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Ch 1 Nature and history of ILIL = body of rules and principles binding upon states in their relations with one another.
General rules= eg high seas open to all nations
Particular rule= treaty between two or few states only.
International orgs have legal personality since 1949, assassination of Count Bernadotte of Sweden in Israel in service of
UN
Individuals protected by IL, but not full subjects
Multinational corps not IL subjects
Only states and intergovernmental organizations true international personality, creators of rules of IL
Differences between IL and ML
Does IL have a law-making body, an executive power and judicial system?
1. Legislature : no central legislative body.
: GA of UN adopt resolutions not binding on member states
: SC of UN can make binding resolutions (article 25), limited situations subject to veto power of perm
members- China, France, UK, Russia, USA
: rules made by consent in form of treaty or custom
: horizontal system, lawmaker=subject
2. Executive authority : no central executive authority
: UN may raise force to police situations eg UNTAG and UNPROFOR
(Yugoslavia)
: UN may authorize member states to take action on its behalf
: UN charter (art2(4)) prohibits force, except self-defence or if authorized by
UN
3. International courts : eg IC of J at the Hague, Eur C of Human Rights
: Courts only have jurisdiction if subject states consented, few do
: IC of J not suitable for resolving serious political disputes between states
: IC of J gives advisory opinions on matters of concern to UN- Carries weight as statements of
law. Still not binding
: punishment of state leaders for crimes against the international order first Nuremberg and
Tokyo tribunals after ww2, other tribunals failed until 1993/94 tribunals- international criminal tribunal Rwanda,
Yugoslavia, since 2002 permanent International Criminal Court
The problem of sanctions
Enforcement of IL- number of sanctions for breach of a rule
- Ch VII of UN Charter empowers SC to direct members to use force if threat to peace (Iraq/Kuwait)
- Peacekeeping forces- sometimes military means
- Economic sanctions- SA, Haiti, Yogoslavia, Iraq
- Arms embargo- Libya
- Exclusion from membership in international orgs such as ILO, WHO- SA
- Non-recognition of territorial adjustment- Turkey, Israel
- Punishment of individuals
Not as comprehensive, regular and consistent as domestic law.
Is IL really law?
,Pollock- a legal system requires the existence of a political community, and the recognition by its members of settled
rules binding on them.
IL has political community (190+ member states), body of rules and principles, international community recognize rules
and consider them binding
International and municipal courts recognize the binding quality of IL, as well as statesmen and diplomats
States comply with IL why- selfish/ altruistic interest in maintenance of peace and order, acceptance of legitimacy of
rules of IL, reputation at home and abroad, anticipated reciprocal treatment, need for co-existence, fear of economic,
political, cultural and sports isolation.
- Naturalist and positivist debate
History of IL
- Less than 500 yrs old
- Roman and medieval times: ius gentium, precepts of natural law in canon law under philosopher theologians as
St Thomas Aquinas
- Early writers on IL: Spain (Vittorio, Suarez) Italy (Gentilis)
- 17th and early 18th century- Netherlands, father of IL, Grotius: De Jure Belli ac Pacis
- DJBP separated theology and natural law, tried to construct just intnl legal order principal aim restraint of war
- Cornelius van Bynkershoek : positivist, consent rather than principles of natural law basis of intnl legal obligation
- Same classical period: Zouche, Pufendorf, Vattel
-
Naturalist Positivist
Era 17th and 18th C 19th, 20th C
National level Command theory
International level Consent as basis
Example Intnl human rights Nazi Germany
, Chapter 3 Sources of IL
Article 38(1) of Statute of ICJ- 1. international conventions (treaties), general/particular: primary source
2. International custom: secondary source
3. General principles of law
4. Judicial decisions and teachings of most highly qualified publicists, as subsidiary means for determination of
rules of law
Primary and secondary sources emphasizes consensual basis
Today jus cogens/ peremptory norms enloy higher status in normative hierarchy
1.Treaties or conventions
- treaty = written agreement between states or between states and IO’s, operating within the field of international law.
-treaties governed by Vienna Convention on Law of Treaties 1969 and VC on L of T between States and IO’s and between
IO’s 1986.
- bilateral/ multilateral
- categories contractual: States contract to establish particular legal relationship eg extradition
legislative : lawmaking treaties codify existing rules of customary IL or make new law, still not binding on
non-signatory states,(pacta tertiis nec nocent nec prosunt)
: may be proof of custom and as such basis for legal obligation on non-binding states
Constitutional : eg The Charter of the UN, a multilateral treaty creating a IO.
2. Custom
- requirements for existence of customary rule Settled practice (usus)
Opinio juris (sense of obligation)
Resolutions of the political organs of the UN
Soft law
Settled practice (usus)- evidence of state practice in treaties, court decisions national and international, policy
statements by govt officers, national legislation, diplomatic correspondence, opinions of national law advisors, reports of
ILC and comments of states on these reports, resolutions of political organs of UN.
- consent of states to customary rule inferred by conduct, silent acquiescence in a rule or failure to protest against a
rule in formative stages- Q of proof
- ICJ: constant and uniform usage- Asylum case
- S v Petane : ? prisoner of war status to national liberation movement members: no customary rule had come
into existence, as rule not endorsed by states in their practice, and SA persistently refused to accept
prescriptions or sign protocol. Practice, not preaching establishes custom.
- Some cases little practice needed to establish custom- 1963 resolution declaring legal principles governing
activities in outer space
- Nkondo v Minister of Police: only on 4 occasions passengers allowed to cross SA territory without complying
with immigration formalities after plane forced to land due to bad weather, not enough evidence of custom.
- Nduli v Minister of Justice- universal acceptance before qualify as custom: Inter-science research and Petane:
general or widespread acceptance suffices
- Persistent objector to particular practice while in development, not bound by customary rule
Opinio juris (sense of obligation)
- Accepted by states as law
- North Sea Continental Shelf Cases: both usus and opinion juris required to establish customary rule.
- Proof difficult
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