The nature of international legal subjects

The Main Legal Features of the International Community

Introduction

· We jump too quickly to drawing parallels between domestic law and international law.

· The features of the world community are unique.

· Law doesn’t necessarily address itself to individuals, and there are not necessarily central institutions responsible for making law, adjudicating disputes, and enforcing legal norms.

The nature of international legal subjects

· Most of rules of international law aim at regulating behaviour of states, not that of individuals.

· States are legal entities – aggregates of human beings, owning and controlling a separate territory, held together by political, economic, cultural (and often ethnic/religious) links.

· Within States: Individuals are principal legal subjects, Legal entities are secondary.

· In International community: States (legal entities) are primary subject, individuals are secondary.

· Although states dominate international community, they operate through actions of individuals (e.g. ministers, diplomats).

· But, individuals act not in their personal capacity, but on behalf of collectivities or multitudes of individuals – Hobbes, ‘fictitious person’

· Powerful drive to submit all persons and all territory to exercise of state control.

· State serves to protect individuals from hardship and suffering (as church once did).

1.3 The lack of a central authority, and decentralisation of legal ‘functions’

National legal systems

· have both substantive rules (about how to behave) and organisational rules.

· Organisational rules developed out of power of ruling classes to institutionalise their power and establish relationship between rulers and ruled (Law comes from power).

· All modern states:

· Use of force by members of community is forbidden (except emergencies) – state monopoly on use of violence

· Central organs of state responsible for law making, law determination, and law enforcement. Parliament/monarch makes law, court ascertained breaches of law, and police officers enforced.

· These functions derive from rule of law, not from interests of individuals.

International legal system

· very different because no state has managed to hold power long enough to be able to create a system of law (law comes from power).

· Relations between states remain horizontal, no vertical power structure describing laws

· Lack of centralised power even more obvious today as individuals and corporations have entangled allegiances, and sources of power are spread across the globe in arenas far beyond state.

· Relative anarchy at level of central management in international legal system.

· No central body responsible for three areas of law: making, interpreting, enforcing.

· States act in their own interests, not in the interests of community.

· Each state has power to auto-interpret rules – necessarily follows from lack of courts and compulsory jurisdiction а Legal order is what states will make of it.

· Traditional international law thus greatly favoured powerful states who could exert their interpretation of rules over others.