Nature of International Law PDF

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Notes: Nature of international law: Tips for the exam:    

The students who do well are the ones who are engrossed in real life affairs and engage with it. Engage with the international law community - see who has attended guest lectures and see their work. When talking about sources, you should first mention Article 38.1 (this is where all sources stem from) You should acquire a good grasp of positivism, the natural law tradition (which claims the law is fundamentally connected to morality) and the Kantian theory (which adopts a purposive view of international law based upon human reason).

International law = sets out the rules that govern the relations between the members of international society, including sovereign States, international organisations and individuals (Bunlekas, 2015) Higgins (1995) - "When we ask 'what is international law?', we are in fact asking several questions: What is its nature? Is it a body of rules? To whom does it apply? Who 'regulates' the application of international law? Why should anyone comply with it? Where is international law to be found?"

Subjects of IL : The legal system applies to primarily States (Cassese, 2004) - the term 'inter' (between) as opposed to 'intra' (within) exemplifies international law is defined as law between nations. However, non-State organ's actions can be attributed to the state under ARSIWA (2001) + the ICJ in Reparations of Injuries Advisory Opinion (1949) confirms that entities such as non-governmental organisations, individuals and transnational corporations can also be subjects. Principal subjects = nation states, not individual citizens (Walter, 2004) Before the founding of the United Nations in 1945, international law was largely concerned with the rights and obligations of States. However, other subjects are gaining importance. International organizations have assumed increasing prominence in the last half of this century (Charney, 1993)

Private v public international law: Private international law is less relevant to the module - this covers controversies between private persons arising out of situations having significant relationship to more than one nation. Public international law is relevant - concerns itself only with questions of rights between several nations or nations and the citizens or subjects of other nations i.e. covers relations between states. However, issues of private and public IL have become increasingly blurred - issues in the former may implicate the latter, and many matters of private IL have substantial significance for the international community of nations.

International law v Changing environment:  

International law is a product of its environment = must be in harmony with the realities of the age. How does IL incorporate new standards of behaviour into its framework, as much of these standards can be momentous?

Fundamental principles of international law:  Sovereign authority: all States possess supreme legal authority within their own territory (Article 2(4) of the UN Charter); and  Sovereign equality: all States have equal status within the international legal system. (Article 2(1) of the UN Charter)

Role of international law: Provides some kind of regulatory framework/rules network: which world affairs can occur and imports an element of stability and predictability. Provides a set of common rules: where there is a dispute/disagreement, there is a common frame of reference for both States. Creates harmony: international law aims for harmony and the regulation of disputes, whereas politics stresses competition, conflict and supremacy = international law acts as a shock-absorber clarifying and moderating claims and endeavouring to balance interests.

(Article 1 of the UN Charter) This is especially true in a globalised society: international crises, such as the Syria crisis seems to be an internal issue, but in really international law has a lot to say about it – no longer a domestic issue, rather it is about violations of human rights and global consciousness. It affects all States due to the nature of the violation. Safeguards peace: international law has a general function to safeguard international peace, security and justice in relations between States (Tomuschat, 1999) Increasing importance of international law: has become a bigger area of law are there are more issues to capture within international affairs. We are not looking to protect women, children, climate change, issues of cyberspace, etc. (Urquart and Childers, 1996) States are increasingly interdependent and interconnected (Charney, 1993) Nations alone are incompetent: Douglas Hurd (former British foreign secretary) argued citizens have needs that States alone cannot provide for (e..g. security, prosperity, etc) = States have to cooperate to meet objectives that requires input from multiple States.

Argument against international law promoting peace: while international law legalises and regulates war and the use of force, and indeed gives to these elements an essential position in the system as a whole, it professes to be an instrument devoted to promoting a peaceful and regular intercourse between States, and to aiming at the elimination of war and force as legitimate operations. (Fitzmaurice, 1956). Brierly: ‘To hold at one and the same time that States are bound to respect each other’s independence and rights, and yet are free to attack each other at will, is a logical impossibility.’

Domestic v International Law: No legislature, executive or judiciary: Key difference between international law and domestic law is: Domestic systems have principal characteristics:  The existence of a recognised body to legislate or create laws;  The hierarchy of courts with compulsory jurisdiction to settle disputes over laws;  An accepted system of enforcing those laws. However, international law:  Has no legislature e.g. General Assembly of UN's resolutions not legally binding;  No system of courts e.g. ICJ cannot ensure its decisions are complied with/needs mutual agreement;  No executive or governing entity e.g. UN Security Council is constrained by vetoing.

No hierarchy: Most legal systems are hierarchal and authority is vertical - the international system is horizontal, consisting of over 190 States, all equal in legal theory and recognising no one in authority over them: Brownlie (1990): the sovereignty and equality of states represent the basic constitutional doctrine of international law, which governs a community consisting primarily of states having a uniform legal personality. In domestic systems, individuals obey the law (or not) and specific institutions create the law - in international law, the States themselves create the law and obey/disobey it.

Law creation: The international legal system does not have a legislature which has the authority to create and alter international law. Instead, international law is made through decentralised law-making processes (principally via treaties and the development of customary international law).

Law determination: Law determination refers to the identification of the applicable law in the context

of a particular issue or dispute. Compared to a national legal system, in which the law can be determined by consulting a particular form of the relevant sources of law, the international system is more difficulty: the absence of a central legislature means that we first have to establish whether international law actually exists on a given issue. This difficulty is compounded by the international legal system’s relatively underdeveloped court system. The absence of an international court, which possesses compulsory jurisdiction to decide international legal disputes, coupled with a lack of other international tribunals, has arguably hindered the development of international law. However, since the end of the Cold War (1989), the number of judicial and quasi-judicial bodies with the jurisdiction to resolve disputes between States, between States and individuals and to apply international law against individuals has grown immensely. The increasing ‘judicialisation’ of international law has meant that international legal rules and principles are being determined authoritatively and with greater frequency. Law enforcement: States cannot be compelled to submit their legal disputes to international courts. Moreover, until the UN era, no international body had a monopoly on the use of coercion which would be used to enforce international law. The absence of established mechanisms for the enforcement of international law seems to cast doubt on whether international law is really law at all.

Obeying international law - consent-based governance:

When questioned about whether international law is really law, you can argue that the concept of law cannot be reduced to questions of enforcement (and you should discuss Hart’s work in this respect). Further, as Oppenheim suggest, international law exists because: States have accepted it as binding upon them; and it is capable of being enforced by ‘external power’ e.g. UN SC and by international courts.

Though States can pick and choose which laws to obey, states do generally observe international law and violations are comparatively rare (where they do occur, it points out the weaknesses of the system without denigrating their validity or their necessity). Henkin (1979) comments that nations observe almost all principles and obligations of international law, almost all of the time. Although States need to give their consent before they come before the ICJ, they usually do e.g. powerful States like US have come before it. Can give the persistent objector rule as an important example of the role of States consent in the creation and operation of international law. Can also consider the limits of the consent model of international law – is International law created by establishing that particular States have consented to a CIL rule or is it created by the presence of consensus on the part of States in general? (See Akehurst on this) Benefits of obeying:  Element of reprocity: violations (for short-term gains) may disrupt mesh of reciprocal tolerance.  Element of advantages/rewards: encourages friendly/neutral states to side with the benefiting country in times of conflict, or even take an active role = appeal to public opinion for support.  States reap immeasurable economic and security benefits from the relatively peaceful borders, global trade, and open air and sea navigation that the international legal regime provides.  Avoiding shaming: or else the State would be publically shamed in front of the international community.

Reprocity: Morgenthau (1985): A nation will hesitate to infringe upon the rights of foreign diplomats residing in its capital; for it has an interest, identical with the interests of all other nations, in the universal observance of the rules of international law which extend their protection to its own diplomatic representatives in foreign capitals as well as to the

foreign diplomats in its own capital. Austin (1790-1859) The question ‘is international law, law?’ has largely come about by John Austin. Austin argued that international law is not law because: he defined ‘law’ as a body of general commands made by a sovereign authority. These commands were backed up by a threat of sanction (enforcement). For Austin, a sovereign authority exists when:  It is habitually obeyed by the bulk of the population of the society in question; and  It is not in the habit of obeying any other sovereign. Austin concluded that international law could not amount to a form of law because no overarching sovereign authority exists in the international society of States. Hart (1907-1992) He believes the members of any society obey legal rules because they have learned to observe them through various social processes as a matter of habit. For him, law’s binding quality was not derived from its capacity for enforcement. Hart claimed that all legal systems are constituted by a body of primary and secondary rules. Primary rules establish legal standards of behaviour within a society. Secondary rules are needed to provide the foundations of a legal system. They identify the methods by which primary rules can be introduced, changed and enforced. Hart argued that international legal systems does not have secondary rules because it does not have: a central legislature; a court endowed with compulsory jurisdiction; or a fundamental secondary rule that provides for the identification of all international legal rules (a rule of recognition). While Hart believed that international law does exist, he thought that it was a basic form of law rather than a developed legal system (like modern national legal systems). Critique of international law’s enforcement by Hart (1994): argued that international law lacks two features that he deemed central to the very concept of law: first, the secondary rules of change and adjudication which provide for legislature and courts; and second, a unifying rule of recognition, specifying sources of law and providing general criteria for the identification of its rules – until actors within the international system internalize both a rule of recognition and secondary rules for orderly change and interpretation, international law will consist only of a set of primary rules with which nations will comply out of a sense of moral, not legal, obligation = Hard argued that international law may be conformed/complied with, but never ‘obeyed’, in the sense of internally accepting or incorporating those rules into national law.

Other academics: Kelsen (1952) points out in a decentralised society (like the international society), enforcement of the law is accomplished through the application of the principle of selfhelp. Henkin (1968) defended international law based on utilitarian, rationalistic premises – nations act deliberately and rationally, after mustering carefully and weighing precisely all the relevant facts and factors + nations will observe international obligations unless violation promises an important balance of advantage over cost. Franck answered the question as to why powerful states obey powerless rules by arguing they perceive the rules to have a high degree of legitimacy i.e. believe that the rule/institutional has come into being and operates in accordance with generally accepted principles of right process. Franck also argues that nations comply due to an impulse deriving not from a multitude of cost-benefit calculations regarding particular rules, but as more broadly rooted in the solidaristic “communitarian peer pressure” that nations feel as members of a club. Both Franck and the Chayeses argue that if our goal is better enforcement of global rules, they reason, voluntary obedience, not coerced compliance, must be the preferred enforcement mechanism. Fitzmaurice (1956) argues that law is not binding because it is enforced, rather it is enforced because it is already binding – the prospect of enforcement is in fact little more than a facto or motive inclining people to obey rules that they are in any case under an obligation to obey: but it is not itself the source of the obligation.

Oppenheim (1992) expresses the view that international law is a system that is both intended by States to be enforceable, and is actually enforceable, if necessary by a process of self-help on the part of States. They claim that international law is a form of law because it is accepted by the members of the international community (States) and because it is enforced by ‘external power’ (e.g. by the UN Security Council in certain situations). Can argue that up to a comparatively recent date, war and the use of force generally, did

constitute in some sense a recognised method of enforcing international law; or more accurately, a means whereby in the last resort a dispute between States as to their rights could be settled. (Fitzmaurice, 1956). The position now is that international law is less enforceable today than it ever has been in the whole of its history, for nothing definite or certain has been put in the place of force as a means of settlement. (Fitzmaurice, 1956) Fitzmaurice (1956): in national society the individual normally has no difficulty in accounting for this feeling that the law is binding on him, because it has been enacted by the proper authority; whereas it is less easy/difficult in the international field to say precisely what it is, in the ultimate and juridical sense, that makes international law a binding system that States have a duty to conform to, and which, moreover, makes that duty a legal and not merely a moral or social duty. Critique of arguing consent is the factor that makes IL binding: Verdoss, Brierly and others have shown that consent is a method of creating rules, but it is not, in the last resort, the element that makes the rules binding, when created – in short, consent could not, in itself, create obligations unless there were already in existence a rule of law according to which consent had just that effect. Charney (1993) argues that unless all States are bound, an exempted recalcitrant State could act as a spoiler for the entire international community. Charney (1993): fear of sanctions, the desire to be viewed by others as la8w-abiding, and domestic institutional inclinations to conform to rules denominated as law further impel states to comply with international law.

Role of international organisations in enforcing IL: Fitzmaurice (1956) argues that the Security Council is there primarily to maintain and enforce the peace, rather than to maintain and enforce the law. Also argues that the powers of the General Assembly are virtually non-existent on the voluntary co-operation of States, and can hardly be said to extend beyond the exercise of moral or political persuasion and pressure. = neither of the political organs of the UN can, in any but the most qualified sense, be regarded as an instrument for the enforcement of the legal rights of States, or the redress of legal wrongs generally. However, although the UN SC is primarily a political body, it can enforce international legal rights and obligations by a variety of means, including via the use

of force if international peace and security is being jeopardised (Chapter VII, UN Charter). Harris (2015): International organisations - as well as assisting in the development of international law through their participation in international meetings and conferences at which issues are discussed and treaties drafted, NGOs play a role in making information available to the many committees or commissions that enforce treaty obligations and in generally bringing pressure to bear upon states to comply with international law.

Fitzmaurice (1956): the International Court of Justice can play a decisive part in the enforcement of international law – but the Court can only function with the consent of the parties to any particular dispute = there is no guarantee that the decisions of the ICJ will be carried out in fact, and there is no machinery for enforcing them if they are not. HOWEVER, in reality, the authority of the decision of the ICJ is very great, and in practice it is extremely difficult for the parties not to accept, or to refuse to act in accordance with such a decision. = the process of adjudication or arbitration by international courts and tribunals, in particular the ICJ, offers a real way by which international law, and international rights and obligations generally, can find enforcement. (Lauterpacht)

However, the UN GA, the UN SC and the ICJ do not establish an order similar to a constitutional one, since the GA does not adopt binding rules and recourse to the ICJ is contigent upon the consent of the parties to a dispute.

Role of politics in international law: A distinction is made in domestic societies between the formulation of policy (e.g. by the executive) and the method of enforcement. Within international law however, the States are the arbiters of the world ...