MALTEPE UNIVERSITY

FACULTY OF LAW

International Law - I
Prof. Yusuf AKSAR
 Recommended reading list

• Malcolm Evans, International Law, Oxford University

Press.
• David Harris, Cases and Materials on International
Law, Sweet & Maxwell.
• Martin Dixon, Textbook on International Law, Oxford
University Press.
• Yusuf Aksar, Teoride ve Uygulamada Uluslararası
Hukuk I-II, Ankara: Seçkin Yayınevi.
• Yusuf Aksar, Temel Metinler ve Davalarla Uluslar
arası Hukuk, Ankara: Seçkin Yayınevi.
 The Aims of the Course
“International Law I
 What we are going to do is to examine:

 the peculiar characteristics of international law

 the importance of international law

 the implementation of international law

 the sources of international law

 the basic subjects regulated by international law: Personality
and Statehood, State Responsibility, State Jurisdiction,
Territory, etc.
 The Nature of International Law
and the International System
The purpose of this Chapter is to examine the
very nature and quality of this subject called
“international law”
International law has historically been
questioned/criticised by some legal
commentators or jurists.
Such criticisms can be indicated as follows:
 1- The existence of any set of rules
 2- Its entitlement to be called “law”
 3- Its effectiveness in controlling the
subjects of international law in “real life”
situations
 In the Early Years of Twenty-First
Century
The international community has witnessed some of the most controversial actions
such as;
 US-led invasion of Iraq
 The Israeli invasion of Lebanon
 The detention of terrorist suspects without trial (Guantanamo Base)
 The unhindered resort to terrorism by groups based in existing States (with or
without the support of another State’s Government)
 The conflict in Syria since 2011.
 The ongoing conflict in Ukraine with Russia.
 The conflict in the Middle East.
Such situations are the reason for the perception that international law is failing
in of its primary purposes- the maintenance of an ordered community.
 More Examples of Failing of International
Law
• The tension between China and Taiwan at the
Far East
• The conflict between Pakistan and India over
Kashmir
• International crimes committed in different
parts of the World and non-prosecution of
individuals responsible for that.
• Climate change, global warming, international
terrorism etc.
 There is, of course, some truth in
these criticisms
Like the national legal system of any
State, international law is not a perfect
legal system;
Successes and failures have been in the
practice:
UN action in response to the invasion of
Kuwait by Iraq in 1990 was legally and
militarily a success; while the Bosnia,
Somalia, Sudan and the latest Israeli
action in Lebanon in 2006 were all
failures.
 Whether “international law” exists
as a system of law

The most frequently used test for

judging the “existence” or “successes”
of international law is to compare it
with national legal systems
National law: legislative assemblies, courts
and enforcement agencies are all
present
However, international law falls short of
these standards, then it cannot be
regarded as “true” law
 Such a comparison test cannot be
regarded as logical
The rationale behind national law and
international law is fundamentally different
from one to another:
a) National law; the legal rights and duties of
individuals are concerned within a State
b) Legal superiority exists through generally a
constitution by which law-making and
enforcement become possible
In international law, no superiority. States
are equal and international law facilitates
the interaction of these legal equals
In conclusion; the comparison test misleads
or should be seen as inappropriate
 The Role of International Law
International law, in simple terms, can be
defined as a system of rules and principles
that govern the international relations
between sovereign States and other
institutional subjects of international law
such as the UN and the AU (the African
Union)
States, international organisations and
individuals are main subjects of
international law
IL rules cover almost every facet of the
activities of int. Community; sea, space,
postal service environment, extradition etc.
The Existence of International Rules as a System
of Law
 The belief of States on the fact that
international law exists:
The response of States to some events/actions as
unlawful or lawful; 1990 Kuwait invasion by
Iraq, the İsraeli’s intervention in Lebanon in
July 2006. Even, they try to justify their
actions as compliance with rules of
international law under the heading of
collective security and self defence
 The evidence proving the existence of rules of
int. law:
a) IL is practised on a daiily basis in the Foreign
Offices, national courts, in inter. org.
b) States do not claim that they are above the law
c) The overwhelming majority of IL rules are
obeyed
d) IL rules are used to resolve disputed questions
of fact and law
 The Enforcement of International
Law
 One of the most frequent criticism against
international law is that it is not “true” law
because it is not generally enforceable
 No way to accept such criticism;
Enforceability mechanisms do not make a
system as a perfect legal one.
 It is not a right thing to say that IL is not
enforceable
 Though different from its national
counterparts, IL has some of its own
enforcement procedures some of which can
be indicated as follows:
1- The Security Council
2- Loss of legal rights and privileges
3- Judicial enforcement
 The Enforcement Mechanisms of
International Law
• 4- States
• 5- National Legal systems
• 6- International non-governmental
organisations (NGO’s)
 1- The Security Council

UNSC has power to take enforcement action in

accordance with the UN Charter (Arts. 39, 41-
42).
Ex: military actions such as Korea in 1950 and
Iraq 1990/91; economic sanctions like trading
restrictions and embargoes against S. Africa in
1977; other similar measures in the forms of
diplomatic, political or social nature.
Even non-State entities may face with some
measures like imposing financial and economic
sanctions against the Al-Qaida and the Taliban.
However, there were/are limitations to the
exercise of this power that may be indicated as
follows:
a) The cold war era
b) The veto power and the interests of Big Five in
the SC
2- Loss of legal rights and privileges

 One of the other significant method of

enforcing legal obligations is to ensure that
any violation of law results in the loss of
corresponding legal rights and privileges.
EX: violation of a commercial treaty by one
of the parties to the treaty may create such
effect.
Ex. UK’s breaking of diplomatic relations with
Argentina in 1982 (Falkland Islands issue);
more strikingly, in 1999/2000 the
EU’limited penalties on Austria as one of
the results of the election held in that State
 3- Judicial Enforcement

a) The ICJ, the principal judicial organ of the

UN (Art. 92 of the UN Charter)
No compulsory jurisdiction
b) Specialised judicial institutions; the ICTY,
the ICTR and the ICC
c) National courts may play a significant role
in solving international problems
 International Court of Justice (ICJ)
• http://www.icj-cij.org
• Established June 1945 by Chapter XIV of the Charter
of the United Nations
– preceded by the Permanent Court of International Justice
(PCJI), which operated under the League of Nations
• Governed by
– Chapter XIV of the Charter of the UN,
– the Statute of the International Court of Justice,
– Rules of Practice, and
– useful Practice Directions adopted since 2001
 The ICJ

• Jurisdiction:
– All 192 UN members, plus any non-UN members who
desire a permanent association with the court and become
parties to the ICJ Statute
• Two types of cases
– Contentious cases
• Legal disputes arising between states involving
questions of international law
– Advisory opinions
• Under Article 65 of the ICJ Statute, the Court may give
an advisory opinion on any legal questions at the
request of any body authorized to do so by the Charter
 The ICJ
• Organization:
– 15 judges elected by the UN General Assembly for
9-year terms; election for 5 judges held every 3
years
– In practice, all members of the UN Security
Council have a judge on the court representing
their country
• Location:
– The Hague, Netherlands
 The Effectiveness of International
Law

 It should be indicated that it is normal to

obey/follow the rules of international law.
 Some of the reasons why international law does
work/effective:
1- The common good
2- The psychological Rubicon
3- The practitioners of international law
4- The flexible nature of international law
5- The political cost
6-Sanctions
 The weakness of international law

 It would be misleading to conclude that

international law is a perfect legal system.
 There is much that could be reformed and
enhanced
 Some of the weak points of international
law are:
1- Lack of institutions (legislative, executive
and judicial bodies)
2- Lack of certainty
3- Vital interests
4- Vital rules
The Juridical Basis of International
Law
 When international law is regarded as law it
should be wondered that what the
origin/source of international law.
 There are some theories trying to explain
such as; the command theory, the
consensual theory and the natural theory
 The Future of International Law
 The end of Cold War era and the use of SC in a
common manner. However, the situation has been
changing in the first decade of the 21st century.
 The wider exercise of the jurisdiction of the ICC.
 The widening of the scope of international law in
covering individuals, organistaions and
corporations in more detail
 International environmental law, international
climate change law, space law and the law of
international communications
 Reform in the structure and power of the UNSC
 Regionalisation v. Universality (NAFTA,
MERCUSOR, EU, Shanghai Cooperation
Organisation)