ULUSLARARASI KAMU HUKUKU I

Due to the inability of international law to satisfy this test, John Austin described international law as positive international morality, which consists of “opinions or sentiments current among nations generally.”

The International Court of Justice (ICJ) is the only international court to adjudicate all kinds of inter-State disputes. However, it lacks universal compulsory jurisdiction for settling disputes.

According to Article 59 of its Statute, decisions of the Court are binding upon the parties to the dispute and only in respect to that particular dispute. Under Article 94 of the UN Charter, each member of the United Nations undertakes to comply with the decision of the Court in a case to which it is a party. If the party fails to comply with the decision, the Security Council may give effect to the judgment against a recalcitrant State by making recommendations or deciding upon measures.

Countermeasures are unilateral measures adopted by a State (the ‘injured State’) in response to the breach of its rights by the wrongful act of another State (the ‘wrongdoing’ or ‘target’ State) that affect the rights of the target State and are aimed at inducing it to provide cessation or reparations to the injured State

War and the use of force had historically constituted the legal means for enforcing international law and settling disputes between States. However, with the coming into force of the United Nations Charter, the use of force has been made illegal, with the exceptions to defeat armed aggression, to maintain or restore international peace, and to resort to the inherent right of individual or collective self-defense under Chapter VII of the Charter. The process to outlaw war was initiated by the Kellogg-Briand Pact of 1928, without, however, putting anything certain or definite in its place for the enforcement of international rights and obligations generally, or of international law as such.

After the disintegration of the Socialist Federal Republic of Yugoslavia, the new federation of Yugoslavia, consisting of Serbia and Montenegro, was expelled from the United Nations in September 1992 because of its continuing violation of the Charter principles.

By the fifteenth and sixteenth centuries, when the modern international law started getting its form and content, the natural law had made heavy inroads and assumed strong ideological moorings. This can be clearly seen in the writings of Francisco de Vittoria (1480-1546), Francisco Suarez (1548-1617) and Alberico Gentilis (1552-1608). International law was binding on the States because it was part of the law of nature. However, it was Hugo Grotius (1583-1645) who secularized the concept of natural law while making a distinction between jus naturale and jus gentium. He based the law of nations on customs and treaties in addition to the law of nature. The law of nature, according to him, was the dictate of right and reason, not of divine prescriptions.

After Grotius, scholars of international law came to be classified under one of three schools: 1) Naturalists, such as Samuel von Pufendorf (1632- 1694), who based international law on natural law exclusively; 2) Positivists, such as Cornelius van Bynkershoek (1673-1743), who based it on the consent of States that was evidenced in State practice, and 3) Grotians (followers of Grotius), including Christian Wolff (1679-1754) and Emmerich de Vattel (1714-67), who relied on both natural law and the consent of States as well as reiterated that international law was binding on States.

There was a marked development of international law in the second half of the nineteenth century due to the emergence of powerful nation-States, the expansion of European civilization in other parts of the world mainly through colonization, new and faster means of transportation, and increasingly destructive nature of warfare. These developments impelled States to devise new rules of international law, particularly relating to the use of force and war, which had become a part of national policies.

There are two principal theories put forward by scholars on the relationship between international law and municipal law: monism and dualism.

According to monism, international law and municipal law are, in general, the components of one system of law.The main proponents of this theory are Hans Kelsen (1881-1973) and Hersch Lauterpacht (1897-1960). Gerald Fitzmaurice and Joseph Gabriel Starke are other prominent supporters of the approach.

On the other hand, according to dualism, they represent two entirely distinct and self-contained legal systems. The main proponents of this theory are Heinrich Tripel and Dionisio Anzilotti.

International law has gone through major changes after World War II with the help of UN, IMF, WHO and IBRD. However IOM is a newly established international institution with a little effect on qualitative side of international law.

International law has been termed as weak law despite many countries abide a broad range of international rules since there are multiple absent features including elected legislature, court with compulsory jurisdiction, independent dispute-settlement mechanism an effective sanctions.

The term countermeasures imply the unilateral measures that are adopted by a state in response to the wrongful action of another state.

The applicability of modern international law to non-European countries became possible after World War I with the League of Nations in 1920.

The correct term for putting together the rules of law on a specific issue systematically is called codification. In terms of international law, the term is known as codification of international law.

The conflict between municipal law and international law causes a question of precedence to rise. In such situations, the real question becomes which of those laws to be considered primarily, hence the term primacy is the correct term that explains the issue.

The juridical basis of international law is common will because it requires regarding countries to come to an agreement whereas the same basis for municipal law is much different, it does not require any multinational agreement. Thus there can be a conflict between those two.

The condition required for international law to become supreme over municipal law is when the state breaches its international obligations, pre-agreed either explicitly or implicitly.

Naturalist school regards the law of nature as the main source of international law whereas positivist school takes it as self-limitation of countries as voluntarily restricting their own sovereignty. Thus the former put great emphasis on human beings and the latter places the emphasis on sovereignty. However, the true basis for international law lies neither of them exclusively.

Monism argues that both laws are in general, components of a one bigger system. However Dualism counters that argument with accepting international law and municipal law as two different and self-contained systems. Both arguments created two further theories: Transformation (Specific adoption) Theory and Delegation Theory.