LCP4801 - International Law

LCP4801 - International Law. .International Law. LCP4801 Why is the UN not a legislator? How does it diff er from a parliament? The UN does not have the power to enact rules which are binding on all states. T The General Assembly (GA) may only adopt resolutions, and these are merely recommendations – states cannot be compelled to apply them. A parliament (as an instrument of national law), on the other hand, makes laws which are fully binding on the community it represents. In the UN, the representatives of states are not elected to the GA, but are appointed by their respective states, as opposed to a democratic parliament where the members are elected by the citizens of that specifi c state. Unlike the GA, the Security Council (SC) of the UN is entitled to give binding decisions however, these decisions are restricted to situations determined by the SC as constituting a threat to international peace and security. (5) LCP4801/1 (2) The national law precedent system v the International Court of Justice (ICJ). Does the ICJ follow a precedent system? Under the precedent system, lower courts are bound by the decisions of higher courts. This is the position under most, if not all, national law systems. However, the position is somewhat different under international law. Article 59 of the Statute of the ICJ provides that the “decision of the Court has no binding force except between the parties and in respect of that particular case”. Therefore, international law excludes the precedent system on two fronts: • The decision applies only to the parties involved: in other words, if the same issues arise between different parties, the court is not bound to give the same ruling; and • The decision applies only in that specifi c case. (3) Why do we say that the state judges its own case? On what basis are the judges in the ICJ appointed for a specifi c case? How does such appointment diff er from that in respect of the judges in a national case? In international law, the state itself decides whether there has been an infringement of international law, judges the matter itself, and takes whatever steps it decides on. States are also closely involved in the process of appointing the panel (the judges) that will hear their case. They can either elect their own representatives to the panel or they can at least elect people who will be sympathetic to their cause. It is in this sense that states are “judges” in their own case. Conversely, in national law, the legal principle nemo iudex in sua causa applies which literally means that no-one should be a judge in his own case. 2021 NOTES The plaintiff s or accused have no say in who will hear their cases – there is a permanent body of judges, magistrates, etcetera, who hear all cases. (4) Explain the difference between the executive ‘‘machinery’’ backing up national judgments and that backing up international law judgments? Municipal judgments are supported by the complete executive machinery of the state in the form of a police force, the military etc. In international law, there is no central executive authority with a police force at its disposal to enforce judgments. At the international level, the SC is entitled to make use of ‘‘sanctions’’ that can be brought against offending states. Chapter VII of the UN Charter allows the SC to direct its members, either individually or collectively, to use force against a state whose violation of international law constitutes a threat to international peace and security. The SC can also make use of economic sanctions against an offending state. THE RISE OF INTERNATIONAL ORGANISATIONS Perhaps the most common example of an international organisation is the European Union or the African Union. The members of these organisations are states and not private enterprises or individuals. Therefore, it is important to note that ordinarily, members of international organisations are states and this makes such organisations unique and different from private international unions or, their modern counterparts, non-governmental organisations (NGOs) whose members are private organisations/ enterprises or private individuals.