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International Law
McGill Faculty of Law
De Mestral, Armand

PUBLIC INTERNATIONAL LAW
January 7th, 2004
THE NATURE AND REALITY OF IL
Another order of law
· Jus gentium
Romans used it to mean the law applicable to everyone in the Empire. A law of great generality, applied across the board to many peoples. Implies a community, implies generality. Not just specificity, sense of generality.

· Jus inter gentes
Law between peoples. The law governing the relations of peoples. Modern positivist ILyers have seized on this, the law governing the relations between states. How the states interact and the principles and rules that govern the interaction. A law governing the relationships of organized society /w other organized societies.

· Law of nations
19th century expression. Nationalistic vision of societies, the apotheosis of the nation state, reflected in this concept. PIL is a more broad expression, tries to catch a lot of things. Public in that it deals /w public questions. 18th and 19th century German writers posited that there was only one law for the world, seamless web of the extension of certain public rules coming from each state. Inter-nation (state vs. nation issue – still an issue, ambiguity, covers both public and private).

No single definition of law, it behaves differently in different contexts. Law will apply to different groups and different societies in different ways. Shouldn’t surprise you that PIL is not the same as the CCQ. There are a lot of codes. US Code of International Relations. No single authoritative final text.

· Ubi Jus Ibi Societas
Where there is law, there is a community. Is there a community? The development of an international community is the great challenge of our time. This is globalization. A world community is there, whether we like it or not. Working towards communities, global regimes, they are usually more than global politics. There are areas (like trade law) where the law is hard, difficult to avoid, it has an impact. In many spheres there are global regimes, imperfect, incomplete, often in the making. One of the fascinating things of PIL – you can participate in the making of the law (in negotiations, as a government adviser, in business). IL is a law in the making, people participate and make in different ways, participate in law making, it happens somewhat differently in IL, inter-dynamic process, doesn’t just happen in limited areas, happens in many different contexts around the world. A law of mankind, a law of people, a law of humanity. Not simply a law between state organs that have been created around the world.

What is IL?

e.g. of “no parking” sign. Who authorized it?

City of Montreal is authorized to do that, look at Montreal Charter. Montreal is there, Assemblee Nationale. Understanding of provincial powers under the Canadian Constitution. Criminal law elements, Federal Parliament. Canadian Constitution, written and unwritten law of Canadian Constitution as interpreted by different levels – legislative, judicial, executive. But who authorizes Canada to do all of this? Could say – Canadians, other nations.

Can you say that it just exists?

There is no answer beyond the state. The state is it. Reconcile yourself to the fact that the states simply exist, and they make the rules.
Is it a safe analogy to make – the state and the individual. Is a state a person?

Modern state is extremely complex – can you personify it? Does a state have a single will? The law applies to the will of that state and can be applied to the law of that state is a difficult proposition. What about the minorities? Other groups?
If you try to make rules in function of one state, one will, (positivist analysts have attempted to do this), quickly come to conclusion that the individual will isn’t prepared to bend in certain key moments when a state will not necessarily be subject to a single rule. The personification of the state is one which doesn’t reflect reality.
Collective sanctions – how to put the state in jail?

We are used to fractionated sovereignty. To say that it is all personified in the concept of the state is an oversimplification. To build a workable regime, not at all satisfactory to conceive of the personified nation state.
Emphasis on state as primary subject and primary makers of IL. IL today looks at world order in the broader sense, the UN Charter, there is an attempt to define the world order. One of the most unsatisfactory features of the whole attempt. Rights and duties of states, what are there powers, there authority. Classic field of IL.
A lot of the things we look at will relate to the state, its relationship /w other states, state responsibility. Laws of war.

Modern IL is particularly apparent in mo

was posed after the Russian Revolution by the emergence of Soviet views.
Advances in science and technology, transportation; world trade; recognition of human rights issues—“IL in the United Nations era has had to adapt to a much changed, multinational and increasingly interdependent world.”
It is clear that the new world order will have to be less state-centred and more human centered, and will have to reflect the solidarity of mankind rather than its divisions.

Brierly, “Basis of Obligation in IL” p. 8

Two rival doctrines as to why states are bound to observe IL: doctrine of fundamental rights and doctrine of positivism

Doctrine of “fundamental rights”

from doctrine of “natural rights” transferred to states; states are bound together for the same reason men are. Every state, by the very fact that it is a state, is endowed with certain fundamental rights: self-preservation, independence, equality, respect, and intercourse.
Wrong: there are no legal rights without a legal system which validates them; atomistic; states need a bond, not a claim of individual liberty.

Doctrine of Positivism:

IL is the some of the rules by which states have consented to be bound, and that nothing can be law to which they have not consented. This is a fiction
“The ultimate explanation of the binding force of all law is that man, whether he is a single individual or whether he is associated with other men in a state, is constrained, in so far as he is a reasonable being, to believe that order and not chaos is the governing principle of the world in which he has to live…”