1.5 The need for most international rules to be translated into national legislation

• International rules to be applied by states within their own legal systems generally have to be incorporated into national law, because doctrine of State sovereignty gives states control over what laws will apply in their territories.

• Therefore practice of international law depends on help, co-operation and support of national legal systems.

• International law like a field marshal who can only give order to generals – generals must give orders to troops.

1.6 The range of States’ freedom of action

National legal system

• Individuals have broad freedoms of actions, but they are limited by legal restraints.

• Every community has a set of values which individuals are not allowed to deviate from without some legal or social effect.

• Limitations existing regarding the functioning of government (e.g. you can only vote when there are elections) and in terms of constitutional rules about liberties/freedoms.

International legal system – Classical Approach:

• Subjects of international law have huge freedom of action – nearly unlimited (classically).

• States were completely free to decide upon their own domestic matters, which some exceptions re treatment of foreign nationals, for example.

• States also had complete freedom re. conduct of their foreign policy and in economic policy. Classically, states could use force when they wanted to, intervene in affairs of other states  it was a free for all.

• The constraints on ‘legal freedom’ were political, economic, social and cultural – but not legal.

• International law was thus about negative regulation – what was not prohibited was allowed. This favoured states with powers to carry out their wildest dreams.

International Legal System – Modern developments:

• Network of international treaties limits freedom of state action.

• Increasing restriction on right to use force.

  • Covenant of League of Nations (1919) included restraints; UN Charter requires members to refrain from using or threatening the use of any sort of military force.

• Customary rule that certain general principles have greater legal force than other rules. Peremptory norms called jus cogens, result is that states must refrain from entering into agreements that violate peremptory norms.

1.7 The overriding role of effectiveness

• International law based on principle of effectiveness: only those claims and situations which are effective can produce legal consequences.

• Legal fictions have no place on international scene – international law attaches itself to what is real, to what works, not to what is legally, theoretically attractive. (e.g. new situations were not legally valid unless they could be seen to rest on a firm and durable display of authority).

• Therefore, force has played an overriding role – as effectiveness most easily obtained from the barrel of a gun.

1.8 Traditional individualistic trends and emerging obligations and rights

1.8.1 Reciprocity as the Basis of International Rights and Obligations

• International community’s horizontal structure and lack of strong political, economic and ideological links among members has resulted in tendency for states to be self-seeking and self-interested.

• The substantive rules governing behaviour of States reflect this self-interestedness.

• International rules confer obligations on pairs of States only: each State has a right or obligation in relation to one other State only.

Customary rules:

• confer on each member of int’l community rights towards all other States.

• However, concrete application boils down to standards applying to pairs of States. Violation of customary norms creates legal relationship only between the aggrieved State and offending party.

• Consequence is that procedural right of enforcement in violation of a customary norm is earned only by the aggrieved party, not by the int’l community – no other state can intervene on victim’s behalf.

Multilateral treaties:

• Treaty creates rights for each contracting party to demand fulfilment of obligations agreed to under treaty.

• However, breach of that obligation results in effect on one party, and only that party can protest.

• This is far from domestic legal systems – where breach of obligations (e.g. criminal) can result in intervention of non-party, e.g. Prosecutor.

• The result is that reaction to a breach of int’l obligation ultimately depends on whether the victim is stronger than or at least as strong as the culpable state  respect for law depends on power.

Exceptions to this rule:

Piracy

• Authorised every state to seize and capture pirates on the high seas, whatever their nationality and whether or not they had attacked.

• Thus, the right to intervene and maintain legal order conferred not just on injured parties, but on everyone.

• But this was not the advent on a new world community; rather states were reacting to safeguard a joint interest.

Rights of riparian states re navigation on international rivers

• Every riparian state has a right to free navigation and equality of treatment

• If one of those states performs an act preventing another State’s free navigation, it infringes upon the right of any other riparian state, whether or not it actually causes damage, and that State can intervene (Territorial Jurisdiction of the International Commission of the River Oder, PCIJ, 1929)

1.8.2 Community Obligations and Community Rights

Present day:

• traditional rules based on reciprocity are still bulk of int’l law. But there are a number of treaties which provide for obligations on State towards all other parties and are not reciprocal. This emerged due to new values in int’l community.

Features of Community Rights:

• Obligations to protect fundamental values (peace, human rights, self-determination of peoples, environmental protection)

• Obligations towards all members states of int’l community (erga omnes)

• Coupled with a correlative right that belongs to any state (or any other contracting state if the rights arise through treaty)

• Right may be exercised by any other (contracting) state, whether or not it has been materially or morally injured by action of other state

• The right is exercised on behalf of int’l community to safeguard values of int’l community, not individual state self-interest

Exercise of ‘community rights’

• Weak mechanisms, by in large, for exercise of these rights

• Traditional diplomatic means – diplomatic pressure, peaceful counter-measures, verbal expressions of disapproval, economic measures

• Some treaties simply proclaim rights without specifying any means by which they could be put into effect

• Development of community rights should be not be over-stated, as there is a huge gap between normative level and implementation. Often states end up exercising their ‘community rights’ only when their own political, economic, military interests are at stake.

• BUT there are some int’l procedures which can be set in motion not by states but by other aggrieved parties or by international bodies  creates pressure for fulfilment of int’l obligations from parties other than states.