LCP4801
SUMMARY
,Ch 1 Nature and history of IL
IL = 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
th th
Era 17 and 18 C 19th, 20th C
National level Command theory
International level Consent as basis
Example Intnl human rights Nazi Germany
SUMMARY
,Ch 1 Nature and history of IL
IL = 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
th th
Era 17 and 18 C 19th, 20th C
National level Command theory
International level Consent as basis
Example Intnl human rights Nazi Germany
