Is international law a process or can it be regarded as ‘rules’

InProblems and Process, Higgins attempts to demo that there is an ineluctable pick to be made between the perceptual experience of international jurisprudence as a system of impersonal regulations, and international jurisprudence as a system of decision-making directed towards the attainment of certain declared values. [ 1 ] She begins her article by saying her sentiment that international jurisprudence is non regulations but a normative system. [ 2 ]

In the first portion of her statements, she disagrees with the position that international jurisprudence is a organic structure of regulations that failed to keep provinces, and hence non ‘real law’ at all. [ 3 ] She defines international jurisprudence as “a go oning procedure of important decisions” ; “the full decision-making procedure, and non merely the mention to the tendency of past determinations which are termed ‘rules’ in another article.” [ 4 ] She quotesSir Hersch Lauterpachtthat justice ‘makes choices’ particularly in claims which have changing grades of legal virtues. [ 5 ]

She identifies that some would argued international jurisprudence as a set of regulations because it will go baffled with other phenomena such as power or societal or human-centered factors and it can avoid the manifestation of international legal statements for political terminals. [ 6 ] In discoursing the first factor, Higgins argues that the authorization which characterises jurisprudence exists non in vacuity but precisely where it intersects with power. [ 7 ] For the 2nd factor, she argues against the authoritative statement provided byJudge Fitzmaurice and Spenderstated “other considerations such as societal, human-centered and other can non be allowed to be considered in making a conclusion.” [ 8 ] She mentions that refusal to admit political or societal factors can non maintain jurisprudence ‘neutral’ as even such refusal is non without political and societal effect. [ 9 ] She believes that policy factors are dealt with consistently and openly. [ 10 ] She cites the illustration ofPresident Reaganbattles in military intercessions designed to take totalitarian swayers, where it is acted in the involvements of international order and justness. [ 11 ] Those who supported this really much emphasised on the societal intents of international in make up one’s minding its lawfulness. [ 12 ]

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Consequently, over and above the argument on whether international jurisprudence is ‘rules’ or ‘process’ , she associates regulations with legal rationalists.Capital of texasexplicating rationalists as “Every positive jurisprudence, is set by a autonomous person or persons, to a individual or individuals in a province of subjugation to its authority.” [ 13 ] [ 14 ] In partner offing positivism to international jurisprudence where bid and sovereignty are notably missing,Kelsenintroduced the being of groundnorm- the highest cardinal norm from which all others derived their binding force. [ 15 ] [ 16 ]

Harmonizing to her, international jurisprudence characterised as critical legal surveies that is more common with policy scientific discipline. [ 17 ] Critical-studies bookman will see jurisprudence as contradictions or indeterminate at its core whereas policy scientists believe in jurisprudence as viing norms where picks have to be made in peculiar fortunes. [ 18 ] The critical realist attack leads to conclusion that international jurisprudence can merely indicate out the jobs but non aids in the accomplishment of ends. Higgins disagrees with the evidences put frontward byKoskenniemito prevent the possibility of doing picks among contradictions. [ 19 ] The first land is contextual justness requires embarking into political relations, societal and economic casuistry at which legal statements must halt to stay legal. [ 20 ] Higgins argues that to stay legal is to guarantee authorized individual made the determination, based on past determinations and with available picks being made based on community involvements and for the publicity of common values. [ 21 ]Koskenniemiargued in 2nd ground that liberalism presuppose that some rights should predominate over others. [ 22 ] Higgins rebutted this by saying that pick devising should be proposed as policy-science attack. [ 23 ] This predicate certain positions or premises as to what is desirable should predominate over others. [ 24 ]

In her analysis, positivism and regulations lead to differentiation betweenlex lataandlex ferenda– the jurisprudence as it is and the jurisprudence as it might be. [ 25 ] She rebuts the rule-based attorney statements that pick devising should be classified every bit ‘law as it ought to be’ contrasting with ‘law as it is’ , saying this differentiation is a false duality. [ 26 ] Where there are no specific regulations of international jurisprudence, rule-based attorney positions that international jurisprudence has no say whereas those who view international as procedure, it can be solved through tools of important decision-making. [ 27 ]

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In back uping her base that international jurisprudence is a procedure, she points out that both capitalist and socialist states agreed that international jurisprudence is a system even though there are different positions in sing to its nature. [ 28 ] In recent old ages, there is more accent on international jurisprudence as the articulation of cosmopolitan involvement particularly since the alterations in political positions of former Soviet Union. [ 29 ] She went farther to discourse the deduction of international jurisprudence on 3rd universe and developing states. [ 30 ] She observes that single norms have been challenge as unjust to these states, and non all international jurisprudence duty incumbent upon the parent province are applicable on them. [ 31 ] This pointed out that while there are arguments on the substance of international jurisprudence, the catholicity has non been challenge. [ 32 ]

Higgins goes farther to discourse what is it that makes provinces regard international jurisprudence as binding to be an effectual jurisprudence, non regulations. [ 33 ] Both rationalist and non-positivists want either an effectual countenance or being of sense of duty that the norms are adhering. [ 34 ] She quotes the recent authorship ofKoskenniemithat natural duties of justness are basically what is necessary for subsistence and self saving. [ 35 ] She argues that both Western and Socialist bookman had agreed that the key to binding is state’s consent. [ 36 ]Koskennimistated that provinces consent is simply an understanding by them that their behavior will be regarded as normative, which is non a jurisprudence. [ 37 ]Fitzmauriceopined that the footing of duty must put in something anterior to international jurisprudence itself. [ 38 ] In her answer to these unfavorable judgments, she regards these as faulty position of jurisprudence as international jurisprudence is non the exoneration of authorization over power, alternatively jurisprudence must be based on authorization every bit good as power. [ 39 ]

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Higgins argues that the footing of duty in international jurisprudence has now moved from consent to consensus. [ 40 ] States now regard themselves bound by norms which they have non given their express consent because they perceive a mutual advantage in admonishing self-restrain. [ 41 ] In her sentiment, the terming of this footing as vindicator does non render the normative system of decision-making into something other than jurisprudence. [ 42 ] Refering the absence of effectual countenance to predicate the being of norms of international jurisprudence, she points out that based on her findings of different positions on footing of duties, they all excluded imposed duty by the enforcement of countenances. [ 43 ]

In decision, international jurisprudence should be regarded as a normative system.



Higgins R,Problems and Procedure: International Law and How We Use It( 1stedn, OUP, Oxford 1994 )

Koskenniemi M,From Apology to Utopia: The Structure of International Legal Argument( 1stedn, CUP, 2006 )

Austin J,Lectures on Jurisprudenceon theDoctrine of Positive Law( 5Thursdayedn, 1954 )

Journal Articles

G.G Fitzmaurice, ‘The Foundations of the Authority of International Law and The Problem of Enforcement ‘ [ 1956 ] MLR

Roentgen Higgins, ‘Integration of Authority and Control: Tendencies in the Literature of International Law and International Relations ‘ [ 1976 ]

N.S Kinsella, Book Review of Rosalyn Higgins, Problems and Process: International Law and How We Use It ( 1994 ) , Reason Papers No. 20 [ 1995 ]

Roentgen Higgins, ‘Policy Considerations and the International Judicial Process ‘ [ 1968 ] ICLQ

H Lauterpacht, ‘The Development of International Law by the International Court’ [ 1958 ]

Table of Cases

South West Africa Cases( 1966 ) ICJ 6