1) The Principles, Roles And nature Of IL Flashcards
Difference between int. Law and domestic
Legislature: A significant distinction is the absence of an int. legislature to create laws in the way that national governments do. In domestic systems, a legislature passes laws, but at the international level, the closest equivalent, the UN General Assembly, makes political decisions, not legally binding laws.
Law Creation: International law primarily arises from treaties (agreements between states) and customary international law (practices accepted as law by states), not from legislation. Treaties are a main source of international law. Customary international law develops from what states do with the understanding that their actions are legally required, a concept known as opinio juris
A key difference between international and domestic courts lies in sovereignty and the voluntary nature of international law. Unlike domestic systems, where courts are mandatory where indivisible can’t opt out if they have to go to court for example, international courts depend on states’ consent to participate, such as through treaties. For example, the ICC has 124 members, but major powers like Russia and US. remain outside its jurisdiction. Even UN membership doesn’t require states to accept ICJ jurisdiction. This opt-in structure reflects sovereignty, shaping both the creation and enforcement of international law, and underscores its challenges compared to the compulsory nature of domestic systems.
Define IL
Scott, one of the authors we read in this class, defines international law as a system of rules, principles, and concepts governing relations among states and, increasingly, intergovernmental and nongovernmental organizations, individuals, and other global actors. I would argue that, regardless of the topic in international law We also need to think about how sovereignty shapes those rules and how they work in real-world situations, especially in today’s political climate. If we focus only on how international law is “meant” to work, we risk missing the reality of how it’s applied, with all the exceptions and complications that come with it. This makes the discussion far richer and more realistic.
Pacta sunt servanda
Agreements must be kept - oldest agreement of IL - makes int. Agreement binding
Differences between IL and national law
From pp answer: no central and consistent enforcement mechanism
• no
compulsory dispute settlement
• no
equality before the law
• no
central legislative body
• strong(er)/more explicit role of consent
• no
clear division of power
• international law is (still) primarily concerned with and formed by states
• international law can overrule national law
• international law builds still to a large extent on customary law (=
sometimes the exact content is more difficult to identify)
• international law brings together a great(er) diversity of values and legal
traditions
The rule based international order (RBIO) understand in two ways
RBIO as Synonymous with International Law:
A system based on global norms, laws, and institutions established after WWII, like the UN and its Charter.
It involves 193 UN member states committed to fundamental principles (e.g., human rights, territorial integrity, and multilateral cooperation).
RBIO as Partially Overlapping with International Law:
Focuses on values (e.g., economic cooperation, human rights) rather than strict legal frameworks.
Critics argue this looser approach lets powerful countries selectively follow or violate international law, using RBIO as a tool for legitimacy while sidestepping legal obligations.
The main critique is that RBIO, especially in the second view, is seen as dominated by Western nations, reflecting their values and priorities, rather than being truly universal.
What does non-compliance mean for the law?
the international legal system lacks a centralised enforcement body, non-compliance with international law can lead to a range of consequences, including retaliatory actions by individual states, sanctions imposed by the UN, suspension from IGOs, and prosecution of individuals in international and national courts
. The effectiveness of these measures can be debated, particularly in light of power imbalances among states, but there are several methods available to encourage and enforce compliance.
Retorsion
States can respond to another state’s non-compliance with unfriendly but legal acts, such as the severance of diplomatic relations
Countermeasures
States may take actions that would otherwise be illegal, but are justified as responses to another party’s illegal act. Countermeasures should be proportional and not use force
IL enforcement can be done by:
National authorities (some such as the US national courts enforce IL, the torture victim protection act allows victims of state sponsored torture in other countries to sue in federal courts. In New Zealand, individuals can be prosecuted for war crimes, crimes against humanity and genocide regardless of where the crime occurred or nationality of the accused. )
International courts (ICJ can hear cases between states, but only if the states have consented to its jurisdiction)
The UN Security Council can impose sanctions of an economic, diplomatic or military nature if it believes there is a threat to int. Peace, a breach of peace or an act of aggression.
