International Law

Text, Cases and Materials

David Pataraia

• Publisher: Routledge
• Year: 2021
• eBook ISBN: 9781000477320
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

International Law: Text, Cases and Materials provides not only an essential introduction to the core concepts and foundational principles of international law, but also a detailed overview of each established area in which international law operates.

Featuring cases, materials, and illustrative figures throughout to enhance the level of context and detail provided, the book covers everything a student of international law requires. Topics include the law of treaties, international organisations, the international protection of human rights, responsibility in international law, jurisdiction, diplomatic and consular law, territory in international law, the law of the sea, international air and space law, international economic law, international environmental law, and international humanitarian law.

This comprehensive textbook will be essential reading not only for any course on international law, but also as a starting point for those wishing to grasp the context of a particular area of international law before exploring further.

CHAPTER 1

The essence of law and the nature of international law

DOI: 10.4324/9781003213772-1

INTRODUCTORY REMARKS

Law as a generalised notion

The particular angle of the general notion of law presented in this book

Introspecting into the specifics of international law

LEGAL SYSTEMS

Diversity of the legal systems

Legal families

Civil law family

Common law family

Customary law family

Religious law family

Mixed national legal systems family

The interplay between the legal families

THEORIES OF LAW

Primary schools of thought

Natural law school of thought

The substantive and procedural natural law

The substantive or traditional natural law theory

The procedural naturalism

Two mainstream lines of argumentation

The law as the ordinance of reason

Legal positivism school of thought

Modern legal positivism

The different perspectives on the question of the validity of the naturalist and positivist approaches

Other theories and approaches

Normative theory

Law as integrity

The complex interaction between the legal approaches

THE ESSENCE OF LAW

a) The law as a normative system

Normative dimension

Normative systems

b) The law as a systematised body of norms

Prescription

Ordinary rules or principles

Legal right

Addressees of legal norms

Sources of law

Systematised body of norms

A key imperative of the legal dimension

c) The law as instituted by the state or the interstate system

The law as established by the state or interstate system

Law as a mirror of the state or interstate system

Ordering principles of national and international law

Key functions

d) The law as applied through the structure which has instituted it

Law-applying

Legal order

Legal responsibility

Legal capacity

e) The mission of law – to avoid conflicts and to establish civil peace

Conflicts

Normative systems as the instruments for the avoidance of conflicts

Civil peace

Primary addressees of national and international law

THE NOTION OF INTERNATIONAL LAW

DEVELOPMENT OF INTERNATIONAL LAW

To the basics

The modern sense of international law

The issue of terminology

New European approach to international law

The first wave of modern international law

The second wave of modern international law

The third wave of modern international law

New challenges

SPECIFICS OF INTERNATIONAL LAW

a) Interstate system

A complex web

Horizontal model

A unique legal position of the superpowers

Establishment of law by consent (approval)

b) State as the main subject of international law

A complex notion of the subject of international law

A state as the main subject of international law

Other subjects

Scope of subjectivity

The limited subjectivity of the other subjects of international law

Subjectivity of individuals

c) Sources and norms of international law

The consensual nature of the sources of law

The sources of law

Complex arrangement of international law

d) International law as applied by subjects

Application of international law

Enforcement system

Dispute resolution

The application system described here as the only opportunity

e) Avoidance of war and institution of peace

The mission of international law

Avoidance of a third world war

Co-operation in various fields

The meaning of peace

The right to peace

CASES AND MATERIALS (SELECTED PARTS)

INTRODUCTORY REMARKS

general notion of law

sources of law

formal characteristics of law

legal systems

national law

international law

public international law

common characteristics of law

normative phenomena

Law as a generalised notion

In this chapter, the term ‘law’ shall be understood as a general notion encompassing all legally binding norms (the general notion of law) that are reproduced through the sources of law. In turn, the sources of law are such predefined forms as particular laws, secondary legislation, and precedents as well as other sources of law, which are precisely predetermined and arranged in each legal system.

The particular angle of the general notion of law presented in this book

This book defines the general notion of law primarily with an emphasis on the formal characteristics of law and mainly with the purpose of highlighting the specifics of international law.

Introspecting into the specifics of international law

There are many theoretical models which aim to define the system of rules known as international law. Some of these explanations are outlined in this book, with the intention of making the essence of international law easy to grasp for a would-be reader.

To introspect into the peculiarities of international law, it is necessary to have a clear picture of the following starting points in mind:

1. The law is composed of two legal systems – national law (also referred to as the municipal law, domestic law, or internal law) and international law (also referred to as public international law).
2. As regards national law, it has different appearance in different countries.
3. Although there can be no simple answer to the question ‘What is law?’ nevertheless, there are some common characteristics of law that unite the law in all its forms, distinguishing it from other normative phenomena.

LEGAL SYSTEMS

legal systems

legal families

civil law family

common law family

customary law family

religious law family

mixed national legal systems family

precedents

Diversity of the legal systems

As noted earlier, legal systems exist in the form of either national law (encompassing independent national legal systems of the states) or international law. The national law, in its turn, according to the widely recognised generalisation, is made up today of five legal families.¹

1 For instance, it is named by Rene David as the family of laws or legal families: ‘[T]he Romano-Germanic family, the Common law family and the family of Socialist law. These three groups, whatever their merits and whatever their extension throughout the world, do not however take into account all contemporary legal phenomena.’ Rene David and John E. C. Brierley, Major Legal Systems in the World Today (3rd edn, Stevens & Sons 1985) 22.

Legal families

• Civil law family
• Common law family
• Customary law family
• Religious law family
• Mixed national legal systems family

Civil law family

The civil law family stems mainly from Roman law heritage. Its examples vary considerably from country to country. Nevertheless, they also display some shared characteristics. In the civil law family states, the ethos of the positive general rules prevails, manifested primarily in the form of the comprehensive legal codes. In these countries, the law is substantially constituted by the legislature (though other state organs which are empowered to introduce the secondary legislation also participate in the law-making process). At the same time, case law is of secondary importance in these jurisdictions. Germany, France, Italy, and Georgia are examples of countries with a civil law system.

Common law family

The nations of the common law family rather tend to abandon the ethos of generalisation and major codification; in parallel with the statutes, they rely on precedents (which are certain judicial decisions that have already been made).² Hence, the law in such countries is to a considerable degree developed by judges moderating between the adversarial parties. The United Kingdom (except Scots law, which on the whole has a mix of the characteristics of the civil law and common law families), Ireland, and the United States (except Louisiana, which also combines elements of both the civil and common law families) represent the common law family.

2 ‘In English law, judgments and decisions can represent authoritative precedent (which is generally binding and must be followed) or persuasive precedent (which need not be followed). It is that part of the judgment that represents the legal reasoning (or * ratio decidendi) of a case that is binding, but only if the legal reasoning is from a superior court and, in general, from the same court in an earlier case. Accordingly, ratio decidendis of the *House of Lords are binding upon the *Court of Appeal and all lower courts and are normally followed by the House of Lords itself. The ratio decidendis of the Court of Appeal are binding on all lower courts and, subject to some exceptions, on the Court of Appeal itself. Ratio decidendis of the High Court are binding on inferior courts, but not on itself. The ratio decidendis of inferior courts do not create any binding precedent.’ A Dictionary of Law, Elizabeth A. Martin (ed) (5th edn, Oxford University Press 2002, reissued with new covers 2003) 374.

Customary law family

In the customary law family countries, certain patterns of behaviour (or customs) are accepted as legal rules of conduct. These are, as a rule, unwritten and are frequently distributed by elders, passed down from generation to generation. Customary law practices can ...

Table of contents

• Cover Page
• Half Title Page
• Title Page
• Copyright Page
• Contents Page
• Table of cases and materials Page
• List of figures Page
• Preface Page
• Acknowledgments Page
• 1. The essence of law and the nature of international law
• 2. Sources of international law
• 3. Principles of international law concerning friendly relations and co-operation among states in accordance with the Charter of the United Nations
• 4. The notion of the subjects of international law and the state as the main subject
• 5. Other subjects of international law
• 6. The law of treaties
• 7. International organisations
• 8. The international protection of human rights
• 9. Responsibility in international law
• 10. Jurisdiction
• 11. Diplomatic and consular law
• 12. Territory
• 13. The law of the sea
• 14. International air and space law
• 15. International economic law
• 16. International environmental law
• 17. International humanitarian law
• Index