Theme 1 - The nature and history of International Law Flashcards
What is Dugard’s definition of International Law ?
A normative body of rules and principles which are binding upon states in their relations with one another.
What is Shaw’s definition of International Law ?
Covers relations between states in all their myriad of forms, from war to satellites and regulates the operations of the many international institutions.
What is a subject of International
Law (referencing only states) ?
A subject of international law is an entity possessing international rights and obligations and having the capacity:
- to maintain its rights by bringing international claims;
- and to be responsible for its breaches of obligation by being subjected to such claims.
Discuss the problems regarding this definition.
- These definitions ignore the role played by other actors such as intergovernmental organisations (UN, EU, AU, etc).
- Not only states have international legal personality.
What is International Law ?
That 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.
What is not International Law ?
- International Comity.
- International Morality.
- Private International Law (conflict of laws).
What is National Law ?
- A legislature capable of making laws.
- Fully developed judiciary doctrine of precedent (Common Law States).
- Fully executive machinery for the enforcement of judgements.
- Subjects are individuals or legal persons.
What is Public International Law ?
- There is no legislature.
- No compulsory court structure, no system of precedent.
- No executive to enforce judgements – a poorly developed system of sanctions.
- Subjects are generally States.
Discuss the jurisdiction of ICJ.
Contentious Issues (States disputing against each other).
- Both/ All parties to a dispute must consent to the jurisdiction of the ICJ.
Advisory Opinions.
- Jurisdiction is not an issue.
- The opinion is not binding, it just explains the legal issue.
Is International Law really law ?
- According to John Austin Law is a command of a political superior to a political inferior backed by the threat of sanction; he concluded that international law is not law.
- Some scholars argue that there if no legislature, executive and compulsory court system, then not law.
- Sir Frederick Pollock counterargued that a legal system requires the existence of a political community, and the recognition by its members of settled rules binding upon them.
Discuss the counter-arguments against the theories that International Law is not law.
- There is a political community (states).
- There is a body of rules and principles that comprise international legal order.
- Members of the international community recognise these rules and principles as binding upon them.
- International law is observed and honoured every day in diplomatic and consular relations, trade, airs and sea traffic.
What are the different types of International Law ?
General (Global) and Regional international law.
- General is the rules and principles applicable to a larger number of states.
- Regional applies to a certain group of states in a particular region (AU, EU, SADC).
Discuss the feminist theory.
- Feminist theory takes as its central concern the position of women and denotes a form of analysis.
- Places women at the center of inquiry and works for an end to the oppression of and discrimination against women.
- It takes gender as its primary organizing category.
Discuss the influence of the feminist theory on Human Rights Law.
- International Human Rights Law’s gender-neutrality was problematic because it did not consider that the harm suffered by women might be different from men.
- The influence of feminist scholars on International Human Rights Law includes:
- Vienna World Conference on Human Rights (1993).
- Declaration on the Elimination of Violence against Women (1993).
Discuss the influence of the feminist theory on International Criminal Law.
- ICTY and ICTR jurisprudence recognizes sexual violence as constituting war crimes; and torture and enslavement; and crimes against humanity; and genocide.
- The Rome Statute of the ICC also includes gender-based violent crimes in the jurisdiction of the ICC as constituting war crimes; and crimes against humanity; and genocide.
