International law: Rules and principles that govern the international relations between sovereign states and other institutional subjects of international law. * Created primarily by states.
* The fact that rules come into being in the manner accepted and recognized by states as authoritative, is enough to ensure that ‘law’ exists. * When a country breaches international law, the Security Council may take enforcement action, or it can result in the loss of corresponding legal rights and privileges. * However, international law lacks many of the formal institutions present in national legal systems. * The International Court of Justice is the judicial organ of the UN and the ICC deals with serious violations of international law of individuals. There are also a few ad hoc tribunals that are concerned with discrete issues of international law. * Another disadvantage is that the system of flexible and open-ended rules is a lack of certainty. Effectiveness:
- International law is needed in order to ensure a stable and orderly international society. - There is a psychological barrier against breaking international law, simply because it is law. - The practitioners of international law may have a ‘habit of obedience’ derived from their own training as national lawyers which serves to encourage respect for international law. Weaknesses:
- Lack of formal institutions present in national legal systems. - Customary law-making process may be too slow when new rules are needed quickly. - The system of flexible and open-ended rules is a lack of certainty. - International law often seems powerless to prevent major ruptures of the fabric of international society.
Juridical basis of international law:
* International law is based on the consensual theory. No international law can be created without the consent of the state which is to be bound. * However, there is also the theory that rules of law are derived from the dictates of nature as a matter of human reason = customary law. Week 2:
Sources: Art. 38 of the Statute of the International Court of Justice. No complete list. No indication of priority or hierarchy of the sources of international law. - Formal: A process by which a legal rule comes into existence, it’s law creating. - Material: Those sources of law concerned with the substance and content of legal obligations. They are law identifying and perform the vital function of enabling the ‘subjects of international law’, the legal entities to whom the law is addressed.
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. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. 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. 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.
A. Treaties: Only way states can create international law consciously. Material source of law. Principles: a) Treaties are voluntary in the sense that no state can be bound by a treaty without having given its consent to be bound by one of the methods recognized as effective in international law for this purpose (signature, ratification, accession). b) Once a state has signified its consent to a treaty, it is bound by its terms vis-à-vis all other parties to that treaty. c) When a treaty codifies existing customary law, the substance of the obligations specified in the treaty may be binding on all states. States that are not parties to the treaty are still bound by the same obligations...