Running head: THE NATURE OF INTERNATIONAL LAW AND THE INTERNATIONAL SYSTEM
THE NATURE OF INTERNATIONAL LAW AND THE
INTERNATIONAL SYSTEM
Name
Institution
Course
Tutor
Date
,THE NATURE OF INTERNATIONAL LAW AND THE INTERNATIONAL SYSTEM 2
The Nature of International Law and the International System
Chapter 1
International law is not perfect; historically, there have been
successes (invasion of Kuwait by Iraq in 1990) and failures
(Bosnia, Somalia and Sudan).
It is frequently compared to national law and its institutions (to
determine its existence or success) because they are seen as being
the definitive model of what the law and a legal system should be
like.
The role of international law:
International law comprises a system of rules and principles that
govern the international relations between sovereign states and
other institutional subjects of international law, such as the United
Nations.
The existence of international rules as a system of law:
If the existence of international as a ‘system of law’ is determined
through its recognition by the States, it needs to be determined
how one can know that a state has recognized this system of law:
a) If international law is practiced on a daily basis in the
Foreign Offices, national courts and other governmental
organs of states, as well as international organizations such
as the United Nations.
,THE NATURE OF INTERNATIONAL LAW AND THE INTERNATIONAL SYSTEM 3
b) When states – who are still the most important subjects
of international law – do not claim that they are above the
law or that international law does not bind them à shows
that states follow international law as a matter of obligation
and not simply as a matter of choice or morality.
c) If the overwhelming majority of international legal
rules are consistently obeyed.
d) If international law is able to resolve disputed
questions of fact and law. But, because international law
has a limited number of legal institutions (as compared to
the national levels) it sometimes fails, and therefore needs
to develop better institutions for stronger recognition.
The enforcement of international law:
The characteristic of a system of law is that rules are capable of
being enforced against malefactors’ and therefore; international
law is not ‘true law’ because it is not generally enforceable.
BUT there are, in fact, enforcement procedures that take place:
The Security Council:
• It takes ‘Enforcement action’ against a state when it
poses a threat to the peace or has committed an act of
aggression or a breach of the peace.
• It primarily preserve peace rather than to enforce the
law, although sometimes these can coincide.
, THE NATURE OF INTERNATIONAL LAW AND THE INTERNATIONAL SYSTEM 4
• But limitations to the exercise of this power, both
political and legal – five permanent member countries have
a veto power, and one veto could/would put a halt to the
action.
Loss of Legal Rights and Privileges:
• Ensure that any violation of law results in the loss of
corresponding legal rights and privileges.
Judicial Enforcement:
• Done through institutions such as the International Court
of Justice or the International Criminal Court.
• Many problems arise in the national courts of states, in
which case the national courts may adopt international law to
be applicable to both parties. The effectiveness of
international law: (why international law works)
The Common Good:
• Common self-interest and necessity of the states (which
works because of today’s interdependent society) Nations
depend more on each other.
The Psychological Rubicon:
• Psychological barrier of breaking international law,
simply because it is seen and accepted as being law.
The Practitioners of International Law:
• The ‘habit of obedience’ derived from their training as
national lawyers serves to encourage respect for international
law.
THE NATURE OF INTERNATIONAL LAW AND THE
INTERNATIONAL SYSTEM
Name
Institution
Course
Tutor
Date
,THE NATURE OF INTERNATIONAL LAW AND THE INTERNATIONAL SYSTEM 2
The Nature of International Law and the International System
Chapter 1
International law is not perfect; historically, there have been
successes (invasion of Kuwait by Iraq in 1990) and failures
(Bosnia, Somalia and Sudan).
It is frequently compared to national law and its institutions (to
determine its existence or success) because they are seen as being
the definitive model of what the law and a legal system should be
like.
The role of international law:
International law comprises a system of rules and principles that
govern the international relations between sovereign states and
other institutional subjects of international law, such as the United
Nations.
The existence of international rules as a system of law:
If the existence of international as a ‘system of law’ is determined
through its recognition by the States, it needs to be determined
how one can know that a state has recognized this system of law:
a) If international law is practiced on a daily basis in the
Foreign Offices, national courts and other governmental
organs of states, as well as international organizations such
as the United Nations.
,THE NATURE OF INTERNATIONAL LAW AND THE INTERNATIONAL SYSTEM 3
b) When states – who are still the most important subjects
of international law – do not claim that they are above the
law or that international law does not bind them à shows
that states follow international law as a matter of obligation
and not simply as a matter of choice or morality.
c) If the overwhelming majority of international legal
rules are consistently obeyed.
d) If international law is able to resolve disputed
questions of fact and law. But, because international law
has a limited number of legal institutions (as compared to
the national levels) it sometimes fails, and therefore needs
to develop better institutions for stronger recognition.
The enforcement of international law:
The characteristic of a system of law is that rules are capable of
being enforced against malefactors’ and therefore; international
law is not ‘true law’ because it is not generally enforceable.
BUT there are, in fact, enforcement procedures that take place:
The Security Council:
• It takes ‘Enforcement action’ against a state when it
poses a threat to the peace or has committed an act of
aggression or a breach of the peace.
• It primarily preserve peace rather than to enforce the
law, although sometimes these can coincide.
, THE NATURE OF INTERNATIONAL LAW AND THE INTERNATIONAL SYSTEM 4
• But limitations to the exercise of this power, both
political and legal – five permanent member countries have
a veto power, and one veto could/would put a halt to the
action.
Loss of Legal Rights and Privileges:
• Ensure that any violation of law results in the loss of
corresponding legal rights and privileges.
Judicial Enforcement:
• Done through institutions such as the International Court
of Justice or the International Criminal Court.
• Many problems arise in the national courts of states, in
which case the national courts may adopt international law to
be applicable to both parties. The effectiveness of
international law: (why international law works)
The Common Good:
• Common self-interest and necessity of the states (which
works because of today’s interdependent society) Nations
depend more on each other.
The Psychological Rubicon:
• Psychological barrier of breaking international law,
simply because it is seen and accepted as being law.
The Practitioners of International Law:
• The ‘habit of obedience’ derived from their training as
national lawyers serves to encourage respect for international
law.
