivation of life, however, then falls to be determined by the
In Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
applicable lex specialis, namely, the law applicable in armed conflict which is
United States of America) (Merits) I.C.J. Reports 1986, p. 14 at p. 137, para. 274, the
designed to regulate the conduct of hostilities. Thus whether a particular loss of life,
Court said: “In general, treaty rules being lex specialis, it would not be appropriate
through the use of a certain weapon in warfare, is to be considered an arbitrary
that a State should bring a claim based on a customary-law rule if it has by treaty
deprivation of life contrary to article 6 of the Covenant, can only be decided by
already provided means for settlement of a such a claim.”
reference to the law applicable in armed conflict and not deduced from the terms of
3 Thus, in the Nicaragua case, ibid. p. 14 at p. 95 para. 179 the Court noted: “It will the Covenant itself”.
… be clear that customary international law continues to exist and to apply, 5 There is no accepted definition of “general international law”. For the purposes of
separately from international treaty law, even where the two categories of law have
these conclusions, however, it is sufficient to define what is “general” by reference
an identical content.”
to its logical counterpart, namely what is “special”. In practice, lawyers are usually
4 In the Legality of the Threat or Use of Nuclear Weapons, Advisory opinion, able to operate this distinction by reference to the context in which it appears.
I.C.J. Reports 1996, p. 240, para. 25, the Court described the relationship between
 (41), below.6 Moreover, there are other considerations that may provide lex specialis. Such special regimes often have their own institutions to
a reason for concluding that a general law would prevail in which case administer the relevant rules.
the lex specialis presumption may not apply. These include the
following: (12) Three types of special regime may be distinguished:

 Whether such prevalence may be inferred from the form  Sometimes violation of a particular group of (primary)

or the nature of the general law or intent of the parties, rules is accompanied by a special set of (secondary) rules

wherever applicable; concerning breach and reactions to breach. This is the

main case provided for under article 55 of the articles on
 Whether the application of the special law might frustrate Responsibility of States for internationally wrongful
the purpose of the general law; acts.7

 Whether third party beneficiaries may be negatively  Sometimes, however, a special regime is formed by a set
affected by the special law; and of special rules, including rights and obligations, relating
to a special subject matter. Such rules may concern a
 Whether the balance of rights and obligations, geographical area (e.g. a treaty on the protection of a
established in the general law would be negatively
affected by the special law. particular river) or some substantive matter (e.g. a treaty
on the regulation of the uses of a particular weapon).
3. Special (self-contained) regimes
Such a special regime may emerge on the basis of a single

(11) Special (“self-contained”) regimes as lex specialis. A group treaty, several treaties, or treaty and treaties plus non-

of rules and principles concerned with a particular subject matter may

form a special regime (“Self-contained regime”) and be applicable as

6
In the Dispute Concerning Access to Information under Article 9 of the OSPAR 40, para. 86, the Court said: “The rules of diplomatic law, in short, constitute a
Convention, (Ireland v. United Kingdom) (Final Award, 2 July 2003) ILR vol. 126 (2005) self-contained regime which, on the one hand, lays down the receiving State’s
p. 364, para. 84, the tribunal observed: “[e]ven then, [the OSPAR Convention] must obligations regarding the facilities, privileges and immunities to be accorded to
defer to the relevant jus cogens with which the parties’ lex specialis may be diplomatic missions and, on the other, foresees their possible abuse by members of
inconsistent.” the mission and specifies the means at the disposal of the receiving States to counter
7 Official Records of the General Assembly, Fifty-sixth Session, Supplement No. 10 any such abuse.”
(A/56/10), para. 76. In the Case concerning the United States Diplomatic and
Consular Staff in Tehran (United States of America v. Iran) I.C.J. Reports 1980 at p.
 treaty developments (subsequent practice or customary (15) The role of general law in special regimes: Gap-filling. The
8
law). scope of special laws is by definition narrower than that of general laws.
It will thus frequently be the case that a matter not regulated by special
 Finally, sometimes all the rules and principles that law will arise in the institutions charged to administer it. In such cases,
regulate a certain problem area are collected together so the relevant general law will apply.9
as to express a “special regime”. Expressions such as
“law of the sea”, “humanitarian law”, “human rights (16) The role of general law in special regimes: Failure of special
law”, “environmental law” and “trade law”, etc. give regimes. Special regimes or the institutions set up by them may fail.
expression to some such regimes. For interpretative Failure might be inferred when the special laws have no reasonable
purposes, such regimes may often be considered in their prospect of appropriately addressing the objectives for which they were
entirety. enacted. It could be manifested, for example, by the failure of the
regime’s institutions to fulfil the purposes allotted to them, persistent
(13) Effect of the “speciality” of a regime. The significance of a non-compliance by one or several of the parties, desuetude, withdrawal
special regime often lies in the way its norms express a unified object by parties instrumental for the regime, among other causes. Whether a
and purpose. Thus, their interpretation and application should, to the regime has “failed” in this sense, however, would have to be assessed
extent possible, reflect that object and purpose. above all by an interpretation of its constitutional instruments. In the
event of failure, the relevant general law becomes applicable.
(14) The relationship between special regimes and general
international law. A special regime may prevail over general law under
Codification In international law
the same conditions as lex specialis generally (see conclusions (8) and
(10) above).

8 9
See Case of the S.S. “Wimbledon”, P.C.I.J. Series A, No. 1 (1923) pp. 23-4, noting Thus, in Bankovic v. Belgium and others, Decision of 12 December 2001,
that the provisions on the Kiel Canal in the Treaty of Versailles of 1919: “… differ on Admissibility, ECHR 2001-XII, p. 351, para. 57, the European Court of Human Rights
more than one point from those to which other internal navigable waterways of the canvassed the relationship between the European Convention on Human Rights and
[German] Empire are subjected … the Kiel Canal is open to the war vessels and transit Fundamental Freedoms and general international law as follows: “the Court recalls
traffic of all nations at peace with Germany, whereas free access to the other that the principles underlying the Convention cannot be interpreted and applied in
German navigable waterways … is limited to the Allied and Associated Powers alone a vacuum. The Court must also take into account any relevant rules of international
… The provisions of the Kiel Canal are therefore self-contained”. law although it must remain mindful of the Convention’s special character as a
human rights
In law, codification is the process of collecting and restating the law create laws for one country. As such, there can be significant
of a jurisdiction in certain areas, usually by subject, forming a legal difficulty in establishing exactly what is international law. Various
code, i.e. a codex (book) of law. sources, however—principally treaties between states—are
considered authoritative statements of international law. Treaties
Codification is the defining feature of civil law jurisdictions.
are the strongest and most binding type because they represent
In common law systems, such as that of English law, codification is
consensual agreements between the countries who sign them. At
the process of converting and consolidating judge-made
the same time, as stated in the statute of the International Court of
law into statute law
Justice (ICJ), rules of international law can be found in customary
Following the First World War and the establishment of the League state practice, general principles of law common to many countries,
of Nations, the need for codification of international law arose. In domestic judicial decisions, and the legal scholarship.
September 1924, the General Assembly of the League established a
Treaties. Treaties are similar to contracts between countries;
committee of experts for the purpose of codification of
promises between States are exchanged, finalized in writing, and
international law, which was defined by the Assembly as consisting
signed. States may debate the interpretation or implementation of
of two aspects:
a treaty, but the written provisions of a treaty are binding. Treaties
 Putting existing customs into written international can address any number of fields, such as trade relations, such as
agreements the North American Free Trade Agreement, or control of nuclear
weapons, such as the Nuclear Non-Proliferation Treaty. They can be
 Developing further rules either bilateral (between two countries) or multilateral (between
In 1930 the League of Nations held at the Hague a conference for many countries). They can have their own rules for enforcement,
the purpose of codification of rules on general matters, but very such as arbitration, or refer enforcement concerns to another
little progress was made. agency, such as the International Court of Justice. The rules
concerning how to decide disputes relating to treaties are even
Following the Second World War, the International Law found in a treaty themselves—the Vienna Convention on the Law of
Commission was established within the United Nations as a Treaties (United Nations, 1969).
permanent body for the formulation of principles in international
law. Custom. Customary international law (CIL) is more difficult to
ascertain than the provisions of a written treaty. CIL is created by
the actual actions of states (called “state practice”) when they
What Are the Sources of International Law? demonstrate that those states believe that acting otherwise would
be illegal. Even if the rule of CIL is not written down, it still binds
Since there is no world government, there is no world Congress or states, requiring them to follow it (Dinstein, 2004).
parliament to make international law the way domestic legislatures
For example, for thousands of years, countries have given international law. General principles are most useful as sources of
protection to ambassadors. As far back as ancient Greece and law when no treaty or CIL has conclusively addressed an issue.
Rome, ambassadors from another country were not harmed while
Judicial Decisions and Legal Scholarship. The last two sources of
on their diplomatic missions, even if they represented a country at
international law are considered “subsidiary means for the
war with the country they were located in. Throughout history,
determination of rules of law.” While these sources are not by
many countries have publicly stated that they believe that
themselves international law, when coupled with evidence of
ambassadors should be given this protection. Therefore, today, if a
international custom or general principles of law, they may help to
country harmed an ambassador it would be violating customary
prove the existence of a particular rule of international law.
international law.
Especially influential are judicial decisions, both of the International
Similarly, throughout modern history, states have acknowledged
Court of Justice (ICJ) and of national courts. The ICJ, as the principal
through their actions and their statements that intentionally killing
legal body of the United Nations, is considered an authoritative
civilians during wartime is illegal in international law. Determining
expounder of law, and when the national courts of many countries
CIL is difficult, however, because, unlike a treaty, it is not written
begin accepting a certain principle as legal justification, this may
down. Some rules are so widely practiced and acknowledged by
signal a developing acceptance of that principle on a wide basis such
many states to be law, that there is little doubt that CIL exists
that it may be considered part of international law.
regarding them; but other rules are not as universally recognized
and disputes exists about whether they are truly CIL or not. Legal scholarship, on the other hand, is not really authoritative in
itself, but may describe rules of law that are widely followed around
General Principles of Law. The third source of international law is
the world. Thus, articles and books by law professors can be
based on the theory of “natural law,” which argues that laws are a
consulted to find out what international law is.
reflection of the instinctual belief that some acts are right while
other acts are wrong. “The general principles of law recognized by What is the difference between multilateral and bilateral treaties?
civilized nations” are certain legal beliefs and practices that are
common to all developed legal systems (United Nations, 1945). Multilateral treaties are treaties between 3 or more
countries. Bilateral treaties are treaties between two
For instance, most legal systems value “good faith,” that is, the countries. Bilateral treaties are concluded between two states[4] or
concept that everyone intends to comply with agreements they entities. It is possible, however, for a bilateral treaty to have more
make. Courts in many countries will examine whether the parties to than two parties; consider for instance the bilateral treaties
a case acted in good faith, and take this issue into consideration between Switzerland and the European Union (EU) following the
when deciding a matter. The very fact that many different countries Swiss rejection of the European Economic Area agreement. Each of
take good faith into consideration in their domestic judicial systems these treaties has seventeen parties. These however are still
indicates that “good faith” may be considered a standard of bilateral, not multilateral, treaties. The parties are divided into two
groups, the Swiss ("on the one part") and the EU and its member treaty include a range of environmental treaties, such as the Geneva
states ("on the other part"). The treaty establishes rights and Convention on Long-Range Transboundary Air Pollution (1979) and
obligations between the Swiss and the EU and the member states the Vienna Convention for the Protection of the Ozone Layer (1985),
severally—it does not establish any rights and obligations amongst as well as their succeeding protocols, and the UN Framework
the EU and its member states.[citation needed] Convention on Climate Change and the Convention on Biological
Diversity, both of which were adopted in 1992. In addition, human
A multilateral treaty is concluded among several countries.[4] The
rights protections have been expanded tremendously through a
agreement establishes rights and obligations between each party
series of international conventions and regional agreements,
and every other party. Multilateral treaties are often regional.[citation
needed]
including the Convention on the Prevention and Punishment of the
Treaties of "mutual guarantee" are international compacts,
Crime of Genocide (1948), the European Convention on Human
e.g., the Treaty of Locarno which guarantees each signatory against
Rights (1950), the International Convention on the Elimination of All
attack from another.
Forms of Racial Discrimination (1965), the
In multilateral (general) treaties, however, a country’s signature is International Covenant on Economic, Social and Cultural Rights
normally subject to formal ratification by the government unless it (1966), the International Covenant on Civil and Political Rights
has explicitly waived this right. Apart from such an express (1966), and the Inter-American Convention on Human Rights (1969).
provision, the instrument does not become formally binding until
Opinio juris (international law)
ratifications have been exchanged. Multilateral treaties bind only
those states that are parties to them and go into effect after a Opinio juris is a shortened form of the Latin
specified number of ratifications have been attained. After the time phrase opinio juris sive necessitatis, which means "an opinion of law
specified for states to sign the treaty has passed, states may or necessity."
become parties to the treaty through a process known as accession.
In customary international law, opinio juris is the second element
The use of multilateral treaties increased dramatically during the necessary to establish a legally binding custom. Opinio juris denotes
20th century (e.g., the 1919 Treaty of Versailles and the 1945 UN a subjective obligation, a sense on behalf of a state that it is bound
Charter). They have proved to be an effective way to establish new to the law in question. The International Court of Justice reflects
rules of international law—particularly where there is a need to this standard in ICJ Statute, Article 38(1)(b) by reflecting that the
respond quickly to changing circumstances or where the issue in custom to be applied must be "accepted as law".
question is unregulated. An example of the former kind of treaty is
As with customary international law, opinio juris is an unsettled and
the Convention on the Law of the Sea, which was signed in 1982
debated notion in international law.
and came into force 12 years later. This comprehensive treaty,
which took more than a decade to negotiate, specifies the status of
the seas and the international seabed. Examples of the latter kind of
What is opinio juris? to one state and a duty incumbent on another. The court held that
Columbia did not prove the existence of a regional custom because
1. Article 38 (1) (b) of the Statute of the International Court of
it failed to prove consistent and uniform usage of the alleged
Justice explains customary international law as comprising of “(1) a
custom by relevant States. The fluctuations and contradictions in
general practice (2) accepted as law”. The general practice or state
State practice did not allow for the uniform usage ( see also
practice was discussed in an earlier post. The ICJ, in its
Nicaragua case, p. 98). The court held in the Asylum case:
jurisprudence, has relied on, and interpreted, Article 38 (1) (b) to
include two elements that assist the Court to determines the “The Party which relies on a custom of this kind must prove that this
existence of an alleged customary international law – state practice custom is established in such a manner that it has become binding
and opinio juris (also known as opinio juris sive necessitates). The ICJ on the other Party… (that) it is in accordance with a (1) constant and
explained opinio juris, in the Nicaragua case, as follows: uniform usage (2) practiced by the States in question, and that this
usage is (3) the expression of a right appertaining to the State
“[…] for a new customary rule to be formed, not only must the acts
granting asylum (Columbia) and (4) a duty incumbent on the
concerned ‘amount to a settled practice’, but they must be
territorial State (in this case, Peru). This follows from Article 38 of
accompanied by opinio juris sive neccessitatis. Either the States
the Statute of the Court, which refers to international custom “as
taking such action or other States in a position to react to it, must
evidence of a general practice accepted as law(text in brackets
have behaved so that their conduct is evidence of a belief that the
added).”
practice is rendered obligatory by the existence of a rule of law
requiring it. The need for such belief..the subjective element, is 4. The fact that a state undertakes a particular because of political
implicit in the very notion of opinio juris sive neccessitatis. ” expediency and not because of a belief that the said practice is
binding on the State by way of a legal obligation (opinio juris) is
2. In the North Sea Continental Shelf Cases, the Court examined 15
detrimental to the formation of a customary law. In the Asylum case
cases where States had delimited their boundaries using the
the Court said: “considerations of convenience or political
equidistance method, after the Convention came into force. The
expediency seemed to have prompted the territorial State
court concluded, even if there were some State practice in favour of
to recognise asylum without such a decision being dictated by any
the equidistance principle the court could not deduct the necessary
feeling of legal obligation”.(see also North Sea Continental Shelf
opinio juris. The North Sea Continental Shelf Cases confirmed that
Cases and Lotus Case).
both State practice (the objective element) and opinio juris (the
subjective element) are essential pre-requisites for the formation of 5. Opinio juris is reflected in acts of states (Nicaragua Case) or in
a customary law rule. omissions (Lotus case) in so far as those acts or omissions are
done following a belief that the said State is obligated by law to act
3. State practice is often seen as a reflection of opinio juris. In the
or refrain from acting in a particular way. In the Lotus case, France
Asylum case, the court held that the relevant practice must be
alleged that jurisdictional questions on collision cases are rarely
consistent and uniform to show an expression of a right belonging
heard in criminal cases because States tend to prosecute only fall short of establishing the existence of an opinio juris on the
before the flag State. France argued that this absence of illegality of the use of such weapons.”
prosecutions points to a positive rule in customary law on collisions.
7. In the North Sea Continental Shelf Cases, the ICJ explained the
The Court held that this,
difference between customs (i.e. habits) and customary law:
“…would merely show that States had often, in practice, abstained
“Not only must the acts concerned amount to a settled practice, but
from instituting criminal proceedings, and not that they recognized
they must also be such, or be carried out in such a way, as to
themselves as being obliged to do so; for only if such abstention
be evidence of a belief that this practice is rendered obligatory by
were based on their being conscious of having a duty to abstain
the existence of a rule of law requiring it. The need for such a belief,
would it be possible to speak of an international custom. The
i.e, the existence of a subjective element, is implicit in the very
alleged fact does not allow one to infer that States have been
notion of the opinio juris sive necessitatis. The States concerned
conscious of having such a duty; on the other hand, as will presently
must therefore feel that they are conforming to what amounts to a
be seen, there are other circumstances calculated to show that the
legal obligation. The frequency, or even habitual character of the
contrary is true.”
acts is not in itself enough. There are many international acts, e.g.,
5. The Court in the Nuclear Weapons case (1995) held that in the field of ceremonial and protocol, which are performed almost
General Assembly resolutions, even if they are non binding, invariably, but which are motivated only by considerations of
can be important (1) to establish the existence of a rule of courtesy, convenience or tradition, and not by any sense of legal
customary law or (2) to establish the emergence of an duty.”
opinio juris.
8. If a state acts in a particular way because it is using its discretion,
“To establish whether this is true of a given General Assembly then, too, the relevant opinio juris is lacking. In the Rights of Passage
resolution, it is necessary to look at its content and the conditions of case, the ICJ held:
adoption; it is also necessary to see whether an opinio juris exists as
“It would thus appear that, during the British and post-British
to its normative character. Or a series of resolutions may show the
periods, Portuguese armed forces and armed police did not pass
gradual evolution of the opinio juris required for the establishment
between Daman and the enclaves as of right and that, after 1878,
of a new rule…
such passage could only take place with previous authorization by
….several of the resolutions under consideration in the present case the British and later by India, accorded either under a reciprocal
(which discusses the prohibition of the use of nuclear weapons) arrangement already agreed to, or in individual cases. Having regard
have been adopted with substantial numbers of negative votes and to the special circumstances of the case, this necessity for
abstentions; thus, although those resolutions are a clear sign of authorization before passage could take place constitutes, in the
deep concern regarding the problem of nuclear weapons, they still view of the Court, a negation of passage as of right. The practice
predicates that the territorial sovereign had the discretionary
power to withdraw or to refuse permission. It is argued that legally obliged to do a particular act.[1] When opinio juris exists and
permission was always granted, but this does not, in the opinion of is consistent with nearly all state practice, customary international
the Court, affect the legal position. There is nothing in the record to law emerges. Opinio juris essentially means that states must act in
show that grant of permission was incumbent on the British or on compliance with the norm not merely out of convenience, habit,
India as an obligation.” coincidence, or political expediency, but rather out of a sense of
legal obligation.[2] [1] Article 38(1)(b) of the Statute of the
International Court of Justice accepts "international custom" as a
Opinio juris sive necessitatis ("an opinion of law or necessity") or
source of law, but only where this custom is 1) “evidence of a
simply opinio juris ("an opinion of law") is the belief that
general practice,” (the objective component) (2) "accepted as law."
an action was carried out as a legal obligation. This is in contrast to
(the opinio juris or subjective component)[3] Thus, for example,
an action resulting from cognitive reaction or behaviors habitual to
while it may be observed that heads of state virtually always shake
an individual. This term is frequently used in legal proceedings such
hands when they first meet, it is highly unlikely that they do so
as a defense for a case.
because they believe that a rule of international law requires it. On
Opinio juris is the subjective element of custom as a source of law, the other hand, a state would almost certainly expect some form of
both domestic and international, as it refers to beliefs. The other legal repercussions if it were to prosecute a foreign ambassador
element is state practice, which is more objective as it is readily without the consent of his or her home state, and in this sense
discernible. To qualify as state practice, the acts must be consistent opinio juris does exist for the international law rule of diplomatic
and general international practice. immunity.

State applications Because opinio juris refers to the psychological state of the state
actor—asking why the state behaved as it did—it can be difficult to
A situation where opinio juris would be feasible is a case identify and to prove. In practice, a variety of sources tend to be
concerning self-defense. A condition must be met where the usage used to demonstrate the existence of opinio juris, including
of force is limited to the situation at hand. The act of striking an evidence such as diplomatic correspondence, press releases and
attacker may be done with legal justification; however, legal other government statements of policy, opinions of legal advisers,
territory limits the acceptability of such a claim. Even in this case, official manuals on legal questions, legislation, national and
the usage of force must be acceptable to the conditions of the international judicial decisions, legal briefs endorsed by the state, a
environment, the attacker, and the physical conditions of the pattern of treaties ratified by the state that all include the same
people involved, as well as any weapons or tools used. obligation(s), resolutions and declarations by the United Nations,
International applications and other sources. In the Paquete Habana case (decided by the
United States Supreme Court in 1900 on the question of whether
In international law, opinio juris is the subjective element used to small coastal fishing boats are immune from capture during wartime
judge whether the practice of a state is due to a belief that it is
under customary international law), evidence of opinio juris The sources of international law can be found in Article 38.1 of the
included medieval English royal ordinances, agreements between Statute.[2]
European nations, orders issued to the U.S. Navy in earlier conflicts,
This portfolio of sources was extracted from Article 38 of the
and the opinions of legal treatise writers. Finally, the context,
original world court's constitutive statute.[3]
circumstances, and manner in which the state practice is carried out
can also be used to infer the existence of opinio juris. As the ICJ Article 38 (1) of the Statute of the International Court of Justice is
stated in the North Sea Continental Shelf cases of 1969, "Not only generally recognized as a definitive statement of the sources of
must the acts concerned amount to a settled practice, but they international law. It requires the Court to apply, among other
must also be such, or be carried out in such a way, as to be evidence things, (a) international conventions, whether general or particular,
of a belief that this practice is rendered obligatory by the existence establishing rules expressly recognized by the contesting states; (b)
of a rule of law requiring it."[4] Nonetheless, a state's motives can international custom, as evidence of a general practice accepted as
change over time, and that it is not necessary that opinio juris be a law; (c) the general principles of law recognized by civilized nations;
significant impetus for each instance of action. As Judge Lachs wrote (d) subject to the provisions of Article 59, judicial decisions and the
in a dissenting opinion in the North Sea Continental Shelf cases, "At teachings of the most highly qualified publicists of the various
successive stages in the development of the [customary] rule the nations, as subsidiary means for the determination of rules of
motives which have prompted States to accept it have varied from law.[1]
case to case. It could not be otherwise. At all events, to postulate
that all States, even those which initiate a given practice, believe Historic considerations and development
themselves to be acting under a legal obligation is to resort to a During the 19th century, it was recognized by legal positivists that
fiction, and in fact to deny the possibility of developing such rules. a sovereign could limit its authority to act by consenting to
International law an agreement according to the principle pacta sunt servanda. This
consensual view of international law was reflected in the 1920
is the name of a body of rules which regulate the conduct Statute of the Permanent Court of International Justice, and was
of sovereign states in their relations with one another.[1] Sources of later preserved in Article 38(1) of the 1946 Statute of
international law include treaties, international customs, general the International Court of Justice.[4]
principles of law as recognized by civilized nations, the decisions of
national and lower courts, and scholarly writings. They are the Hierarchy
materials and processes out of which the rules and principles On the question of preference between sources of international
regulating the international community are developed. They have law, rules established by treaty will take preference if such an
been influenced by a range of political and legal theories instrument exists. It is also argued however that international
The Statute of the International Court of Justice (ICJ) treaties and international custom are sources of international law of
equal validity; this is that new custom may supersede older treaties
and new treaties may override older custom. Also, jus Some treaties are the result of codifying existing customary law,
cogens (peremptory norm) is a custom, not a treaty. Certainly, such as laws governing the global commons, and jus ad bellum.
judicial decisions and juristic writings are regarded as auxiliary While the purpose is to establish a code of general application, its
sources of international law, whereas it is unclear whether the effectiveness depends upon the number of states that ratify or
general principles of law recognized by 'civilized nations' should be accede to the particular convention. Relatively few such
recognized as a principal or auxiliary source of international law. instruments have a sufficient number of parties to be regarded as
Nevertheless, treaty, custom, and general principles of law are international law in their own right. The most obvious example is
generally recognized as primary sources of international law. the 1949 Geneva Conventions for the Protection of War Victims.

Treaties as law Most multi-lateral treaties fall short of achieving such a near
universal degree of formal acceptance and are dependent upon
Treaties and conventions are the persuasive source of international
their provisions being regarded as representing customary
law and are considered "hard law." Treaties can play the role
international law and, by this indirect route, as binding upon non-
of contracts between two or more parties, such as
parties. This outcome is possible in a number of ways:
an extradition treaty or a defense pact. Treaties can also
be legislation to regulate a particular aspect of international  When the treaty rule reproduces an existing rule of
relations or form the constitutions of international organizations. customary law, the rule will be clarified in terms of the
Whether or not all treaties can be regarded as sources of law, they treaty provision. A notable example is the Vienna
are sources of obligation for the parties to them. Article 38(1)(a) of Convention on the Law of Treaties 1969, which was
the ICJ, which uses the term "international conventions", considered by the ICJ to be law even before it had been
concentrates upon treaties as a source of contractual obligation but brought into force.[6]
also acknowledges the possibility of a state expressly accepting the
 When a customary rule is in the process of development, its
obligations of a treaty to which it is not formally a party.
incorporation in a multilateral treaty may have the effect of
For a treaty-based rule to be a source of law, rather than simply a consolidating or crystallizing the law in the form of that rule.
source of obligation, it must either be capable of affecting non- It is not always easy to identify when this occurs. Where the
parties or have consequences for parties more extensive than those practice is less developed, the treaty provision may not be
specifically imposed by the treaty itself. enough to crystallize the rule as part of customary
international law.[7]
Thus, the procedures or methods by treaties become legally binding
are formal source of law which is a process by a legal rule comes  Even if the rule is new, the drafting of the treaty provision
into existence: it is law creating.[5] may be the impetus for its adoption in the practice of
states, and it is the subsequent acceptance of the rule by
Treaties as custom
states that renders it effective as part of customary law.[8] If
 a broad definition is adopted of state practice, the making Derived from the consistent practice of (originally) Western states
of a treaty would fall within the definition. Alternatively, it is accompanied by opinio juris (the conviction of States that the
possible to regard the treaty as the final act of state practice consistent practice is required by a legal obligation), customary
required to establish the rule in question, or as the international law is differentiated from acts of comity (mutual
necessary articulation of the rule to give it the opinion recognition of government acts) by the presence of opinio
juries of customary international law. juris (although in some instances, acts of comity have developed
into customary international law, i.e. diplomatic immunity). Treaties
 Convention-based "instant custom" has been identified by
have gradually displaced much customary international law. This
the ICJ on several occasions as representing customary law
development is similar to the replacement of customary or common
without explanation of whether the provision in question
law by codified law in municipal legal settings, but customary
was supported by state practice. This has happened with
international law continues to play a significant role in international
respect to a number of provisions of the Vienna Convention
law.
on the Law of Treaties 1969. If "instant custom" is valid as
law, it could deny to third parties the normal consequences State practice
of non-accession to the
When examining state practice to determine relevant rules of
The United Nations Charter international law, it is necessary to take into account every activity
of the organs and officials of states that relate to that purpose.
Pursuant to Chapter XVI, Article 103 of the United Nations Charter,
There has been continuing debate over where a distinction should
the obligations under the United Nations Charter overrides the
be drawn as to the weight that should be attributed to what states
terms of any other treaty. Meanwhile, its Preambleaffirms
do, rather than what they say represents the law. In its most
establishment of the obligations out of treaties and source of
extreme form, this would involve rejecting what states say as
international law.
practice and relegating it to the status of evidence of opinio
International custom juris.[9] A more moderate version would evaluate what a state says
by reference to the occasion on which the statement was
Main article: Customary international law made.[10] It is only relatively powerful countries with extensive
Article 38(1)(b) of the ICJ Statute refers to "international custom" as international contacts and interests that have regular opportunities
a source of international law, specifically emphasizing the two of contributing by deed to the practice of international law. The
requirements of state practice plus acceptance of the practice as principal means of contribution to state practice for the majority of
obligatory or opinio juris sive necessitatis (usually abbreviated states will be at meetings of international organizations, particularly
as opinio juris). the UN General Assembly, by voting and otherwise expressing their
view on matters under consideration. Moreover, there are
circumstances in which what states say may be the only evidence of rule.[21] Because of this, the question is sometimes raised as to
their view as to what conduct is required in a particular situation.[11] whether the word "custom" is suitable to a process that could occur
with great rapidity.
The notion of practice establishing a customary rule implies that the
practice is followed regularly, or that such state practice must be Practice by international organizations
"common, consistent and concordant".[12] Given the size of the
It may be argued that the practice of international organizations,
international community, the practice does not have to encompass
most notably that of the United Nations, as it appears in the
all states or be completely uniform. There has to be a sufficient
resolutions of the Security Council and the General Assembly, are an
degree of participation, especially on the part of states whose
additional source of international law, even though it is not
interests are likely to be most affected,[13] and an absence of
mentioned as such in Article 38(1) of the 1946 Statute of
substantial dissent.[14] There have been a number of occasions on
the International Court of Justice. Article 38(1) is closely based on
which the ICJ has rejected claims that a customary rule existed
the corresponding provision of the 1920 Statute of the Permanent
because of a lack of consistency in the practice brought to its
Court of International Justice, thus predating the role that
attention.[15]
international organizations have come to play in the international
Within the context of a specific dispute, however, it is not necessary plane. That is, the provision of Article 38(1) may be regarded as
to establish the generality of practice. A rule may apply if a state has 'dated, and this can most vividly be seen in the mention made of
accepted the rule as applicable to it individually, or because the two 'civilized nations', a mentioning that appears all the more quaint
states belong to a group of states between which the rule after the decolonization process that took place in the early 1960s
applies.[16] and the participation of nearly all nations of the world in the United
Nations.
A dissenting state is entitled to deny the opposability of a rule in
question if it can demonstrate its persistent objection to that Opinio juris
rule,[17] either as a member of a regional group[18] or by virtue of its
A wealth of state practice does not usually carry with it a
membership of the international community.[19] It is not easy for a
presumption that opinio juris exists. “Not only must the acts
single state to maintain its dissent. Also, rules of the jus cogens have
concerned amount to a settled practice, but they must also be such,
a universal character and apply to all states, irrespective of their
or be carried out in such a way, as to be evidence of a belief that
wishes.[20]
this practice is rendered obligatory by the existence of a rule of law
Demand for rules that are responsive to increasingly rapid changes requiring it.”[22]
has led to the suggestion that there can be, in appropriate
In cases where practice (of which evidence is given) comprises
circumstances, such a concept as "instant custom". Even within
abstentions from acting, consistency of conduct might not establish
traditional doctrine, the ICJ has recognized that passage of a short
the existence of a rule of customary international law. The fact that
period of time is not necessarily a bar to the formation of a new
no nuclear weapons have been used since 1945, for example, does be thought of as a special principle of custom with a
not render their use illegal on the basis of a customary obligation superadded opinions juries. The European Court of Human
because the necessary opinio juris was lacking.[23] Rights has stressed the international public policy aspect of the jus
cogens.
Although the ICJ has frequently referred to opinio juris as being an
equal footing with state practice,[24] the role of the psychological General principles of law
element in the creation of customary law is uncertain.
The scope of general principles of law, to which Article 38(1) of the
Jus cogens Statute of the ICJ refers, is unclear and controversial but may
include such legal principles that are common to a large number of
A peremptory norm or jus cogens (Latin for "compelling law" or
systems of municipal law. Given the limits of treaties or custom as
"strong law") is a principle of international law considered so
sources of international law, Article 38(1) may be looked upon as a
fundamental that it overrides all other sources of international law,
directive to the Court to fill any gap in the law and prevent
including even the Charter of the United Nations. The principle
a nonliquet by reference to the general principles.
of jus cogens is enshrined in Article 53 of the Vienna Convention on
the Law of Treaties: In earlier stages of the development of international law, rules were
frequently drawn from municipal law. In the 19th century, legal
For the purposes of the present Convention, a peremptory norm of
positivists rejected the idea that international law could come from
general international law is a norm accepted and recognised by the
any source that did not involve state will or consent but were
international community of States as a whole as a norm from which
prepared to allow for the application of general principles of law,
no derogation is permitted and which can be modified only by a
provided that they had in some way been accepted by states as part
subsequent norm of general international law having the same
of the legal order. Thus Article 38(1)(c), for example, speaks of
character.[25]
general principles "recognized" by states. An area that
Rules of jus cogens generally require or forbid the state to do demonstrates the adoption of municipal approaches is the law
particular acts or respect certain rights. However, some define applied to the relationship between international officials and their
criminal offenses which the state must enforce against individuals. employing organizations,[26] although today the principles are
Generally included on lists of such norms are prohibitions of such regarded as established international law.
crimes and internationally wrongful acts as waging
The significance of general principles has undoubtedly been
aggressive war, war crimes, crimes against
lessened by the increased intensity of treaty and institutional
humanity, piracy, genocide, apartheid, slavery and torture.
relations between states. Nevertheless, the concepts
The evidence supporting the emergence of a rule of jus cogens will of estoppel and equity have been employed in the adjudication of
be essentially similar to that required to establish the creation of a international disputes. For example, a state that has, by its conduct,
new rule of customary international law. Indeed, jus cogens could encouraged another state to believe in the existence of a certain
legal or factual situation, and to rely on that belief, may be The decisions of international and municipal courts and the
estopped from asserting a contrary situation in its dealings.[27] The publications of academics can be referred to, not as a source of law
principle of good faith was said by the ICJ to be "[o]ne of the basic as such, but as a means of recognizing the law established in other
principles governing the creation and performance of legal sources. In practice, the International Court of Justice does not refer
obligations".[28] Similarly, there have been frequent references to to domestic decisions although it does invoke its previous case-law.
equity.[29] It is generally agreed that equity cannot be employed to
There is no rule of stare decisis in international law. The decision of
subvert legal rules (that is, operate contra legem).[30] This "equity as
the Court has no binding force except between the parties and in
law" perception is reinforced by references to equitable principles
respect of that particular case.[32] Nevertheless, often the Court
in the text of the United Nations Convention on the Law of the
would refer to its past decisions and advisory opinions to support its
Sea 1982, though this may be little more than an admission as to
explanation of a present case.
the existence, and legitimation, of the discretion of the adjudicator.
Often the International Court of Justice will consider General
However, the principles of estoppel and equity in the international
Assembly resolutions as indicative of customary international law.
context do not retain all the connotations they do under common
law. The reference to the principles as "general" signify that, if rules Juristic writings
were to be adapted from municipal law, they should be at a
sufficient level of generality to encompass similar rules existing in Article 38(1)(d) of the International Court of Justice Statute states
many municipal systems. Principles of municipal law should be that the 'teachings of the most highly qualified publicists of the
regarded as sources of inspiration rather than as sources of rules of various nations' are also among the 'subsidiary means for the
direct application.[31] determination of the rules of law'. The scholarly works of prominent
jurists are not sources of international law but are essential in
Judicial decisions and juristic writings developing the rules that are sourced in treaties, custom and the
general principles of law. This is accepted practice in the
According to Article 38(1)(d) of its Statute, the ICJ is also to apply
interpretation of international law and was utilized by the United
"judicial decisions and the teachings of the most highly qualified
States Supreme Court in The Paquete Habana case (175 US (1900)
publicists of the various nations, as subsidiary means for the
677 at 700-1).
determination of rules of law". It is difficult to tell what influence
these materials have on the development of the law. Pleadings in
cases before the ICJ are often replete with references to case
law and to legal literature. The Theory of the Lex Mercatoria

Judicial decisions Lex mercatoria is the Latin expression for a body of trading
principles used by merchants throughout Europe in the medieval.
Literally, it means “merchant law”. It evolved as a system of custom
and practice, which was enforced through a system of merchant owner of the title, he had to enquire into the title of that thing back
courts along the main trade routes. It functioned as the to its remote possessors, to make sure that no one in the chain of
international law of commerce. It emphasized contractual freedom, title had obtained it by fraud. However, as per the laws of lex
alienability of property, while shunning legal technicalities and mercatoria, commercial business “cannot be carried on if we have
deciding cases ex aequo et bono. to enquire into the title of everybody who comes to us with the
documents of title.” The Law merchant established certain
History of Lex Mercatoria
documents or choses in action which were transferable by delivery
The notion of lex mercatoria is not new. Some say that it has its and endorsement or by delivery so that the holder could sue in his
precursor in the Roman ius gentium, the body of law that regulated own name and which passed good title to the transferee who took
the economic relations between foreigners and Roman citizens. them in good faith, notwithstanding the transferor had no title.
Others go further back in time and trace the origins of the lex They could be sued on by their holder in his own name and were
mercatoria in the Ancient Egypt or in the Greek and Phoenician sea not affected by previous lack of title. This instrument was the
trade of the Old Ages. In any case, it is in the Law Merchant of the original negotiable instrument. Hence, it can be rightly said that the
Middle Ages where the historical roots of the lex mercatoria can law of negotiable instruments is founded mostly upon the laws of
truly be found. The flourishing of international economic relations in lex mercatoria.
Western Europe at the beginning of the 11th century caused the
With the rise of nationalism and the codification period of the 19th
formation of the ‘Law Merchant’, a cosmopolitan mercantile law
century the ‘law merchant’ was incorporated into the municipal
based upon customs and applied to cross-border disputes by the
laws of each country. These laws blended with the national laws
market tribunals of the various European trade centers. This law
and thus lost its uniform character. When the states took over
resulted from the effort of the medieval trade community to
International trade, the new mercantile laws were applied to
overcome the obsolete rules of feudal and Roman law which could
regulate international relations.
not respond to the needs of the new international commerce.
Merchants created a superior law, which constituted a solid legal However, the development of international trade after World War II
basis for the great expansion of commerce in the Middle Ages. For showed some of the defects of the traditional regulation of
almost 800 years, uniform rules of law, those of the law merchant international contracts. The complexity of the private international
were applied throughout Western Europe among traders. law and obsolete character of domestic laws did not rectify these
flaws. The supremacy of national law in international economic
Many of the laws of the lex mercatoria were established to evade
relations began to be questioned. It was then the present traders
inconvenient rules of common law. An example in this regard is that
started adopting alternative solutions to avoid the application of
a man could not give what he himself has not. In other words, a
national law to their transactions. By means of standard clauses,
man who has no title to goods cannot give title. Hence, when a
self-regulatory contracts, trade usages and by recourse to
person buys an object, for him to be sure that he is the rightful
international commercial arbitration, traders were creating their
own regulatory framework independently from national law, which The concept of lex mercatoria is usually linked with other concepts,
can be called the new lex mercatoria. which may be similar or alternative. Some thinkers refer to
transnational law as a synonym of the lex mercatoria. Transnational
Sources of the Lex Mercatoria
law, however, is a very wide subject which is composed of all law
The lex mercatoria can be defined as a body of principles which is regulating transboundaries actions or events, including private and
different in its origin and content, created by traders to serve the public international law and other rules not fitting into those
requisites of international trade. There are many concepts of lex categories. The lex mercatoria is a much narrower concept which is
mercatoria as it has been discussed by many thinkers dealing with used to indicate that part of transnational law which is unwritten.
the subject.
Application of Lex mercatoria in the Field of International
When relating lex mercatoria with national law, there are 2 views Commercial Arbitration
that are prevalent, i.e., the autonomist and positivist concepts. As
As mentioned earlier, there has always been disagreement
per the autonomous concept, lex mercatoria is having an
surrounding the application of national laws, primarily directed at
autonomous character, independent from any national system of
domestic transactions to transnational contracts. It is highly
law. Hence, it can be rightly said that it is a set of general principles,
desirable to apply international commercial laws to govern the
and customary rules spontaneously referred to or elaborated in the
international trade. On its application, not only would an
framework of international trade, without reference to any
appropriate body of law developed for international transactions be
particular national system of law. The positivist concept regards lex
applied but the complicated process of selecting laws such as
mercatoria as a body of rules, transnational in their origin, but
through conflict of laws would disappear. However, this argument
which exists by virtue of state laws, which give them effect. For the
can be valid only when one presupposes that there is a body of
supporters of this view, lex mercatoria is ultimately founded on
international commercial law, that there is lex mercatoria, which is
national law.
developed and capable of being applied to international trade
With regard to its substantive quality, there are three main transactions.
concepts of lex mercatoria. The first one views lex mercatoria as an
However, it has to be said that there is no legislature which drafts
autonomous legal order. The second one conceives it as a body of
international commercial laws and there is not an international
rules capable of operating as an alternative to an otherwise
commercial court which is capable of developing a precedent for
applicable national law. The last concept characterizes lex
international commercial transactions. The opponents of the
mercatoria as a conglomerate of usages and expectations in
concept of lex mercatoria is of the view that lex mercatoria is not
international trade, which may complement the otherwise
law in this regard. However, the proponents argue that it is law and
applicable law.
can provide legal principles to govern international commercial
transactions. They point to some international legislation in the
form of conventions and model laws drafted by bodies such as authorize the arbitrators to base their decision on lex mercatoria. It
United Nations Commission on International Trade Law. Moreover, is possible for the arbitrators to apply lex mercatoria when no law
while there is no international commercial court, there has has been chosen by the parties. The failure on the part of the
developed an extensive system of international commercial parties in indicating a choice would mean that they did not wish to
arbitration and a number of arbitral awards are now published. Let have their contract governed by any of their national law. However,
us examine whether these can form a sufficient basis of a lex it cannot be said deduced from the absence of such a choice that
mercatoria. the parties have impliedly chosen lex mercatoria to be the law
governing the dispute. It has to be noted that lex mercatoria is
Arbitration is the preferred method of dispute resolution in
applicable only as a subsidiary law in cases where no national law
international transactions. A set of rules is always necessary to
has been chosen and seems apt.
govern the resolution of a conflict. The parties’ national laws will
not always serve the individual interests and needs of that In most cases where no national law has been mentioned by the
particular contract well. Hence, it would be a whole lot easier to parties in the arbitration clause, they rarely mention lex mercatoria.
apply international rules that can be applied for both the nations, They usually refer to the general principles of law, the usages of
namely the general principles of international trade law or the international trade, transnational law and the like. By wording their
general usages of a particular trade. These internationally accepted contract this way, they authorize the arbitral tribunal to apply lex
principles of law governing contractual relations are called lex mercatoria. This can be seen in the decision in Petroleum
mercatoria. Development Ltd. v. Sheik of Abu Dhabi [1] . The opponents of lex
mercatoria argue that if the parties wish to have their contract
Applying lex mercatoria to settle international trade disputes has a
governed by lex mercatoria, they should have an explicit choice of
lot of advantages. By applying lex mercatoria, the parties avoid rules
law clause in the contract.
which are unfit for international contracts such as peculiar
formalities, brief cut-off periods and special difficulties created by At this point, let us look into the differences between lex mercatoria
national laws. In addition to that, neither of the parties will have the and amiable compositeur. By choosing lex mercatoria to be the law
advantage of having the dispute governed by his own law. governing the conflict, the arbitrator is obliged to observe the
Moreover, since one of the major rules is the principle of good faith, mandatory rules. By choosing amiable compositeur, the arbitrator
lex mercatoria neither leads to arbitrary results nor does it favor the can base his decision on equitable principles and is freed from any
wealthy. law. This distinction has to be clarified because there have been
many arbitral awards in which the arbitrators who are called on to
The question remains when lex mercatoria can be applied in a
act as amiables compositeurs apply the lex mercatoria. This is
dispute. The parties’ autonomy plays a very important role in
because the amiable composition clause has been given a very wide
international commercial arbitration. They are free to decide which
interpretation so as to include lex mercatoria. The insertion of an
national law should be applied, to exclude all national laws and to
amiable composition clause into a contract gives the arbitrator
great freedom. He can base his decision on his personal convictions. There can also arise cases where the parties have explicitly chosen a
Consequently, if he considers transnational law or lex mercatoria to national law and excluded the application of transnational law. It is
be applicable to the dispute or to serve the parties’ interests, he is not admissible to allow the application of lex mercatoria in such
free to apply it. Hence, it can be rightly said that the insertion of an cases as it will go against the autonomy of the parties and the
amiable composition clause into a contract logically empowers the award would surely not be enforced by the national courts or
arbitrator to apply lex mercatoria. If, on the other hand, the parties respected by the parties. However, there is one exception to that
have explicitly chosen lex mercatoria to be the law governing the principle. In cases where the designation of a national law or
conflict, the arbitrator is not free to act as amiable compositeur. application of such a rule is absolutely impossible or contradicts a
mandatory rule of international law, the application of transnational
It is quite common for the parties to a trade contract to omit to
law is justified in order to settle the dispute.
indicate the law governing the settlement of dispute. It is not
necessary that lex mercatoria should be applied in such situations. Arbitrators would disregard the parties’ autonomy and abuse the
Opponents of the concept of lex mercatoria are of the opinion that power granted to them if they applied lex mercatoria against the
in such cases, the arbitral tribunal should determine an applicable expressed will. An arbitrator cannot substitute his personal
national law consistent with the rules of conflict. But, in such cases, prefernces for the law chosen by the parties, as it would clearly
the arbitrator will be driven to give an award that is enforceable and contradict the principle of party autonomy and the mandatory rules
recognizable. They will be influenced by some considerations when of most national laws on arbitration.
basing their award on general principles of law or usages of
Lex mercatoria has an impact on cases where national laws have
international trade as their colleagues who apply national law, and
been applied. In such cases, the arbitrator often has to take usage
attempt to render a reasonable award. Moreover, if no choice has
of international trade into account to find a solution to interpret the
been made by the parties, it might lead to arbitrary and
facts, the contract and the parties’ behavior. This can be seen in the
unpredictable results to oblige the arbitrators not to apply lex
decision in Liamco v. Libya [2] . In another case [3] , in a contract
mercatoria but to choose one of the national laws connected with
involving an Italian and a Syrian enterprise, the parties chose a state
the contract. Therefore, it cannot be deduced from the absence of
law as the law governing the contract but only insofar as this law
such a clause that the parties have agreed to settle the dispute as
was in accordance with the general principles of law. In addition the
per the rules of lex mercatoria.
parties chose the general principles of law as applied by
Both opponents and proponents of lex mercatoria have their own international arbitral tribunals and not by other international
arguments to support their contentions. To conclude, lex mercatoria courts. Therefore, the arbitrators applied lex mercatoria. In the
should only be applied as a law governing the conflict if it has been award Saudi Arabia v. Aramco [4] , the arbitrators referred to the lex
explicitly chosen by the parties. One cannot automatically conclude mercatoria to remedy the gaps of Saudi Arabian law.
the choice of lex mercatoria from the mere fact that the parties did
not designate a national law to govern the conflict.
Another problem arises as a result of application of lex mercatoria
by national courts. The main question regarding this is whether the
national courts can apply it as law incompliance with the parties’
choice if no choice has been made. Opponents of this concept deny
such a possibility even in cases where it was chosen by the parties
as the law governing the contract. According to the supporters of
lex mercatoria, it can be applied by virtue of a rule of conflict of the
lex fori. The lex fori of the national court will thus define the extent
and limits of the application of transnational law. This system of
limited application of the lex mercatoria by national courts will not
contribute uniformly to the law of international trade as it is not the
same in every country.

However, the national court will not completely ignore the parties’
decision to be governed by lex mercatoria as the parties’ autonomy
has to be repsected. But, even in cases where lex mercatoria was
not chosen by the parties, a national court might be obliged to seek
inspiration from it in order to overcome the gaps in its national law
or to avoid rules unfit for international trade.