INTERNATIONAL LAW OUTLINE
I. WHAT IS INTERNATIONAL LAW?
A. THE DEFINITION OF “INTERNATIONAL LAW”
1. 2 parts of the legal universe:
a. International law è prescribes rules governing the relations of nation-states.
b. Domestic law è prescribes rules governing everything else, namely the conduct or status of entities w/in each state.
2. Public v. private international law:
a. Public è governs the activities of governments in relation to other governments.
b. Private è deals with activities of individuals, corporations, and other private entities when they cross national borders.
3. Definitions focusing on the norm or rule of law:
a. J.L. Briefly è international law is a body of rules and principles of action which are binding upon civilized states in their relations with one another.
b. Restatement è international law consists of rules and principles of general application dealing with the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with person, whether natural or juridical.
B. HISTORY OF PUBLIC INTERNATIONAL LAW AND ALTERNATIVE PERSPECTIVES
2. Developing Countries’ Perspectives
a. Malcolm N. Shaw, International Law
1) New states in the 3rd world have not discarded the concept of international law, but merely reject the European and Christian ideas embedded in modern international law.
2) Although those conflicting interests of industrialized nations are campaigned against, new states want the benefits of international diplomatic relations.
b. Ram Prakash Anand, International Law and the Developing Countries
1) The United Nations has become of forum for smaller states to press their claims.
2) New states have an advantage in the international forum since they are not aligned to any of the big nations and hence those nations’ interests – the new states can press their own interests.
C. IS INTERNATIONAL LAW REALLY LAW?
1. Skepticism exists as to the effectiveness of international law and that in reality int’l law is merely an interplay of int’l politics.
a. Lack of compulsory enforcement à some believe that governments comply w/it only when it is convenient.
b. Prominent, international institutions have failed to live up to the expectations of its proponents (e.g., United Nations).
c. Lack of a judiciary to resolve disputes à no effective world court or police force.
d. Lack of a legitimate process for creation of int’l l
a. International law is largely comprised of relations:
1) Exist between nations (states) è this is important, b/c countries’ statehoods have been called into question previously.
2) The integrity of territory and territorial sovereignty are observed.
3) Diplomatic relations are established.
4) Human rights and justice to aliens.
5) The observance of international agreements (pacta sunt servanda).
a) Most important aspect, and makes international relations possible.
b) To escape from an agreement a nation attempts to permeate its legal aspects.
b. International law also attempts to control behavior (e.g., governments may not arrest foreign diplomats.)
c. Limitations of international law:
1) No effective law-making body or process.
2) The law that exists is inadequate.
a) Unregulated disorders (e.g. arms race, oil embargo).
b) No welfare society.
No judiciary to develop and clarify the law, to resolve disputes, and to impel nations to observe the law.