Nature of the International Legal System
United Nations General Assembly
What is International Law?
International law encompasses the rules that governs the relationships between independent States, International Organisations, and even some types of Non-State Actors. The rules are created by the free will of States consenting to conventions or accepted practices with an objective of achieving common aims. e.g. environmental protection, or anti-piracy laws.
Who is Bound by International Law?
- There are also many others who are bound by it, but do not fall into one of the aforementioned groups.
Where Can It Be Found?
Article 38 of the ICJ states what sources of international law the ICJ can bring before it when deciding cases. They are as follows:
a. international conventions;
b. international custom;
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.
A more detailed analysis of these sources can be found here.
Is International Law Obeyed and Why?
Yes! International Law is almost always obeyed! As Henkin writes,
"[International law] is almost always obeyed, almost all of the time..."
Nations obey international law for three important reasons:
The doctrine of reciprocity states that any short-term gains made by violating international law will be met with long term pain in the form of isolation. See North Korea or Iran who now have to endure sanctions for their violations of international law.
- Public Opinion
States with governments who violate international law regularly experience harsh criticism from domestic critics in addition to the international critics. An example of this could be the Iraq War protests. (Depending on your view of the legality of the Iraq War.)
Generally taking the form of self-help.
Key Theories: Naturalists and Positivists
Naturalists believe that law exists to be found, not created. They argue that the basic principles of law are derived from justice or morality which have universal and eternal validity. Laws can be discovered through pure reason.
Originally, Naturalists considered law to be of a divine origin; this changed though when Grotius wrote that law would exist even without a God.
Finally, Naturalists believe that law is the automatic consequence of living in a society, and that these rules were necessary for the preservation of the society.
In contrast to Naturalists, Positivists focus on reality and practices. They sought to enact clear rules for States to follow, and were not concerned with morality, or what States should do respect to views of 'natural law.'
The Positivists showed a much less favourable attitude to 'soft laws' e.g. Resolutions from the U.N. General Assembly.
International and Municipal Law
There are ever fewer areas affected by international law; thus the law of nations can sometimes come into conflict. When a tension exists it is dealt with by the national constitution. The application of international law varies from state to state.
National law and international law are on different planes with appropriate bridges. The two types of law regulate different areas, they have different sources. Subjects of national law are required to obey it, whereas international law is horizontal and less strong.
Monism is a system where international and municipal law are both component parts. In international and municipal law it is the conduct of individual actors that is regulated. International law and municipal law are regarded as manifestations of the same concept of law.
National Law at the International Level
National law at the international level can act as practice of a State's adherence to an international custom.
If an international court needs to do so, it will learn and apply the law of a state as it would be applied there. (Brazilian Loans: PCIJ 1929)
Where there are no international law rules, the court may refer to municipal rules if appropriate. (Barcelona Traction: ICJ 1970)
A state may not invoke provisions of its municipal law as a justification for its failure to perform a treaty obligation. (art. 27, VCLT)
International Law at the National Level
There are two main ways in which international law is incorporated into national law.
1.Automatic standing incorporation.
The national law (perhaps constitution) says all officials must apply international law without the need for a national act (not non-self-executing treaties)
2. Legislative ad hoc incorporation.
International rules are only applicable when a specific law is passed: can be statutory (i.e. translated by the Parliament) or automatic (i.e. the rule is not reformatted—similar to 1)
(Some states that apply international law directly will still make it subject to their constitutions (For example, the USA, if a treaty is self-executing) Other states take a different approach depending upon whether they are dealing with customary international law or treaty law (for example, the UK)
Author's Note to self: SEE LAST 4 SLIDES OF LECTURE 6 FOR A DETAILED ANALYSIS OF HOW UK DEALS WITH INTERNATIONAL LAW
Traditionally, only states can have legal personhood in international law. Once personality is established though the legal person has the capacity to bring claims, to conclude treaties etc. Not all legal persona have the same capacities. For example, States possess the full complement of rights and duties, whereas other bodies may have less rights and duties available to them.
Also consider the difference between objective personality (personality in terms of all states) vs. limited personality (only those which consent).
Rights and Duties of States
States are historically the only actors, they have full complement of powers, full capacities, sovereignty, legal equality, duty of peaceful coexistence.
What Constitutes a State?
A state is constituted according to one of two main theories.
Constitutive is the act of recognition by other states to endow the legal personality. However, there is a complicated situation when some States recognise and others do not. An unrecognised state has no rights or duties in international law. This theory was at large in the 1800's.
Declaratory is the idea that the existence of a state is based purely upon fact. Recognition by other states has no legal effect, it merely represents an acknowledgement. A state comes about by its own efforts and does not have to await recognition to exist.
How is it decided in the world today then?
A mixture of the two theories. It is left to states to decide whether new entities satisfy statehood creiteria. Recognition of a state tends to mean the recognising state regards the entity as conforming to the basic Montevideo requirements. However, sometimes states will recognise a state for political reasons. Some states see recognition as a mark of approval (e.g. the US non-recognition of North Korea); others such as the UK tend to be more practical once it is satisfied that the authorities meet the objective tests. Elements of the constitutive theory still exist, e.g. if a new state is not recognised by the vast majority of states, it will be evidence of it not having met the criteria of statehood.
Montevideo Convention on the Rights and Duties of States 1933
- Permanent population
•No minimum is required.
•Nauru and the Vatican each only have about 10,000 citizens.
•A physical test (rather than a political one).
- Defined territory
•This criteria may be considered to have been satisfied even if there are disputes about the exact borders.
•There must be a stable community in the area.
•A physical test (rather than a political one).
•This is not important if the state already exists (e.g. Somalia did not cease to be a state).
•This has been linked to independence and some say sovereignty is an additional criteria.
•A political test (rather than a physical one).
- Capacity to enter into relations with other states
•Some don’t think this is necessary.
•Depends on the approach of other states.
•A political test (rather than a physical one).
May have a large impact on interpreting other factors or even be a factor in its own right (e.g. Zimbabwe)
Lack of Apartheid or racism or human Rights observance
Definition from the Arbitration Commission of Europe on Yugoslavia: “The state is commonly defined as a community which consists of a territory and a population subject to an organised political authority” and “such a state is characterised by sovereignty.”
Threefold Significance of Recognising a State
- It testifies to the will of the recognising state to initiate international interaction with the new state.
- Legally relevant as it shows that the recognising state considers that the new entity fulfils all the factual conditions necessary.
- Once granted, the recognising state cannot change its mind (estoppel).
Approaches to Recognition of Governments
- Legitimacy Doctrine
Governments coming into power unconstitutionally should not be recognised at least until the people recognise it.
- Estrada Doctrine
In order to avoid confusion as to whether recognition is based on the government’s effectiveness or legitimacy, recognise all; but this can be unrealistic if there are competing governments in a State.
- De-emphasis on recognition
To avoid the implication of approval by asking not whether it is legitimate but whether the state wants to enter into diplomatic relations with the regimes (the case in the US since 1977 and since 1980 in UK).
- Effective control doctrine
Here the sole question is whether the government has control and is likely to continue; it is not about legitimacy.
Can’t conduct external relations
2. Trusteeship territories
These arose at the end of W.W.I and were originally called mandates. Now the UN itself may play a role, e.g. East Timor.
3. States in a federation
Some say they can enter into treaties; others say no.