Define the terms below. Use Black’s law dictionary.
The Nature of International Law
Pre-reading tasks
1. Define the term international law. A body of rules that control or affect the rights of nations in their relations with each other (Merriam-Webster). L. Oppenheim defined International law in the following words, “Law of Nation or International Law is the name for the body of customary and conventional rules which are considered legally binding by civilized states in their relation with each other. Duhaime's International Law Dictionary: a combination of treaties and customs which regulates the conduct of states amongst themselves, and persons who trade or have legal relationships which involve the jurisdiction of more than one state.
2. When did international law emerge?
3. Explain the difference between private and public international law.
4. What are the most prominent legal commentators in the area of international law?
According to Bentham’s classic definition, international law is a collection of rules governing relations between states. It is a mark of how far international law has evolved that this original definition omits individuals and international organizations—two of the most dynamic and vital elements of modern international law. Furthermore, it is no longer accurate to view international law as simply a collection of rules; rather, it is a rapidly developing complex of rules and influential—though not directly binding—principles, practices, and assertions coupled with increasingly sophisticated structures and processes.
Relations in the framework of international law have acquired greater importance as a result of increasing globalisation, and have also become more complex. Since many of the problems which individual States face today cannot easily be solved at the national level, modern international law is of growing relevance in areas that were once the exclusive domain of national law. These include individual rights, environmental protection and efforts to combat crime. The scope of international law today is immense. From the regulation of space expeditions to the question of the division of the ocean floor, and from the protection of human rights to the management of the international financial system, its involvement has spread out from the primary concern with the preservation of peace, to embrace all the interests of contemporary international life.
Historically, international law has been derided or disregarded by many of the world’s foremost jurists and legal commentators. They have questioned, first, the existence of any set of rules governing inter-state relations; second, its entitlement to be called ‘law’; and, third, its effectiveness in controlling states and other international actors in ‘real life’ situations. In the early years of the twenty-first century, this theoretical rejection of the prescriptive quality of international law seemed to be borne out in practice as a number of states, groups and individuals became engaged in internationally ‘unlawful’ action without even the remote possibility that their conduct could be checked by the international legal system. Whatever the legal merits of the US-led invasion of Iraq or the Israeli invasion of Lebanon, or the detention of terrorist suspects without trial, or the unhindered resort to terrorism by groups based in existing states (with or without the support of another state’s government), or the rejection by some of international minimum standards for the protection of the environment, the perception has been that international law is failing in one of its primary purposes - the maintenance of an ordered community where the weak are protected from arbitrary action by the strong. Some commentators have even suggested that we are witnessing the demise of this subject as a legal discipline and should now recognise it as having political and moral force, but not necessarily legal content.
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There is, of course, some truth in these criticisms. International law is not a perfect legal system as well as the national legal system of any state. There have been successes and failures for the international legal system. The invasion of Kuwait by Iraq in 1990 may have produced a significant response from the international community, both legally and militarily, but the United Nations failed in Bosnia, Somalia and Sudan and was impotent as Israel invaded Lebanon in July 2006. Likewise, the denial of procedural and substantive rights to those being held in detention by the USA at Guantanamo Bay may well constitute a violation of the international law of human rights worthy of much criticism, but it pales beside the activities of Pol Pot in Cambodia in the late 1970s or the Rwandan genocide of the 1990s. On the other hand, these episodes can be contrasted with the successful UN-led efforts to bring self-determination and then independence to East Timor in 2002, the groundbreaking establishment and operation of the International Criminal Court responsible for prosecuting individuals for violation of fundamental international human rights and the continuing impact of the International Court of Justice in regulating states’ use of the world’s oceans and their natural resources. In other words, the story of international law and the international legal system, like so many other legal systems, is one with successes and failures.
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The way in which the international system deals with these practical issues and the many others that occur on a daily basis whenever the members of the international community interact, goes to the heart of the debate about whether ‘international law’ exists as a system of law. However, to some extent, this debate about the nature of international law is unproductive and even irrelevant. The most obvious and most frequently used test for judging the ‘existence’ or ‘success’ of international law is to compare it with national legal systems such as that operating in the UK or Japan or anywhere at all. National law and its institutions - courts, legislative assemblies and enforcement agencies - are held up as the definitive model of what ‘the law’ and ‘a legal system’ should be like. Then, because international law sometimes falls short of these ‘standards’, it is argued that it cannot be regarded as ‘true’ law. Yet, it is not at all clear why any form of national law should be regarded as the appropriate standard for judging international law, especially since the rationale of the former is fundamentally different from that of the latter. National law is concerned primarily with the legal rights and duties of legal persons (individuals) within a body politic - the state or similar entity. This ‘law’ commonly is derived from a legal superior, recognized as competent by the society to whom the law is addressed (e.g. in a constitution), and having both the authority and practical competence to make and enforce that law. International law, at least as originally conceived, is different. It is concerned with the rights and duties of the states themselves. In their relations with each other it is neither likely nor desirable that a relationship of legal superiority exists. States are legal equals and the legal system which regulates their actions inter se must reflect this. Such a legal system must facilitate the interaction of these legal equals rather than control or compel them in imitation of the control and compulsion that national law exerts over its subjects. Of course, as international law develops and matures it may come to encompass the legal relations of non-state entities, such as ‘peoples’, territories, individuals or multi-national companies and it must then develop institutions and procedures which imitate in part the functions of the institutions of national legal systems. Indeed, the re-casting of international law as a system based less on state sovereignty and more on individual liberty is an aim of many contemporary international lawyers and there is no doubt that very great strides have been made in this direction in recent years. The establishment of International Criminal Court is perhaps the most powerful evidence of this trend. However, whatever we might hope for in the future for international law, it is crucial to remember that at the very heart of the system lies a set of rules designed to regulate states’ conduct with each other, and it is this central fact that makes precise analogies with national law at present misleading and inappropriate.
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Task 1
Define the terms below. Use Black’s law dictionary.
A state - The political system of a body of people who are politically organized; the system of rules by which jurisdiction and authority are exercised over such a body of people:
Binding –. (Of an agreement) having legal force <a binding contract>. 2. (Of an order) requiring obedience
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Detention ( задержание , арест) - The act or fact of holding a person in custody; confinement or compulsory delay
international community - countries of the world considered or acting together as a group (Cambridge):
genocide - An international crime involving acts causing serious physical and mental harm with the intent to destroy, partially or entirely, a national, ethnic, racial, or religious group
self-determination - the process by which a group of people, usually possessing a certain degree of national consciousness, form their own state and choose their own government (Britannica).
The UN Charter clarifies two meanings of the term self-determination. First, a state is said to have the right of self-determination in the sense of having the right to choose freely its political, economic, social, and cultural systems. Second, the right to self-determination is defined as the right of a people to constitute itself in a state or otherwise freely determine the form of its association with an existing state.
to enforce (обеспечивать соблюдение, навязывать, принуждать) - 1. To give force or effect to (a law, etc.); to compel obedience to. 2. Loosely, to compel a person to pay damages for not complying with (a contract).
state sovereignty - 1. Supreme dominion, authority, or rule. 2. The supreme political authority of an independent state. 3. The state itself.
2. Describe briefly the following events from the text:
- the US-led invasion of Iraq - UN inspections during the mid-1990s uncovered a variety of proscribed weapons and prohibited technology throughout Iraq. That country’s continued flouting of the UN weapons ban and its repeated interference with the inspections frustrated the international community and led U.S. Resolution 1441, passed on November 8, 2002, demanded that Iraq readmit inspectors and that it comply with all previous resolutions. Iraq appeared to comply with the resolution, but in early 2003 President Bush and British Prime Minister Tony Blair declared that Iraq was actually continuing to hinder UN inspections and that it still retained proscribed weapons. However, on March 17, seeking no further UN resolutions and deeming further diplomatic efforts by the Security Council futile, Bush declared an end to diplomacy and issued an ultimatum to Ṣaddām, giving the Iraqi president 48 hours to leave Iraq. When Ṣaddām refused to leave Iraq, U.S. and allied forces launched an attack on the morning of March 20.
- the Israeli invasion of Lebanon -
- the invasion of Kuwait by Iraq in 1990 - The invasion of Kuwait on 2 August 1990 was a two-day operation conducted by Iraq against the neighboring State of Kuwait, which resulted in the seven-month-long Iraqi occupation of the country. Iraq set up a puppet government known as the "Republic of Kuwait" to rule over Kuwait and then annexed it outright, when Saddam Hussein announced a few days later that it was the 19th province of Iraq. On 3 August 1990, the UN Security Council passed Resolution 660 condemning the Iraqi invasion of Kuwait and demanding that Iraq unconditionally withdraw all forces deployed in Kuwait. This invasion and Iraq's subsequent refusal to withdraw from Kuwait by a deadline mandated by the United Nations led to military intervention by a United Nations-authorized coalition of forces led by the United States.
- the failures of the United Nations in Bosnia, Somalia and Sudan – Somalia: The UN peacekeeping mission, UNOSOM, which was set up in December 1992 to facilitate humanitarian aid to people trapped by civil war and famine, has since failed because of the lack of government to communicate with and repeated attacks against UN officers. The failure of the UN peacekeeping mission caused about 500,000 civilian deaths in the country. Bosnia: Around 8,000 Muslim men and boys were killed by Bosnian Serb troops under the command of former General Ratko Mladic at Srebrenica in July 1995, the worst mass killing on European soil since World War II. Many of the Muslim victims had fled to the UN-declared safe zone in Srebrenica only to find the outnumbered and lightly armed Dutch troops there unable to defend them. Sudan: Rebels in Sudan’s western region of Darfur rose up against the government in February 2003, saying Khartoum discriminated against non-Arab farmers there. Some 200,000 people have been killed in the conflict since then, while 4.4 million people need aid and over 2.5 million have been displaced.
- the Israeli invasion of Lebanon in July 2006 - The conflict was precipitated by the 2006 Hezbollah cross-border raid. On 12 July 2006, Hezbollah fighters fired rockets at Israeli border towns as a diversion for an anti-tank missile attack on two armored Humvees patrolling the Israeli side of the border fence. Israel refused and responded with airstrikes and artillery fire on targets in Lebanon. Israel attacked both Hezbollah military targets and Lebanese civilian infrastructure. On 11 August 2006, the United Nations Security Council unanimously approved United Nations Security Council Resolution 1701 (UNSCR 1701) in an effort to end the hostilities. The resolution, which was approved by both the Lebanese and Israeli governments the following days, called for disarmament of Hezbollah, for withdrawal of the IDF from Lebanon, and for the deployment of the Lebanese Armed Forces and an enlarged United Nations Interim Force in Lebanon (UNIFIL) in the south. It formally ended on 8 September 2006 when Israel lifted its naval blockade of Lebanon.
- activities of Pol Pot in Cambodia in the late 1970s - The Khmer Rouge’s rule over the next four years was marked by some of the worst excesses of any Marxist government in the 20th century, during which an estimated 1.5 million (and possibly up to 2 million) Cambodians died and many of the country’s professional and technical class were exterminated. A four-year period cost 1.671 and 1.871 million people from 1975 to 1979, or 21 to 24 percent of Cambodia's 1975 population.[1] through the combined result of political executions, disease, starvation, and forced labor. Due to the large numbers, the deaths during the rule of the Khmer Rouge are commonly known as the Cambodian genocide.
- the Rwandan genocide of the 1990s - The Rwandan genocide, also known as the genocide against the Tutsi, was a mass slaughter of Tutsi, Twa, and moderate Hutu in Rwanda, which took place between 7 April and 15 July 1994 during the Rwandan Civil War. The genocide was organised by members of the core Hutu political elite, many of whom occupied positions at top levels of the national government. The scale and brutality of the massacre caused shock worldwide, but Western nations such as Belgium, France, the U.S., and others ignored the genocide. An estimated 500,000 to 1,000,000 Rwandans were killed, about 70% of the Tutsi population. As a result of the genocide, nations collaborated to establish the International Criminal Court.
- events in East Timor in 2002 - In 1999, following the United Nations-sponsored act of self-determination, Indonesia relinquished control of the territory. East Timor became the first new sovereign state of the 21st century on 20 May 2002 and joined the United Nations and the Community of Portuguese Language Countries.
Result of referendum shows 78% voters favoured independence. Violence erupts as anti-independence militia helped by the Indonesian military resume campaign of terror, leaving up to 1,000 dead. UN Transitional Administration in East Timor (UNTAET) established. Indonesia inaugurates human rights court to hold military accountable for atrocities in East Timor after 1999 independence vote.
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