1. What is International Law?

2. What is international law? “It is the law of international community” Definition of int. Community – States – Int. Organizations – Individuals (limited extent) Int. Law: “a system consist of some rules and regulations  regulating activities and reflecting ideas and values of states + int. org + to some extent individuals

3. What is international law? Can be divided into two categories: – 1- Private int. law: “conflict of laws”  “private disputes having int character”  deals with applicable law and competent court. – 2- Public int law: “int law” + “law of nations” + “Droit international” + “droit des gens” + “Völkerrecht” + “uluslararası hukuk” + “milletlerarası hukuk” + “devletler hukuku” + “devletler umumi hukuku”

4. Int Law as a “Legal Order” A Legal Order contains two elements: – A- “To have corpus of norms that should be observed/obeyed by the actors of that order” – B- “To have a socially organized body that would control these rules to be observed by sanctions”

5. Int Law as a “Legal Order” Corpus of Norms: – 1- need to have an organ that is entitled to create these norms Lack of single legislative body eligible to create legal norms – UN General Assembly + Security Council (int peace and security only) – Although no single authority  can still comply with first condition – İnt treaties  very important instrument – 2- need to have a kind of common belief that these norms are binding  general perception and the reality

6. Int Law as a “Legal Order” – 2- To have socially organized body to control by sanctions: Lack of (single centralized) compulsory judicial system – To determine “violation” of int law – To decide on the punishment – Position of Int Court of Justice (ICJ)  Art 36 of its Statute – Requires consents of conflicting parties – Increasing trend to bring these disputes before these type of organs (ECtHR + ICC + ECJ) Lack of single-centralized executive body to enforce punishment

7. Int Law as a “Legal Order” Lack of single executive body to enforce punishment Like police forces  Art 43 of the Charter  Security Council  UN army Some measures unilaterally  Reprisal (treaty provisions) + retorsion (visa conditions) + self-defence Some collective enforcement measures (economic and military)  sanctions containing “use of force” by security council resolutions  Bosnia, Iran, N.Korea Instruments of domestic law used by int law (int criminal law) “int law can be considered as a legal order but it has some deficiencies  because it is a law of “international community” where the level of solidarity is very low”

8. Int Law as a “Legal Order” In most of the primitive societies  legal “structure is hierarchical” and “authority is vertical” – Exp: structure of a ministry But in int law  structure and authority is “horizontal” – There are 193 (South Sudan latest) member states to the UN (2012, the UNGA recognised Palestine as a "non- member observer state) – They are “equal” at least in theory (sovereign equality  UN Charter 2/1)

9. Int Law as a “Legal Order” A Comparison between int law and domestic (internal) law: – Different levels of solidarity for societies – States + int org.  they create law and they obey or disobey it – Possible contradiction  they may pick and choose  but they do observe  violations are rare Most popular field  “prohibition of use of force” – Even USA does not argue otherwise Other rules  most of them are observed for stability/predictability  Exp:Dip. relations In domestic law  thousands of incidens of murder + robbery + rape  they occur without distroying the “existence of the system” Therefore  such acts should be deemed as “violation/breach” not as “evidence of non-existence”

10. What is not int Law? States observe some rules other than int law Rules of int law must be distinguished from (non-binding rules): – International morality  They are taken into consideration due to “humanitarian reasons” or “beliefs”  exp: helping a state affected by natural disaster + accepting refugees from dictatorial regime – International Comity (comitas gentium)  they are taken into consideration due to “courtesy”  exp: saluting foreign war ships + messages for national anniversaries

11. Basis of sense of obligation in int law 1- Most of the rules are observed  violation occurs in vital interest areas (use of force + statehood + recognition) 2- Nature of rules  provides observance  consent-based therefore easier to comply with 3- Living alone is not possible  interdependence  if they don’t observe  shall be excluded from the club

12. Basis of sense of obligation in int law 4- Reciprocity: their diplomats  protection and immunity of foreign diplomats (very rarely violated  1979 Iran/2012 US Ambassador in Libya) 5- Despite lack of single –centralized executive body: – Self-defence – Retorsion – reprisal

13. Basis of sense of obligation in int law 8- int law uses domestic sanction mechanism in some areas – Crimes against humanity, crimes against peace and war crimes  police can arrest someone in such cases based on “universal jurisdiction”. 7- Rule on non-recognition – Acts as products of illegal use of force – Iraq annexation Kuwait + Japan occupation of Manchuria  Manchukuo State  puppet state of Japan (1931-1945)  Stimson Doctrine – Not to attach any legal effect to the consequences of that act

14. Basis of sense of obligation in int law 8- Power of UN Sec Council under Arts 39, 41, 42  Collective enforcement measures What is the Theoretical Basis of this Sense of Obligation? – 1- Natural Law School (Doctrine) – 2- Positivist School Theory of auto-limitation Theory of Vereinbarung (common consent/will) – 3- Objectivist School Normative doctrine Sociological theory

15. Natural Law School (Doctrine) Rhythm of system of nature  independent from the will of states  this makes rules of int law unavoidable For some  this rhythm is based on religious/metaphysic grounds  Vitoria, Suarez, Gentilis For some  this rhythm is based on logic/conscience/reason  Grotius, Puffendorf Deficiencies and areas where this approach is used

16. Positivist School “Will of the state” is the basic factor which gives binding character to rules of int law 1- Theory of auto-limitation: – States are sovereign/independent  they can only be bound by rules through their own consent – “Consensual Theory” – State limits its own unlimited powers  at the end of this process  int law exists and become binding  “voluntary self-restriction” – G. Jellinek

17. Theory of auto-limitation: Problems: – “states can only be bound by consent”  is itself a rule  where did that rule come from? – Birth of new states?  why they are bound by existing customary rules?  some argue that this is implied  with declaration of independence and recognition  this is like a “fiction” – States will be able to “opt out” – Cannot explain fundamental rules of int law  “jus cogens” rules

18. Positivist School 2- Theory of Vereinbarung: – A rule can only derive from a “higher consent”  combination of consents of all states  common consent (vereinbarung) – H. Triepel

19. Objectivist School Rules of int law cannot be based on “will” or “consent” of states 1- Normative Doctrine: – Hans Kelsen – A norm can only be based on another higher norm – In every legal order  “hierarchy of norms” (Grundnorm) – All norms should be consistent with this Grundnorm – No consensus on grundnorm  for Kelsen this is “pacta sunt servanda” + for others “constitutional article on treaty-making power”

20. Objectivist School 2- Sociological Doctrine: – G. Scelle – Man needs to live in social environment/society – This environment is independent from the will of the people  social solidarity is needed for social life  law derives from this “social solidarity”  this is a “practical necessity” – Legislature does not create rule  it only declares the rule created by the social solidarity. – Rules are binding as long as they are consistent with that social solidarity – Int law  int society/community – “Ubi societas, ubi jus”  if there is a society  there is law there

21. others Command Theory: – J. Austin, 19. century – Law is set of commands/orders issued by a “sovereign”  supported by the threat of sanctions – Int law is not positive law  because it does not derive from commands of a sovereign – Int law is kind of “positive morality”

22. Conclusion Recent theories  Koskenniemi – Law and politics – Law and morality Deficiencies exist for all theories Interrelated to theories of Int Relations as sub-title