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)

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

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”

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”

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 treatiesvery important instrument

– 2- need to have a kind of common belief that these norms are bindinggeneral perception and the reality

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

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 resolutionsBosnia, 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”

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 equalityUN Charter 2/1)

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 choosebut they do

observe violations are rare Most popular field “prohibition of use of force”

– Even USA does not argue otherwise Other rulesmost of them are observed for

stability/predictabilityExp: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”

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

Basis of sense of obligation in int law

1- Most of the rules are observedviolation occurs in vital interest areas (use of force + statehood + recognition)

2- Nature of rulesprovides observanceconsent-based therefore easier to comply with

3- Living alone is not possible interdependenceif they don’t observeshall be excluded from the club

Basis of sense of obligation in int law

4- Reciprocity: their diplomatsprotection and immunity of foreign diplomats (very rarely violated1979 Iran/2012 US Ambassador in Libya)

5- Despite lack of single –centralized executive body:– Self-defence– Retorsion– reprisal

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 crimespolice 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

ManchuriaManchukuo Statepuppet state of Japan (1931-1945)Stimson Doctrine

– Not to attach any legal effect to the consequences of that act

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

Natural Law School (Doctrine)

Rhythm of system of natureindependent from the will of statesthis makes rules of int law unavoidable

For some this rhythm is based on religious/metaphysic groundsVitoria, Suarez, Gentilis

For some this rhythm is based on logic/conscience/reasonGrotius, Puffendorf

Deficiencies and areas where this approach is used

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/independentthey can only be bound

by rules through their own consent– “Consensual Theory”– State limits its own unlimited powersat the end of this

processint law exists and become binding “voluntary self-restriction”

– G. Jellinek

Theory of auto-limitation:

Problems:– “states can only be bound by consent” is itself a

rulewhere 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

Positivist School

2- Theory of Vereinbarung:– A rule can only derive from a “higher

consent”combination of consents of all statescommon consent (vereinbarung)

– H. Triepel

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”

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 societythere is law there

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”

Conclusion

Recent theoriesKoskenniemi– Law and politics– Law and morality

Deficiencies exist for all theories Interrelated to theories of Int Relations as

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