Henriksen International Law Pdf
Beatrix Gerke
As a legal system international law is quite different than most national legal systems. For example, in international law there is no legislative or executive branch. It is mostly up to national states to implement and interpret the international law.
In this time normative ideas could be mostly traced back to natural law (jus naturale), a holistic set of ideas about natural and social life in the entire world. Jus naturale was considered inferior to jus gentium, the law between people. At the same period there was a significant increase in colonialism and the Spanish conquistadores were considered to be subject to natural law. In the 17th and 18th centuries more of the current structures of international law were formed, most notably by several publications and suggested treaties. The actual birth of national law is often traced back to the Peace of Westphalia (1648) that brought an end to a long war. Order and structure was re-established in an otherwise unorderly Europe. As a general idea, this was an effort to limit the power of empires and reduce powers to smaller areas. In this process Westphalia is considered to be essential. Natural law was an idea used to diminish the overall chaos: thinkers like John Locke (1632-1704), Thomas Hobbes (1588-1679) and the lawyer Jean Bodin (1530-1596) introduced the idea that there is one sovereign only accountable to God who can break laws at his own discretion.
These ideas were later used as a basis for e.g. the Declaration of Paris, which set a legal limit on the capture of private property at sea and the Declaration of St.Petersburg which prohibited the use of explosive bullets. The early start of international law as we know it now is related to colonialism and war. After the First World War The League of Nations was installed by the US to maintain world peace. In 1928 the Treaty of Paris attempted, unsuccessfully, to outlaw war. True achievements of international law were made in the period after the Second World War. The reaction of the world to the crimes of the Nazis was an important precedent of what was to come.
Participation in the UN is particularly high in European countries, which has a general trend towards strong unification. With institutions like the European Court of Justice and the European Commission. Another institution, the Council of Europe installed an important treaty: the European Convention of Human Rights (ECHR). All these treaties have led to a steady decrease in conflicts. Although recently there has been plenty of critique on the costs this bears to national sovereignty, the Brexit is sometimes seen as a direct result of this complaint.
The Westphalian agreement is considered to have such high importance because it is on of the first systems that recognizes the equal legal status of different national actors. The very concept of the state serves as a compliment to where national laws do not suffice, the function as a residual legal system. For example when there is a conflict between two different national laws. Such a conflict may be due to content or form. International law is predominantly compliance based
The legal structure is a horizontal one, it is mainly concerned with the way in which sovereign states interact. At first glance, international law may seem to be a cause of friction towards the desire of state sovereignty. In practice, however, the aim of international law is to facilitate this sovereignty by preventing international turmoil. It should be noted that the aim of international law is not to achieve community goals, such as fairness, but rather to uphold the order on a global scale and to ensure stability. As such it enables states to peacefully pursue their separate goals and interests. In this process there is always law creation taking place to some extent.
Certain issues do not become an issue under international law because of colliding interests but become a matter of law because of a treaty. An example is the way in which states pursue societal goals such as human rights, these are enforceable under international human rights legislation even if a neighbouring state is not directly affected.
Two streams of thought can be distinguished: natural and positive law. Natural law is concentrated on the binding force of international law, the nature requires certain behavior, which should be enforced. At first glance, there seems to be an inherent clash within this theory between state sovereignty and accountability. However, as discussed earlier positive constraints may actually increase freedom and therefore also sovereignty. In practice, states never truly question whether they are bound by international law. Positive law puts its focus on voluntary compliance.
A central issue is that there is no international police force to enforce international law. There are, however, several monitoring bodies: the CJEU and the ECtHR. These bodies are endowed to make binding decisions. Nevertheless actual enforcement can be problematic. One way to solve this problem is to take collective action, such as the sanctions in response to the annexation of the Crimea by Russia. Other tools can be cancelling state visits, halting state aid or to ban trade with a country. As a whole, the real enforcement tools on an international level are limited, nevertheless mostly because of reciprocity states rarely disobey the international law.
In essence the sources of the international law provide us with answers on issues that cannot be answered by means of national law. Usually there is no problem to find sources in answering legal questions that lawyers may encounter in international questions. What is a challenge, however, is that there is no clear hierarchy within the different sources of international law and a different structure of international bodies. International law is not a centralized system, but a set of overarching rules.
Within the sources of international legislation we can distinguish between those that are political and those that are more ethical of nature. Proponents of natural law look at international sources of law in search of guidelines and rules for justice. Whereas proponents of positive law, positivists, are focused more on state will. The distinction is that, a natural law proponent will require more explicit laws, whereas a positivists looks more towards intention.
Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
This article bears a lot of resemblance to the article of its predecessor, the Permanent Court of International Justice (PCIJ). Article 38 is mainly aimed at the Court but can be seen as a general guideline, it makes a distinction between two sources of law:
Primary law consists of conventions (treaties), principles and customary law. The second source consists of scientific contributions and legal precedent. Another manner of distinguishing is that the first three principles are law creating, whereas the last two are law identifying.
In principle all states are bound by international customary law, unless a certain state did not play a role in forming this law. By its nature, and recognized by the ICJ, international customary law can be limited to a certain region, limited to the practice between a set of countries.
Essentially, what happens is that a certain (set of) custom(s) becomes legally binding. Before this happens consistent repetition of a particular behavior between states is required. But what are state acts? Internal documents within a state do not count as a state act. State practice can be divided into three elements:
A state can evade international customary law by persistently objecting to a certain practice. Norway for example has always opposed the ten-mile rule for the closing line of bays. This is limited, however, to either new or emerging customary law and is not applicable to jus cogens (see 2.9).
The state practice is only legally binding if it is accepted as law, the requirement of opinion juris sive necesitatis. The rationale of this requirement is that it is considered important to make a distinction between those acts meant to honor a legal obligation and acts that are not. Of course this requirement is subjective and up to debate. How can we establish the intention of states? In practice the opinion juris is only used if there is a reason to believe there are non-legal motivations. I.e. usually the objective element suffices. As such if there is controversy and reason to believe that a conduct has non-legal motivations, proving opinion juris is necessary. This subjective element becomes important if certain customs are broken and as a result there is a consideration to replace current customs.
Treaty-based obligations can in some situations be identical to customary international law. Also, the rules under a certain treaty can after a certain period of time(duration) turn into customary law. In some cases this will develop into customary law that is internationally binding, in other cases it is limited to the parties accounted for in the treaty. In cases of conflict between customary and international law that are not reconcilable, it is of course relevant to ask the question which law will prevail. As will become clear later, if any of the norms has a jus cogens (pre-emptory) character, it will prevail. However, in most cases the lex posterior principle will be applied. The norm which was introduced last prevails. If one of the two is more specialized, following the lex specialis principle that norm will prevail. Lastly, a customary norm can be used to adjust a treaty-based rule.
The third source of law are those of general principle. The ICJ hardly ever refers to general principles of law, however, they are general necessary to find answers to the legal questions that surpass domestic law. The function of these principles is to fill the gap that is not covered by treaties and custom. It serves a role in cases with a shortage of applicable law, non liquet. Only those principles that are recognized by civilized nations suffice. The most important example of a general principle of law is equity. This principle is an established general principle in international law. The Court has for example referred to the equity principle when dividing the continental shelf between Denmark, West Germany and the Netherlands.
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