01 PIL Introduction History

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INTRODUCTION


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What is International Law?

Statutory

rules/established setof legal rules

Passed by a

parliamentary body

Enforced governing

body

System of law?

Enforcement? Effectiveness?

National Law International Law

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I. Role of international law

International law is

A system of rules and principles,

To govern international relations

between sovereign states and other subjects ofinternational law

Facilitates the functioning of international community

The practice of IL is intrinsically bound up with

diplomacy, politics and the conduct of foreignrelations

There are various branches of international law

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Examples of Branches of IL:4

Law of the Sea

Space Law

Antartica

International communications

International trade

Human rights

Extradition

Diplomatic policies


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II. Effectiveness of International Law5

1. The common good

Orderly and predictable principles for the conduct of

international relations and international commerce

2. The Rubicon psychology Psychological force of international rules as a system of

law

3. Practitioners of international law Inter-twined with international politics and diplomacy

Officials trained in the national law of their own countries


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4. Flexible nature of international law

Practice of States

right vs wrong

5. Political and economical cost


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III. Enforcement of IL7

There is no such thing as an international police or

a compulsory court

Methods of enforcement:

1. Security Council

2. Loss of legal rights and privileges


4. Judicial enforcement


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1. Security Council

When there has been a threat to the peace/an act

of aggression/breach of the peace

As authorised by resolution of the Council

May comprise:

Military action

Economic sanctions

Other similar measures


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2. Loss of legal rights and privileges

Termination of diplomatic relations

Restriction of economic aid

Cancellation of supply agreements


4. Judicial enforcement

Ad hoc tribunals

International Court of Justice


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IV. Weaknesses of IL10

1. Lack of institutions

2. Lack of certainty

3. Vital interests Vital interests of subjects > dictates of the law

Vital interest of a State vs dictates of international law?

4. Vital rules Prohibition against the use of force


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History of International Law11


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1. Period until 1500

PIL built upon the edifices of the European conceptionsof the characteristics of a State

Sovereignty, independence, equality of States

Aspects of Roman law such as rules of war, treaties forthe conclusion of peace, Release of Hostages, Treatmentof Prisoners of War influenced the relation betweenstates

Medieval world began to crumble, distinct states withdistinct boundaries emerged

Development of trade, discovery of New World,Renaissance in Learning

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2. 16th century

Emergence of the modern nation state

Nature of sovereignty and responsibilities of theruler to his fellow rulers

Rather than to either the Pope or the Holy RomanEmperor

Albericio Gentili greatly influenced PIL in 1598

De Jure Belli Libre Tres

Emphasized the secular aspects of natural law Att: conclusion of treaties, use of force, rights of slaves,

freedom of the seas

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3. 17th century

Hugo Grotius

Often regarded as the father of modern IL

Was greatly influenced by Albericio Gentili

Natural law

Laid down the principle that international relations

were the subject to the rules of law, and that this

existed independently of theology

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17th century (cont)

Samuel Pufendorf (1632-94)

Viewed Law of nations as founded on universal naturalrights & war lawful only in strictly limited circumstances

Too abstract & theoretical; failed to take into account

evidence of state practice

Richard Zouche (1590-1661)

Rejected Natural Law

Concentrated on how sovereign rules behaved i.e. actualconduct

Some view him as the first writer of the Positivist School

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4. 18th Century17

Period of Enlightment/Age of Reason

Thinking of empirical, optimistic and founded upon

reason

Important question at this time: how to achievepeace

Law of Nations viewed as a horizontal system

Continued to focus on its traditional areas i.e. when useof force justified, conduct of diplomacy rules and law

of the sea


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18th century (cont)18

Cornelius van Bynkershoek (1673-1743)

Supreme court judge of the Netherlands

First positivist writer who placed emphasis on conduct,custom and treaties (rather than Natural law)

Emerich de Vattel (1714-67)

Most influential writer; Swiss lawyer

Wrote Le Droit des gens (1758)

Emphasized actual practice and conduct of States

Law of Nations : the science of those rights which exist

between nations and states, and of the obligationscorresponding to these rights


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Theories of International Law20


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Introduction

A recap of the two main theories that forms the

basis of international law

Natural law

Positivist theory

An understanding of its essence is essential for

future arguments

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1. Natural Law22

Founded on the nature as a reasonable man

Based on correct moral principles

Human reason can be employed to deduce

certain ethical standards, and The deduction of these ethical standards may

be aided by divine revelation or by theexercise of secular ethical theories

IL is based on what states actually do, rather than

what they should do


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2. Positivist Theory

Emerged in the 17th Century

Binding quality of international law flows from consent

of state

Consent can be express (treaties) or implied (custom) Positivist approach marked by questions such as:

Who were the relevant legal person?

How did they behave?

What rules did they accept as binding upon themselves?

Jus cogen?

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An brief introduction

United Nations


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Introduction

An international organisation , founded in 1945, WWII

Four main purposes (Art 1): To maintain peace & security

To develop friendly relations among nations based on respect for theprinciple of equal rights and self-determination of people;

To achieve international co-operation in economic, social, cultural, orhumanitarian character, and in promoting and encouraging respect forhuman rights and for fundamental freedoms for all; and

To be a centre for harmonizing the actions of nations to achieve thesegoals.

Provide a forum for its 193 Member States to express their views,through the General Assembly, the Security Council, the Economicand Social Council and other bodies and committees.


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Historical Background

Previously: League of Nations

Established in 1919 under the Treaty of Versailles (WWI)

"to promote international cooperation and to achieve peace andsecurity."

League of Nations ceased after it failed to prevent WWII

In 1945, representatives of 50 countries met in San Franciscoat the United Nations Conference on InternationalOrganization to draw up the United Nations Charter.

Deliberated on the basis of proposals worked out by therepresentatives of China, the Soviet Union, the UnitedKingdom and the United States (August-October 1944).


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Charter was signed on 26 June 1945 by the

representatives of the 50 countries.

Poland, which was not represented at the

Conference, signed it later and became one of theoriginal 51 Member States.

The United Nations officially came into existence on

24 October 1945, when the Charter had beenratified by China, France, the Soviet Union, the

United Kingdom, the United States and by a

majority of other signatories.


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Structure

The six main organs:

General Assembly

Security Council

Economic and Social Council Trusteeship Council


Secretariat


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General Assembly

Main deliberative organ of the UN Important decisions e.g. : peace and security

admission of new members budgetary matters

require a 2/3 majority

May make Recommendations Except for security matters

BUT GA may take action if the Security Council fails to act,owing to the negative vote of a permanent member

GA Resolutions are non-binding Except for budgetary matters


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i. Subsidiary organs of GA

1. Boards E.g. Board of Auditors, Trade & Development Board, UN Joint Staff

Pension Board etc

2. Commissions E.g. International Law Commission, Disarmament Commission,

UNCITRAL (UN Commission on International Trade Law) etc

3. Committees E.g. Committees on Conferences, Committees on Information etc

4. Councils and Panels, E.g. Human Rights Council

5. Working Groups and others E.g. Working Group on the Finance of the United Nations Relief and

Works Agency for Palestine Refugees in the Near East (UNRWA)[established by GA Resolution 2656 (XXV)]


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Security Council

Threats to peace/aggression/acts against peace

Veto power by Permanent Members

Resolution

Decision? Recommendation?

Binding?

Article 25 of the Charter says that "The Members of

the United Nations agree to accept and carry outthe decisions of the Security Council in accordance

with the present Charter".


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Non-compulsory court

Usually, obligation to submit jurisdiction is via treaty

Judges are elected by the Security Council & the

General Assembly

Amongst its roles:

Settles legal disputes between states,

Gives advisory opinions to the UN and its specializedagencies


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Economic and Social Council

Established by the UN Charter

Principal organ to coordinate the economic, social and related work of the

United Nations and the specialized agencies and institutions.

Voting in the Council is by simple majority; each member has one vote

Serves: As the central forum for discussing international economic and social issues, and

for formulating policy recommendations addressed to Member States and the

United Nations system.

Responsible for:

promoting higher standards of living, full employment, and economic and social

progress;

identifying solutions to international economic, social and health problems;

facilitating international cultural and educational cooperation; and

encouraging universal respect for human rights and fundamental freedoms.


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Secretariat

Carries out the day-to-day work of the

Organization.

Services the other principal organs and carries out

tasks as varied as the issues dealt with by the UN,for e.g.

administering peacekeeping operations,

surveying economic and social trends,

preparing studies on human rights, among others


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Trusteeship Council

To:

provide international supervision for 11 Trust Territories

placed under the administration of 7 Member States,

and ensure that adequate steps were taken to prepare the

Territories for self-government and independence.

By 1994, all Trust Territories had attained self-

government or independence.

Thus, it is now in suspension


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END

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