What is international law

International law

What is the relationship between international law, politics and society?

“No less than in any legal system, International law is but the result of the social and political process. Generally, the law is the product of society and politics, not the other way around”

What are the two functions of international law?

1. A set of legal rules governing relations between States and between states and intergovernmental organisations

2. A thermometer for the health of the international society

What does F de Martens say in relations to the flaw of international law?

[T]he flaws of international law (...) are only the inevitable consequence of the imperfections and instability that characterise the domestic legal system

What does L Henkin say about the health of law?

The health of the law (...) will depend largely on the health of the society, on its ability to contain explosive forces and mobilize creative ones for general welfare

What does R. Higgins say about law and politics?

A refusal to acknowledge political and social factors cannot keep law neutral, for even such refusal is not without political and social consequence.

There is no avoiding the essential relationship between law and politics

What are the 3 features of international law?

1. The law of coexistence of the international society

2. The law of cooperation of the international community

3. Participatory nature

What is the lotus principle?

It holds that states are sovereign and free to act unless a rule of international law expressly prohibits them from doing so. Restrictions on sovereignty cannot be presumed — they must be proven. This reflects a minimalist, coexistence-based vision of international law.

What are the features of the international legal order?

1. Absence of a universal legislator

2. Absence of a compulsory judicial system

3. Absence of an apparatus for coercive enforcement of the law

The UN Secretary General notes “indeed, divides are deepening”. What does the author purport the root of the problem to be?

In sum, when the law is repeatedly infringed upon or misapplied, this is hardly because its legal rules are bad law, but because….

Of social, ethical and political decay

How did the ICJ judgment on the Military and Paramilitary Activities in and against Nicaragua deduce the existence of customary rules?

In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should, in general, be consistent with such rules, and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as recognitions of a new rule.

What does the Rio Grande agreement demonstrate about constraints on external sovereignty?

“It is fair to say that the history of international law, not just international water law, is characterised by states promoting and accepting constraints over their sovereignty in exchange for comparable benefits.”

What are the three reasons the author gives for breaches of international law?

1. The contrast between the “right” and the “duty” sides of international law. As coined by Henkin, international rules are created in a “Sunday mood” and are applied in a “Monday mood”

2. Wrong interpretation of a rule, or justifying its conduct

3. Promoting change of the rules infringed upon

After the end of the Cold War, with the fall of the Soviet Union and of the Communist regime in the satellite countries across Eastern Europe in 1989, the years of transition towards constitutional regimes and a free market economy…. what did this mark?

marked the climax of internationalisation and multilateralism.

Which event epitomised a revival of the functions and powers of the UN Security Council?

The invasion of Kuwait by Iraq in 1990

The climax of internationalisation and multilateralism was broken by a number of factors in international politics such as:

• Failures of peacekeeping operations by the UN

• Resurgence of disagreements between NATO and Russia over Yugoslavia

• The bombing of Iraq by the US and the UK in 2003

What, does the author note, is the basis of the new “sovereigntist movements” which have been on the rise over the last few years in western countries?

The intenrational financial and economic crises since 2008 to date, fundamentalist terrorism, the Syrian and Libyan crises with the ensuing massive migration trends, all boosted a insecurity, lack of confidence in international cooperation and rule of law.

What are the three main differences between international law and domestic jurisdictions?

• Law making

• Law assessment

• Law enforcement

Despite what the media may suggest about compliance with international law, what does the author note?

“in domestic legal systems, the degree of effectiveness of the law, considered in terms of the degree of compliance with it, is not extraordinarily superior to that of international law.”

What does Judge Crawford note about indeterminancy?

Indeterminancy is a problem inherent within all elgal systems, domestic or international alike

What does Cardozo say about certainty in the law?

“ Only in the rarest instances, if ever, was certainty either possible or expected. “

What does the author note about predictability and uncertainty?

The aim of the law is that to maximise predictability or minimise uncertainty in social interactions.

What does Robert Jennings note about international law?

“In a society of states much divided by ideologies, by religion, by poverty and wealth, by power and weakness, by size, by history and by geography, it is well never to lose sight of the fact that one vocabulary of ideas that they have in common is public international law.” - Robert Jennings