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Ilaw
Traditional law consists of a set of compulsory and enforceable rules; reflects the will of a sovereign
power
No central authority in global politics that is capable of enforcing rules, legal or otherwise
Ilaw is obeyed and respected – provides an framework within which states and other international
actors interact
Ilaw rarely enforceable in a conventional sense, why do states comply?
Ilaw = determining relations between and among states to world / supranational law = which treats
individuals, groups and private organisations also as subjects of ilaw
Law
Made by government, applies throughout society
Reflects the will of the state +takes precedence over all other norms and social rules
Domestic law has universal jurisdiction within a particular political society
Law is compulsory, backed up by a system of coercion and punishment
Law requires a legal system, a set of norms and institutions through legal rules are created interpreted
and enforced
Law has a public quality in that it consists of codified, published and recognised rules
Usually enacted through a formal, public, legislative process
Punishments handed down for law breakings are predictable and can be anticipated
Laws usually recognised as binding embodies moral claims, implying the legal rules that should be
obeyed apart of being a set of enforceable commands
Law + Ilaw
International law operates in the absence of an international legislative body and a system of
enforcement
No supreme legislative authority to enact ialw + no world government or international police force to
compel states to uphold their legal obligations
UN – closest form
Endowed, in throy, with certain supranational powers + through ICJ, a principle judicial organ with
no enforcement powers
UN Security Council – ability to impose military and economic sanctions, possesses no
independent mechanism for ensuring compliances with its resolutions, (despite the fact that its
decidions are technically binding on all UN members
Ilaw = soft law > hard laws
International private laws are of a higher levels of compliance
Acknowledged by Grotius, the enforcement of international law was largely based on a sense of
solidarity, or potential solidarity among states
Notes
Highly accepted that both domestic and ilaw should conform to the higher moral principles set out in
the doctrine of human rights
Hugo Grrotius
On the Law of War and Peace 1625 – a secular basis for ilaw,
Ilaw is grounded not in thrology but in reason
Just war theory based on natural rights
4 causes of a just war
1/ self-defence 2/ to enforce rights 3/ to seek reparations for injury and 4/ to punish a
wrong-doer
UN Charter
Violate one of the usual characteristics of law
Law applies automatically and unconditionally to all members of a political community ;
Treaties, only apply to states that are party to the agreement in questions (despite, some traties like
NPT – so widely respected that they impose customary obligations even on states that have not signed
them
Legal obligations that arise from treaties are largely rooted in consent, in that states enter into treaties
freely and voluntarily – once treaties are signed and ratified, they must be obeyed as expressed in the
principle of pacta sunt servanda –
Rebus sic statibus ?
Contractual nature of treaties and conventions places them clearly within the tradition of positive law –
ilaw in these cases is a product for negotiations between soverign states, not the command of God or
the dictates of higher morality
Ilaw – assume the character of reciprocal accord
Internatinoal Customs
Customary international law derives from the actual practice of states, in that practices amonog states
that are common and well-established come, over time, to be viewed as legally binding
Customary obligations thus arise from the expectation that states should carry out their affairs
consistently with past accepted conduct
No explicit consent is required, but consent is infereed from the behaviour of states themselves
Often assumed to have universal jurisdiction, esp when it is grounded in deeply held norms and moral
pricniples – closely related to the natural law principles
Diplomacy – carried out over time as rules of conduct shaped by the mutual convenience of the states
concerned – like the practice o fgranting diplomatic immunity to foreign diplomats
Weakness:
Based on practice rather than formal, written agreements difficult to define
Difficult to decide when and how common practices have acquired the force of law
Growing tendency to translate customs into treaties: Vienna Conventions on Diplomatic and
Consular Relations –
Customary law reflecting deeply-hel moral understandings, may appear to be more epowerful than
treaty-based laws
State relate to one another legally in a purely horizontal sense, recognizing the principle of sovereign
equality
No world government, international community or public interests that can impose its higher authority
on the state-system, but legal obligations, determined by treaties and conventions, are entirely an
expression of the will of states
Sovereignty Equality
Principle – regardless of other differences, states are equal in the rights, entitlements and protections
they enjoy under international law
Self-determination
State should be a self-governing entity, enjoying sovereign independence and autonomy within the
international system
Realist
Skeptical about ilaw and its value
Sharp distinction between domestic law and ilaw
Absence of a central political authority in the international realm ilaw = nothing more than a
collection of moral principles + ideals
Hobbes: “where there’s no common power, there is no law”
Morgenthau: ilaw amounted to a form of primitive law, similar to the behavioural codes established in
pre-modern societies
Ultra-realists – dismiss ilaw altogether
Most realists accept that ilaw plays a key role, although limited in the international system
Ilaw is limited by the fact that states, powerful states are the primary actors on the world state ilaw
largely reflects, and is circumscribed by, state interests
The proper, and only legitimate purpose of ilaw is to uphold the principle of state sovereignty
Realists – deeply suspicious of the trend towards supranational or world law that ilaw becomes
entangled with the idea of global justice and is used to protect individual rights rather than state rights
Liberals
Positive assessment of the role and importance of ilaw
Belief: human beings are imbued with rights and guided by reason
Internaiotnal sphere = a moral sphere – core ethical principles should be codified within a framework of
ilaw
Idealist: int’l politics, are like domestic politics, the only solution to the disorder and chaos of anarchy is
the establishment of a supreme legal authority, creating an international rule of law = Doctrine of peace
through law
Establishment of League of Nations and the 1928 in Kellogg-Briand Pact – in effect banned war
Neo-liberals – abandoned such idealism continue to believe the important and constructive role in
World Affairs
Regimes of international law reflect the common intersts and common rationality that bind statemen
together
Translating agreements among states into authoritative principles and by strengthing levels of trust and
mutual confidence, international law deepens interdependence and promotes cooperation
Belief in the idea that there is a tendency for interdependence to be consolidated through formal
rules of international behaviour is reflected in the functionalist theory of intergration
Critical Views
1/ Social Constructivism, 2/ Critical Legal Studies 3/ Post-conlonialism
1/ Social construtivism
No developed or coherent constructivist accounts of the nature of ilaw
Asserts that political practice is crucially shaped by norms and perceptions – emphasizes the
extent to which norms embodied in ilaw structure the identities of states as well as the interests
they pursue
Explain why and how state behaviour changes over time, once accepted practices such as slavery,
the use of foreign mercenaries and the ill-treatment of prisoners of war become less common
2/ Critical Legal studies
Highlight the inherently indeterminate nature of ilaw, based on the fact that legal language is
capable of multiple and competing meanings
Feminsits --- suggest that ilaw embodies patriarchal biases, becuuasee the legal person is
constructed on the basis of masculine norms, ilaw perpetuates the image of women as victims
3/ Postcolonialists
Ilaw as an expression in various ways, of western global dominance
Ilaw developed out of Christian and Eurocentric thinking about the nature of legal + political
order – tainted by the inheritance of colonialism and possibly rcisim
Operates through instittunios, such as the ICJ
Wedded to the interests of the industrialised West
CH1
Int’l law – derided or disregarded by many of the world’s foremost jurists and legal commentators
Questions:
1/ the existence of any set of rules governing inter-state relations
2/its entitlement to be called “law”
3/ its effectiveness in controlling states in real life situations
Successes and failures for the int’l legal system in history
Invasion of Kuwait by Iraq un 1990 –
Establishment of the international criminal court responsible for prosecuting individuals for
violation of fundamental international human rights and the powerful judgment given by the
internaintaol court of justice in its advisory opinion on the legal consequences of the construction
of a wall in the occupied Palestinian territory
Like all other legal systems, the international legal system is one of success and of failure – but in the
same way we will not call the law of the UK not law beause it is currently proving impossible to control
certain crime, we shall not disregard ilaw as a system of law just because it has its failures
Q: Does international law exist at all as a system of law?
Is the nature of ilaw unproductive?
Compare ilaw with national legal systems like that of the UK
How ilaw sometimes may fall short of the standards of the definitive models of what the law and a legal
system shall be like in a national scale, is not sufficient to disregard ilaw as true legal system
But the rationale of ilaw is different from national law
National law is concerned primarily with the legal rights and duties of legal persons – individuals
within a body politic- the state or similar entity –
This law is derived from a legal superior, recognised as competent by the society like, in a
constitution who has the power and authority to make and enforce that law
International law: as originally conceived, is concerned with the rights and dutires of the states
themselves, in their relations with each other it is nether likely nor desirable that such a
relationship of legal superiorty exists
States are legal equals and the legal system which regulates their actions inter se must reflect this
As ilaw developes and matures it may come to envompass the legal relations off non-state
entities such as peoples, individuals or companies
The re-casting of international law as a system based less on state sovereignty and more on
individual liberty is an aim of many contemporary international lawyers and there is no doubt
that in recent years very great strides have bbeen made in tis direction.
The existence of the iCJ refereed to above is perhaps the most powerful evidence of the success
of this trend
Very heart of the ilaw system lies a set of rules designed to regulate states conduct with each other, and it
is this central fact that makes precise analogies with national law at present misleading and inappropriate
IN legal terms, original and naturalized Palestinian citizens were equal nationals regardless of their religion,
in reality, however, these citizens were divided into two Palestinian eople, Arab and Jewish
Ottoman subjects who became Palestinian citizens through the natural change of nationality on 1 August
1925
Ch5
Membership of UN depends on political considerations as well as legal facts
Admission to UN is not a sign of achieved statehood in international law
UN membership entails a presumption of statehood
Non-membership of UN does not constitute a denial of statehood (many reasons why a state chooses
or is forced to stay outside the UN system)
Criteria – Art. ! of the Montevideo Convention on Rights and Duties of States 1933
1/ Permanent population
There must be some population linked to a specific piece of territory on a more or less permanent basis
– who can be regarded as the inhabitants
2/ Defined Territory
Some definite physical existence that marks it out clearly from its neighbours
No need complete certainty over the extent of territory
3. Effective Government
4/ Legal Indepedence
=/= factual autonomy
A state is a state if the territory is not under the lawful soverign authority of another satte
5/ Manner of Attainment of Capacity to enter into legal relations
Whether factual ‘independence’ will give rise to a presumption of legal independence / capacity
– or whether any illegality in the attainment of factual independence necessarily prevents such
legal capacity arising?
If the terriroy declaring factual independence is able to claim the right of self-determination, then
ti seems that ithis is sufficient to attain legal independence and statehood
A formal colonial territory has the right to achive independence by virtue of this principle
and it does not matter whether he declaration is doen voluntarily with the assent of the
former colonial power or against its wishes
https://vtechworks.lib.vt.edu/bitstream/handle/10919/64512/Panganiban_SK_T_2016.pdf;sequence=1
Palestine – large network of Embassies, missions _+ general delgations throughout the world
Palestine Embassy in – Ireland, Russia, Sweden, Poland, Czech
Missions in France, UK, Germany, Greece + Italy
General Delegation in Beligum, Denmark, Finland, Nethegrlands
A lot of members of EU – “working with the PAlestinain authority to build up the institutions for
future democratic independent and viable Palestine state -
US – threatens its veto powers on any attempt of a bid for full membership of Palestinian State until a
deal can be made between Palestine and Israel
Fact Sheet
Declaratory Theory
General legal effects of recognition are limited
Recognition by a state = nothing more than an acknoeledgement of pre-existing legal capacity not
decisive of te new entity’s claim to statement
Whether a state is recognised by other states, still entitled to the rights and subjects of the general
duties of the system