It is this presentation of international law that has often led to the question of whether international law is really law. How could international legal norms be effective if their validity depended on the will of States, the subjects that international law was supposed to regulate? This doubt about the validity and effectiveness of international law eventually led to a break between the two disciplines of international law and the theory of international relations after the Second World War. Two scholars, Edward Hallett Carr and Hans Morgenthau, suggested at that time that international law was particularly inadequate for understanding the behavior of nations. They were disappointed by what they identified as an idealistic belief in international law, which ultimately did not prevent – for the second time – a world war. Instead, they proposed a more “realistic” assessment of international relations based on power and interest. The founding realist school of international relations theory has thus called into question the effectiveness and relevance of international law as a decisive influencing factor for the conduct of States and for ensuring peace and security. The relationship and interaction between a national legal system (domestic law) and international law is complex and variable. National law can become international law if treaties allow supranational courts such as the European Court of Human Rights or the International Criminal Court to have national jurisdiction. Treaties such as the Geneva Conventions may require that national law be in conformity with the provisions of the Treaty.
National laws or constitutions may also provide for the transposition or incorporation of international legal obligations into national law. A third phase of internalization or obedience is achieved when the standards “reach an `obvious` quality that makes compliance with the standard almost automatic” (Finnemore and Sikkink 1998, 904). If this process succeeds, norms such as the prohibition of torture will become truly transnational during this process. They exercise normative power at the national level through constitutional guarantees and the work of civil society groups. In addition, the standards are used in regional and international human rights forums such as regional and international courts or human rights bodies. Thus, these norms acquire a transnational character through interactions between a variety of actors – governmental and non-governmental – in all fields and through historical public/private and national/international dichotomies (Koh 1997, 2612). Traditionally, sovereign states and the Holy See have been the only subjects of international law. With the spread of international organizations over the past century, in some cases they have also been recognized as relevant parties. Recent interpretations of international human rights law, international humanitarian law and international trade law (e.B.
North American Free Trade Agreement (NAFTA) measures after Chapter 11 involved businesses and even some people. Typically, an arbitration clause in the contract specifies the arbitrator or the means of choosing the arbitrator. To this end, many organizations conduct international arbitrations, including the American Arbitration Association, the International Chamber of Commerce, the International Centre for Settlement of Investment Disputes and the United Nations Commission on International Trade Law. Arbitrators do not need to be judges or lawyers; These are usually businessmen, lawyers or judges who have experience in global business transactions. The arbitration clause is therefore essentially a choice of jurisdiction clause and generally includes a choice of law that the arbitrator or arbitral tribunal must follow. You can now see how the initial idea of state consent as a necessary condition for an international rule still permeates these arguments. The main difficulty is often to establish government approval or sometimes to build alternatives for it. Elements of the naturalist and positivist schools were synthesized, mainly by the German philosopher Christian Wolff (1679-1754) and the Swiss jurist Emerich de Vattel (1714-67), both of whom sought common ground in international law. During the 18th century. In the nineteenth century, the positivist tradition gained wider acceptance, although the concept of natural rights remained influential in international politics, especially through the republican revolutions of the United States and France.
It was not until the 20th century that natural rights continued to gain prominence in international law. A more recent concept is “supranational law,” which concerns regional agreements where the laws of nation-states may be considered unenforceable in violation of a supranational legal system to which the nation is contractually bound. [9] Supranational law systems arise when nations expressly cede their right to make certain judicial decisions to a common court. [10] The decisions of the Common Court have direct effect in each State Party and take precedence over the decisions of the national courts. [11] The European Union is the most striking example of an international treaty organisation implementing a supranational legal framework, with the European Court of Justice taking precedence over all courts of the Member States in matters of European Union law. In the European Middle Ages, international law dealt primarily with the purpose and legitimacy of war and sought to determine what constituted a “just war”. For example, the armistice theory did not allow the nation to provoke an unjustified war to receive or conquer trophies that were legitimate at the time. [20] The Greco-Roman concept of natural law was combined with religious principles by the Jewish philosopher Moses Maimonides (1135-1204) and the Christian theologian Thomas Aquinas (1225-1274) to create the new discipline of “international law” which, unlike his Roman predecessor of the same name, applied natural law to relations between states. A similar framework was developed in Islam, in which the law of nations was derived in part from the principles and rules established in treaties with non-Muslims. [21] “If legislation is the promulgation by a person or assembly of laws that bind the whole community, there is no such thing as international law. Because contracts only bind those who sign them.
In short, the sources of international law encompass everything that an international tribunal could rely on to settle international disputes. International disputes include disputes between nations, disputes between individuals or companies from different nations, and disputes between individuals or companies and a foreign nation-state. Article 38, paragraph 1, of the Statute of the International Court of Justice (ICJ) lists four sources of international law: treaties and conventions, customs, general principles of law and judicial decisions and doctrines. The status of sovereign State implied full membership in the international society of States. Whether a territorial entity acquires the legal status of a sovereign State depends solely on a number of factual criteria (such as the existence of a population, territory, effective government and the ability to enter into international relations), or whether this also requires formal recognition by other States. Even today, the state`s criteria are controversial and, in practice, it is not always easy to determine whether all the conditions are met. In addition, for political reasons, States have sometimes recognized other States that did not meet one or more State criteria, or they did not recognize States even though they met all the criteria. Thus, after the disintegration of the former Yugoslav state in 2008, Kosovo declared its independence from Serbia. Serbia has not officially recognized Kosovo as an independent sovereign state. Nor are a number of other states such as Russia, China and Spain, all of which are trying to control regional independence or autonomy movements on their own territory. Since international law exists in a legal environment without a global “sovereign” (i.e., an external power capable and willing to enforce international norms), the “application” of international law is very different from the national context. In many cases, law enforcement takes on Coasian characteristics, where the norm is self-enforcement.
In other cases, the deviation from the norm may pose a real risk, especially if the international environment changes. If this happens, and if enough States (or enough powerful States) constantly ignore a certain aspect of international law, the norm may in fact change according to the concepts of customary international law. For example, before World War I, unfettered submarine warfare was considered a violation of international law and supposedly a casus belli for the U.S. declaration of war on Germany. .