Lecture 2 nature historical What is law

Lecture 2 nature &historical • What is law? • Law is divided into 2 Natural law and positive law • Positive law is divided into 2 - municipal and international; • Municipal is divided into 2 ordinary and constitutional law • Ordinary is divide into 2 - private and public • Public is divided into 3, civil, criminal, administrative

2. 1 • Austin J. English legal scholar defined law as the commands of justice supported by threat of sanctions/punishment. He distinguished between questions of what actually law is and what law aught to be. That is a positivists definition of law.

2. 1 • Positivists do not believe that morality is essential attribute of law. This differs with American realist definition of law which postulate that law is whatever the court says. The American Realists accepts that legislative bodies produces legislature but they say that such legislation has no meaning assigned to it by court in the case of litigation

2. 2 • International Law • IL is defined as a body of rules and principles, which are binding upon states in relation with each other. In recent years, IL expanded to include a number of new players e. g International organisations, individuals to a lesser extent and NGOs are also subject of international law.

2. 3 • However only states have full legal personalities under international law. Only states can belong to the UN and only states can call upon the security council if there is a breach of international peace and security. Only states can apper in contentious proceedings in ICJ. Only states make claims on behalf of their nation who have been injured or prejudiced by another state.

2. 4 • There is limited legal personality of the international organisation. The UN is a good example. • CASE • In 1949 Bennedate of Sweden was assassinated while carrying out UN duties in Palestine. The UN waited to sue the state of Israel for compensation under international law.

2. 5 • Negligence of the Israel authorities had allowed the murderer to take place and was responsible for failing to apprehend the perpetrators. • The UN was not certain whether it had the legal personality necessary to bring the claim under international law.

2. 6 • Accordingly the UN asked the ICJ for an advisory opinion on the matter. The ICJ ruled that the UN had legal personality in principle. • The court said it was necessary to infer the existence of such personality because the UN could not carry out its duties.

2. 7 • However the court was at position to make it clear but this did not mean that the UN was a state. Although its legal rights and obligation were the same as those of the state.

2. 8 • The ICJ meant the UN was subject of international law capable of possessing international rights thus the UN could claim damages from Israel under international law but though the ICJ jurisdiction in contentious litigation is limited to states.

2. 9 • Nature of IL • IL is also called the Law of Nations but this must be construed to refer to states than nations. This is so because certain states contain more than one nation e. g Nigeria, Canada, and Switzerland.

2. 10 • Some nations are split into several nations Federal Republic of Germany, Austria, Poland. The Somalis form part of Ethiopia, Djibouti and Kenya. The UN is strictly a league of independent states rather than nations.

2. 11 • International law is distinguished from Municipal Law- the domestic law of state regulating the conduct of individual and legal entities within it. • Regional international law – a rule that operates within a particular region such as relating to diplomatic asylum.

2. 12 • Private international law or conflict of laws – which is the body of rules that apply in cases before municipal courts when there is a foreign element, or there is an issue of jurisdiction or the enforcement of a foreign judgment of particular system of law different from the ordinary such as customary law.

2. 13 • IL must be distinguished froma) International Morality-, which states accept only as a moral duty, e. g, repatriation of stranded seaman at the expense of the host state. Humanitarian help to states suffering calamities. b) International comity-a rule of politeness, convenience and goodwill, e. g, meeting a visiting envoy at the airport.

2. 14 c) International usage – a mere habit that is not obligatory e. g, gunshots fired on the arrival of a visiting head of state, , saluting the flag of foreign warship at sea. In IL it is important to distinguish between – Lex Lata- The law presently in force and Lex Ferenda – The law as it ought to be

2. 15 • Is International Law “Law” • Hobbes and Parendof concluded that IL was not “”law” whilst Austin ‘s Positivist analysis denied the quality of “law” to IL. • A number of Characteristics are missing infact Austin conclude that IL is but “positive international morality” that is equivalent to rules of a club and binding on states because they agree to be bound.

2. 16 • The major reason cited is the lack of sanctions in the cases of the violations to international norms as compared to municipal law. • Looking at the actual role and capability of international law in the governing the relations between states must not be exaggerated, in the view of the decisive significance of military, economic, political and ideological factors of power.

2. 17 • The role of IL in IR has always been limited, but its functions in structuring the international system has been eminent with the increase in global interdependence and self interest of state in regulating their intercourse rationally on the basis of reciprocity.

2. 18 • States continuously conclude and implement bilateral and international treaties and establish and operate international organisations. • This corresponds to the empirical fact that most states are careful to observe most obligations of IL most of the time even in the absence of compulsory dispute settlement procedures and centralised enforcement agency.

2. 19 • The problem of IL arises that general concept of law itself and its relative status is subject to quite divergent view throughout the world. • Critics also cite the absence of Legislation.

2. 20 • While international law is clearly weaker than municipal law from the view point of independent enforcement it still provides the external relevant terms of legal reference for the conduct of states in their international relations based on the fact that, inspite of all differences, they are members of the international community

2. 21 • Historical Background • The precondition of international law is the existence of states and mechanism of political units to interact among themselves for their benefit. The minimum expectation are that entities have respect to one another and to their promises (pacta sunt servada) this makes commerce and exchange of goods and services thrive. Lessons are that no political unit except the most primitive relies entirely on itself.

2. 22 • The history of international law goes back to ancient Egypt, China and India. By the 15 th century BC the States of the Middle east maintained contact. The code of MANU in ancient India contained chapters devoted to diplomatic immunity and privileges • The ancient Greeks had rules on Asylum,

2. 23 • extradition, diplomatic agents, treatment of combatants, cessation of hostilities e. t. c. • The Kingdom of Ghana 300 to 1087 AD conducted international trade with Morocco, Mali, North Africa and the Middle East. • The Kingdom of Portugal exchanged Ambassadors with kings of Benin and the Congo

2. 24 • In Europe common law and Roman Law had considerable influence on international law. • St Augustine 354 -420 insisted that states must observe treaties and customs of war. • Thomas Aquinas 1224 -1274 supported the authority of IL

2. 25 • Islam prescribed code on the conduct of war and human treatment for civilians and protection of property in conquered lands. War could be waged against infidels but they were to be treated with humane. • The greatest writer of IL is Dutch Grotius 15831645 whose work “Jure Belli Ac Pacis” The Law of War and peace was the first treatise on ILs

2. 26 • He championed the freedom of the seas, moderation in the conduct of war, sources of law – treaties, custom and law of nature. • The law further expanded during the 19 th century with the rise of European States in the Congress of Vienna. European Expansion to all parts of the world and the new inventions increase their hegemony over the rest of European Colonialism of Africa, expanded the base with the realities of Berlin issue areas expanded to international boundaries.

2. 27 • 1905 saw the establishment of the Permanent Court of Arbitration, International Court of International Justice 1921, International Court of Justice 1946, and International Criminal Court in 2001. • October Revolution in 1917 ushered socialist government, which emphasised on distribution of wealth.

2. 28 • The League of Nations became the first multi-purpose organisation followed by the UN in 1945. International law commission created in 1947 with the view of codifying international law. IL proliferated into branches to include – humanitarian law, international org, human rights law, law of the sea and the air space.

2. 29 • Question: Which interests does international law serve in a much expanded, diverse but increasingly interdependent world? • A historical analysis of the development of international law reveals that law has in the past been used to meet challenges and to protect and promote the members of its active users.

2. 30 • Concerned states should consciously evolve a more relevant and just law that will protect interest of all people’s and states. All states of the world are now subject of IL. It follows that it must now be used to protect and promote their interests.

2. 31 • Characteristics of IL • IL has a number of special characteristics making it completely different from highly developed national legal systems that are a result of the existence of modern state and its apparatus.

2. 32 • 1. 2. 3. It has the following characteristics: Central organs of law making (legislature) Law determination (Court and Tribunals) Law enforcement(administration, police and army)

2. 33 • Il on the other hand is primarily concerned with the legal regulation of international intercourse of states that are organized as territorial entities are limited in number, regarding themselves as sovereign and legal. IL is rather horizontal legal system, lacking supreme authority, the centralization of the force and a deficiency in 3 basic features of law making, law determination and law enforcement

2. 34 • The UNGA is not the world Legislature • The ICJ in the Hague is legally and politically limited • The UNSC can not operate as an enforce agent

2. 35 • Despite these limitations a state that violates an international obligation is responsible for unlawful acts towards the injured states and through self-help can a wrongful act be addressed. • States may wage war to enforce their legal rights though this is no longer lawful except in circumstances such as self-defense

2. 36 - Invasion of Kuwait by Iraq - Fighting Terrorism by US and UK • Other forms of self-help include: - Retorsion – a lawful act which is designed to injure the wrong doing state e. g cutting economic aid (this is legal since there is no legal obligation to provide aid except under treaty provision)

2. 37 - Reprisal – acts which would normally be illegal but which are rendered legal by a prior illegal act committed by the other states – deportation of Zimbabweans and Denial of COSATU delegation.

2. 38 • But there exists a probability of a state injuring itself as a state e. g, USA cutting trade with China there is loss of market and investment. Zimbabwe and the UK, Apartheid South Africa and Rhodesia. • Group of countries can impose sanctions under the auspices of the UN. UNSC has a mandate but VETO.

2. 39 • UNGA has the capacity most of its resolutions are not binding. UNSC and UNGA is a political rather than a judicial body and basis its decision on political consideration and sometimes pay little attention to legal rights and wrongs of a dispute.

2. 40 • International Orgs can exercise more authority and control over members e. g IMF – State may be excluded from membership of the fund would be unable to borrow gold or foreign currency from the fund to meet balance of payments.

2. 41 • Some regional organisation may have more power over members e. g Court of Justice of the EU. This has compulsory jurisdiction over member states that are accused of breaching rules of community law.

2. 42 • It is important to stress that sanctions work less effectively in international law. States are few in number and have unequal power/strength there is one or two states which are so strong that other states are usually too weak or too timid or too disunited to impose sanctions against them.