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Nation-states follow the principle par in parem non habet imperium: “There is no sovereign power among equals.” This is reaffirmed in Article 2(1) of the Charter of the United Nations, which states that no State shall be subject to another State. John Austin thus asserted that “so-called” international law was devoid of sovereign power and therefore unenforceable, was not a right at all, but a “positive morality” consisting of “opinions and feelings”. more ethical than legal. [57] The common law was initially considered the law of the land – the Kingdom of England. It was enforced by the common law courts of Westminster and set up against civil law, which governed maritime affairs, foreign trade and, because of its links with ius gentium, the relations of princes and republics. The latter right was exercised by civilians before civilian courts such as the Admiralty Court and before the Council. The International Law Council is drawn from civilian-trained jurists, not ordinary jurists.105 A related question is whether the mere enactment of laws can create international responsibility or whether an obligation is breached only if the State applies that legislation. There is a general obligation to bring national legislation into conformity with international obligations,27 but what this implies depends on that obligation. Normally, failure to achieve such compliance does not in itself constitute a violation of international law; This is only the case if the State concerned fails to fulfil its obligations on a given occasion.28 In certain circumstances, however, the legislation (in its absence) could itself constitute a breach of an obligation under international law, for example when a State is obliged to prohibit certain conduct or to adopt a uniform law.

There are many international treaty bodies that decide on the legal issues for which they may be competent. The only one that claims universal jurisdiction is the United Nations Security Council. Others are: the United Nations International Court of Justice and the International Criminal Court (when national systems have completely failed and the Treaty of Rome is applicable) and the Court of Arbitration for Sport. (d) Even in single-tier systems, the court may have to decide to what extent a rule of international law can be directly applied. For example, a treaty (even if it is duly ratified and approved in accordance with constitutional procedures) may be considered “not directly applicable”, i.e. without further clarification or definition by the legislator.76 (e) Another question is the extent to which the executive can intervene in the Court`s application of international law. One consideration might be the need for the judiciary and the executive to speak with one voice with regard to the foreign policy of the country concerned. For example, courts may accept executive instructions on issues such as state and government recognition, state immunity, and diplomatic immunity.77 However, caution is particularly required in the European context, since the European Court of Human Rights ruled in Beaumartin v.

France that practice in extreme forms is incompatible with the right of access to “an independent and impartial tribunal”.78 The practice examined was the French procedure of referring preliminary questions on questions of treaty interpretation to the Minister of Foreign Affairs and treating any opinion issued as binding.79 The revised French practice does not confer binding effect on such opinions and does not require them to be issued at all.80 The law includes obligations that States expressly and voluntarily undertake in treaties between themselves. The Vienna Convention on the Law of Treaties defines a treaty as follows: In a dualistic tradition, the national legal system is considered to be completely different from the international legal system. In this context, international rules will apply only in the international legal system and not in the national legal order. According to this theory, international law applies to laws between states, and national law applies to the laws of each state. The concept of national law as a `mere fact` covers at least six different aspects. Since international law does not have a compulsory judicial system to settle disputes or a system of coercive sanctions, it is not as simple as dealing with violations within the framework of a national legal system. However, there are ways to bring violations to the attention of the international community and to remedy them. For example, in international law, in some areas, such as trade and human rights, there are judicial or quasi-judicial tribunals.

The establishment of the United Nations, for example, created a means for the international community to enforce international law against members that violate its Charter through the Security Council. Theoretically, all states are sovereign and equal. Because of the concept of sovereignty, the value and authority of international law depend on the voluntary participation of States in its formulation, respect and implementation. While there may be exceptions, many international academics assume that most states enter into legal obligations with other states out of enlightened self-interest, rather than abiding by a law superior to their own. As D. W. Greig asserts, “international law cannot exist in isolation from the political factors at work in the field of international relations.” [31] Alleged violations of the Charter may also be raised by States in the Security Council. The Security Council could then adopt resolutions under Chapter VI of the Charter of the United Nations recommending the “peaceful settlement of disputes”. These resolutions are not binding under international law, although they generally express the Council`s convictions. On rare occasions, the Security Council may adopt resolutions under Chapter VII of the Charter of the United Nations on “threats to the peace, breach of the peace, and acts of aggression” that are legally binding under international law and may be followed by economic sanctions, military action and similar use of force by the United Nations. The entities bound by international law are: In contrast, positivist writers such as Richard Zouche (1590-1661) in England and Cornelis van Bynkershoek (1673-1743) in the Netherlands argued that international law should be derived from actual state practice rather than from Christian or Greco-Roman sources.

The study of international law has moved away from its fundamental preoccupation with martial law and has moved towards areas such as the law of the sea and trade treaties. The positivist school used the new scientific method and, in this respect, was in line with the empiricist and inductive approach to philosophy that prevailed in Europe at the time. In considering these and subsequent contributions to the debate on the relationship between legal systems, it seems desirable to leave behind the glacial highlands of legal abstraction. In fact, legal systems are perceived as relatively autonomous by those who work in them (the degree of autonomy depends on the power and layout of each system and varies over time). The only theory that can adequately explain this fact is a form of pluralism.17 Each legal system has, almost by definition, its own approach to the others (although there are many borrowings in practice). To speak of “national law” is to generalize; but as soon as one wonders what approach one system (international law, English law, French law…) takes vis-à-vis another, the fog clears: it is possible to state clearly the position and to understand that each system reserves the power to provisionally determine the extent and conditions of interpenetration of laws and related questions of separation of powers.