California Class 1-2

Class presentation by Boldizsár Nagy California Universities Education Abroad Program, 2008

Issues of classes 1 -2

• What are the main points of differences between a national legal system and international law? • Is international law law at all? (Argue either way) • Mapping international law –what does it regulate? What is the place of our course in the whole • Which are the main phases of the development of i.l.? • Who are the subjects of international law? – what criteria for subjecthood do we apply? – what is used as evidence in deciding whether an entity is a subject

Main differences •

Domestic:

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International

•

vertical, centralized – legislator – addressee = parliament / government – public (individuals, companies )

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horizontal, decentralized – legislator – addressee: same (exceptions!)

•

consensus bound

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No formal division of powers – Courts (if consented to)

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command-obedienceenforcement

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legislative, executive, judicial

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central coercive power

– Security Council

DEFINITION Restatement (US summary of int'l law) (see Akehurst) David Bederman, 2001 " Int'l Law are those rules of conduct that are binding on int'l actors in relations, transactions and problems that transcend national frontiers" (p. 1.)

A glance at the history • A GLANCE AT THE HISTORY OF THE LAW AND LEGAL SCHOLARSHIP • History: Periods: ancient times or Westphalia 1648 is the start? How to compartmentalise? (1648-1918, interwar, 1945-1990, 1990-) • Characteristics of i.l. before WW. I • - Unlimited use of force • - Peaceful settlement of disputes • - Prohibition of slave trade • - Humanization of the law of warfare • -Development of early "international organizations" (bodies) • Interwar period • - League of Nations • - Limits to use of force • - Permanent court - interstate adjudication (peaceful change through law)

A glance at history • 1945-1990 • - prohibition of the use of force • - United Nations: wider cooperative functions + collective security • - decolonization • - changing law due to the pressure of developing states • - human rights (universal and/or regional) system • 1990 - global challenges other than the threat of nuclear war (environment, migration, civil wars, terrorism) • Scholarship: The great directions: naturalism, positivism and the new critical thinking

The process of growing empowerment

• Domestic legal analogies (slaves-womenanimals-plants) • State - Belligerents – Intergovernmental organizations - Self determining people • Indigenous people - Minorities • Individuals – Transnational corporations • Humankind – Future generations

The five criteria of legal personality (subjectivity)

• • • • • • • • • •

1. International rules entitling the entity 2. Treaty making capacity 3. Privileges and immunities -itself - representatives 4. Claiming rights =based on international law =in its own name =in front of an international tribunal 5. Admission to the international community

The state The Montevideo Convention 1933: -defined territory -permanent population -effective government -capacity to maintain international relations Challenges, to all of them: - size, stability, shared powers Other critical, borderline cases: - Taiwan, Transdnistria, Osetia, Kosovo, Chechnya - The Maltese Knight’s Order, Vatican If state: full and original personality

Auxiliary questions Recognition of states and governments

• State recognition: a new subject admitted to the int’l community •

Gov recognition: a new representative for the existing (and recognized) subject

Intergovernmental organizations

• Which are they? - intent of founders – treaty to establish • Criteria: as above, + volonté distincte - a will different from its members • (Domestic legal personality - separate issue) • Reparation for Injuries case – International Court of Justice: • Personality need not be uniform (State - Int. org.) • UN personality: objective – also against non-members • Still: limited and derived personality (WHO and nuclear weapons)

The self determining people

• The elliptical route of the concept • – after World War I: “nations” • - after World War II (during decolonization) “people” • – after the dismemberment of the USSR, Yugoslavia and Czechoslovakia and the unification of Germany: people and nationalities? • The linkage with state succession and uti possidetis

Individuals

• Changing perception - from objects of international law (subjects of the sovereign) to international legal persons (actors) • Duties: piracy, genocide, war crimes – criminal responsibility • Rights: peace treaties after the world wars, human rights, refugee rights Other candidates • (Are they subjects, should they become?)

Thanks! Boldizsár Nagy Eötvös Loránd University and Central European University Budapest [email protected] www.nagyboldizsar.hu