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Main Features of Intl Law and Differences from Domestic Law

No clear executive, judiciary, and legislature


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In a domestic legal system, existence of a recognized body to legislate or create laws (legislature),
a hierarchy of courts with jurisdiction to settle disputes over such laws (judiciary), and an
accepted system of enforcing those laws (executive)
Intl law doesnt fit this model exactlyintl law has no legislature (General Assembly of the UN
has delegates from all the member states, but its resolutions are for the most part not binding); no
system/ hierarchy of courts (International Court of JusticeICJdoes exist but can only decide
cases when both sides consent, and it cannot ensure that its decisions are complied with); no
executive or governing entity (Security Council of UN sort of supposed to fill this role, but not
really able to in practice)

Primary subjects/ actors are states (countries)


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Today, international organizations and individuals are becoming more of subjects, but still true
that primary players are the states themselves
In domestic law, primary players are individuals

Horizontal structure, not vertical


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The legal structure in most societies is hierarchical and authority is vertical. The international
system, in contrast, is largely horizontal, consisting of over 190 independent states, all equal in
legal theory and recognizing no one in authority over them
In domestic systems, the law is above individuals; but international law only exists between the
states
In a domestic system, individuals only have choice as to whether to obey the law or not. They
dont create the lawthats done by specific institutions
In intl law, its the states themselves that create the law and obey or disobey itIntl law primarily
formulated by intl agreements, which create rules binding on the signatories, and customary rules,
which are basically state practices recognized by the intl community at large as laying down rules
that have to be complied with

Importance of Consent
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Theory of consent in intl lawIdea of consent grew very important in intl law, sort of like a
contractstates were independent and free agents and accordingly could only be bound with
their own consent
But for the dozens of states that have emerged over the last 50 or 60 years, doesnt really work
And recall maxim of pacta sunt servanda (agreements will be followed)once states
consent, will be bound by this

No clear separation of powers, more political


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In advanced domestic legal systems, clear separation of powers

But in the intl legal scene, generally states both make the rules and interpret and enforce them
Politics is much closer to the heart of the system than within national legal systems

Fundamental Principles Governing International Relations


and International Law

The Sovereign Equality of States


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Of all principles, this one is the most unqualified and has the support of all states, can be seen as
the linchpin of the whole body of intl legal standards
This principle embraces 2 distinct notions: sovereignty + legal equality
Sovereignty includes sweeping powers and rights
Power to wield authority over all the individuals living in the territory
Power to freely use and dispose of the territory under its jurisdiction and perform
all activities deemed necessary or beneficial to the population living there
The right that no other state intrude in the states territory, and the right to
exclude others from its territory
The right to immunity from the jurisdiction of foreign courts for actions
performed by the state in its sovereign capacity
Right to immunity for state representatives acting in their official capacity
Right to respect for the life and property of the states nationals and officials
abroad
Legal equality implies that, formally speaking, no member of the intl community can
be placed at a disadvantageall must be on the same footing
A dwarf is as much a man as a giant; likewise a small republic is no less a
sovereign state than the most powerful kingdom.

Non-intervention in the internal or external affairs of other states


Prohibition on the threat or use of force

The prohibition of the threat or use of force first laid down in the UN Charter. After 1945,
this ban gradually transformed into a general rule of intl law

Peaceful settlement of disputes

Logical corollary of ban on the use of force


States are obligated in good faith to try to resolve their disputes peacefully, using the
various means/ procedures available (negotiation, arbitration, judicial mechanisms, etc)

Respect for Human Rights

Newer principle thats gained strength over the last 40-50 yrs; no state really challenges this
concept that human rights must be respected
Poses challenge, a little bit at odds with traditional principles of sovereignty and noninterference
Over time, a general principle has gradually emerged prohibiting gross and large-scale
violations of basic human rights and fundamental freedoms
States now generally accept the idea that massive infringements of basic human rights are
really bad and make the offending state accountable to the whole intl community; while in
contrast, isolated and sporadic instances of violation are not necessarily of general
international concern

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