Presentation Transcript

1. Philosophy of law – public international law

   Professor Katrin Nyman-Metcalf
2. Public international law The special characteristics of public international law (as compared with national law) include The absence of a centralisedlegislator The absence of a policing and (compulsory) judicatory mechanism The absence of a centralisedlegal system The importance of customary law The fact that the law is made and interpreted by the same subjects as those that have to follow it
3. Public international law Hall writes that public international law over the past 150 years has endured a crisis of identity, from having been seen almost synonymous to natural law (also because the positiv law was limited) to having to find a place in the positivist thinking and going back to finding answers in an enlightened naturalism THE PERSISTENT SPECTRE: NATURAL LAW, INTERNATIONAL ORDER AND THE LIMITS OF LEGAL POSITIVISM by S. Hall (EJIL 2001 Vol. 12, No. 2, 269-307)
4. Law-creation There are thus two main modalities of law-creation in the international society. Inthe first, conventional, method [treaties], law is made in a conscious and wilful process akinto legislation, whereas in the second,customary, method [customary law], law grows through aprocess which weaves together acts ofpractice and belief. SELECTED PROBLEMS IN THE THEORY OF CUSTOMARYINTERNATIONAL LAWby R. Kolb (NILR, L: 119-150, 2003)
5. Law-creation Questions posed by this: The law that “grows”, does it have to come from some common principles? In that case, do these need a natural law foundation? Or can they be created by states? What is the principal and philosophical difference between the different ways public international law is created (treaties and customary law)? Writers tend to answer according to their general positivist or natural law views.
6. Ius cogens With the growth of an international public order, i.e., a seriesof norms giving expression to fundamental values of the international community, there is a tendency to construct a sort of constitutional international law dealing withthe protection of these interests in inter-state relations. Obviously, such essentialnorms must be placed on some higher footing than the ordinary norms of customaryinternational law if their function is to be preserved. Thus, they are often put intoa special category of norms, usually termed iuscogens, and assigned a higher levelof normative hierarchy; they take precedence over ordinary norms of internationallaw. At the same time, they are usually declared to be customary. Thus, iuscogensis construed to be a form of higher customary international law, where the elementof necessity, or abstract opinioiuris, counts more than the actual practice. (Kolb op. cit.)
7. Ius Cogens Hall (op. cit) finds that iuscogens is the main reason public international law cannot be seen in only a positivist manner: “To an even greater degree than treaties, custom [especially iuscogens] provides serious conceptual resistance to positivism’s attempted adoption of international law”
8. Natural law and international law Maybe some natural law is necessary for an international legal order, to create any kind of legal community (Hart) “I consider the ‘conscience of mankind’ or ‘elementary considerations of humanity’ imperative forinternational law, irrespective of whether these phenomena are cast in the language ofnatural law or not”. (B. Simma, ‘The Contribution of Alfred Verdross to the Theory of International Law’, (1995) 6 EJIL 33) BUT Kelsen made his theories somehow fit international law, otherwise international law would not be law at all (See Kammerhofer)