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What is International Law?

What is International Law?. What is international law?. “It is the law of international community” Definition of int. Community States Int. Organizations Individuals (limited extent)

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What is International Law?

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  1. What is International Law?

  2. What is international law? • “It is the law of international community” • Definition of int. Community • States • Int. Organizations • Individuals (limited extent) • Int. Law: “a system consist of some rules and regulationsregulating activities and reflecting ideas and values of states + int. org + to some extent individuals

  3. What is international law? • Can be divided into two categories: • 1- Private int. law: “conflict of laws” “private disputes having int character” deals with applicable law and competent court. • 2- Public int law: “int law” + “law of nations” + “Droit international” + “droit des gens” + “Völkerrecht” + “uluslararası hukuk” + “milletlerarası hukuk” + “devletler hukuku” + “devletler umumi hukuku”

  4. Int Law as a “Legal Order” • A Legal Order contains two elements: • A- “To have corpus of norms that should be observed/obeyed by the actors of that order” • B- “To have a socially organized body that would control these rules to be observed by sanctions”

  5. Int Law as a “Legal Order” • Corpus of Norms: • 1- need to have an organ that is entitled to create these norms • Lack of single legislative body eligible to create legal norms • UN General Assembly + Security Council (int peace and security only) • Although no single authoritycan still comply with first condition • İnt treatiesvery important instrument • 2- need to have a kind of common belief that these norms are bindinggeneral perception and the reality

  6. Int Law as a “Legal Order” • 2- To have socially organized body to control by sanctions: • Lack of (single centralized) compulsory judicial system • To determine “violation” of int law • To decide on the punishment • Position of Int Court of Justice (ICJ)Art 36 of its Statute • Requires consents of conflicting parties • Increasing trend to bring these disputes before these type of organs (ECtHR + ICC + ECJ) • Lack of single-centralized executive body to enforce punishment

  7. Int Law as a “Legal Order” Lack of single executive body to enforce punishment • Like police forces Art 43 of the Charter  Security Council  UN army • Some measures unilaterally  Reprisal (treaty provisions) + retorsion (visa conditions) + self-defence • Some collective enforcement measures (economic and military)  sanctions containing “use of force” by security council resolutionsBosnia, Iran, N.Korea • Instruments of domestic law used by int law (int criminal law) “int law can be considered as a legal order but it has some deficiencies because it is a law of “international community” where the level of solidarity is very low”

  8. Int Law as a “Legal Order” • In most of the primitive societies legal “structure is hierarchical” and “authority is vertical” • Exp: structure of a ministry • But in int law structure and authority is “horizontal” • There are 193 (South Sudan latest) member states to the UN (2012, the UNGA recognised Palestine as a "non-member observer state) • They are “equal” at least in theory (sovereign equalityUN Charter 2/1)

  9. Int Law as a “Legal Order” • A Comparison between int law and domestic (internal) law: • Different levels of solidarity for societies • States + int org.they create law and they obey or disobey it • Possible contradiction they may pick and choosebut they do observe violations are rare • Most popular field “prohibition of use of force” • Even USA does not argue otherwise • Other rulesmost of them are observed for stability/predictabilityExp:Dip. relations • In domestic law thousands of incidens of murder + robbery + rape they occur without distroying the “existence of the system” • Therefore such acts should be deemed as “violation/breach” not as “evidence of non-existence”

  10. What is not int Law? • States observe some rules other than int law • Rules of int law must be distinguished from (non-binding rules): • International morality They are taken into consideration due to “humanitarian reasons” or “beliefs” exp: helping a state affected by natural disaster + accepting refugees from dictatorial regime • International Comity (comitas gentium) they are taken into consideration due to “courtesy” exp: saluting foreign war ships + messages for national anniversaries

  11. Basis of sense of obligation in int law • 1- Most of the rules are observedviolation occurs in vital interest areas (use of force + statehood + recognition) • 2- Nature of rulesprovides observanceconsent-based therefore easier to comply with • 3- Living alone is not possible interdependenceif they don’t observeshall be excluded from the club

  12. Basis of sense of obligation in int law • 4- Reciprocity: their diplomatsprotection and immunity of foreign diplomats (very rarely violated1979 Iran/2012 US Ambassador in Libya) • 5- Despite lack of single –centralized executive body: • Self-defence • Retorsion • reprisal

  13. Basis of sense of obligation in int law • 8- int law uses domestic sanction mechanism in some areas • Crimes against humanity, crimes against peace and war crimespolice can arrest someone in such cases based on “universal jurisdiction”. • 7- Rule on non-recognition • Acts as products of illegal use of force • Iraq annexation Kuwait + Japan occupation of ManchuriaManchukuo Statepuppet state of Japan (1931-1945)Stimson Doctrine • Not to attach any legal effect to the consequences of that act

  14. Basis of sense of obligation in int law • 8- Power of UN Sec Council under Arts 39, 41, 42 Collective enforcement measures • What is the Theoretical Basis of this Sense of Obligation? • 1- Natural Law School (Doctrine) • 2- Positivist School • Theory of auto-limitation • Theory of Vereinbarung (common consent/will) • 3- Objectivist School • Normative doctrine • Sociological theory

  15. Natural Law School (Doctrine) • Rhythm of system of natureindependent from the will of statesthis makes rules of int law unavoidable • For some this rhythm is based on religious/metaphysic groundsVitoria, Suarez, Gentilis • For some this rhythm is based on logic/conscience/reasonGrotius, Puffendorf • Deficiencies and areas where this approach is used

  16. Positivist School • “Will of the state” is the basic factor which gives binding character to rules of int law • 1- Theory of auto-limitation: • States are sovereign/independentthey can only be bound by rules through their own consent • “Consensual Theory” • State limits its own unlimited powersat the end of this processint law exists and become binding “voluntary self-restriction” • G. Jellinek

  17. Theory of auto-limitation: • Problems: • “states can only be bound by consent” is itself a rulewhere did that rule come from? • Birth of new states? why they are bound by existing customary rules? some argue that this is implied with declaration of independence and recognition this is like a “fiction” • States will be able to “opt out” • Cannot explain fundamental rules of int law “jus cogens” rules

  18. Positivist School • 2- Theory of Vereinbarung: • A rule can only derive from a “higher consent”combination of consents of all statescommon consent (vereinbarung) • H. Triepel

  19. Objectivist School • Rules of int law cannot be based on “will” or “consent” of states • 1- Normative Doctrine: • Hans Kelsen • A norm can only be based on another higher norm • In every legal order “hierarchy of norms” (Grundnorm) • All norms should be consistent with this Grundnorm • No consensus on grundnorm for Kelsen this is “pacta sunt servanda” + for others “constitutional article on treaty-making power”

  20. Objectivist School • 2- Sociological Doctrine: • G. Scelle • Man needs to live in social environment/society • This environment is independent from the will of the people social solidarity is needed for social life law derives from this “social solidarity” this is a “practical necessity” • Legislature does not create rule it only declares the rule created by the social solidarity. • Rules are binding as long as they are consistent with that social solidarity • Int law int society/community • “Ubi societas, ubi jus” if there is a societythere is law there

  21. others • Command Theory: • J. Austin, 19. century • Law is set of commands/orders issued by a “sovereign” supported by the threat of sanctions • Int law is not positive law because it does not derive from commands of a sovereign • Int law is kind of “positive morality”

  22. Conclusion • Recent theoriesKoskenniemi • Law and politics • Law and morality • Deficiencies exist for all theories • Interrelated to theories of Int Relations as sub-title

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