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Heywood International Law

Ilaw
 Traditional law consists of a set of compulsory and enforceable rules; reflects the will of a sovereign
power
 No central authority in global politics that is capable of enforcing rules, legal or otherwise
 Ilaw is obeyed and respected – provides an framework within which states and other international
actors interact
 Ilaw rarely enforceable in a conventional sense, why do states comply?
 Ilaw = determining relations between and among states  to world / supranational law = which treats
individuals, groups and private organisations also as subjects of ilaw

Law
 Made by government, applies throughout society
 Reflects the will of the state +takes precedence over all other norms and social rules
 Domestic law has universal jurisdiction within a particular political society
 Law is compulsory, backed up by a system of coercion and punishment
 Law requires a legal system, a set of norms and institutions through legal rules are created interpreted
and enforced
 Law has a public quality in that it consists of codified, published and recognised rules
 Usually enacted through a formal, public, legislative process
 Punishments handed down for law breakings are predictable and can be anticipated
 Laws usually recognised as binding  embodies moral claims, implying the legal rules that should be
obeyed apart of being a set of enforceable commands

Private + Public international law


Private international law:
 The regulations of international citivites carried out by individuals, companies and other non-state
actors
 Relates to the overlapping jurisdictions of domestic legal system = sometimes called conflict of laws

Public international law


 Applies to state, regarded as a legal persons
 Deals with government-to-government relations + relations between states and int’l organisations

Law + Ilaw
 International law operates in the absence of an international legislative body and a system of
enforcement
 No supreme legislative authority to enact ialw + no world government or international police force to
compel states to uphold their legal obligations
 UN – closest form
 Endowed, in throy, with certain supranational powers + through ICJ, a principle judicial organ with
no enforcement powers
 UN Security Council – ability to impose military and economic sanctions, possesses no
independent mechanism for ensuring compliances with its resolutions, (despite the fact that its
decidions are technically binding on all UN members
 Ilaw = soft law > hard laws
 International private laws are of a higher levels of compliance
 Acknowledged by Grotius, the enforcement of international law was largely based on a sense of
solidarity, or potential solidarity among states

Theory of Natural Law


 Thinkers who believe law, should be rooted in a moral system
 Law should conform oto as et of prior ethical standards, the purpose of law is to enforce morality
 Thomas Aquinas – human laws have a moral basis
 Natural law could be penetrated through god-given natural reasons and guides us towards the
attainment of good life
Positive Law
 Sought to free the understanding of law from moral, religious and mystical assumptions
 Hobbes – command theory of law
 Legal positivism – defining feature of the law is not its conformity to higher moral or religious principles,
but the fact that it is established and enforced by a political superior, a soverign person or body
 Law is law because it is obeyed
 Questions the notion of ilaw – treaties + un resolutions not being enforced, should be regarded as a
collection of moral principles and ideals, and not as law
 Legal positivism made natural law theories distinctly unfashionable in the 19 th century,

Notes
 Highly accepted that both domestic and ilaw should conform to the higher moral principles set out in
the doctrine of human rights
 Hugo Grrotius
 On the Law of War and Peace 1625 – a secular basis for ilaw,
 Ilaw is grounded not in thrology but in reason
 Just war theory based on natural rights
 4 causes of a just war
 1/ self-defence 2/ to enforce rights 3/ to seek reparations for injury and 4/ to punish a
wrong-doer

Sources of International Laws


 International conventions – establishing rules by the contesting states
 International custom – as evidence of a general practice accepted as laws
 General principles of laws recognised by civilize nations
 Judicial decisions and teachings of the most highly qualified legal scholars of various nations
Treaties
 Formal, written documents through states agree to engage in, or refran from ,specified behaviours
between two states

UN Charter
 Violate one of the usual characteristics of law
Law applies automatically and unconditionally to all members of a political community ;
Treaties, only apply to states that are party to the agreement in questions (despite, some traties like
NPT – so widely respected that they impose customary obligations even on states that have not signed
them
 Legal obligations that arise from treaties are largely rooted in consent, in that states enter into treaties
freely and voluntarily – once treaties are signed and ratified, they must be obeyed as expressed in the
principle of pacta sunt servanda –
 Rebus sic statibus ?
 Contractual nature of treaties and conventions places them clearly within the tradition of positive law –
ilaw in these cases is a product for negotiations between soverign states, not the command of God or
the dictates of higher morality
 Ilaw – assume the character of reciprocal accord

Internatinoal Customs
 Customary international law derives from the actual practice of states, in that practices amonog states
that are common and well-established come, over time, to be viewed as legally binding
 Customary obligations thus arise from the expectation that states should carry out their affairs
consistently with past accepted conduct
 No explicit consent is required, but consent is infereed from the behaviour of states themselves
 Often assumed to have universal jurisdiction, esp when it is grounded in deeply held norms and moral
pricniples – closely related to the natural law principles
 Diplomacy – carried out over time as rules of conduct shaped by the mutual convenience of the states
concerned – like the practice o fgranting diplomatic immunity to foreign diplomats
 Weakness:
 Based on practice rather than formal, written agreements  difficult to define
 Difficult to decide when and how common practices have acquired the force of law
 Growing tendency to translate customs into treaties: Vienna Conventions on Diplomatic and
Consular Relations –
 Customary law reflecting deeply-hel moral understandings, may appear to be more epowerful than
treaty-based laws

General Principles of Laws


 Tend to be invoked when no clear rights or obligations can be identified through formal agreements
between and amonst states or through custom and practice
 Used to imply that actions that are recognised as crimes in most domestic legal systes should be treated
as crimes if thy occur in an international context
 Invasion of another country’s territory and the attempt to annex it by force may breach treaty
obligations and ignore the customary expectation that soverign states should live in peac, it can also be
seen as a voiolation of ilaw on the grounds that it offends what could be viewed as the general
principles of civilised conduct

Legal Scholarship
 The sum of written arguments of the most highly qualified and respected judges and lawyers can be
used to resolve points of international law when these are not resolved by references to the first three
sources

Why is ilaw obeyed?


 Is enforcement the only reliable means of compliance
 Balance between compliance and violation
 High levels of compliance, violations may been grotesque and highly publicized
 Self-intersts and reciprocity
 Fear of disorder
 Fear of isolation
 Fear of punishment
 Identification with international norms
 It is in the states’ interests to comply with international law (utilitarian compliance: state abide by
laws because they calculate that in the long run doing so will bring benefit or reduce harm) 
reciprocity = a relationship of mutual exchange beween or amonst states that ensures that favours are
returned for favours and punishment is returned for punishment
 E.g. – diplomatic immunity may at times mean that immoral or flagrantly criminal actions by
foreign diplomats in one’s own country go unpunished, states around the world recognsie that
this is a price worth paying to ensure that their own diplomats in ofrieng lands can live and work
ni safety and security
 WTO’s rules about freetrade and the abandonment of tariff and non-tariff barriers are usually
upheld by states on the ground that they will benefit from reciprocal actions taken by other states
 General Preference for Order over Disorder
 Ability of ilaw to create a set of common understandings
 The framework of rules helps to establish and publicise thus reduces uncertainty and confusion in
the relations among states, each of them benefiting from shared expectations and enhanced
predictability thus established
 States have a better sense of how other states will behave
 A fear of chaos and disorder  may occur through negative reciprocity, violations of ilaw lead to
an escalating series of reprisals that threaten to unravel the entire system of itnternational order
and stability

 A state’s level of conformity to ilaw is a key determinant of its membership of international society
 Ilaw = one of the chief institutions through which cultural cohesion and social intergration among
states are achieved, facilitating cooperation and mutual support
 A record of compliance with ilaw can therefore enhance the standing and reputation of a state,
giving it greater soft power and encouraging other members of the inerntional community to
work with it rather than against it
 E.g. in order to build wider support for its war on terror, usa was increasingly forced to work
within a framework of UN resolutions
 States that routinely defy ilaw run the risk of isolation and may even be treated as
international pariahs, paying a high price in diplomatic and economic terms
 Punishment
 States themselves acting individually or collectively (instead of a world police)
 Recongises a right of reprisal or retaliation 

State relate to one another legally in a purely horizontal sense, recognizing the principle of sovereign
equality
 No world government, international community or public interests that can impose its higher authority
on the state-system, but legal obligations, determined by treaties and conventions, are entirely an
expression of the will of states

4 features of the classical view


 1/ states are the primary subjects of ilaw
 State is a metajuridical fact, ilaw merely recognises the consequences of the establishements of
states
 It is not able to constitutes states in the first place
 1033 Montevideo convention – acknowledge that a state should be admitted into the
international legal community so long as it fulfills three criteria –
 2. States are the primary agents of ilaw
 States are the only actors empowered to formulate  enact and enforce ilaws
 3/ purpose of ilaw is to regulate inter-state relations
 In practice, ilaw upholds the cardinal principle of soveriengty
 Soveriengty – legitimate statehood + norms of self-determination and non-intervention
 4/ scope of ilaw should be strictly confined to the issues of order, rather than issues of justice
 Ilaw exists to maintain peace and stability  should not be used for wider purposes

Sovereignty Equality
 Principle – regardless of other differences, states are equal in the rights, entitlements and protections
they enjoy under international law
Self-determination
 State should be a self-governing entity, enjoying sovereign independence and autonomy within the
international system

Realist
 Skeptical about ilaw and its value
 Sharp distinction between domestic law and ilaw
 Absence of a central political authority in the international realm  ilaw = nothing more than a
collection of moral principles + ideals
 Hobbes: “where there’s no common power, there is no law”
 Morgenthau: ilaw amounted to a form of primitive law, similar to the behavioural codes established in
pre-modern societies
 Ultra-realists – dismiss ilaw altogether
 Most realists accept that ilaw plays a key role, although limited in the international system
 Ilaw is limited by the fact that states, powerful states are the primary actors on the world state  ilaw
largely reflects, and is circumscribed by, state interests
 The proper, and only legitimate purpose of ilaw is to uphold the principle of state sovereignty
 Realists – deeply suspicious of the trend towards supranational or world law that ilaw becomes
entangled with the idea of global justice and is used to protect individual rights rather than state rights

Liberals
 Positive assessment of the role and importance of ilaw
 Belief: human beings are imbued with rights and guided by reason
 Internaiotnal sphere = a moral sphere – core ethical principles should be codified within a framework of
ilaw
 Idealist: int’l politics, are like domestic politics, the only solution to the disorder and chaos of anarchy is
the establishment of a supreme legal authority, creating an international rule of law = Doctrine of peace
through law
 Establishment of League of Nations and the 1928 in Kellogg-Briand Pact – in effect banned war
 Neo-liberals – abandoned such idealism  continue to believe the important and constructive role in
World Affairs
 Regimes of international law reflect the common intersts and common rationality that bind statemen
together
 Translating agreements among states into authoritative principles and by strengthing levels of trust and
mutual confidence, international law deepens interdependence and promotes cooperation
 Belief in the idea that there is a tendency for interdependence to be consolidated through formal
rules of international behaviour is reflected in the functionalist theory of intergration

Critical Views
 1/ Social Constructivism, 2/ Critical Legal Studies 3/ Post-conlonialism
 1/ Social construtivism
 No developed or coherent constructivist accounts of the nature of ilaw
 Asserts that political practice is crucially shaped by norms and perceptions – emphasizes the
extent to which norms embodied in ilaw structure the identities of states as well as the interests
they pursue
 Explain why and how state behaviour changes over time, once accepted practices such as slavery,
the use of foreign mercenaries and the ill-treatment of prisoners of war become less common
 2/ Critical Legal studies
 Highlight the inherently indeterminate nature of ilaw, based on the fact that legal language is
capable of multiple and competing meanings
 Feminsits --- suggest that ilaw embodies patriarchal biases, becuuasee the legal person is
constructed on the basis of masculine norms, ilaw perpetuates the image of women as victims
 3/ Postcolonialists
 Ilaw as an expression in various ways, of western global dominance
 Ilaw developed out of Christian and Eurocentric thinking about the nature of legal + political
order – tainted by the inheritance of colonialism and possibly rcisim
 Operates through instittunios, such as the ICJ
 Wedded to the interests of the industrialised West

Dixon – International Law

CH1
 Int’l law – derided or disregarded by many of the world’s foremost jurists and legal commentators
 Questions:
 1/ the existence of any set of rules governing inter-state relations
 2/its entitlement to be called “law”
 3/ its effectiveness in controlling states in real life situations

 Successes and failures for the int’l legal system in history
 Invasion of Kuwait by Iraq un 1990 –
 Establishment of the international criminal court responsible for prosecuting individuals for
violation of fundamental international human rights and the powerful judgment given by the
internaintaol court of justice in its advisory opinion on the legal consequences of the construction
of a wall in the occupied Palestinian territory
 Like all other legal systems, the international legal system is one of success and of failure – but in the
same way we will not call the law of the UK not law beause it is currently proving impossible to control
certain crime, we shall not disregard ilaw as a system of law just because it has its failures
Q: Does international law exist at all as a system of law?
 Is the nature of ilaw unproductive?
 Compare ilaw with national legal systems like that of the UK
 How ilaw sometimes may fall short of the standards of the definitive models of what the law and a legal
system shall be like in a national scale, is not sufficient to disregard ilaw as true legal system
 But the rationale of ilaw is different from national law
 National law is concerned primarily with the legal rights and duties of legal persons – individuals
within a body politic- the state or similar entity –
 This law is derived from a legal superior, recognised as competent by the society like, in a
constitution who has the power and authority to make and enforce that law
 International law: as originally conceived, is concerned with the rights and dutires of the states
themselves, in their relations with each other it is nether likely nor desirable that such a
relationship of legal superiorty exists
 States are legal equals and the legal system which regulates their actions inter se must reflect this
 As ilaw developes and matures it may come to envompass the legal relations off non-state
entities such as peoples, individuals or companies
 The re-casting of international law as a system based less on state sovereignty and more on
individual liberty is an aim of many contemporary international lawyers and there is no doubt
that in recent years very great strides have bbeen made in tis direction.
 The existence of the iCJ refereed to above is perhaps the most powerful evidence of the success
of this trend

Very heart of the ilaw system lies a set of rules designed to regulate states conduct with each other, and it
is this central fact that makes precise analogies with national law at present misleading and inappropriate

1. The Role of International Law


 Ilaw = a system of rules and principles that govern the international relations between sovereign states
and other institutional subjects of ilaw such as the UN and the African Union
 The rules of ilaws are created primarily by states, either for their own purposes or as a means of
facilitating the functions of organisations of which they are members
 Covers almost every facet of inter-state activity
 Use of the sea, space and Antarctica
 Rules governing international telecommunications, postal services etc.
 Ilaw = primary tool for the conduct of international trade
 Concerned with nationality, extradition, use of armed force, human rights, protection of the
environment and the security of nations

Chapter 6 = Jurisdiction and Sovereignty


 The nature + extent of a state’s authority over territory, persons and aircraft

Ch6.1 – General Principles of Jurisdiction
 Lotus Case
 Permanent Court of International Justice stated that ‘the first and foremost restriction imposed
by ilaw upon a state is that – failing the existence of a permissive rule to the contrary –it may not
ecxercise its power in any form in the territory of another state’
 Unless it is expressly permitted, state A may not exercise jurisdiction in the territory of State B

Israel – biggest recipient of the US foreign aid in the world

IN legal terms, original and naturalized Palestinian citizens were equal nationals regardless of their religion,
in reality, however, these citizens were divided into two Palestinian eople, Arab and Jewish

Ottoman subjects who became Palestinian citizens through the natural change of nationality on 1 August
1925

Ch5
 Membership of UN depends on political considerations as well as legal facts
 Admission to UN is not a sign of achieved statehood in international law
 UN membership entails a presumption of statehood
 Non-membership of UN does not constitute a denial of statehood (many reasons why a state chooses
or is forced to stay outside the UN system)

Palestine’s current statehood


 If recongised by a state, its relations with State A would have the rights and duties of a state
 If not, no full capacity of statehood in relations with state B
 Reciprocal and Bilateral nature of Ilaw  give rises to several degrees of personality for the same
territory in respect of its relation s
 State may pick and choose whether to have full relations with another subject,

Criteria – Art. ! of the Montevideo Convention on Rights and Duties of States 1933
1/ Permanent population
 There must be some population linked to a specific piece of territory on a more or less permanent basis
– who can be regarded as the inhabitants
 2/ Defined Territory
 Some definite physical existence that marks it out clearly from its neighbours
 No need complete certainty over the extent of territory
 3. Effective Government

 4/ Legal Indepedence
 =/= factual autonomy
 A state is a state if the territory is not under the lawful soverign authority of another satte
 5/ Manner of Attainment of Capacity to enter into legal relations
 Whether factual ‘independence’ will give rise to a presumption of legal independence / capacity
– or whether any illegality in the attainment of factual independence necessarily prevents such
legal capacity arising?
 If the terriroy declaring factual independence is able to claim the right of self-determination, then
ti seems that ithis is sufficient to attain legal independence and statehood
 A formal colonial territory has the right to achive independence by virtue of this principle
and it does not matter whether he declaration is doen voluntarily with the assent of the
former colonial power or against its wishes

https://vtechworks.lib.vt.edu/bitstream/handle/10919/64512/Panganiban_SK_T_2016.pdf;sequence=1
 Palestine – large network of Embassies, missions _+ general delgations throughout the world
 Palestine Embassy in – Ireland, Russia, Sweden, Poland, Czech
 Missions in France, UK, Germany, Greece + Italy
 General Delegation in Beligum, Denmark, Finland, Nethegrlands
 A lot of members of EU – “working with the PAlestinain authority to build up the institutions for
future democratic independent and viable Palestine state -

 US – threatens its veto powers on any attempt of a bid for full membership of Palestinian State until a
deal can be made between Palestine and Israel
Fact Sheet

Constitutive Theory Declaratory Theory


 Denies the personality is confeered by  International personality is conferred by the
operation of international law operation of international law
 Recognition is the necessary precondition to  Acts of recognition is not decisive enough
the existnence of the capacities of statehood /  Statehood should be conferred by internaitional
government law + accords with international practice
 If a state is not recognised by the international  Whether a state is recognised by other states,
community, it cannot have international still entitled to the rights and subjects of the
personality general duties of the system
 If a state is not recognised, it is not a sate  Palestine not recognised by other countries do
 Impossible to conduct bilateral agreements not prevent states from making claims against
without recognition her

  If a state satisfies the criteria for statehood or


personality discussed above, it is a state,
irrespective of recognition
 

Declaratory Theory
 General legal effects of recognition are limited
 Recognition by a state = nothing more than an acknoeledgement of pre-existing legal capacity  not
decisive of te new entity’s claim to statement
 Whether a state is recognised by other states, still entitled to the rights and subjects of the general
duties of the system

De facto (in fact) – in practice De Jure (by law) – oon paper


2012 – entering as Observing State = de facto Formal legal recognition of Palestine – not by UN,
recognition by done bilaterally