A Brief Introduction to

International Law
Instructor: Ted Gleason
 Before we begin our discussion on
International Law, we must have at
least a basic understanding of the
major legal systems in the world
 Many different systems of law in the
world
• French
• German
• Chinese
• UK
• USA
• Indonesian
• Indian
• Many, many more
The Classification of Legal Systems into
Legal Families
• Legal Families
– Groups of legal systems with common elements

• Two main families

– Civil Law
– Common Law

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 Families of Legal Systems, cont.
• Civil Law
• Common Law
• Socialist Law
• Chinese Law
• Religious Law
• Islamic (Sharia) Law
• Hindu Law
• Customary Law (e.g., Africa, Asia)
• International Law
• UN treaties and conventions
• European Union Law
• Legal instruments of other international orgs. (e.g., WTO)
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A more nuanced view
 The Civil Law System
• Various influences including Roman law
origins, the French Civil Code, and the German
Civil Code

• Historically formulated, compiled and refined in the

universities, later codified and given statutory force by
legislatures

• Primary sources are statutes and codified law

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 The Civil Law System, cont.
• France
• Russia
• Brazil
• Germany
• Italy
• Switzerland
• Austria
• Turkey
• Most Latin American
• Various Arab states and North African countries
• Madagascar
• Indonesia
• Japan
 Civil Law, cont.
• Civil law tends to think in abstract, conceptual and
symmetrical terms
• The rules are formulated before the problems arise
• Code based and also thinks in terms of institutions
• The Code is logically structured and proceeds from general
principle to general principle

• Civil law systems have a tendency to plan, systemize,

and regulate everyday matters as comprehensively as
possible

• Academic and scholarly writings are important sources

of law
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 The Civil Law System, cont.
• Commercial Law
– Civil Law jurisdictions draw a distinction between
civil law (as opposed to criminal law) and
commercial law
• No such distinctions are drawn in Common Law
jurisdictions

– Distinction important because there is a separate

code, e.g. the French Code de Commerce, and
separate Courts

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 Public and Private Law
• A fundamental distinction drawn more sharply
in civil law systems than in common law
systems

• Public Law - Governs relations to which the State

(or a subdivision, such as a department), or a
State owned enterprise or a public authority is a
party

• Private Law - Governs the rights and duties of

private persons and corporations
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 Civil Law, cont.
• Bottom Line

▫ Civil Law lawyers find the code to be an

authoritative, comprehensive, and systematic
collection of the law

▫ Code is the primary source of law in these

jurisdiction
 All other sources are subordinate, including cases

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 Common Law

• Common law is the legal system developed

among Anglophone people, especially in
England.

• Historically, common law was law

developed by custom, beginning before
there were any written laws and continuing
to be applied by courts after there were
written laws.

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 Common Law, cont.
• England and Wales
• Australia
• Nigeria
• Kenya
• Zambia
• USA
• New Zealand
• Canada
• Singapore
• Malaysia
• Hong Kong
• India
 Common Law, cont.
• Cases set precedent
▫ This means that cases make law that must be
followed in later cases
▫ Decisions of higher courts are binding on lower
courts
▫ If a judge does not want to follow a previous
decision, he can distinguish it based on law or
facts

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 Common Law, cont.
• Code in the Common Law system

• This can be a confusing point as codes are still

very important

• The difference is that these codes are not designed nor

intended to be all inclusive and are meant to be
supplemented and filled in by the case law
(jurisprudence)

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 Common Law Code, cont.
– Common Law codes are often enacted to clarify
an area of law that has become unsettled, obscure
or confused in the courts

– Format and structure of common law code is quite

different from civil law code, common law codes
are often less comprehensive/specific

– Common Law lawyers use “code” every day

 More differences…

• Role of Judges is different as well

– Inquisitorial v. Adversarial Approaches to Trial

– Common Law judges can “create” law

– In civil law countries, e.g., France, a judge is "la

bouche de la loi"; 'the mouth of the law

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 Common Law, Cont.

• Bottom Line
▫ Cases always retain their clarificatory significance
and are primary sources of law

• If there is one thing your remember from this

part of the class:
– Civil Law = Code
– Common Law = Cases

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Now that we know a bit about the
major legal systems, let’s talk about
international law.
WHAT IS INTERNATIONAL LAW?
– Defined: The body of rules and norms that
regulates activities carried on outside the legal
boundaries of nations.

– Three international relationships are governed by

international law:
• Those between nations and nations.
• Those between nations and persons.
• Those between persons and persons.

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THE MAKING OF INTERNATIONAL
LAW
– There is no formal international law-making
machinery

– The basic mechanism for creating international

law is: The general consent of the international
community.
• Usually found in treaties

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SOURCES OF INTERNATIONAL LAW
– Sources of international law
• International conventions and treaties
• International custom.
• General principles of law.
• Interpretation
– Judicial decisions.
– Teachings of publicists/experts of international law.

• This list is based on Article 38(1) of the Statute of the International Court of Justice

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 Treaties and Conventions
• The most important sources of international
law.

– Treaties: agreements between one or more

nations.

– Conventions: agreements sponsored by

international organizations such as the UN

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Treaties and Conventions, cont.
– Reasons for binding effect of treaties:

• Evidence of consent by States who adopt treaties

• Treaties are generally ratified through domestic

legislative procedures

• There is also a shared sense of commitment. A country

fears that if it does not respect its promises, other
countries will not respect their promises.

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 Custom
– Defined: Rules that have been around for a long
time or which are generally accepted.

– To establish the existence of a customary law one

must show two things:
• Usus: Consistent and recurring action (or lack of action
if the custom is one of noninvolvement) by states.
• Opinio juris et necessitatis: Belief by states observing a
custom that it is as one that they must obligatory
follow.

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 Custom, cont.
• Exceptions to the application of customary
practices:
• Persistent Objection
– If a state persistently refuses to observe a customary practice
from the practice's beginning, it doesn't have to.

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 General Principles
• Those legal principles common to nation
states.

– Come primarily from the Common Law System

and the Civil Law System

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Interpretation of treaties, customs,
and general practice
– How is international law interpreted?

• Judicial decisions
– What courts?

• Teachings of publicists (experts in international law).

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 Public international law
• That division of international law that deals primarily
with the rights and duties of states and
intergovernmental organizations as between
themselves.

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 Private international law:
• That division of international law that deals primarily
with the rights and duties of individuals and
nongovernmental organizations in their international
affairs.

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 Public International Law Private International Law
Sources of international law Noncommercial
Scope of international law Torts
International personality Inheritances
State territory Nationality
State succession Marriage and divorce
State responsibility to aliens Commercial
Law of the sea; Law of War Contracts and sales
Transportation
Money and banking
Financing
Securities regulations
Intellectual property
Antitrust
Antifraud
T Taxation

Source, AUGUST, Chapter 1, EXHIBIT 1-1 Examples of Public and Private

International Law
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