International organisations
IOs limited to inter-governmental organisation (from perspective of States)
These have some of the attributes of States – reparations case made this clear.
ICJ in reparations case 1949 – Ios can have personality in IL different form of civic organisation, of
polity
Gives them rights against States – this presupposes it has independence and ITS OWN INTEREST,
distinct from that of the individual states that make up the organisation.
International secretariat – can claim immunity, can assert privileges as a result the IO does not pay
tax, cannot be subject to any legal process by its MSs this GIVES THEM INDEPENDENCE
Capacity to bring claims, entering into treaties (separate 1986 treaty)
Issue of Values
IOs exercise executive powers and sovereignty security council
EU – “snobby child”
Chapter 7 & 8 of UN – power to go to war/ order the use of force in order to achieve community
values
An inextricable part of powers of govt are the alues that are linked to the exercise of those powers.
Each society has developed its own limits on powers based on its values.
What values should constrain the SC in the exercise of its powers? – important q, millions of people
have died to try to constrain national power – why should it be any different for IOs?
SC has over time through the mechanism of art 39 determination threat to PEACE or act of
aggression. (labels, mean whatever you want them to mean) what types of things will justify a
community response? What are the values?
Initial value
- Clear invasion by 1 state into another’s – self defence idea
Chinks in the armour develop
- SC are faced with situations where its members threatened to do things against
- Changed Its values extreme violations of human rights
o End of the cold war – repeated
First Iraq war – collective security response
More interesting scenario – 1992, Somalia
o SC made a signif change – indep of action they had
▪ What was happening in Somalia constituted to threat to peace of Int
community
, ▪ HR violations – not government, “the magnitude of Human suffering
constitutes a threat to international peace and security”
● Imposed economic sanctions
● Ordered use of force (or authorize given the fact that no treaties had
been concluded bcos of the cold war)
- Development in the values that underlie powers
- A number of IOs – power to adopt binding codes on their MSs – not legislative as such
because it does not apply to everyone automatically (only to MSs)
- GA cannot make law – Nicaragua case
- Judicial powers:
- The international criminal court – huge degree of controversy
Delegare non – can’t give more than you have, have to impose the same restraints on ms that there
is on you.
Some courts will treat CIL as automatically part of English law
France and UK will not confer privileges to IOs that it is not a member of, US WILL HOWEVER
KADI – SC is breaching HR norms, powers that are conferred, no administrative framework.
- Abolition of the power of veto – priority to certain states bcos of what was done historically
is ridiculous, those 5 states have a priority – none of the states
- As soon as SC determination of breach of peace provision of immediate action
Express and implied powers of IOs objects and purposes of the organisation.
, Minimum content/natural law in International Law
ANDREAS PAULAS: “Whereas even the pluralist Western democracies share a minimum set of
common values, the “international community” is, in spite of an increasing number of treaties
regulating everything from the use of force to human rights and economic affairs, marked by deeply
entrenched moral, ethical, religious and economic divisions that render accommodation difficult, if
not at times, impossible”
● Argument against my “minimum content of international law” theory for ius cogens?
o No – his argument is against “common values”
▪ Indeed, we may agree with his argument (that uniformity is impossible in
some areas of IL)
▪ Or rather we may disagree: morality is not relative.
▪ We may point out his statement is wrong – he is talking not about the
“minimum” though he uses the word, but rather about the level of law
making just above that, e.g. one may argue western democracies have
“general principles of taxation” – taxing the rich more than the poor (vertical
equity) within their “minimum set of values” but this is not really what
“minimum content of law” refers to.
, The relationship between international law, European Union law and English law.
- determine in what way they have regard to one another,
o how the substantive law of each system is pleaded in the respective other systems
o how this law is applied,
which necessarily involves making a conclusion on the supremacy of the laws, and possibly the legal
systems, in question.
● 3/4 possible theories:
o the Monist
o the Dualist
o the theory of functionalism/constitutional or legal pluralism
o the half theory (as per Ziegler) of Fitzmaurice
● Monism
o Monist theories posit that all law is part of one legal system
▪ the laws govern the same subject and are incorporated without any need for
implementation by the national legislator.
▪ While Monist theories do not necessarily contain statements about the
hierarchy of the systems, the most prominent proposer of this theory, Hans
Kelsen has proposed the primacy of the IL though, as Ziegler points out, this
is not necessarily a facet of all monist theories.
● Dualism
o Dualism may be considered the contrasting theory to monism: such theories
perceive both IL and national law as different legal systems
▪ the subject-matter of each system is essentially different and each system is
essentially supreme in its own sphere.
▪ In dualist theories, international law is not automatically incorporated into
the state.
▪ Ironically, what is important to note in both theories, is that whatever theory
is operative for a state, the choice of that theory is determined by the
decision of the state, so one might say that even monism has a dualist
element in the very basic sense that the theory must be adopted by choice.
(Zielger’s thought)
● Bethlehem’s formulation of functionalism:
o he regards the EU as the “intruder” to the time-honoured debate over the
relationship between IL and national law, characterized by the Monist-dualist debate.
IOs limited to inter-governmental organisation (from perspective of States)
These have some of the attributes of States – reparations case made this clear.
ICJ in reparations case 1949 – Ios can have personality in IL different form of civic organisation, of
polity
Gives them rights against States – this presupposes it has independence and ITS OWN INTEREST,
distinct from that of the individual states that make up the organisation.
International secretariat – can claim immunity, can assert privileges as a result the IO does not pay
tax, cannot be subject to any legal process by its MSs this GIVES THEM INDEPENDENCE
Capacity to bring claims, entering into treaties (separate 1986 treaty)
Issue of Values
IOs exercise executive powers and sovereignty security council
EU – “snobby child”
Chapter 7 & 8 of UN – power to go to war/ order the use of force in order to achieve community
values
An inextricable part of powers of govt are the alues that are linked to the exercise of those powers.
Each society has developed its own limits on powers based on its values.
What values should constrain the SC in the exercise of its powers? – important q, millions of people
have died to try to constrain national power – why should it be any different for IOs?
SC has over time through the mechanism of art 39 determination threat to PEACE or act of
aggression. (labels, mean whatever you want them to mean) what types of things will justify a
community response? What are the values?
Initial value
- Clear invasion by 1 state into another’s – self defence idea
Chinks in the armour develop
- SC are faced with situations where its members threatened to do things against
- Changed Its values extreme violations of human rights
o End of the cold war – repeated
First Iraq war – collective security response
More interesting scenario – 1992, Somalia
o SC made a signif change – indep of action they had
▪ What was happening in Somalia constituted to threat to peace of Int
community
, ▪ HR violations – not government, “the magnitude of Human suffering
constitutes a threat to international peace and security”
● Imposed economic sanctions
● Ordered use of force (or authorize given the fact that no treaties had
been concluded bcos of the cold war)
- Development in the values that underlie powers
- A number of IOs – power to adopt binding codes on their MSs – not legislative as such
because it does not apply to everyone automatically (only to MSs)
- GA cannot make law – Nicaragua case
- Judicial powers:
- The international criminal court – huge degree of controversy
Delegare non – can’t give more than you have, have to impose the same restraints on ms that there
is on you.
Some courts will treat CIL as automatically part of English law
France and UK will not confer privileges to IOs that it is not a member of, US WILL HOWEVER
KADI – SC is breaching HR norms, powers that are conferred, no administrative framework.
- Abolition of the power of veto – priority to certain states bcos of what was done historically
is ridiculous, those 5 states have a priority – none of the states
- As soon as SC determination of breach of peace provision of immediate action
Express and implied powers of IOs objects and purposes of the organisation.
, Minimum content/natural law in International Law
ANDREAS PAULAS: “Whereas even the pluralist Western democracies share a minimum set of
common values, the “international community” is, in spite of an increasing number of treaties
regulating everything from the use of force to human rights and economic affairs, marked by deeply
entrenched moral, ethical, religious and economic divisions that render accommodation difficult, if
not at times, impossible”
● Argument against my “minimum content of international law” theory for ius cogens?
o No – his argument is against “common values”
▪ Indeed, we may agree with his argument (that uniformity is impossible in
some areas of IL)
▪ Or rather we may disagree: morality is not relative.
▪ We may point out his statement is wrong – he is talking not about the
“minimum” though he uses the word, but rather about the level of law
making just above that, e.g. one may argue western democracies have
“general principles of taxation” – taxing the rich more than the poor (vertical
equity) within their “minimum set of values” but this is not really what
“minimum content of law” refers to.
, The relationship between international law, European Union law and English law.
- determine in what way they have regard to one another,
o how the substantive law of each system is pleaded in the respective other systems
o how this law is applied,
which necessarily involves making a conclusion on the supremacy of the laws, and possibly the legal
systems, in question.
● 3/4 possible theories:
o the Monist
o the Dualist
o the theory of functionalism/constitutional or legal pluralism
o the half theory (as per Ziegler) of Fitzmaurice
● Monism
o Monist theories posit that all law is part of one legal system
▪ the laws govern the same subject and are incorporated without any need for
implementation by the national legislator.
▪ While Monist theories do not necessarily contain statements about the
hierarchy of the systems, the most prominent proposer of this theory, Hans
Kelsen has proposed the primacy of the IL though, as Ziegler points out, this
is not necessarily a facet of all monist theories.
● Dualism
o Dualism may be considered the contrasting theory to monism: such theories
perceive both IL and national law as different legal systems
▪ the subject-matter of each system is essentially different and each system is
essentially supreme in its own sphere.
▪ In dualist theories, international law is not automatically incorporated into
the state.
▪ Ironically, what is important to note in both theories, is that whatever theory
is operative for a state, the choice of that theory is determined by the
decision of the state, so one might say that even monism has a dualist
element in the very basic sense that the theory must be adopted by choice.
(Zielger’s thought)
● Bethlehem’s formulation of functionalism:
o he regards the EU as the “intruder” to the time-honoured debate over the
relationship between IL and national law, characterized by the Monist-dualist debate.
