Positive law is called in Latin the lex lata which refers to the standards in force today. He opposes the lex ferenda, which refers to the law in the making. The term "positive" comes from the Middle Ages and would refer to something positively created.
Definition of public international law[modifier | modifier le wikicode]
Public international law is the legal order that contains rules on certain relations between States and other matters.
It is a very vague definition, let us try to clarify the terms:
- Order: conveys the idea that it is a nested system.
- Legal: this epithet connotes the idea of a standard. That's the rule.
- Some: relations between States are not regulated in all aspects by rules of law. In international law, there is not a "super-state". There is, therefore, room for a foreign policy that can be conducted more or less freely.
- Between states: States make international law. It is an inter-state law, based on coordination, horizontal in its structure. There are two ways of doing law: 1) I have power, I make rules that I impose. 2) There is no one who has power, the rules are made by agreements. There are important consequences to "between States". Decentralized creation, multiple, overlapping homes. Execution is decentralized (e. g. execution by revenge, he has done this forbidden, I also do it as a reprisal).
- Other subjects: persons, generally collective entities with diplomatic and political competence. Entities such as: insurgents, ICRC, Holy See (concorda), international organizations such as the United Nations, finally there is the individual. The individual becomes a subject of international law, enjoys certain human rights and is subject to rules of international criminal law (judged by the International Criminal Court).
A simpler, but less precise definition: The legal order that regulates affairs between States.
International law governs international society. In opposition to national laws, there is international law. International society has changed over the centuries, but we can say that from a legal point of view, international society is formed primarily, but not exclusively, by States.
International law is the law that governs primarily certain relations between States; it is inter-State law.
Modern international society, the society that counts for the rule of law, is not made up solely of States. It consists mainly of States, but not exclusively. There are a whole series of other subjects that have legal status in international law. They can create certain international standards by concluding agreements, for example.
Logically, these entities may be bound by a norm of international law. The United Nations can, for example, create an agreement with a State for the establishment of a headquarters, as in New York or Geneva. This treaty is an agreement under public international law.
It would be too short to say that public international law governs only relations between States, which excludes certain subjects of law. Thus, the establishment of a headquarters is subject to international law between an organization and a State. For example, the Pope as head of the Holy See may conclude international treaties.
The main subjects for and through which international law is done are the 194 States around the world. Other actors are also parts of the international legal society because international practice recognizes their powers in matters of public international law.
However, States are the main subjects of international law, because international law is done by and for States. It is because States hold the power of sovereignty that explains why international law and made by and for States.
Thus, international law governs relations between States, but also with other subjects submitted and participating in international society.
Not all relations between States are governed by international law. States may have different relationships because they are free to act as they see fit in a variety of areas. States shall bind themselves by expressing mutual will in order to develop legal certainty. Thus, they more or less voluntarily alienate their original freedom in order to obtain certain advantages, as may be provided by legal certainty.
This can only be done through agreements that limit rights but guarantee certain relationships.
We have to look at what norms bind a state to enlighten situations. There are general but also specific standards that vary from state to state. There may be a policy pursued by a State in a lawful manner with respect to one State and unlawful with respect to another State, depending on the legal relations between a State and others, and this in a different way, it is a right of varying geometry.
To sum up, international law is the law that fundamentally governs certain relations between States, those that States want to see subject to legal discipline.
Evolution of public international law[modifier | modifier le wikicode]
The evolution takes us from classical international law to modern international law.
Classical international law[modifier | modifier le wikicode]
Classical international law extends from the Grotian period to the 19th century, which ended politically in 1919, i.e. until the end of the First World War. The climax of classical international law is the 20th century.
Modern international law begins after the First World War. What distinguishes it is that classical international law is a minimal legal order that basically attempts to organize coexistence with States, but this is accompanied by important eclipses. There are independent "civilized" states, the law is there to serve them as a useful foreign policy instrument for each of them. He is a great servant of the "civilized" states. Thus it is a closed circle that applies only to the great rulers and sets their operating rules.
In the 19th century, international law was confined to the fields of diplomacy, treaties (transaction) and war.
- Diplomacy: to ratify bilateral treaties and cooperate, but also to resolve disputes and disputes.
- Treaties: it is an instrument in which the chords will be recorded and an instrument is needed to transcribe the chords.
- War: war empties the dispute between states. In the 19th century legal system, war is a means of resolving disputes following the failure of negotiations.
It is a supreme servant, a service that offers rules giving the possibility to agree on treaties depending on regulations. It is in everyone's interest that war be contained, but that it remains a legitimate means. There is no particular constraint on States.
The 19th-century law knows no limits on the use of force, even for a discretionary cause. In peacetime, one cannot enter the territory of another State because there are strict rules on the violation of sovereignty, but in wartime it is possible to violate territorial integrity and annex territory.
Thus, in the 19th century, international law was a minimum right at the service of States.
Modern international law[modifier | modifier le wikicode]
Modern international law breaks with this tradition, it is no longer a minimum, but is intended to expand without leaving any gaps. Modern international law will provide for a series of fairly binding norms such as the non-use of force, prohibition of annexation and violation of internal affairs, but also the right of peoples to self-determination.
The objective is to police the international society and make it less anarchic. The idea is to prioritize international society with rules that are valid for all and binding on States becoming a master for States under modern international law.
Modern international law is also strongly committed to promoting certain common causes in contrast to classical international law, which did not care about them as the servant of the Western powers.
Material and personal expansion of international law[modifier | modifier le wikicode]
Material Expansion[modifier | modifier le wikicode]
Traditional international law contained rules that clothed around diplomacy, treaties and war. Modern international law is a much broader right in terms of the matters it covers.
Today, it would be difficult to find any issue that was not regulated at the international level. Not only will there be other international matters to be added, such as the settlement of disputes or international responsibility, but more importantly, issues that were not meant to be settled at the international level, and which will begin to be settled because of growing interdependencies.
For example, in the various legal systems there are labour laws that refer to national law. There is also a whole series of international texts on labour law, and in the first place 200 conventions adopted under the auspices of the International Labour Organisation. Thus we have a bipartition of the rules of work between the national and international layers. Another example is patents, where the International Patent Office deals with patents, but also economic and financial law, which is regulated with force and detail in domestic legal systems, but yet there is already a whole international component with the WTO, IMF, IBRD and a whole series of conventions such as bilateral investment treaties. The same is true of environmental law with a whole series of internal protections and international conventions.
It is impossible to find any branch of international law where there is not also international regulation, whatever its purpose, international law refers to public international law. Even in the case of private law, a treaty must be concluded in order to harmonize private law legislation, since the conclusion of a treaty is even one of its sources.
States will not want to regulate everything internationally, but they know that they must agree on certain aspects in order to create legal certainty.
Personal Expansion[modifier | modifier le wikicode]
Formerly, in the 19th century, the subjects of international law, the entities capable of having rights and duties were the States, holding the spotlight and occupying almost all of them.
In the twentieth century the number of subjects diversified, the first fruits of which can be found in the nineteenth century with the Holy See, the Committee of the Red Cross founded in 1862-1893, but also international organizations. There is also the individual we are all who had no status. Prior to 1945, international law was considered to be inter-power relations and the individual's legal relations were considered to be regulated solely by domestic law. Domestic law was protected against any form of interference, a purely domestic matter on which no other State had anything to say.
After 1945 this lock was broken, no distinctions were made, on the contrary there is a movement of international criminal law inaugurated in Nuremberg in 1946 - 1949, on the other hand has slowly but definitely progressed an international human rights law through a whole series of conventions. The individual enjoys certain rights directly while being subject to criminal responsibility under international law. Previously a treaty could subject an individual to prosecution, now it is possible in some cases to claim accounts directly under international law before an international tribunal.
There is a change of deep structures that no longer marks separations. This remains true in general terms, but separation is no longer inert.
After 1945, there was a great diversity in the subjects of international law, i. e. entities or persons that may have rights or obligations directly under an international rule. We can feel the effects until today.
The effectiveness of public international law[modifier | modifier le wikicode]
There is an equation that will bring us face to face and that we have already thought about. Domestic law works because there is a gendarme and a judge; in short, the recalcitrant can be brought to a court so that sanctions are evoked even against his will.
The idea that domestic law is always the enforcement of sentences and a simplistic idea. The equation to complete it is that in international law there are no gendarmes and judges. Something must work, however... when the law is subordinate, it works and when it is co-ordinating it would not work.
The reality is that this equation is wrong. One only has to look at tax law and compare the rules of a club approved by all members to realize that the rules of a club are more often respected.
We must beware of this equation, we must reserve the inventory. When you look at things more closely, you realize that they are much more articulated.
As in all branches of law there are strong and weak subjects. For example, in the case of the International Court of Justice (1921 - 1940) and the Permanent Court of International Justice, this is the major jurisdiction for settling disputes between States. The Permanent Court in his career issued about 35 judgments. There was no police officer to enforce these arrests, but they were all executed in the 1920s and 1930s.
On the other hand, in the case of human rights and humanitarian rights, humanitarian law is the law of armed conflict, which contains rules on the conduct of hostilities and the protection of persons in the event of armed conflict. These two subjects are contrasted, human rights violations are indirect violations of national laws. There will always be a trial under international law, but never a trial under the domestic law of these States, it will be said that the regime is tyrannical, but not that the law has malfunctioned.
In UIL, in the case of conflict, humanitarian law does not work well because it was adopted primarily for humanitarian and non-warlike reasons. The same right for armed conflicts works remarkably well, because armies of trades put great care in not violating international rules. You have to look before you express yourself.
There are some factors that lead to respect for international law, which may be imponderable, but they are less important:
- Reciprocity: l when a rule is respected, there is no violation of another State. In the case of a violation of a rule, there is a strong reflection, because States are rational, the right to think is important to them, because their interests can be called into question. Reciprocity is a pliers to enforce the law. In international law there are very few rules imposed on a State, they are subject to the rules that they have basically accepted. For example, all treaty rules are rules contained in treaties: no one is supposed to respect a non-conventional rule because a treaty is applicable only if it is ratified; it is a choice which presupposes that the rules are appropriate and that there is an interest in applying them, because it was made during the negotiation to discuss the rules and came to be ratified or not. Even after ratification, there is still the possibility of making reservations by reserving all that is offensive to the violation of the provisions subject to reservation is not one of them. For customary law this is similar, there are no customary rules only imposed, it must correspond to a general practice of States, if there is no practice, the rule is not customary. Since the rules of international law are voluntary and not imposed, the incentive to comply with them is also much greater. Even assuming that the law is violated, it must first be acknowledged that there are significant violations. Even in this case, a rule can be said to be "violated", bringing an aspect of stigmatization. The violation of the rule makes it possible to exert a certain amount of pressure, it can be said that "the Baltic States were annexed by the USSR against an international rule", we are not going to launch wars, but to maintain the pressure by denouncing it leading to a legal sanction. By a legal game, the Baltic States have never lost their sovereignty. Even in a violation of the rule, it may have some justification.
- Voluntary/consensual character: On the whole, international law is respected, but only violations are reported by the press because they are important. What is weak is enforced execution, States act rationally and violate the law only with much reflection; this idea is incompatible with the principle of sovereignty; there should be an international community which itself becomes a State making peoples of peoples who are no longer sovereign. Sovereignty means that no progress can be made in enforcement, and States must always cooperate to enforce sanctions against recalcitrant prisoners. A forced execution under domestic law is that when an offence is committed, it can be brought before a court of law even to the point of violating privacy through the use of force. In international law we are not in this position, to seek a State at home to enforce a sentence means a declaration of war; in international law, it is a war of execution against a State. The remedy is worse than evil, we are not going to start a war to enforce a norm of international law. It is therefore easy to say that more should be done, but if we are not prepared to give up sovereignty and go as far as a war of execution, there can be no seriousness.
To talk about international law, one must have knowledge of the subject and much modesty. We need to approach the problem with toroughtness« An intelligent man is silent on matters which he does not know, for he manifests in others the extent of his ignorance and the defect of his character. ».
Annexes[modifier | modifier le wikicode]
- DAILLIER, Patrick, FORTEAU, Mathias, PELLET, Alain, Droit internationalpublic, 8èmeéd., Paris, LGDJ, 2009, 1709 p, pp. 43-50
- DAILLIER, Patrick, FORTEAU, Mathias, PELLET, Alain, Droit internationalpublic, 8èmeéd., Paris, LGDJ, 2009, 1709 p (ci-après : DFP), pp. 51-90
References[modifier | modifier le wikicode]
- Robert Kolb