APPROACHES TO INTERNATIONAL LAW

APPROACHES TO INTERNATIONAL LAW

• MODERN POSITIVE-NATURAL LAW SYNTHESIS

  • Kelsen's 'Pure Theory of Law' defined it as a normative science according to which legal validity of laws depend on prior laws and this process reaching what he called the basic norm of the whole system.

    • For Kelsen the basic norm is the rule that identifies custom as the source of law, or stipulates that the states ought to behave as they customarily behaved.

    • It fails to answer the question as to why custom is binding.

    • Kelsen is a monist, therefore, domestic and international law are one interlocking structure with the supremacy of the latter.

      • Municipal laws finds its ultimate justification in the rules of international law by a process of delegation within one universal normative system.

  • Hart developed positivism into a more sociological theory (1961 – The Concept of Law)

    • Law are systems of primary rules (to specify standards of behaviour) and secondary rules (providing means to develop laws and, therefore, unfolding the possibility of change)

    • It's an historical evolutionary process to move from the primary to the secondary and he points that international law as a whole didn't entirelly reached the secondary moment, therefore the importance of pacta sunt servanda is still not as strong as it is predicted to be.

  • Roscoe Pound's view of the law as a social engineering balancing social interests.

  • Realism treated law as an institution functioning within a particular community with a series of jobs to do.

    • An understanding of the functioning of Courts and legal sites was demanded.

  • Stammler shifted the Aquina's Natural Law into a logical-oriented one

  • Gény and Duguit – sociological inspired Natural Law approach defining it in terms of universal factors, physical, psychological, social and historiacal, which dominated the framework of society within which the law operated.

  • The German, Radbruch, represents a growth of Natural Law after Nazism according to which unjust laws had to be opposed by virtue of a higher Natural Law.

  • Principles of Non-agression and human rights, as well as the vast array besides the positivist state agency show how Natural Law regained space in the XXth Century.

• NEW APPROACHES

  • Instead of the cronological approach there's also a power and capacity approach, which focus on economics, politics and other aspects at the center of inter-state activity.

  • Realism is seen as a new approach, reflecting the great importance of Behavioralism, specially in the U.S.

    • 2 main internal splits:

      • Inside-out Foreign policy techniques approaches

      • Outside in international system approaches.

        • Consider the many participants in the international sphere and also makes a wide historical usage to identify the different international systems:

          • 1848 – 1914 – Balance of Power System

          • 1914 – 1989 – Bipolar System

            • NATO; EUROPEAN COMUNITY; WARSAW PACT; COMECON

    • Behavioralism was enriched by the sue of game theory, communications, integration, environment and capability

      • The rise of quantitative research has facilitated the collation and ordering of vast quantities of data

      • Translated into International Law by McDougal, with some important modifications

        • Saws law as a process of decision making rather than a defined set of rules and obligations

        • Eight analytical cathegories/ law as an outcome of: 1) Power 2) Wealth 3) Enlightment 4) skill 5) well-being 6) Afection 7) respect 8) rectitude

      • Falk accept McDougal basics but points the methodological risks of endless cathegories, therefore points to the concepts of moral and welfare and highlight the importance of legal structures.

      • Koskenniemi criticizes policy-oriented approaches for they usually support dominant powers.

      • Franck raises the issue of legitimacy as the bridge between lw and other social forces (specially politics), according to which states would choose to obey internationall law.

        • Legitimacy depends on 4 specific properties:

          • Determinancy – normative content

          • Simbolic validation – authority approval

          • Coherence – consistency

          • Adherence – falling with an hierarchy of rules

  • Many authors don't bother looking for a general principle behind law and focus on specific cases.

  • Critical legal studies, or else, New Approaches to International Law – NAIL, points that liberal principles of domestic law are being transported to international law leading to further problems.

    • Liberalism tries do equate individual freedom and social order but inevitably ends up siding one of those.

    • Koskenniemi points to the problem of power in the concepts and the hidden power behind law., claiming for contextual analysis to identify it.

  • Koskenniemi also points to the opposition of formalism (rule-oriented) and dynamism (policy oriented)

    • Formalism can be used to support dominant powers.

    • Critical legal studies points that no international legal system exists and that, in fact, one must concentrat on ad hoc legal concepts to show up the hidden forces.

• Feminist approaches are emerging concerned to both, structural aspects and the factual absence of women and women-directed laws.