ULUSLARARASI KAMU HUKUKU I

European States claim to have laid the foundations of the practices and rules to regulate these relations. The body of rules that governed their relations were named the law of nations and subsequently also known as international law. It has also been termed as transnational law. These rules, however, were not confined to European States only. Even in ancient Mesopotamia, Egypt, and ancient India the rulers followed certain well-accepted rules in their mutual relations such as the inviolability of the messengers of another state and rules of warfare. However, the present corpus of international law is primarily Euro-centric.

Audi alteram partem: Hear the other side (let the other side be heard as well).
Estoppel: A rule of evidence or a rule of law that prevents a person from denying the truth of a statement he has made or from denying facts that he has alleged to exist.
Res judicata: The principle that when a matter has been finally adjudicated upon by a court of competent jurisdiction it may not be reopened or challenged by the original parties or their successors in interest

In the constitutions of certain countries, international law is placed at par with municipal law, binding their citizens, such as in the constitutions of the United States of America (Art. VI, Para 2), France (Art.55 of the 1955 Constitution), and Germany (Art. 25 of the Basic Law).

International law has been termed as weak law. Critics of international law argue that it differs remarkably from municipal law in many respects such as the absence of an elected legislature to frame laws, the absence of courts with compulsory jurisdiction over all disputes or the absence of an independent third-party disputesettlement mechanism, and the lack of effective sanctions to punish those subjects (states) who break the rules.

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. The jurisdiction of the Court is consensual and it lacks real power to enforce its decisions.

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 (Oxford Public International Law).

Audi alteram partem: Hear the other side (let the other side be heard as well).

Estoppel: A rule of evidence or a rule of law that prevents a person from denying the truth of a statement he has made or from denying facts that he has alleged to exist.

Human rights were for the first time conceptualized in the United Nations Charter and subsequently found their content in the Universal Declaration of Human Rights of 10 December 1948.

Recognizing this fact, Oppenheim’s latest definition reads, “States are the principal subjects of international law”.

According to this test, rules of international law do not qualify as rules of “positive law”. Austin categorized them as “laws improperly so called”. Other protagonists of this view were Bentham, Hobbes and Pufendorf, who also questioned the legal character of international law and termed it as merely moral ethical rules.

The Kellogg-Briand Pact: A multilateral agreement condemning war.

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.

It has found wide support among jurists, and the chief exponent of this theory was Bynkershoek. Other jurists such as Zorn, Triepel and Anzilotti later defended the theory, though with some refinements.

The most profound impact on the growth of international law during this time was of the writings of the Dutch scholar Hugo Grotius who was greatly influenced by his predecessor Gentilis. Grotius’s most acclaimed work De Jure Belli ac Pacis, originally published in 1625, was the first systematic comprehensive framework of modern international law. Therefore, he is often referred to as the father of the law of nations.

The main proponents of this theory are Hans Kelsen (1881-1973) and Hersch Lauterpacht (1897-1960).

Ex proprio vigore: By their or its own force.

Non-positivists support the dualist theory primarily because of the empirical differences in the formal sources of the two systems.

Vattel in his work titled Droit Des Gens (The Law of Nations) stated that the “necessary Law of Nations” contains those precepts that are dictated to States by natural law and equally binding on both States and individuals. Since States are composed of persons and their policies are laid down by persons, these persons are subject to natural law in whatever capacity they act. He held the view that to overview and control the conduct of another State by one or more States would be contrary to the law of nature. This viewpoint has the genesis of the doctrine of fundamental rights (Vattel cited in Starke, 1989).

International law was binding on the States because it was part of the law of nature. This idea can be clearly seen in the writings of Francisco de Vittoria (1480-1546), Francisco Suarez (1548-1617) and Alberico Gentilis (1552-1608).  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.

The 1899 Convention provided for the creation of permanent machinery which would enable arbitral tribunals to be set up as desired and would facilitate their work. This institution, known as the Permanent Court of Arbitration, consisted in essence of a panel of jurists designated by each country acceding to the Convention from among whom the members of each arbitral tribunal might be chosen”.

The League of Nations was the first international organization of universal character. Along with it came the Permanent Court of International Justice in 1921 that was later replaced by the present International Court of Justice in 1946. 

In November 1947, acting under Article 13/1 of the UN Charter, the General Assembly established the International Law Commission for the “promotion of the progressive development of international law and its codification.” Progressive development is the “preparation of draft conventions on subjects which have not yet been regulated by international law or in regard to which the law has not yet been sufficiently developed in the practice of States.”

The dualist theory holds that the difference between international law and municipal law lies in their subject matter, sources, and the juridical origin. The subjects of international law are exclusively the States, whereas the subjects of municipal law are individuals. The formal sources of international law are mainly customary and treaty rules, whereas municipal law mainly consists of legislative enactments and judge-made law. And the juridical basis of international law is the common will of States, whereas the basis of municipal law is the “State will,” that is, the will of the State itself binds individuals within its jurisdiction.