international law Flashcards
source of il
English philosopher Jeremy Bentham first used the term “international law” in 1780. Hugo Grotius, a Dutch lawyer, is regarded as the originator of contemporary international law. International law has its roots in cooperative agreements signed by individuals in the Middle East, but the European Renaissance is credited with creating most of its fundamental framework.
how is il a weak law
Despite appearing like a legislative on the outside, the UN lacks the authority to enact enforceable legislation.
Except in specific circumstances, such as deciding on the UN budget, admitting new members, and choosing new justices for the International Court of Justice, the resolutions issued by the UN are only proposals.
International law does not grant the international court system absolute jurisdiction. THE ICJ needs the consent of certain states involved in controversial cases.
There is no ultimate executive power, no global police force, and no system of law enforcement.
Only in situations when there has been an aggressive act or threat of aggression may the UN Security Council sanction the use of force to compel governments to abide by its resolutions.
Do u agree with Austins or oppenheims view
ACCORDING TO AUSTIN il is not a true law as any law which is not enacted by a superior or legislative authority cannot be regarded as a law.
recommendations, no binding power, no police force, does not have absolute jurisdiction, can only use force.
connections between IR AND IL
il is a distinct part of ir
When reacting to any international event, states usually adhere to the rules laid out by international law. States are aware that the international community could view them unfavourably.
International law rules are based on self-interest. A state’s credibility could be damaged by breaching international law, which could also have an impact on future relationships with other states.
A common objective and a sense of certainty and predictability are created in international affairs when states abide by international law.
Due to globalisation in 1980s, there was an increase in international and regional organisations both in number and influence. This resulted in expansion of international law to cover the rights sonf obligations of international organisations
International law is a complicated system. Even though one of the basic principles of international law is the equality of states, which is horizontal in principle, some governments nevertheless maintain a greater role than others in the creation and upkeep of international law.
what is IL??
International law, sometimes known as the law of nations, is a body of regulations governing relations between states.
It can also be described as a frameowork of rulesthat regulate the relations between states, including those between the citizens of different states and other legally recognised international institutions.
This type of law primarily depends on consent-based governance, since states are typically not required to follow it unless they provide their explicit approval to a specific course of action.
international law is a system of treaties and agreements between nations that governs how nations interact with other nations citizens and other nations.
public il
The body of laws governing relations between states is known as public international law. Since it deals with interstate regulation, it differs from the other kinds of laws. It ignores the connections between privateentitiesor even domesticlaws of any country. It’s primary objective is to provide a framework of rules which help in fostering stable and organised international relations.
WTO
from the early days of Silk Road to the creation of GATT and the birth of WTO, trade has played an important role in supporting economic development and promoting peaceful relations among nations.
WTO was established in 1995 in Switzerland. It has 162 members, representing 98 percent of world trade.
It is the only global international organisation dealing with rules of trade between nations, It is an intergovernmental organisation that regulates and facilitates international trade.
Fundamentally, the majority of the world’s trading nations sign WTO agreements, which are then ratified intheirparliaments. The intention is to facilitate the conduct of business for manufacturers of goods and services. WTO is a trade opening organisation. Governments can negotiate trade agreements in this place. Additionally, member nations try to resolve trade-related issues there and use it as a forum for resolving trade disputes.
private international law
Private international law is also known as conflict of laws. It is a set of rules and principles which govern interstate interactions and transactions of private parties.
It is an organisation made up of state-level domestic legislation, model laws, and conventions.
why is private international law called conflict of laws?
commonly involves issues like: which jurisdiction should be permitted to hear the
case, and the law concerning which Jurisdiction should be applied to the issues in
the case. For example, in marriage laws, there is conflict of laws with respect to
marriage related issues between couples belonging to different jurisdictions. TheCut it commonly issues like which jurisdiction should be permitted to hear the case and which law concerning the jurisdiction should be applied to issues in the case.
international bodies following private laws of diff countiries.
hague conference on private international law was convened by the government of the Netherlands originates back in 1893, and focuses on developing conventions on a wide array of aspects of private law.
ICSID, UNIDROIT, UNICITRAL, VIENNA, UNICITRAL ON INTERNATIONAL COMMERCIAL
SOURCES OF INTERNATIONAL LAW
It is not easy to pinpoint sources of IL.
the most authoritative source of IL is article 38(1) of statute of ICJ which provides when a court deals with disputes relating to IL it shall apply the following-
1)international conventions whether general or particular establishing rules expressly recognised by contesting states.
i2)nternational custom
3)genreal principles of law recognised by civilised nations
38 1 divides the sources of IL into primary and secondary.
primary, secondary, general principles.
the primary sources which court considers in its decisions include conventions, customary law and general principles recognised by civilised nations. Treaties, custom, principal of law all come under primary sources of IL
judicial decisions, teachings of publicists are referred to as secondary sources of law.
As per article 38(1) the third source of IL are general principles of law. These principles fill the gaps when treaties do not provide a rule of decision. They could be general principles of justice, natural law, principles of comparative law. They are also found in textbooks, general surveys to manuals, treaties.
Treaties
Treaties are legally binding written agreements in which states agree to act in a particular manner as specified in the agreement. They are often complex documents particularly with regards to those involving more than. 2 parties as they are binding upon them and are to be entered into in good faith. Agreements which are between different nations but without intention of creating binding obligations are not considered to be treaties but these may have political effects.
A treaty need not to be one consolidated document but may consist of more than one related document.
Treaties may be drafted between states by their leaders or government departments depending on circumstances.
adoption and giving assent
A final draft must go through several steps in order to become a legally binding agreement. A two-thirds majority vote is required in an international conference to adopt the final document.
Consent to a treaty can be given in three different ways.
Consent by signature: Representatives who have been granted complete authority may sign treaties to bind the parties.
Consent by exchange of instruments
Exchange of specific instruments may be used in some situations to document permission. i.e., agreements that both parties have signed and agreed to.
Ratification refers to the act by which state establishes its consent to be bound by a treaty on the international plane.This was started to make sure that the representative who signed the treaty had the right authority by checking to see if the state would ratify it.
The process of ratification varies from nation to nation but usually involves a signature confirming the state’s agreement to abide by the terms of the treaty.
in multilateral treaties involving a number of countries ratification is the most preferred method of expressing assent. They are generally considered to be the most accepted as they are in a written form and have been explicitly assented to by the states party to the dispute.
customary IL
International customs are the second source of IL. As per 38(1), the court whose function is to decide in accordance with IL such disputes are submitted to it shall apply: international custom.
customer international law consists of rules that come from general practice accepted as law. Customary IL are binding legal rules that have developed on global levels through continued practice. They are important in current times where there is armed conflict because it fills gap in treat law and strengthens protection offered to victims. An observed custom is derived from law of nature, mutual consent of states.
