2610470
International Law
- Functions
- Territorial dispute
- conflict about where borders lie/land ownership
- conflict about where borders lie/land ownership
- Global warming
- can't deal with this alone, need co-operation
- can't deal with this alone, need co-operation
- human rights
- law of areas with no sovereign
- sea
- air
- antartica
- sea
- Territorial dispute
- Force of International Law
- no courts with enforcement powers
- no world 'government'
- does not fit "Autisian" definition
- too narrow
- Austin: Laws are commands of
sovereigns backed up by sanctions
- over emphasises santions
- Hart: international lawyers, can't tell me the
rules of international law with any certainty,
therefore not a system of law
- Tamanaha: if people refer to something as law, then it is law
- too narrow
- does not fit "Autisian" definition
- is international law binding?
- or just a decision making process
- ethics instead?
- US Position on international law
- US Position on international law
- But why do states comply?
- cost/benefit analysis
- '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
- '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
- cost/benefit analysis
- or just a decision making process
- so how is it enforced?
- self enforcement & self limitation
- decentralised authority
- counter measures and sanctions
- counter measures and sanctions
- norms of good standards of behaviour
- UN security council
- has vetos - hard to get all five to agree
- has vetos - hard to get all five to agree
- self enforcement & self limitation
- no courts with enforcement powers
- Sovereign Consent!
- Sovereign =king/queen
Consent = agreement
- 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
- Hobbes, Leviathan: defined
native Americans as not
sovereign
- What about non-sovereigns?
- Wimbledon Case (1923) being able to enter
into international agreements is an attribute
of state sovereignty
- Wimbledon Case (1923) being able to enter
into international agreements is an attribute
of state sovereignty
- What about non-sovereigns?
- Hobbes, Leviathan: defined
native Americans as not
sovereign
- internal and external
sovereignty
- internal =
coercive force
over population
- external = law of
nations that can
bind sovereign
- internal =
coercive force
over population
- 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
- After westphalia, territory
divided into sovereign
states; independent, equal
- 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
- 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
- Pactus sun servenda =agreements must be kept
- Pactus sun servenda =agreements must be kept
- 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
- is it still relevant?
- GA Res 'declaration on Friendly
Relations: All States shall enjoy
sovereign equality
- 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
- GA Res 'declaration on Friendly
Relations: All States shall enjoy
sovereign equality
- Sovereign =king/queen
Consent = agreement
- relationship between international
and domestic law
- subjective!
- Monism = supremacy of either
international or state law
- depends!
- depends!
- Dualism = there is a plurality of
legal systems, which are not in any
formal relationship
- States cannot use provisions of domestic
law to defend a claim for an alleged
breach of obligations under international
law
- subjective!
Want to create your own Mind Maps for free with GoConqr? Learn more.