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Nature of International Law - Coggle Diagram
Nature of International Law
Definition of International Law
Jeremy Bentham:
International law is the collection of rules governing relations between states
Law that governs States in their relations with one another
Now players are not limited to States (IO, NGO & peoples / individuals have become relevant)
Modern definition of IL emerged: "a body of rules that governs relations between States & entities granted with international personality"
But IL is not the sole controller of States' conducts - other factors to be considered - diplomacy, politics and international relations
Distinction between IL and National Legal Systems (NLS):
NLS:
Centralised with sophisticated and centralised legal institutions (power is centralised in distinct legislature, executive & judiciary)
IL:
Decentralised with no primitive & no centralised L, E & J (no distinction between them)
International Legal System:
International peace and security:
UN Security Council, Regional Organisations (NATO)
Economic/Development Issues:
World Trade Organisation, IMF, World Bank
Human rights/social:
Human Rights Council (GA), International Labour Organisation (ILO)
Environmental Issues:
UN Environment Program (UNEP) - under GA
National Legal System:
Prominent 3 members of Government (Executive, Legislature, Judiciary)
State imposes law on its subjects (individuals, natural, artificial persons)
History of International Law
Begins with the break up of the feudal system and formation of free nation states
Peace Treaty of Westphalia (1648)
- brought the Thirty Years War in Europe to an end
Treaty recogises principle of
sovereignty
, territorial integrity and
equality
of States as
independent members
of the
international community
Schools of Thought
Naturalist:
Exemplified by Samuel Pufendorf (1632-1694)
Attempted to
identify international law completely with the law of nature
Proposes the ideal system of law, founded on the nature of man as a reasonable being
Rule of law derived from the principle where
nature a a matter of human reason
Positivist:
Derived from empirical method adopted by the Renaissance, not concerned with theories based on absolute principles
International law are not concepts based on reason
Agreements and customs recognised by the states are the essence of the law of the nations
The 19th Century:
The Congress of Vienna, which marked the end of the Napoleonic wars, enshrined the new international order based on European balance of order
Positivist theories dominated the century
Laws basically commanded sovereign person, any questions on ethics were irrelevant
20th Century:
After WWI, the league of Nations was created by the 1919 Peace Treaty
League consisted of an Assembly and a executive counsel, but later crippled due to the absence of the U.S and Soviet Union
After WW2, the League was revived in 1946 by the United Nations Organisation
The 3rd World:
The 19th century development of international law was Eurocentric and improperly reflected the interests of the newly independent states
New nations still embraced the ideas of sovereignty and equality of states along with principles of non-aggression and non-intervention
European-based homogeneity destroyed, universalist scope emphasised
Theories of International Law
Modern Theories:
Positivist school developed rapidly in the 19th century - declared that law should be analysed empirically without ethical elements
According to Hart (The Concept of Law) - man-made laws must be examined and that the Natural Law be rejected due to its exclusion of
practical realities
Kelsen - 'Pure Theory of Law':
Defined law solely in terms of itself and avoided any element of justice
Believed that the basic norm for International law is that
"the states ought to behave as they customarily behaved"
Also referred to:
norms created by international treaties and conventions
rules established by organs set up by international treaties/decisions of the ICJ
Downside of Kelsen's view:
Merely repeats the states abiding by the rules, no room for progressive development of international law by new practices accepted as law
fails to answer the question as to binding customs
Key Features of International Law
Purpose of the UN - Article 1 of the UN Charter:
Maintain international peace and security;
To develop friendly relations among nations
Cooperate in solving international economic, social, cultural and humanitarian problems, promoting respect for human rights and fundamental freedoms
Centre for harmonising actions of nations and attaining its goals
Dispute resolution - UN Charter Chapter VI Pacific Settlement of Disputes:
Article 33:
The parties to any dispute must seek a solution by negotiation / arbitration / mediation / judicial settlement if it endangers international peace and security
Security Council shall (when deemed necessary) call upon parties to settle their dispute by such means
Enforcement - UN Security Council:
Security Council may take 'enforcement action' against a state when it poses a threat to peace / committed any acts of agression that is in breach of peace
Enforcement methods:
Military action, economic sanctions, other diplomatic/political/social measures
Requires veto power exercised by 5 permanent members, making it difficult to impose sanctions
The Relevance
Why IL should be obeyed:
The element of reciprocity
Advantages / 'rewards' due to observance
Constant formulation of international business characterised with legal terms
Theory of self-limitations
Why IL works:
The common good
The psychological rubicon
The practitioners of international law
The flexible nature of international law
The political costs
Sanctions
Weaknesses of IL
Lack of institutions
Lack of certainty
Vital interest
Problems with enforcement of law
Problems of Enforcing International Law:
Less effective enforcement procedures encourages states to flout laws frequently that the individual does in municipal law
The absence of enforcement does not immediately equate international law as impotent, where there are certain enforcement procedures:
The Security Council
Loss of legal rights and privileges
Judicial Enforcement
Loss of legal rights and privileges:
States unlawful actions may cause the community at large to impose penalties. Can take various forms: expulsion/suspension from inter-governmental organisations, termination of dipplomatic relations etc
Such methods are overlaid with political and economic considerations, but they aren't completely fullproof mechanisms in enforcing legal obligations
Judicial enforcement:
Ad hoc tribunals and the ICJ assists in the settlement of disputes
The procedure by which states can be compelled to carry out awards of the Court is limited, only can be done by reference to the Security Council, which in itself is a flaw