Presentation on theme: "Professor Katrin Nyman-Metcalf. The special characteristics of public international law (as compared with national law) include The absence of a centralised."— Presentation transcript:
The special characteristics of public international law (as compared with national law) include The absence of a centralised legislator The absence of a policing and (compulsory) judicatory mechanism The absence of a centralised legal system The importance of customary law The fact that the law is made and interpreted by the same subjects as those that have to follow it
Hall writes that public international law over the past 150 years has endured a crisis of identity, from having been seen almost synonymous to natural law (also because the positiv law was limited) to having to find a place in the positivist thinking and going back to finding answers in an enlightened naturalism THE PERSISTENT SPECTRE: NATURAL LAW, INTERNATIONAL ORDER AND THE LIMITS OF LEGAL POSITIVISM by S. Hall (EJIL 2001 Vol. 12, No. 2, 269-307)
There are thus two main modalities of law- creation in the international society. In the first, conventional, method [treaties], law is made in a conscious and wilful process akin to legislation, whereas in the second, customary, method [customary law], law grows through a process which weaves together acts of practice and belief. SELECTED PROBLEMS IN THE THEORY OF CUSTOMARY INTERNATIONAL LAW by R. Kolb (NILR, L: 119-150, 2003)
Questions posed by this: The law that grows, does it have to come from some common principles? In that case, do these need a natural law foundation? Or can they be created by states? What is the principal and philosophical difference between the different ways public international law is created (treaties and customary law)? Writers tend to answer according to their general positivist or natural law views.
With the growth of an international public order, i.e., a series of norms giving expression to fundamental values of the international community, there is a tendency to construct a sort of constitutional international law dealing with the protection of these interests in inter-state relations. Obviously, such essential norms must be placed on some higher footing than the ordinary norms of customary international law if their function is to be preserved. Thus, they are often put into a special category of norms, usually termed ius cogens, and assigned a higher level of normative hierarchy; they take precedence over ordinary norms of international law. At the same time, they are usually declared to be customary. Thus, ius cogens is construed to be a form of higher customary international law, where the element of necessity, or abstract opinio iuris, counts more than the actual practice. (Kolb op. cit.)
Hall (op. cit) finds that ius cogens is the main reason public international law cannot be seen in only a positivist manner: To an even greater degree than treaties, custom [especially ius cogens] provides serious conceptual resistance to positivisms attempted adoption of international law
Maybe some natural law is necessary for an international legal order, to create any kind of legal community (Hart) I consider the conscience of mankind or elementary considerations of humanity imperative for international law, irrespective of whether these phenomena are cast in the language of natural law or not. ( B. Simma, The Contribution of Alfred Verdross to the Theory of International Law, (1995) 6 EJIL 33) BUT Kelsen made his theories somehow fit international law, otherwise international law would not be law at all (See Kammerhofer)