2012 LAWS5154 Private International Law Notes

4 Found helpful • 160 Pages • Complete Study Notes • Year: Pre-2021

1. INTRODUCTION The Western European Perspective is that international law is the law regulating the activities of sovereign States. For example, the first edition of Oppenheim (1905) stated that ‘States solely and exclusively are the subject of international law’. What is a state? For the purposes of international law, a state is the nation or country. In Australia’s context it is the federal government. The state is static, though the governments that represent states change. Law of the international community? The growth of interdependence sometimes referred to as ‘globalisation’ is also a reflection of the strengthening of communal bonds. Henkin argued that international law was like municipal law, it was a set of norms, which protected our rights, expectations, and property – although here, the individuals were substituted for states. INADEQUACIES OF TRADITIONAL DEFINITIONS The traditional definition of international law does not mention international organisations. Such a definition is inadequate as international organisations are now subjects of international law and not just objects: see Reparations Case. For example, the United Nations and European Union. Notably, the 9th edition of Oppenheim reads: ‘States are the principal subjects of international law’. The Third Restatement states that international law is concerned with ‘the conduct of States and of international organisations, and with their relations inter se, as wells as some of their relations with persons, whether natural or juridical’. IS INTERNATIONAL LAW REALLY ‘LAW’? Austin’s definition: Law properly so-called must be issued out by a sovereign, who is subject to no greater power... International law regulates the actions of sovereigns, who are in actual fact, absolutely sovereign an autonomous—it is for this reason international law can only be law ‘improperly so-called.’ AN UNUSUAL DEFINITION Firstly, Austin has provided a particularly narrow definition of the word ‘law’, and has provided no compelling reason why we should adopt it. To the contrary, Austin’s definition has been criticised by positivists and natural lawyers alike, notably HLA Hart (The Concept of Law) and FA Hayek. AN UNHELPFUL DEFINITION Secondly, Professor Hart further notes that by adopting a very narrow definition of what is law, Austin is also effectively expanding the class of actions which he treats as morality. This serves to obscure fundamental differences between international law and other issues of morality such as etiquette and rules of clubs. This point is also made by Waldock (1963).

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