International Law

Functions
1. Territorial dispute
  1. conflict about where borders lie/land ownership
2. Global warming
  1. can't deal with this alone, need co-operation
3. human rights
4. law of areas with no sovereign
  1. sea
  2. air
  3. antartica
Force of International Law
1. no courts with enforcement powers
2. no world 'government'
  1. does not fit "Autisian" definition
    1. too narrow
    2. Austin: Laws are commands of sovereigns backed up by sanctions
    3. over emphasises santions
    4. Hart: international lawyers, can't tell me the rules of international law with any certainty, therefore not a system of law
    5. Tamanaha: if people refer to something as law, then it is law
3. is international law binding?
  1. or just a decision making process
  2. ethics instead?
    1. US Position on international law
  3. But why do states comply?
    1. cost/benefit analysis
      1. 'when the instrumental calculus suggests a departure from international law, international law imposes no moral obligation that requires contrary action'Jack Goldsmith and Eric Posner
4. so how is it enforced?
  1. self enforcement & self limitation
  2. decentralised authority
    1. counter measures and sanctions
  3. norms of good standards of behaviour
  4. UN security council
    1. has vetos - hard to get all five to agree
Sovereign Consent!
1. Sovereign =king/queen Consent = agreement
  1. Bodin: distinguishing mark of the sovereign that he cannot in any way be subject to the commands of another Locke and Hobbe argue this too
    1. Hobbes, Leviathan: defined native Americans as not sovereign
      1. What about non-sovereigns?
        Wimbledon Case (1923) being able to enter into international agreements is an attribute of state sovereignty
  2. internal and external sovereignty
    1. internal = coercive force over population
    2. external = law of nations that can bind sovereign
2. After westphalia, territory divided into sovereign states; independent, equal
  1. Grotius: law of nations that develops from the will of states, not based on will of god or natural law, build a system of law of sovereign states
  2. Vattel: VOLUNTARY law of nations, established by presumed CONSENT and providing for a universal binding law of nations, conventional law of nations (treaties) which provides EXPRESS consent and customary law of nations which develops through TACIT consent, long use and observation
    1. Pactus sun servenda =agreements must be kept
3. is it still relevant?
  1. GA Res 'declaration on Friendly Relations: All States shall enjoy sovereign equality
  2. Case of S.S Lotus: International law governs rules between independent states. The rules of law binding upon States therefore emanate from their own free will
relationship between international and domestic law
1. subjective!
2. Monism = supremacy of either international or state law
  1. depends!
3. Dualism = there is a plurality of legal systems, which are not in any formal relationship
4. States cannot use provisions of domestic law to defend a claim for an alleged breach of obligations under international law

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International Law

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