International Law - Resume Anders Henriksen \"International Law\" PDF

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International Law - Resume Anders Henriksen "International Law"...

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Foundations and structure of international law

CENTRAL ISSUES - Introduction to the subject and overview of its most important elements - Brief historical overview of development of modern international law - Introduction to various structures within international law - Discussion on the issue of enforcement in international law 1.1 Introduction Public international law deals with legal issues of concern to more than one state. It is defined as the system of law that regulates the interrelationship of sovereign states and their rights and duties to one another. Other actors  OI and individuals may also possess rights and/or obligations under international law. o International law reflects the society to which it applies. o International regulation is everywhere around us. International law remains: o a system of law that is very different from the national legal system most lawyers are familiar with.  Unlike in a domestic legal system there is neither a legislative nor an executive branch in the international legal system. o a decentralized legal system in which it is primarily up to the legal subjects themselves to create, interpret and enforce the law. 1.2 A brief history of international law 1.2.1 Early modern international law Cultures and communities have traded and interacted for millennia and there are numerous historical records of the creation of more or less formal practices and mutual expectations that may be considered to be early traces of what we today call international law. International law as we know it today was invented in Europe: Europe in the Middle Ages was characterized by multiple levels of  

different allegiances, rights and obligations universal and political and religious forces of the Holy Roman Empire and the Catholic Church.  The Pope in particular was able to exert considerable influence but the networks of knights and merchants were of a transnational nature.

It was also a time when ideas about the normative structure of the world were dominated by theories of:  natural law  originally developed in the classical eras.  jus gentium, a law of people/nations and hence inferior to natural law Elaborate legal structure did not existed but legal obligations and contracts were nevertheless created in day-to-day relations of the communities at the time. The period was also the dawn of colonialism, and the early confrontations between Spanish explorers and native Indian populations and kingdoms in the New World posed a challenge to the philosophers and legal scholars of the time.  Not until the 17th and 18th centuries that we begin to see the contours of a modern international legal system, a much clearer distinction was introduced between jus naturale and jus gentium. 1.2.2

Peace of Westphalia The international legal system that we recognize today is generally tied to the emergence and consolidation of nation states in Europe. The birth of the international state system  1648 Peace of Westphalia that brought an end to the Thirty years War that had ravaged continental Europe. In the Peace Treaty of Westphalia the major European powers sought to establish a semblance of order and structure in an otherwise anarchical and disorderly European world. The idea was to reduce the powers of transnational forces, like empire and religion and instead compartmentalized territory and individuals into sovereign states.  In turn over the time, this established the state as primary source of authority.

Westphalia was a decisive turning point and what had initially merely been conceived of as a concept od order for wartorn continental Europe spread to the rest of the world and to this day remains a key building block of international law. 1.2.3

The 19th century and the era of positivism The 19th century was dominated by a full-on assault on the idea that acts of states could be judged according to weather or not they conformed to transcendent ideals of fairness or divine will.  

Unlikely natural law, positive law does not envisage a universal legal system but rather one that is fragmented and in which states are bound by different legal obligations. Positivism owed much of its appeal as theory of international law to the emergence of formal institutions of international law.

During this period the first multilateral treaties regulating armed conflict were concluded. 1.2.4

The interwar period The destruction and carnage of the First World War dominated events in the interwar period. The primary development was the creation in 1919 of the League of Nations, it requested states to submit potential destabilizing disputes to one of a number of settlement mechanism and to resist from resorting to war until a certain period had elapsed following the decision by that mechanism. A major achievement in the period was the successful establishment of the Permanent Court of International Justice (PCIJ) based in the Hague in the Netherlands.

1.2.5

The period after the end if Second World War The period immediately after the Second World War was a time of major achievement in international law.  One of the ways in which the world reacted to the atrocities of the Nazis was to prosecute top German officials for international crimes before a war crimes tribunal in Nuremberg.  League of Nations was replaced by the United Nations (UN), built on the “Westphalian” principles. The UN serves as an umbrella structure for a number of important international organizations.

1.2.6

The Present The Western-driven “liberal international legal order” now shows signs of break-up  because the international system has become more “multipolar”. Global transformations in economic power have seen the emergence of a range of “emerging” and/or more assertive non-Western power, most notably China, and a comparatively diminishing influence and power of the West. In the West, a number of states are at present experiencing somewhat of a popular “blacklash” against some of the values and institutions that underpin the post-Second World War liberal international legal order.

1.3 The Structures of international Law 1.3.1 Introduction – a society of sovereign nation states International legal system consist of different structures of rules reflecting the historical evolution of the law and the political order and configuration of the world. Since the 1648 Peace of Westphalia, the centre of the international system has been the sovereign state and international society is first and foremost a society of individual national states. The international law serves as a supplement to national law, only when an issue is of interest to more than one national sovereign will international law enter the picture.  The scope of international law is determined by the inadequacy of national law.  The content of international law as the concrete answers to the questions that cannot be answered in national law must be found in international law. Two ways in which an issue becomes of interest to more than one state: 1) Where two or more states may have colliding interests in the substance of the issue 2) When the involved state have agreed in a treaty to turn the issue into one of an international character  A matter may become an issue for international law either due its content or due its form

1.3.2

The international law of coexistence The international law of coexistence contains the legal answers to questions that are inherently of interest to more than one state and required to separate the powers pf the sovereign state and thereby uphold peaceful coexistence As a legal structure, the international law of coexistence is primarily horizontal = mainly concerned with the manner in which sovereign states interact with each other. As a fundamental structure of international law, the international law of coexistence is relatively sta le and not subject to much change

1.3.3

The international law of cooperation The international law of cooperation finds the legal answers to issues that are not inherently of interest to two or more states but which have nevertheless been turned into matters of international concern through the adoption of a treaty. As an international legal structure, the international law of cooperation is much “younger” than the international law of coexistence and unlike it the international law of cooperation is “optional” in the sense that states decide for themselves if they want to turn a matter previously dealt with national law into a matter of international law.

1.4 The basis of international obligation Why states are bound to observe international law?  the theoretical debate has traditionally been dominated by proponents of natural law and positivism. International legal theory has struggled to reconcile state sovereignty with international obligation. It would therefore appear that either the state is sovereign, and hence not bound by international law, or it is bound bt international law, and thus not sovereign.  The existence of a plurality of sovereignty states justifies the binding character of international law. The peaceful coexistence of sovereign states requires the existence if number of basic rules that dictate how states may behave and may not behave in their mutual relations. All states accept that they are members of a society of states and that they benefit from the rules required for maintaining peaceful coexistence within the society they form. 1.5 The relationship between international law and national law A few points must be noted about the relationship between international law and national law. 1) International law asserts its own supremacy over national law  A state cannot justify a breach of its international legal obligations by arguing that compliance would be at variance with its national law. 2) Manners in which international law is applied in national legal system by the legislature and national courts. National implementation and concrete application of international law is a constitutional issue that varies from state to state. Two different approaches have dominated legal theory:

Monism o Holds that international law and national law form a single legal order or a set of mutually intertwined legal orders that are presumed to be coherent. o Holds that international law can be applied directly in the national legal system of states and that the international norm prevails in the case of conflict.

Dualism o Holds that international law and national law are two separate legal systems that operate independently. o International law regulates relationships between state o National law governs relationship between citizens or citizens and state.

Neither Monism or Dualism can explain the many ways in which international law is applied by national legislatures and courts.

 As a result the theoretical debate has moved away from the dichotomy between monism/dualism and instead turned to pluralism. 1.6 The Issue of enforcement of international law One of the ways in which the international legal system differs from a national legal setting is in its lack of an international police force and a mandatory judicial system that can enforce law Complaint mechanism  courts and tribunals with competence to hear complaints and decide disputes about alleged breaches if international law: o Hague-based ICJ o Permanent Court of Arbitration PCA o International Tribunal for the law of the Sea ITLOS o Dispute Settlement Body DSB within the WTO system Policing and enforcement of breaches of international law Un Security Council  but enforcement by the SC is rare In most cases an aggrieved state is left with no choice but to adopt its own measures in response to another state’s violation of international law. A state may respond to a breach of international law by adopting measures of “retorsion” that are unfriendly, but lawful, acts. When discussing the limited means of enforcing violations of international law, it should be noted that states generally honour their legal obligations towards each other. 1.7 The alleged inadequacy of international law in the 21st century The existing state-centric configuration of the international legal system is outdated and at times counterproductive to creating a more fair and just world. Order may be a value in itself and those who argue for less respect for states sovereignty should remind themselves that it is often hard to realize broader societal goals in a society without order and stability. At present, the state system remains alive and well and states seem destined to remain the principal international legal actors for the foreseeable future.

2. Sources of international law CENTRAL ISSUES - Discuss legal sources in international law  point of departure article 38 of the Statute of the International Court of Justice - Sources of international law: treaties, customary international law, general principles - It provides an overview of the secondary sources of international law as well as a description of unilateral statements 2.1 Introduction Sources of law determine rules of legal society and like national legal societies, the international legal society has its own set of rules. When we look for the content of international law, we consult the sources of international law. Sources of international law are the argumentative tool available to the international lawyer  there can be found the answers to the questions that cannot be found in national law. In international law the lack of a universal legislature and a system of courts with compulsory jurisdiction often makes the task of uncovering the law more difficult  since international law is a decentralized legal system, legal obligations may derive from more than one particular source. The modern theory of sources as reflected in article 38 of the ICJ Statue is based on positivist theory and whether expressed explicitly in a treaty of tacitly in an international custom accepted as law or in a general principle already recognized by stated, all international legal obligations are considered to be derive from the consent of the state. 2.2 Article 38 of the Statue of the International Court of Justice 1.

The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

b. c. d.

2.

international custom, as evidence of a general practice accepted as law; the general principles of law recognized by civilized nations; subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.

Article 38 distinguishes between primary and secondary source of law:  Primary: conventions (treaties) customary law and general principles  Secondary: judicial decisions and scholarly contributions First three sources are law creating because they create (new) rights and obligations whereas the latter two are law identifying since they merely apply or clarify the content of existing law. 2.3 Conventions (Treaties) as legal sources The adoption of a convention/treaty is the most direct way for states to create rights and obligations under international law and it’s the only instrument available to two or more state that want to enter into a formal legal relationship. Treaty  is an agreement between parties on the international scene Treaties come in many forms and the title of the instrument is immaterial Bilateral Treaties  concluded by two states Multilateral Treaties  larger groups of states Constituent Treaties  when they establish an international organization 2.4 Custom as a source of International law 2.4.1 Introduction  The way things have always been done becomes the way things must be done  is a controversial legal source  The absence of an international law-maker has made custom particularly important source of international law 1. 2.  

o o 2.4.2

International customary law arises when a particular way of behaving is: Followed as a general practice among states Accepted by those states as legally binding

Objective element = state practice Subjective element = the belief that practice is legally binding  One of the challenges is to identify the point in time when a behaviour ceases to be optional and becomes legally required Customary rule: Binds all the states (unless the state object) including those that haven’t taken part in the formation of the practice (es: newly emerged states) May develop regionally between a particular group of states

The objective element – state practice Before a specific pattern of state behaviour becomes legally binding it must be “the way things are done”  this requires consistent repletion of a particular behaviour.

o o o

State practice can be divided into  3 elements: Consistency It requires that practice be reasonably uniform Duration Practice generally evolves slowly and gradually over time, often through years of repeated behaviour. Generality As long as the conduct is generally consistent with the rule, inconsistent conduct is by and large treated as a breach of the rule rather than an indicator of the recognition of a new rule  so the conduct may suffice. Thus, minor departure from a collective uniformity may be acceptable While unanimity is not required, practice should include the majority of states

Persistent objector rule:

A state may avoid being bound by an emerging customary practice by persistently objecting to the practice. The rule only applies in relation to new and emerging customary rules. Once a rule has come into existence it can no longer be objected to. (New states are also bounded by existing customary law) The rule does not apply to peremptory norms/jus cogens 2.4.3

The subjective requirement – opinion juris State practice only creates a legally binding custom when it is accepted as law  the requirement of opinion juris sive ncessitatis The purpose of the subjective requirement is to differentiate between acts motivated by desire to honour a legal obligation a those that are not. The existence of sufficient general and representative state practice )object element) is usually sufficient to create a binding custom. Evidence of opinion juris is usually only looked for if there is reason to believe that a particular behaviour stems from non-legal motivations

o

Distinction between: Behaviour at time when a particular rule begins to be formed  where it cannot be a requirement that states believe their behaviour is permitted or required by law Behaviour at time when it has already been established  where such a belief is presumed to exist

o o

Subjective requirement is relevant Where circumstances indicate that a given practice stems from motivations that are unrelated to law When a state acts contrary to an existing customary law

o

2.4.4

The relationship between custom and treaty law When a treaty codifies customary international law, the parties to the treaty will be bound by the treaty as well as customary international law, while non-parties are only bound but the latter  All the states are under the same substantial obligation When a content of a treaty-based and custom-based obligation are identical  the two sources will complement and reinforce each other If the content of the two obligations are not exactly identical  a potentiaò conflict can often be avoided through interpretation. But if conflicting content cannot be reconciled, the question arises which of the twp sources prevails.  The treaty normally prevails over custom The situation is les clear when the customary norm has developed...