LECTURERS COVER PAGESchool: LAWDegree Programme: LLBCourse: INTERNATIONAL LAW L330Assignment No. Assignment1 Lecturer’s name: Ms P Kayuma Unilus Leopards Hill Campus Off Leopards Hill Road New Kasama LUSAKA.University of Lusaka School: LAWDegree Programme: LLBCourse name and Code: International law L330Assignment Student’s Surname: SIPIYAStudent’s First name: AGNESSStudent number: LLB1512915Mode of Study: DISTANCE E-mail Address: [email protected] Number: 0972882311Lecturer’s name: Ms P KAYUMADue Date: 15TH MARCH 2019 International law is said to be the body of law that governs legal relations between or among states or nations.
To qualify as a subject of traditional definition of international law, a state had to be sovereign: it needed a territory, a population, a government, and the ability to engage in diplomatic or foreign relations. States within the United States, provinces, and cantons were not considered subjects of international law, because they lacked the legal authority to engage in foreign relations. In addition, individuals did not fall within the definition of subjects that enjoyed rights and obligations under international law.
A more contemporary definition expands the traditional notions of international law to confer rights and obligations on intergovernmental international organizations and even on individualsInternational law cannot be discussed without including the theories of international law such as the Grotian theory that was introduced by Dutch scholar Hugo Grotius who remarked that the law of nature would be valid even if there was no God, his theory stated: nature was founded exclusively on reason as justice was part of man’s social make-up and thus not only useful but essential. His theory conceived of a comprehensive system of international law, he retained the theological distinction between just and unjust war, one of his most enduring opinions was his proclamation of the freedom of the seas, and he opposed the Portuguese concept of closed seas’ and emphasized instead the principle that the nations could not appropriate to themselves the high seas as they belonged to all.In addition to this theory there is the theory of positivism, the positivists approach is not concerned with the association of theory structured upon inference from absolute principles, but rather with viewing events as they occur and discussing actual problems that have arisen in the other words it can be said that positivism is the theory of laws and their operations, validity from the fact of having been enacted by authority or of deriving logically from existing decisions for example coming to a decision by looking at decisions of past cases, a case on positivism is the Lotus Case, which showed that with positivism all international legal rules are based on state consent. Positivists would interpret International law to be what actually happened between competing states rather than concepts derived from reason.Furthermore, the theory of naturalism believes that everything can be explained in terms of natural causes, physical matter is the only reality, and everything can be explained in terms of matter and physical phenomena. According to St Thomas Aquinas who maintained that natural law formed part of the law of God. Naturalism is also called materialism, with this theory one cannot state where the sea starts and end, they cannot determine who owns the sea, and this was provided for in The Free Sea any man may sail freely to wherever the person wishes. Having looked at the theories of International law one cannot solely base the foundation of international law on these theories. International law is established in a number of ways, International although lacking in a strong legislative, judicial and enforcement organs and its resemblance to a pre state society, its principles are still valid and can be traced back to the basic norm, the rule that stipulates that nations should behave as they customarily behaved this is rule is called pacta sunt servanda meaning, declaring that agreements must be carried in good faith. It can be said that customs within contemporary legal systems, particularly in developed worlds is relatively cumbersome and unimportant and often of nostalgic value, however, in international law it is a dynamic source of law in the light of the nature of the international system, the essence of custom is to constitute evidence of a general practice accepted as law, as was noted by the international law court in the Libya/Malta case that the substance of customary law must be looked at primarily in the actual practice and opinio juris of states. For a rule to become customary it must be practiced for a recognized duration of time, the basic rule as regards to repetition and continuity of a custom was laid down in the Asylum case the court declared that a customary rule must be in accordance with a constant and uniform usage practiced by the states. The beginning that needs to be achieved before a legally binding custom is formed and will depend upon the nature of the alleged rule and the opposition it produces, according to the case of Nicaragua for a new customary rule to be made, not only must the acts concerned amount to a settled practice; but they must be accompanied by the opinio juris sive necessitatis, either the states taking such action or other states in a position to react to it, must have behaved so that their conduct is evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it.Furthermore, treaties are another basis of international law, treaties are a creation of written agreements whereby the states participating bind themselves legally to act in a particular way or to set up particular relations between themselves or as defined by Article 2(1) of the Vienna Convention, the obligatory nature of treaties is founded upon the customary international law principle that agreements are binding, however for example in Zambia for a treaty to be binding it must go through ratification and domestication of the given treaty, a treaty can only be enforce if it is signed by the states that wish to endorse it, enforcement of rules will happen among states that have signed the agreement , treaties only bind states that have signed it.In conclusion it can be seen that the theories of international law are not the foundation of international law but merely give the idea/views in which one can look at international law. One can either take the positivist approach, naturalist approach or grotianist approach, one cannot discuss international law without discussing customary international law and treaties just to mention a few.BIBLIOGRAPHYBOOKSMN Shaw, International Law 6th edn, Cambridge University 2008H Grotius, The Free Sea (liberty fund Inc 2004CASESLotus Case 1927, France v. Turkey, PCIJMalta/Libya case ICJ Reports, 1985 PP.13, 29; 82 ILR P. 239Asylum case ICJ Reports, 1950, 17 ILR, P.280Nicaragua case ICJ Reports, 1986, p. 14; 76 ILR p. 349WEBSITEShttps//www.allaboutphilosophy.org