The Legal Character of International Law

International Law Public and private international law Public and private international law Sources of international law Sources of international law The International Court of Justice The International Court of Justice The Legal Character of International Law The Legal Character of International Law

Public and Private International Law Public International Law: rules and principles which govern the relations and dealings of nations with each other Public International Law: rules and principles which govern the relations and dealings of nations with each other Private International Law (Conflict of Laws): disputes between persons, natural or legal, arising out of situations having significant relationship to more than one nation Private International Law (Conflict of Laws): disputes between persons, natural or legal, arising out of situations having significant relationship to more than one nation

Public International Law Questions the rights between several nations or nations and citizens or subjects of other nations Questions the rights between several nations or nations and citizens or subjects of other nations Deals with environmental issues, arms control, asylum, human rights, immigration, international crime, maritime law, piracy, war crimes Deals with environmental issues, arms control, asylum, human rights, immigration, international crime, maritime law, piracy, war crimes

Sources of Public Int. Law 1. Treaties and international conventions 2. Customary international law 3. General principles common to systems of national law 4. Subsidiary means (court decisions and doctrines)

Treaties Treaties and international conventions – written agreements concluded by two or more sovereign nations or by a nation and an international organization (such as the European Union) Treaties and international conventions – written agreements concluded by two or more sovereign nations or by a nation and an international organization (such as the European Union)

Customary Law Regulations and procedures contained in treaties and conventions often develop into general customary usage Regulations and procedures contained in treaties and conventions often develop into general customary usage Even those states that did not sign and ratify them come to consider them as binding Even those states that did not sign and ratify them come to consider them as binding

The International Court of Justice (ICJ) The principal judicial body of the UN The principal judicial body of the UN Its seat is in The Hague (Netherlands) Its seat is in The Hague (Netherlands) Began its work in 1946 Began its work in 1946 Composition: 15 judges elected to nine-year terms of office by the UN General Assembly and Security Council Composition: 15 judges elected to nine-year terms of office by the UN General Assembly and Security Council

Functions of the Court To settle in accordance with international law the legal disputes submitted to it by States To settle in accordance with international law the legal disputes submitted to it by States To give advisory opinion on legal questions referred to it by authorized international organs and agencies To give advisory opinion on legal questions referred to it by authorized international organs and agencies

Legal Character of Int. Law International law v. international morality International law v. international morality A branch of law or a branch of ethics? A branch of law or a branch of ethics?

A branch of law - arguments 1. Questions of international law are treated as legal questions 2. Legal forms and methods are used in judicial and arbitral proceedings 3. Authorities and precedents are cited in arguments 4. The alleged breach of international law is defended by claiming that no rule has been violated

Law as a will of a political superior Thomas Hobbes ( ) – a British political philosopher Thomas Hobbes ( ) – a British political philosopher In his book Leviathan he claimed that, since people think only of themselves and behave badly, it is best if they are ruled by one powerful authority In his book Leviathan he claimed that, since people think only of themselves and behave badly, it is best if they are ruled by one powerful authority

Law depending on a political community Sir Frederick Pollock – the only essential conditions for the existence of law are the existence of a political community, and the recognition by its members of settled rules binding upon them in that capacity Sir Frederick Pollock – the only essential conditions for the existence of law are the existence of a political community, and the recognition by its members of settled rules binding upon them in that capacity

Instead of conclusion The mistake of confusing international law with international morality must be avoided. While they may meet at certain points, the former discipline is a legal one, both as regards its content and its form, while the concept of international morality is a branch of ethics. This does not mean that international law can be divorced from its values. Malcolm Shaw, International Law, Cambridge University Press, 2003 (p. 19)