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International Law i week two
 

International Law i week two

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    International Law i week two International Law i week two Presentation Transcript

    • Public International Law I Law 510 History and Nature of International Law 13 September 2013
    • Definition of international law body of law which is composed for its greater part of the principles and rules of conduct which states feel themselves bound to observe, and therefore, do commonly observe in their relations with each other, and which includes also: • The rules of law relating to the functioning of international institutions or organizations, their relations with each other, and their relations with states and individuals • Certain rules of law relating to individuals and non states so far as the rights or duties of such individuals and non-state entities are the concern of the international community
    • A brief history of International Law Ancient time -Imperial Rome’s contribution was the development of: • Jus fatiale consisting of religious rules which governed Rome’s external relations and formal declarations of war which, inter alia, recognized the inviolability of ambassadors and was at the origin of the distinction between ‘just’ and ‘unjust’ war; • Jus gentium which governed relations between Roman citizens and foreigners. It became an essential part of Roman law and thus greatly influenced all European legal systems and, through them, public international law; • The doctrine of ‘just’ war by Cicero; • The doctrine of the universal law of nature known as ‘natural law’.
    • The Middle Ages-Two sets of truly international rules developed: • Lex marcatoria which consisted of rules of conduct and fair dealing between merchants and; • Maritime customary law.
    • From the 1648 Peace Treaty of Westphalia to the 1815 Congress of Vienna • The period of classical international law. • The 1648 Treaty of Westphalia recognized the principles of sovereignty, territorial integrity and the equality of States. • It legitimized the principle of non-interference in the affairs of a State and recognized that a State was independent from the church. • The treaty established a system of balance of power which lasted until the French Revolution and the Napoleonic Wars, and was aimed at preventing wars.
    • • The intellectual support for new ideas was provided by scholars, in particular the Anglo-Dutch School represented by Hugo Grotius and Alberto Gentilli. • At the end of eighteenth century, the enlightenment ideals supporting the aspirations of the British colonies in North America fighting for independence from the British monarchy and supporting the French people and fighting the France’s monarchist tyranny, feudal aristocratic privileges and the Catholic clergy had great influence on the development of human rights and the principle of self determination.
    • From the 1815 Congress of Vienna to the outbreak of World War 1 (WWI) in 1914 • The 1815 Congress of Vienna codified the law on diplomatic agents and missions, prohibited slave trading and laid the foundations for the free navigations of rivers which flow through at least two European States. • The main features of international law during the period from 1815 to 1914 were the principles of sovereignty, balance of power, legitimacy and equality between nations. • The unorganized character of the international community, which was composed of a multitude of sovereign States legally equal; • The acceptance of war as the ultimate instrument of enforcing law and safeguarding national honor and interest; • The recognition of States as the only subjects of international law.
    • • The 19th century was the century of positivism which was introduced by French philosopher Auguste Compte. • He posited that humanity had gone through three stages of development: theological which focused on religious idea, the metaphysical which concentrated on legalistic and jurisprudential ideas; and “positive” which rejected the past superstitions, ideas and dogmas to focus on scientific studies of objectively ascertainable facts. • The positivist theories were developed by john Austin and Jeremy Bentham and came to dominate jurisprudential thinking in general. Including the theory of international law.
    • The nature of international law • The status of international law as ‘law’ has been challenged at both the theoretical by John Austin (1790-1859) and by HLA Hart (1907-1992) and at the practical level • The main arguments against the existence of international law as ‘law’ is the international law does not have any legislature, judiciary or executive within the ordinary understanding of these terms, responsible for creation, interpretation and enforcement of that law. • The most convincing arguments in favor of the existence of international law are that States recognize and observe international law with the consequence that there is substantial order in international relations and the international law is practiced on a daily basis by international lawyers, intergovernmental organizations and other non-states actors and applied by domestic and international courts.
    • Enforcement of International Law The fact that international law has no centralized process of enforcement does not mean that international law is not obeyed. A state obeys international law because: • The prospective long-term advantage of compliance prevails over any short term advantage resulting from violation of international law; • It wants to maintain its good reputation; it fears retaliatory measures or measures based on reciprocity that may be taken by a victim state (the three Rs compliance) • The UNSC may take various measures, including the use of force, under Chapter VII of the UN Charter to force a State to comply with international law.
    • • It is bound under many international treaties to accept the compulsory jurisdiction and the judgments of a body established by treaty to deal with disputes arising out of it; • It fears public opinion both at home and abroad.
    • Situations to which international law is relevant • Co-operation-States are naturally independent in many ways and international law facilitates co-operation; • Co-existence- States have to co-exist with one another and a way of facilitating this is to define their relationship by making treaties and other consensual agreements; • Conflict-Here, the role of international law is confined to two main functions, i.e. the prescribing of technical rules of conduct and the keeping of any conflict to a minimum.
    • THANK YOU contacts: shahrizalzin@salam.uitm.edu.my