DR.

RAM MANOHAR LOHIA

NATIONAL LAW UNIVERSITY

PUBLIC INTERNATIONAL LAW

IV SEMESTER

GROUNDWORK FOR INTERNATIONAL LAW

SUBMITTED TO - SUBMITTED BY-

MANWENDRA KUMAR TIWARI SAMARTH PRATAP SINGH
ASSISTANT PROFESSOR (LAW) ROLL NO: 170101114

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 ACKNOWLEDGEMENT

I have taken efforts in this project. However, it would not have been possible without the kind
support and help of many individuals. I would like to extend my sincere thanks to all of them.

I am highly indebted to Ms Samreen Ahmed for her guidance and constant supervision as
well as for providing necessary information regarding the project & for his support in
completing the project.

I would like to express my gratitude towards my parents and members of Madhu Limaye
Library for their kind co-operation and encouragement, which helped me in completion of
this project.

My thanks and appreciations go to my colleague in developing the project and people who
have willingly helped me out with their abilities.

I welcome any criticism and suggestions by the people who go through it, for the
improvement of my future projects.

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 TABLE OF CONTENTS

INTRODUCTION 4
FEATURE OF INTERNATIONAL LEGAL SYSTEM 7
AXIOMS 9
PROPOSITIONS WITH COROLLARIES 13
CONCLUSION 22

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 INRODUCTION

WHAT IS INTERNATIONAL LAW?

International law exists and functions as a complex network of legal principles that aim for
international peace and order, and promote the acceptance of internationally shared aims. 1 It
is generally identified as a ‘benchmark and guideline’,2 the binding force of which depends
on the will and consent of states as to their status. A central principle of international law is
that each state is sovereign and equal,3 although the increasing force of international law has
bred the notion that no state can acquire absolute sovereignty.4 It has been clearly expressed
by international tribunals that, should a conflict arise between international and national law,
the former trumps but does not invalidate the latter.5 However, states are able to determine
the way in which the required international result is to be achieved. The general view is
therefore that international law can be deemed internationally binding to the extent that states
observe it, in accordance with the concept of state sovereignty.

For as long as it has existed, international law has been derided or disregarded by many
jurists and legal commentators, not always because of their own ideology or the political
imperatives of the states of which they are nationals. They have questioned, first, the
existence of

any set of rules governing inter-state relations; second, its entitlement to be called ‘law’; and,
third, its effectiveness in controlling states and other international actors in ‘real life’
situations.

GENERAL SYSTEMS THEORY

General systems theory was originally proposed by biologist Ludwig von Bertalanffy in
1928. Since Descartes, the "scientific method" had progressed under two related assumptions.
A system could be broken down into its individual components so that each component could
be analyzed as an independent entity, and the components could be added in a linear fashion
to describe the totality of the system. Von Bertalanffy proposed that both assumptions were

1
Arsanjani, MH., ‘The Rome Statute of the International Criminal Court’ [1999] 93 American Journal of International Law1
2
Aust, A., Handbook of International Law (2nd edn, Cambridge University Press 2010)
3
Cassese, A., International Criminal Law (Oxford University Press 2008)
4
Chayes, A & AH Chayes, The new sovereignty: Compliance with treaties in international regulatory regimes (Harvard University Press
1995)
5
Dixon, M, R McCorquodale & S Williams, Cases and Materials on International Law (Oxford University Press 2011)

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wrong. On the contrary, a system is characterized by the interactions of its components and
the nonlinearity of those interactions. In 1951, von Bertalanffy extended systems theory to
include biological systems and three years later, it was popularized by Lotfi Zadeh, an electrical
engineer at Columbia University. (McNeill and Freiberger, p.22)

One common element of all systems is described by Kuhn. Knowing one part of a system
6
enables us to know something about another part. The information content of a "piece of
information" is proportional to the amount of information that can be inferred from the
information (A. Kuhn., 1974).

Systems can be either controlled (cybernetic) or uncontrolled. In controlled systems

information is sensed, and changes are effected in response to the information. Kuhn refers to
this as the detector, selector, and effector functions of the system. The detector is concerned
with the communication of information between systems. The selector is defined by the rules
that the system uses to make decisions, and the effector is the means by which transactions
are made between systems. Communication and transaction are the only intersystem
interactions. Communication is the exchange of information, while transaction involves the
exchange of matter-energy. All organizational and social interactions involve communication
and/or transaction.

Kuhn's model stresses that the role of decision is to move a system towards equilibrium.
Communication and transaction provide the vehicle for a system to achieve equilibrium.
"Culture is communicated, learned patterns... and society is a collectively of people having a
common body and process of culture." (p. 154, 156) A subculture can be defined only
relative to the current focus of attention. When society is viewed as a system, culture is seen
as a pattern in the system. Social analysis is the study of "communicated, learned patterns
common to relatively large groups (of people)." (p. 157)

The study of systems can follow two general approaches. A cross-sectional approach deals
with the interaction between two system, while a developmental approach deals with the
changes in a system over time.

There are three general approaches for evaluating subsystems. A holist approach is to
examine the system as a complete functioning unit. A reductionist approach looks downward

6
Lukasiewicz, J., ed. L. Borkowski. 1970. Selected Works. London: North Holland

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and examines the subsystems within the system. The functionalist approach looks upward
from the system to examine the role it plays in the larger system. All three approaches
recognize the existence of subsystems operating within a larger system.

A controlled (cybernetic) system maintains at least one system variable within some specified
range, or if the variable goes outside the range, the system moves to bring the variable back
into the range. This control is internal to the system. The field of cybernetics is the discipline
of maintaining order in systems.

According, to the above GST, the international legal system is a controlled or cybernetic
system as, it is linked and controlled through various aspects.

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 FEATURES OF INTERNATIONAL LEAGAL SYSTEM

IT IS AN AUTOPOIETIC SYSTEM

Let us come to the International legal system. For Luhmann, law, i.e. the legal system, is an
own autopoietic and differentiated (sub)system within the society (as a social system). In
contrast to general belief among lawyers or sociologists, the core elements or the basic units
are – in Luhmann’s view – neither legal norms nor actors and organizations, but
communications. Law is a system of communication, like all other subsystems. It is regarded
as a specific communication in the society, which is self-establishing and reproducing. In an
autopoietic legal system, the specialty of the subsystem are communication events in form of
legal acts. These communication acts or events are able to change legal structures. Law is
defined “as a structure of a social system based on congruent generalization of normative
behavioral expectations”. In a social system law is characterized by the fact that it “makes
behavioral expectations mandatory”. According to Luhmann, legal rules are counterfactually
stabilized expectations, which are secured against disappointment. The counterfactual
character of the law is crucial for the validity of the law. No matter whether the expectations
are fulfilled or not – the validity of a legal rule is no subject of doubt. In this respect, the
fulfillment or non-fulfillment of legal rules is irrelevant to their validity. Luhmann’s
sociological perspective of the legal system is theoretically motivated and based on external
observation. The quality of a legal rule facilitates the autopoiesis of the legal system, i.e. the
(differentiated) self-preservation towards its environment. On the other hand, the cognitive
quality (of a legal rule) enables the coordination with the system environment. As well as any
other (sub)system in the society, the legal system has a specified code and programs. The
legal system operates with the code legal/illegal and right/wrong. Via this code, the law is
been created. Only the legal system operates with this code, meaning that no other system is
able to state what is right and what is wrong. For the practical implementation of the law
(case law, statutes, treaties, etc.) a corresponding programming for its application is required.
Without this law-specified programming, the law-specified code would become a
meaningless form without any significance. Via the programs, certain selected environmental
factors are in the long run included into the legal system, which are then adjusted by the code
to the legal system. Thus, the code enables the operational closure and the unity of the legal
system. Luhmann refers to the “unity of the legal cycle which endows the socio-internal
difference between right and wrong.” As mentioned above, only the legal system has the

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ability and capability to define this difference – due to the operative closure and autopoiesis
is of the legal system. But that does not mean that this decision is not influenced by factors
outside the system. Moreover, the environment conditions the decision because of the indirect
influence via the structural couplings. In a modern society the legal system is functionally
differentiated and operationally self-determined. It is operationally and normatively closed.
This can be recognized by the positivization of the law, meaning that the law is determined
by the law itself and not by political arbitrariness. The differentiation of the legal system is
based on the “distinguish ability of normative and cognitive expectations”. The normative
character can be recognized by the above mentioned counter factuality of legal norms.
Normative expectations do not need to be change even in the event of being disappointed. In
contrary, cognitive expectations have to be open for change – otherwise the legal system
would lose the capability to react in case of changes in other systems. According to
Luhmann, legal rules are no longer justified by natural law. Rather, the stability of the law is
based on a “principle of variation”. Basis of all the stability and validity of the law is the
possibility of variation or transformation of the existing legal rules. Thereby, the law, on the
one hand, has to be unchangeable, invariant and unavailable, meaning that it cannot be
changed freely without further ado. It must rather constitute a reliable constant that is beyond
the possibility of access. On the other hand, the legal system has to be sufficiently variable,
meaning that structures are generally subject to change, too. The legal system must not
“exclude variability any longer, but rather include it into the system”. Positive law is for
Luhmann, the entirety of legal rules that “have been set into force by decisions and which can
be accordingly repealed by decision”. In addition, to all legislative acts, Luhmann counts
court judgments with a normative impact. According to Luhmann, legal rules of a society
can be considered as positive law, if the legitimacy of pure legality is gaining recognition.
This means that a legal rule is respected only because it is set according to certain rules by
competent decision. Randomness is thus becoming institutionalized. For Luhmann, this is
only acceptable if arbitrariness is concretized, i.e. law is so complex that it can only be
changed by modification of the existing order. In addition, to prevent that this variability of
positive law may occasionally lead to arbitrariness, special attention has to be paid to the
decision making process and the course of justice. Therefore, the institutionalization of
procedures is necessary. For Luhmann, an institution leads to an “openness and conflict
(Konfliktgeladenheit) of decision situations” which is only temporarily uncertain.

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 AXIOMS
• The primary purpose of the international legal system is not to regulate
internationalrelations but to preserve itself.

Accepting a variety of conceptions of international law is not the same as claiming that
they all aspire to similar political goals or that they all have the same depth as an
enterprise for legal science. The arguable source of Groundwork--that is, impersonal
universalism, or the project of positivism in international law--was one of the most
ambitious conceptions of international law in the twentieth century. It was characterized
by an absolute commitment to the universal system of international law. In the last
century, this commitment did not entail perpetuating the system but, instead, involved
bringing it into existence. This commitment was wedded to a scientism that completed a
reconceptualization of law from the division between national and international into a
single concept and assumed a strict separation between law and morality. Furthermore,
the political project propelling the scientific enterprise both struggled against the statism
of national law and underpinned the individualist premises of neoliberal capitalism.

• The international legal system, as it strives to persist through time, tends to evolve
norms that reduce friction and controversies among states and to foster systemic
equilibrium by prescribing how controversies may be avoided, mitigated, or
resolved.

. In the first two decades of the twenty-first century, this theoretical rejection of the
prescriptive quality of international law by some jurists may appear to have been borne out
by the practice of states, groups and individuals who have engaged in internationally
‘unlawful’ action without even the remotest possibility of their conduct being checked by the
international legal system. Whatever the legal merits of the US-led invasions of Iraq and
Afghanistan, or the detention of ‘terrorist’ suspects without trial, or the unhindered resort to
indiscriminate violence against civilians by groups based in existing states (with or without
the support of another state’s government), or the rejection by some of international
minimum standards for the protection of the environment, the perception has been that
international law is failing in one of its primary purposes – the maintenance of an ordered
community where the weak are protected from arbitrary action by the strong. Some

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commentators have even suggested that the twenty-first century needs to accept a new reality
where international law is accepted as a political and moral force, but not a legal discipline .
Others would argue that the content of international law should change in order to be less
prescriptive and more permissive, especially as the world faces challenges undreamt of when
international law fi rst began to be regarded by some as genuinely ‘legal’ in quality.

There is, of course, some truth in these criticisms, but let us not pretend that we are arguing
that international law is a perfect legal system. It is not, but neither is the national legal
system of any state. Historically, there have been successes and failures for the international
legal system, as there are for the national legal systems of all states. The invasion of Kuwait
by Iraq in 1990 and the situation in Libya in 2011 produced a significant and lawful response
from the international community, but the United Nations failed in Bosnia, Somalia and
Sudan and most recently in Syria in 2012. Likewise, the denial of procedural and substantive
rights to those being held in detention by the USA at Guantanamo Bay during the Bush
Presidency constituted a violation of the international law of human rights worthy of much
criticism, but it pales beside the activities of Pol Pot in Cambodia in the late 1970s or the
Rwandan genocide of the 1990s. On the other hand, these episodes can be contrasted with the
successful UN-led efforts to bring self-determination and then independence to East Timor in
2002, the ground breaking establishment and operation of the International Criminal Court
responsible for prosecuting individuals for violation of fundamental international human
rights, the protection of civilian populations during the Libyan civil war of 2011 and the
continuing impact of the International Court of Justice in regulating states’ use of the world’s
oceans and their natural resources. In other words, the story of international law and the
international legal system, like so many other legal systems, is one of achievement and
disappointment. So, in much the same way that we would not suggest that the law of the UK
is somehow ‘not law’ because it is currently proving impossible to control cross-border
internet crime, it does not necessarily follow that international law should be dismissed as a
system of law because there are international actors that seem determined to ignore it.

The way in which the international system deals with these high-profile crises, and the many
other less headline-grabbing incidents that occur on a daily basis whenever the members of
the international community interact, goes to the heart of the debate about whether
‘international law’ exists as a system of law.

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 • The general-systems viewpoint has practical payoffs.

It has already been suggested that the great majority of the rules of international law are
followed consistently every day as a matter of course. It is normal to obey international law.
This is something that is overlooked by some critics of the system and it goes a long way to
refute their claims that international law is nothing more than a haphazard collection of
principles that can be ignored at will. In this section we will examine some of the reasons
why international law does work.

The common good

There is no doubt that a very important practical reason for the effectiveness of international
law is that it is based on common self-interest and necessity. Today, international society is
more interdependent than ever and the volume of inter-state activity continues to grow.
International law is needed in order to ensure a stable and orderly international society. It is
in every state’s interest to abide by the rules of international relations and international
commerce. For example, it is vital that the allocation of the scarce resources of the high seas
and ocean floor is achieved smoothly and equitably and it is only through rules of
international law – binding on all states – that this can be achieved. Likewise with the
protection of the environment and the management of climate change. Thus, a major reason
why international law works is that it provides a stable and authoritative regime for the
conduct of international relations and the regulation of global issues in an increasingly
interdependent world.

The actual practice of states constitutes, for the most part, practice that the system
normatizes.

Many jurists claim that the hallmark of a system of law is that its rules are capable of being
enforced against malefactors. Consequently, one of the most frequent arguments used against
international law is that it is not ‘true’ law because it is not generally enforceable. This raises
two issues. First, as a matter of principle, does the existence of any system of law depend on
the chances of effective enforcement? Secondly, is it true that international law is not
enforceable or effective?

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In national legal systems it is assumed that the law will be enforced. If someone steals,
provided they are caught, they will be punished. In international law this may not be the case.
There was, for example, no formal enforcement action taken against the USA after its illegal
invasion of Grenada and no formal condemnation of Israel for invading Lebanon in 2006. We
might even suggest that on those occasions when the United Nations has acted (e.g. against
Iraq after its invasion of Kuwait), it is more in the way of keeping or restoring the peace than
of enforcing the law. Yet is it really true that the test of the binding quality of any ‘law’ is the
presence or absence of assured enforcement of its rules? It may be that the assumed certainty
of enforcement of, national law masks its true basis and, in the same way, enforcement may
be irrelevant to the binding quality of international law. For example, a better view of
national law may be that it is ‘law’ not because it will be enforced, but because it is generally
accepted as such by the community to whom it is addressed: the local population. The
national society recognises that there must be some rules governing its life and, so long as
these come into existence in the manner accepted as authoritative (e.g. in the UK through Act
of Parliament), they are binding. In other words, the validity of ‘law’ may depend on the way
it is created, that being the method regarded as authoritative by the legal subjects to whom it
is addressed. The fact of enforcement may be a reason why individuals obey the law (and that
is not certain), but it is not the reason why it is actually law. In international law, then, the
fact that rules come into being in the manner accepted and recognised by states as
authoritative is enough to ensure that ‘law’ exists. Less effective enforcement procedures
may encourage states to fl out the law more frequently than the individual does in national
legal systems (although this is arguable), but that is a question about motives for compliance
with law, not about its quality as ‘law’. If international law is regarded as a system of ‘law’, it
is axiomatic that all states are under a legal obligation to abide by its rules.

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 PROPOSITIONS WITH COROLLARIES
• The international legal system defines and recognizes its own membership.

International law has thus been defined as ‘a system of law designed primarily for the
external relations of states [which] does not work like any internal legal system of a state’; a
‘voluntary and cooprative system’, which, in contrast to domestic legal systems, is
‘horizontal because international society is a voluntary association of states with no superior
authority to make law, pronounce judgment and otherwise enforce the law with binding
effect, except through institutions which states have, by consent established’. ‘In brief’, as
Shabtai Rosenne put it, ‘international law is a comprehensive and sophisticated legal system
that, despite its voluntarist basis, operates exclusively in the international political
environment where the principal actors are sovereign independent States’.7 It is in this vein
that the idea that international law is a ‘system’ has been characterized as ‘almost axiomatic’,
insofar as ‘it is hard not to think about international law in a way that doesn’t invoke some
idea of structure or system’.8 It is perhaps useful to observe at this early point that the terms
‘international legal system’ and ‘international legal order’ often feature in public international
law theory as almost synonymous.9 Ergo, and while, as will be demonstrated infra, the
judgments and decisions of international courts feature references to the ‘international legal
system’, one could equally trace references to the ‘international legal order’, the two terms
deployed lacking an inter se distinction or differentiation. For instance, the Chamber of the
International Court of Justice (ICJ) in the Gulf of Maine Case referred to ‘rules of law, in the
international legal order, which govern the matter at issue’. What is more, in the context of
recent arbitral practice relating to investment protection tribunals often note the distinction
between national legal orders and the international legal order, including references to ‘rights
as resulting, within the international legal order from two international treaties’, or statements
such as that ‘[a]s a matter of general principle, the same set of facts can give rise to different
claims grounded on differing legal orders: the municipal and the international legal orders’.
Notwithstanding that it is not here intended to enter the realm of legal philosophy,19 it can be

7 Rosenne, ‘The Perplexities of Modern International Law: General Course on Public International Law’, 291 RdC (2001) 9, at 40.
8 Craven, ‘Unity, Diversity and the Fragmentation of International Law’, 14 Finnish Yrbk Int’l L (2003) 3, at 6. Contra Kingsbury, ‘Foreword:
Is the Proliferation of International Courts and Tribunals a Systemic Problem?’, 31 NYU J Int’l L and Politics (1999) 679, at 692. Cf
Martineau, ‘The Rhetoric of Fragmentation: Fear and Faith in International Law’, 22 Leiden J Int’l L (2009) 1, at 28.
9 See, e.g., the use of the two terms in the insightful analysis on the structure of the international legal system provided in Zemanek, ‘The

Legal Foundations of the International System: General Course on Public International Law’, 266 RdC (1997) 9, at 29–42.

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observed that the two terms are intimately intertwined, though not synonymous in the strict
sense.

• The rules of the international legal system are created by the system and not by
individual states.
The most cogent argument for the existence of international law as a system of law is that
members of the international community recognise that there exists a body of rules binding
upon them as law. States believe international law exists. When Iraq invaded Kuwait in 1990,
or earlier when Tanzania invaded Uganda in 1978/79, the great majority of states regarded
the action as ‘unlawful’, not merely ‘immoral’ or ‘unacceptable’. The same is true of the war
crimes committed in Bosnia and Rwanda, and this is given concrete form when the United
Nations Security Council imposes sanctions or takes action against a delinquent state, as with
that against Libya in 2011 in order to protect civilian populations. The criticism of the US-led
invasion of Iraq in March 2003 and of Israel’s forceful intervention in Lebanon in July 2006
followed a similar pattern, both being cast by a majority of the international community as a
violation of law, not merely as unethical, immoral or undesirable. Similarly, those arguing in
support of these uses of force do not dismiss international law as irrelevant, but seek instead
to justify the invasions as lawful under the legal rules concerning collective security and self-
defence. In other words, even the international actors who engage in potentially unlawful
activity do not deny the relevance of international law or its prescriptive quality. This
acceptance of the reality of international law by the very persons to whom it is addressed
exposes the weakness of those who argue that international law does not exist. Of course, this
does not answer questions about its effectiveness, nor does it settle whether it is ‘law’ in the
same sense as that of the UK or of other states. Yet, it does reflect accurately the reality of
international relations. How then do we know that states believe that there is a set of rules
binding on them as law? What evidence is there of this ‘law habit’?

(a) International law is practised on a daily basis in the Foreign Offices, national courts and
other governmental organs of states, as well as in international organisations such as the
United Nations and the Organisation of American States. Foreign Offices have legal
departments whose task is to advise on questions of international law and to assist in the
drafting of international agreements and the like. National courts are frequently concerned
with substantive questions of international law, as with the series of Pinochet cases in the
UK concerning questions of immunity and human rights ( R v Bow Street Metropolitan
Stipendiary Magistrate, ex-parte Pinochet (No. 3) [1999] 2 All ER 97) and the House of

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Lords judgment in R v Jones [2006] 2 WLR 772 concerning the meaning of the
international crime of aggression and its impact on domestic law. In reading the judgment of
Lord Bingham in that case, no-one could doubt the legal validity of the system of
international law. Similarly, international organisations, in all their forms (both inter-
governmental and non-governmental), use lawyers, employing the language of the law, to
conduct their everyday business. These organisations and their members accept that they are
‘legally bound’ to behave in a certain way and will pursue claims against each other alleging
a ‘breach’ of international law.

(b) It is a fact of the utmost signicance that states – still the most important of the subjects of
international law – do not claim that they are above the law or that international law does not
bind them. When Iraq invaded Kuwait it did not claim that the law prohibiting armed force
did not apply to it or was irrelevant. Rather, Iraq argued that international law ‘justified’ its
action; in other words, that it was ‘legal’ by reference to some other rule of international law.
Likewise, in the, Case Concerning the Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia & Montenegro)
(ICJ 2007), Serbia did not deny the existence of rules of law concerning genocide, but
contended rather that it was not internationally responsible for the violations of international
law that had taken place. In fact, there is no modern-day example of a state claiming that it is
not bound by general rules of international law, although there is often a great deal of debate
as to the precise obligations imposed by that law (as in the Bosnia Serbia Genocide Case
where there was argument over the precise obligations imposed by the Genocide
Convention). This is powerful evidence that states follow rules of international law as a
matter of obligation, not simply as a matter of choice or morality. If this were not so, there
would be no need for states to justify their action in legal terms when they departed from a
legal norm.

• The international legal system contains three kinds of rules: primary rules,
sanction rules, and metarules.
It is striking that only sporadically has the fragmentation debate addressed the crucial, as it is
herein submitted, normative function-type differentiation pertinent for the fragmentation
analysis, namely, the distinction between primary and secondary norms long known in the
context of state responsibility for internationally wrongful acts. In international legal
scholarship, ‘primary’ and ‘secondary’ norms were first substantially utilized by the ILC in

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its work on state responsibility in 1970, secondary norms being the ones eventually
considered for the purposes of the codification of the law on state responsibility, that being
‘l’épicentre d’un système juridique’. Primary norms are those ‘which in one sector of inter-
State relations or another, impose particular obligations on States’, while secondary norms
are those that are ‘concerned with determining the consequences of failure to fulfill
obligations established by the primary rules’. Insofar as the ‘formal unity’ of international
law is in fact composed of secondary rules, the ‘primary’/’secondary’ norm distinction
denotes the existence of a normative function-type differentiation from the system as a
‘whole’, categorizing international rules according to their normative operation in the context
of state responsibility analysis. It is true that the ILC’s distinction between primary and
secondary norms may prima facie appear, to a large extent, to be influenced by H.L.A. Hart’s
Concept of Law; nevertheless, Hartian thought should not be considered as the origin of the
distinction, especially given Hart’s broader definition of secondary norms, as well as his
reluctance to consider international law except as a ‘simple regime of primary or customary
law’.133 James Crawford, the last ILC Special Rapporteur on state responsibility, indeed
appears uncertain whether Hart or continental jurisprudence provided the source of
inspiration for the ILC,134 while others argue that the distinction was by that time already
familiar to international lawyers.135 Indeed, Dionisio Anzilotti famously opined as early as
1906 that the violation of an international legal obligation by a state gives rise to a legal duty
of reparation. One could further refer to the Comments to the 1929 Harvard Draft Convention
on International Responsibility where it was similarly clarified in that ‘the term
“responsibility” [in the Harvard Draft] is used to indicate the secondary duty of a state to
make reparation for the failure to perform some primary duty’. Moreover, in the early work
of Roberto Ago on state responsibility, to a great extent influenced by Anzilotti,138 the
author similarly wrote that ‘l’attribution de la qualité juridique d’illicite à un fait donné
s’identifie avec l’attribution de la valeur juridique de fait produisant une obligation de réparer
ou bien légitimant l’application d’une sanction’;10 it was in this fashion that, much earlier
than Hart, he utilized the classification of international legal obligations into primary and
secondary ones.11 It appears moreover that, in any case, Roberto Ago, as the ILC’s Special
Rapporteur, did not intend to take part in the debate concerning Hart’s theory situated in the
sphere of legal theory when resorting to the use of the primary/secondary norm
terminology;141 on the contrary, he only sought to facilitate his own analysis by endorsing

10 Ago, ‘Le délit international’, 68 RdC (1939) 415, at 426. 140 Ibid.,.
11
See, e.g., R. Dworkin, Taking Rights Seriously (1977).

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the distinction as a sort of terminus technicus, generally defined for the purposes of state
responsibility, and not as identical to the one propounded by Hart. More specifically the
‘move to a set of articles dealing solely with secondary obligations associated with breach
was a step in the direction of profitable generalization’ was expressive of Ago’s decision to
opt for the codification of a general regime of responsibility, residually applicable
irrespective of the international legal rule infringed, i.e., approaching the topic of state
responsibility ‘lato sensu’, as opposed to the previous approach focusing on responsibility for
injuries to aliens taken by the first Special Rapporteur, Garcia Amador. The distinction
between primary and secondary rules for the analytical purposes of state responsibility
signalled the ILC’s choice to deal solely with secondary norms as general law. No prominent
role was reserved for an indispensable part of Hart’s theory, that is, the ‘rule of recognition’,
as it would possibly touch upon the already debated topic of sources of international law;
rather, the primary/ secondary differentiation remained at a certain level of abstraction,
designed solely as a methodological vehicle so as to avoid taking a ‘circuitous route’ for
determining the duties imposed by international law on states regarding the treatment of
aliens in the context of codifying the law on state responsibility. Hence, following Ago’s
endorsement of the primary/secondary norm distinction, later studies by the ILC have also
featured and utilized this international legal terminus technicus, again in order to delimit the
scope and content of the analysis undertaken, i.e., whether the codification and/or
development enterprise related to the specific international legal rules establishing primary
obligations or the secondary rules dealing with the breach of subject-specific primary ones.
For instance, the commentary to Article 27 of the 1978 ILC ‘Draft Articles on most favoured-
nation clauses’ referred to and relied on the distinction so as to clarify that the consequences
of their breach (as ‘primary rules’) were not dealt with therein and were rather governed by
the secondary rules on state responsibility. Moreover, the primary/secondary norm distinction
was characterized as an ‘analytic device’ in the context of the ILC works on international
liability for injurious consequences arising out of acts not prohibited by international law,148
while, more recently, the commentaries on the 2006 ILC Draft Articles on Diplomatic
Protection made clear that ‘[those] draft articles, like those on the Responsibility of States for
internationally wrongful acts, maintain the distinction between primary and secondary rules
and deal only with the latter.

• Sanction rules specify the coercive imposition of costs calculated to exceed, but
not by too much, the putative rule-violator’s benefits.

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 Most legal systems provide for the use of forceful sanctions or penalties against malefactors.
Under the Charter of the United Nations, the Security Council may take ‘enforcement action’
against a state when it poses a threat to the peace, or has committed an act of aggression or
breach of the peace (Art. 39 and Chapter VII UN Charter). Enforcement action is authorised
by resolution of the Council and may comprise military action, as with the use of force by the
UN in Korea in 1950, against Iraq in 1990/91 and as authorised (but barely used) against
Indonesia over East Timor in 1999/2000; or economic sanctions, as with the trading
restrictions and embargoes against South Africa in 1977 and Serbia/Montenegro in 1992; or
other similar measures, be they diplomatic, political or social, such as the mandatory
severance of air links with Libya (as a result of the Lockerbie incident) in 1992 and April
1993 and the partial embargo imposed on North Korea by SC Res. 1718 (2006) following the
latter’s nuclear test. The Security Council may even act against non-state entities, as with SC
Res. 1390 (2002) imposing financial and economic sanctions against the Al-Qaida
organisation and the Taliban. Of course, there are limitations to the exercise of this power,
both political and legal. Until the end of the ‘cold war’ between the (then) USSR and the
USA, enforcement action under the UN Charter was largely impossible, even if there was a
serious outbreak of violence as with the many Arab–Israeli wars since 1945. Obviously, the
veto power still enjoyed by the five permanent members of the Security Council, whereby
any one negative vote can defeat a draft resolution, was the major cause of this. Indeed, this is
not all history, for the threat of a veto, or its use, has meant that the Security Council has been
unable to pronounce on the invasions of Afghanistan and Iraq and on the internal crisis in
Syria in 2012 (where resolutions were vetoed three times by Russia and China). However,
despite these setbacks, it is apparent that the emergence of general, if cautious, cooperation
among the five permanent members of the Security Council has led in recent times to the
adoption of more ‘enforcement resolutions’ under Chapter VII of the Charter than at any
other time in the Organisation’s history and many of the sanctions regimes put in place by
these resolutions are ongoing. Moreover, Council action has encompassed many different and
diverse conflicts: the straightforward Iraqi aggression against Kuwait, the breakup of the
sovereign state of Yugoslavia, the civil wars in Somalia and Sudan, the alleged Libyan
sponsorship of aircraft terrorism, the denial of East Timor’s independence by Indonesia and
conduct likely to cause the proliferation of nuclear weapons. Of course, it is to be
remembered that the Security Council’s powers are exercised in response to a breach of the
peace, threat to the peace or act of aggression and they are not specifically intended to meet
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the non-fulfilment of general legal obligations. Constitutionally, the powers of the Council
are designed primarily to preserve the peace rather than to enforce the law, although
sometimes these can coincide, as with Iraq and Kuwait. In fact, in an armed conflict, the first
task of the Security Council is to stop the fighting and not necessarily to apportion blame or
act only against the guilty party. That said, it seems that the Security Council will act more
readily in support of international legal principles, although not consistently when one of the
permanent members’ vital interests is at stake. However, we must not lose perspective.
Ultimately, the issue turns on the political will of states and the degree of cooperation among
the five permanent members. As the crisis in Syria demonstrates, the Council (i.e. its
members) is not always prepared to enforce even the most fundamental of international
norms, even if the threat to international society is obvious and severe and the harm to
individuals evident to the world. We also know that when the Big Five’s vital interests are
engaged – for example, in Afghanistan, Iraq, the Falkland Isles, Tibet, Chechnya and
Lebanon – the Security Council is paralysed politically and legally.

• Loss of legal rights and privileges

Another method of enforcing legal obligations is to ensure that any violation of law results
in the loss of corresponding legal rights and privileges. For example, if State A violates the
terms of a commercial treaty with State B, the latter may be entitled to rescind the whole
treaty or suspend performance of the obligations it owes to State A. Of course, this is no
hardship to State A if its whole purpose is to avoid the obligations contained in the treaty, but
the loss of legal rights or privileges may go further. Thus, on a bilateral level, there may be
termination of diplomatic relations, restriction of economic aid or cancellation of supply
agreements. In 1982, for example, the UK broke diplomatic relations with Argentina after its
invasion of the Falkland Islands, in 1979/80 the USA froze Iranian assets after the unlawful
seizure of its embassy in Tehran and in 2012 the USA froze assets and took other measures
against a range of persons and bodies associated with the Syrian government, even though
there was not primarily a bilateral dispute between the two countries. Similarly, a state’s
unlawful action may cause the community at large to impose penalties. Again, this can take
various forms, including the expulsion or suspension from inter-governmental organisations,
as when the International Atomic Energy Agency suspended Israel after the latter’s unlawful
attack on an Iraqi nuclear facility in 1981. Likewise, when Iranian students occupied the US
embassy in Tehran, several Western industrialised powers cut back on their diplomatic
contacts and in 1992 the European Community as a whole, imposed trading restrictions on

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Serbia and Montenegro. Again, in 1995 Nigeria was suspended from the Commonwealth as a
result of its violation of human rights. More strikingly, in 1999/2000 the EU imposed limited
penalties (now lifted) on Austria – itself an EU member – following the election of what was
seen as an extremist government, although whether any breach of ‘international law’ had
occurred is not clear.

These methods of enforcement should not be underestimated for they can cause
embarrassment and hardship to the delinquent state. Of course, such methods are overlaid
with political and economic considerations and they cannot be regarded as a wholly
trustworthy mechanism for the enforcement of legal obligations. They are often more
appropriate for dealing with violations of international good practice rather than law and, of
course, a state may choose to ignore a blatant violation of international law if it is in its
interests to do so. However, on the whole, the loss of legal rights and privileges can have a
greater practical effect on a delinquent state than overt displays of force, especially in today’s
highly interdependent international community.

• All rules apply to all states equally.

International law may be identified as a unique legal framework, because its binding quality
essentially relies on state recognition of and consent to such force. Morgenthau for example
recognises this, and argues that ‘to deny international law exists as a system of binding legal
rules flies in the face of all the evidence’. The force and development of international law is
based on encouraged compliance, because it does not void national law that are in conflict
with it, but rather stipulates that international law prevails in such cases. This has achieved
convergence, because the overriding status of international law provokes the voluntary
reform and development of national law. State consent has a central role in this respect,
because it is based on the principle that states that consent to international law will naturally
cooperate and comply with it. States that have willingly assumed obligations arising from
international law means that its binding status is reliant on state consent. States can also
exercise considerable discretion in deciding how an international law will be incorporated
into national law. This has given rise to a co-dependency culture, which Nussbaum describes
as thus: ‘the law of nations is a law among nations’. An example of this may be found in the
jurisdiction of the International Criminal Court (ICC), which seeks to maintain international
justice. The jurisdiction of the ICC applies to both individuals and states that are found to be
responsible for international crimes. The ICC is authorised to intervene in situations in which

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states are unable or unwilling to respond to or investigate. Certain limits on the ICC’s
jurisdiction are geared towards maximising state cooperation. State sovereignty is preserved
by the fact that the ICC can only respond to certain, particularly serious, crimes, such as
genocide and crimes against humanity. The ICC’s jurisdiction is not universal – it operates in
a complementary manner to the criminal institutions of states. The fact that states have
jurisdiction over international crimes means that state compliance with the ICC is promoted
because the latter’s jurisdiction is rooted in state consent, and hence legitimate. The ICC
respects and preserves the jurisdiction and competence of states, hence maximising its
legitimacy, and promoting state compliance.

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 CONCLUSION

Professor Anthony D’Amato’s “Groundwork for International Law” (Groundwork) is an

extremely pedagogical project. Despite its apparent simplicity, each rereading reveals a new
layer of complexity, reflecting the depth of his lifelong engagement in the scholarship of
inter-national law. Moreover, from a certain perspective, his re-examination of the
foundations of international law expresses a radicalism that reaches beyond the analysis of
legal forms to provoke reflection on the nature and purpose of the international legal system.

From the outset, Groundwork appears to be an ambivalent attempt to combine two currently
competing conceptions of international law. It seeks to integrate the law created by
international lawyers with an impersonal system of international law, despite these entities
making for uneasy bedfellows, unless it is the lawyers who build the system through their
role as legal and political agents. Just as those theories seek to explain law as being the result
of political actors’ actions by focusing on aspects of responsibility, rationality, and
freedom—that is, their reliance on politics for their account of the production of rules and
decisions— doctrines about the objectivity and autonomy of the system of international law
sustain their premises by distinguishing the way in which a rational being acts from the way
in which a system functions.

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