Transcript Lecture 2 nature &historical

Lecture 2 nature &historical
• What is law?
• Law is divided into 2 Natural law and positive
law
• Positive law is divided into 2- municipal and
international;
• Municipal is divided into 2 ordinary and
constitutional law
• Ordinary is divide into 2- private and public
• Public is divided into 3, civil, criminal,
administrative
2.1
• Austin J. English legal scholar defined law
as the commands of justice supported by
threat of sanctions/punishment. He
distinguished between questions of what
actually law is and what law aught to be.
That is a positivists definition of law.
2.1
• Positivists do not believe that morality is
essential attribute of law.This differs with
American realist definition of law which
postulate that law is whatever the court
says. The American Realists accepts that
legislative bodies produces legislature but
they say that such legislation has no
meaning assigned to it by court in the case
of litigation
2.2
• International Law
• IL is defined as a body of rules and
principles, which are binding upon states in
relation with each other. In recent years, IL
expanded to include a number of new
players e.g International organisations,
individuals to a lesser extent and NGOs are
also subject of international law.
2.3
• However only states have full legal
personalities under international law. Only
states can belong to the UN and only states
can call upon the security council if there is
a breach of international peace and security.
Only states can apper in contentious
proceedings in ICJ. Only states make claims
on behalf of their nation who have been
injured or prejudiced by another state.
2.4
• There is limited legal personality of the
international organisation. The UN is a good
example.
• CASE
• In 1949 Bennedate of Sweden was assassinated
while carrying out UN duties in Palestine.The UN
waited to sue the state of Israel for compensation
under international law.
2.5
• Negligence of the Israel authorities had
allowed the murderer to take place and was
responsible for failing to apprehend the
perpetrators.
• The UN was not certain whether it had the
legal personality necessary to bring the
claim under international law.
2.6
• Accordingly the UN asked the ICJ for an
advisory opinion on the matter. The ICJ
ruled that the UN had legal personality in
principle.
• The court said it was necessary to infer the
existence of such personality because the
UN could not carry out its duties.
2.7
• However the court was at position to make
it clear but this did not mean that the UN
was a state. Although its legal rights and
obligation were the same as those of the
state.
2.8
• The ICJ meant the UN was subject of
international law capable of possessing
international rights thus the UN could claim
damages from Israel under international law
but though the ICJ jurisdiction in
contentious litigation is limited to states.
2.9
• Nature of IL
• IL is also called the Law of Nations but this
must be construed to refer to states than
nations. This is so because certain states
contain more than one nation e.g Nigeria,
Canada, and Switzerland.
2.10
• Some nations are split into several nations Federal Republic of Germany, Austria,
Poland. The Somalis form part of Ethiopia,
Djibouti and Kenya. The UN is strictly a
league of independent states rather than
nations.
2.11
• International law is distinguished from
Municipal Law- the domestic law of state
regulating the conduct of individual and
legal entities within it.
• Regional international law – a rule that
operates within a particular region such as
relating to diplomatic asylum.
2.12
• Private international law or conflict of laws
– which is the body of rules that apply in
cases before municipal courts when there is
a foreign element, or there is an issue of
jurisdiction or the enforcement of a foreign
judgment of particular system of law
different from the ordinary such as
customary law.
2.13
• IL must be distinguished froma) International Morality-, which states accept only
as a moral duty,e.g, repatriation of stranded
seaman at the expense of the host state.
Humanitarian help to states suffering calamities.
b) International comity-a rule of
politeness,convenience and goodwill,e.g,
meeting a visiting envoy at the airport.
2.14
c) International usage – a mere habit that is
not obligatory e.g, gunshots fired on the
arrival of a visiting head of state,, saluting
the flag of foreign warship at sea.
In IL it is important to distinguish between –
Lex Lata- The law presently in force and
Lex Ferenda – The law as it ought to be
2.15
• Is International Law “Law”
• Hobbes and Parendof concluded that IL was not
“”law” whilst Austin ‘s Positivist analysis denied
the quality of “law” to IL.
• A number of Characteristics are missing infact
Austin conclude that IL is but “positive
international morality” that is equivalent to rules
of a club and binding on states because they agree
to be bound.
2.16
• The major reason cited is the lack of sanctions in
the cases of the violations to international norms
as compared to municipal law.
• Looking at the actual role and capability of
international law in the governing the relations
between states must not be exaggerated, in the
view of the decisive significance of
military,economic, political and ideological factors
of power.
2.17
• The role of IL in IR has always been
limited, but its functions in structuring the
international system has been eminent with
the increase in global interdependence and
self interest of state in regulating their
intercourse rationally on the basis of
reciprocity.
2.18
• States continuously conclude and implement
bilateral and international treaties and establish
and operate international organisations.
• This corresponds to the empirical fact that most
states are careful to observe most obligations of IL
most of the time even in the absence of
compulsory dispute settlement procedures and
centralised enforcement agency.
2.19
• The problem of IL arises that general
concept of law itself and its relative status is
subject to quite divergent view throughout
the world.
• Critics also cite the absence of Legislation.
2.20
• While international law is clearly weaker
than municipal law from the view point of
independent enforcement it still provides
the external relevant terms of legal
reference for the conduct of states in their
international relations based on the fact that,
inspite of all differences, they are members
of the international community
2.21
• Historical Background
• The precondition of international law is the
existence of states and mechanism of political
units to interact among themselves for their
benefit. The minimum expectation are that entities
have respect to one another and to their promises
(pacta sunt servada) this makes commerce and
exchange of goods and services thrive. Lessons
are that no political unit except the most primitive
relies entirely on itself.
2.22
• The history of international law goes back
to ancient Egypt, China and India. By the
15th century BC the States of the Middle
east maintained contact. The code of
MANU in ancient India contained chapters
devoted to diplomatic immunity and
privileges
• The ancient Greeks had rules on Asylum,
2.23
• extradition, diplomatic agents, treatment of
combatants, cessation of hostilities e.t.c.
• The Kingdom of Ghana 300 to 1087 AD
conducted international trade with Morocco,
Mali, North Africa and the Middle East.
• The Kingdom of Portugal exchanged
Ambassadors with kings of Benin and the
Congo
2.24
• In Europe common law and Roman Law
had considerable influence on international
law.
• St Augustine 354-420 insisted that states
must observe treaties and customs of war.
• Thomas Aquinas 1224-1274 supported the
authority of IL
2.25
• Islam prescribed code on the conduct of war and
human treatment for civilians and protection of
property in conquered lands. War could be waged
against infidels but they were to be treated with
humane.
• The greatest writer of IL is Dutch Grotius 15831645 whose work “Jure Belli Ac Pacis” The Law
of War and peace was the first treatise on ILs
2.26
• He championed the freedom of the seas,
moderation in the conduct of war, sources of law –
treaties, custom and law of nature.
• The law further expanded during the 19th century
with the rise of European States in the Congress of
Vienna. European Expansion to all parts of the
world and the new inventions increase their
hegemony over the rest of European Colonialism
of Africa, expanded the base with the realities of
Berlin issue areas expanded to international
boundaries.
2.27
• 1905 saw the establishment of the
Permanent Court of Arbitration,
International Court of International Justice
1921, International Court of Justice 1946,
and International Criminal Court in 2001.
• October Revolution in 1917 ushered
socialist government, which emphasised on
distribution of wealth.
2.28
• The League of Nations became the first
multi-purpose organisation followed by the
UN in 1945. International law commission
created in 1947 with the view of codifying
international law. IL proliferated into
branches to include – humanitarian law,
international org, human rights law, law of
the sea and the air space.
2.29
• Question: Which interests does international law
serve in a much expanded, diverse but
increasingly interdependent world?
• A historical analysis of the development of
international law reveals that law has in the past
been used to meet challenges and to protect and
promote the members of its active users.
2.30
• Concerned states should consciously evolve
a more relevant and just law that will
protect interest of all people’s and states. All
states of the world are now subject of IL. It
follows that it must now be used to protect
and promote their interests.
2.31
• Characteristics of IL
• IL has a number of special characteristics
making it completely different from highly
developed national legal systems that are a
result of the existence of modern state and
its apparatus.
2.32
•
1.
2.
3.
It has the following characteristics:
Central organs of law making (legislature)
Law determination (Court and Tribunals)
Law enforcement(administration,police
and army)
2.33
• Il on the other hand is primarily concerned with
the legal regulation of international intercourse of
states that are organized as territorial entities are
limited in number, regarding themselves as
sovereign and legal. IL is rather horizontal legal
system, lacking supreme authority, the
centralization of the force and a deficiency in 3
basic features of law making, law determination
and law enforcement
2.34
• The UNGA is not the world Legislature
• The ICJ in the Hague is legally and
politically limited
• The UNSC can not operate as an enforce
agent
2.35
• Despite these limitations a state that violates
an international obligation is responsible for
unlawful acts towards the injured states and
through self-help can a wrongful act be
addressed.
• States may wage war to enforce their legal
rights though this is no longer lawful except
in circumstances such as self-defense
2.36
- Invasion of Kuwait by Iraq
- Fighting Terrorism by US and UK
• Other forms of self-help include:
- Retorsion – a lawful act which is designed to injure
the wrong doing state e.g cutting economic aid
(this is legal since there is no legal obligation to
provide aid except under treaty provision)
2.37
- Reprisal – acts which would normally be
illegal but which are rendered legal by a
prior illegal act committed by the other
states – deportation of Zimbabweans and
Denial of COSATU delegation.
2.38
• But there exists a probability of a state
injuring itself as a state e.g, USA cutting
trade with China there is loss of market and
investment. Zimbabwe and the UK,
Apartheid South Africa and Rhodesia.
• Group of countries can impose sanctions
under the auspices of the UN. UNSC has a
mandate but VETO.
2.39
• UNGA has the capacity most of its
resolutions are not binding. UNSC and
UNGA is a political rather than a judicial
body and basis its decision on political
consideration and sometimes pay little
attention to legal rights and wrongs of a
dispute.
2.40
• International Orgs can exercise more
authority and control over members e.g IMF
– State may be excluded from membership
of the fund would be unable to borrow gold
or foreign currency from the fund to meet
balance of payments.
2.41
• Some regional organisation may have more
power over members e.g Court of Justice of
the EU. This has compulsory jurisdiction
over member states that are accused of
breaching rules of community law.
2.42
• It is important to stress that sanctions work
less effectively in international law. States
are few in number and have unequal
power/strength there is one or two states
which are so strong that other states are
usually too weak or too timid or too
disunited to impose sanctions against them.