Aperçu des sections

  • Généralités

  • Chapter N°1

    • Definition of Law Page

      DEFINITION OF LAW

      I/ Introduction:

            Every society makes and enforces laws that govern the conduct of the individuals, businesses, and other organizations that function within it. In the words of judge Learned Hand, “Without law we cannot live; only with it can we insure the future which by right is ours. The best of men’s hopes are enmeshed in its success.”. [1]

      The word “Law” is used several different senses, though they are all related one to another.

      The various significations of the word “Law” are connected together by the fact that all explain certain common ideas, but they are differentiated one form another because when used in certain connections the term means only one or more of these ideas.

      In all its meanings the term “Law” refers to idea of “Order”, It also means the idea of “Authority”. To this idea is generally added that of “Compulsion” or “Enforcement”.

      This first essential element in the idea of law is that law regulates action. It determines what shall be done and what shall not be done. Laws are rules of conduct laid down for the purpose of directing men’s action.[2]

      II/ Definition:

      The law is a rule of conduct or action that a nation or a group of people agree to follow.[3]

      The law is the body of compulsory rules adopted in the state for the direction of the social conduct of its members and for the administration of its affairs obedience to which is enforced by sanction through the courts established by central authority.[4]

      Law, in its generic sense, is a body of rules of action or conduct prescribed by controlling authority, and having binding legal force. That which must be obeyed and followed by citizens subject to sanctions or legal consequences is a law. [5]

      III/ CHARACTERISTICS OF LAW:

      Legal rules are social, general and forced by a sanction: [6]

      1)  Rules of law are social: Law control and order relations between people living in a society. It is concerned only with the external conduct or behavior of man, and has nothing to do with internal thoughts or beliefs. It is only when he comes to act upon such beliefs that law can interfere.

      2) Rules of law are general: Law is generally applicable. It is applied in all cases and to all persons.

      3) Rules of law are enforced by a sanction:

      People are invited to obey law voluntarily. If not, they are compelled to do so by means of sanction applied by the state, the sovereign political authority.


      [1] Henry R.Cheeseman, Introduction to Law, Pearson Education LTD, 2005, p 3.

      (The Spirit of Liberty, 3d ed (New york: Alfred A. Knopf, 1960)).

      [2] Dr. El-Sayyed El-Araby, AN INTRODUCTION TO THE VSTUDY OF LAW, AL-ISRAA edition , Cairo, P 21.

      [3] Webster’s Student Dictionary, Librairie du liban Publishers, Lebanon, 1986,  P 280.

      [4] Dr. El-Sayyed El-Araby, op.cit, P 37.

      [5] Henry R.Cheeseman, op.cit, p 4.

      (Black’s law dictionary, 5 th ed (St. Paul, MN: West, 1979)).

      [6] Dr. El-Sayyed El-Araby,  op.cit , P 37.

  • Chapter N°2

    • Public International Law Page

      PUBLIC INTERNATIONAL LAW

      I/ Introduction:

      Public international law covers relations between states in all their myriad forms, from war to satellites, and regulates the operations of the many international institutions. It may be universal or general, in which case the stipulated rules bind all the states (or practically all depending upon the nature of the rule), or regional, whereby a group of states linked geographically or ideologically may recognise special rules applying only to them.[1]

       

      II/ Definition:

      Today, international law refers to those rules and norms which regulate the conduct of states and other entities which at any time are recognised as being endowed with international personality, for example international organizations and individuals, in their relations with each other. Such a definition takes account of international law’s “youthfulness” and recognizes that new actors may be required to participate on the international stage. States, although they remain the primary subjects of international law, are no longer its exclusive subjects as they once were. International law was initially concerned exclusively with regulating inter-state relations and then only in respect of diplomatic relations and the conduct of war. This is no longer true.[2]

      International law consists of the rules and principles of general application dealing with the conduct of States and of international organization in their international relations with one another and with private individuals, minority groups and transnational companies. [3]


      [1] MALCOLM N.SHAW, INTERNATIONAL LAW, Sixth Edition, CAMBRIDGE UNIVERSITY PRESS, 2008, P 2.

      [2] Rebecca M.M. Wallace, International Law, Third Edition,Sweet and Maxwell Limited, Great Britain, 1997, P 1.

      [3] Dr. El-Sayyed El-Araby, AN INTRODUCTION TO THE STUDY OF LAW, AL-ISRAA edition , Cairo, P 67.

    • TASK N°1 Devoir

      What are the characteristics of international Law?

      Note: The answer must be included as a PDF file.

      The answer should not exceed one page.

  • Chapter N°3

    • INTERNATIONAL LEGAL PERSONALITY Page

      INTERNATIONAL LEGAL PERSONALITY

      Introduction:

      International legal personality refers to the entities or legal persons that can have rights and obligations under international law. [1]

      I/The State

      1) Definition:

      The state is a body of people living in a certain territory under one government: the government of such a body of people . It is an organized political unit with one government . We can define it as a community of persons, permanently occupying a definite territory, legally independent of external control, and possessing a organized government which create and administrates law over all persons and group within its jurisdiction is “State”.

      According to Lasson, “The state is a community of men which possesses an organized authority as the highest source of all force”.

      John. W.Burgess define the state as a “particular portion of mankind viewed as an organized unit.”

      For many purposes the best way to define the state is the tradition of general state theory (allgemeine Staatstheorie). This identifies three main elements of the state: (1) a clearly demarcated core territory under the more or less uncontested and continuous control of a state apparatus; (2) a politically organized coercive, administrative, and symbolic apparatus with both general and specific powers; and (3) a permanent or stable population on which the state’s political authority and decisions are regarded, at least by that apparatus, if not those subject to it, as binding. As well as individual states, general state theory deals with the world of states, especially the recognition of state sovereignty and legitimate governments and the challenges posed domestically and/or externally.

      According to Carré de Malberg, one of France’s leading constitutional scholars, « the state is a community of men attached to a territory with an organization, from which results for the group engaged in relations with its members a supreme power of action and coercion.” More clearly, the state is the result of a population, a territory and a sovereignty.

      2) Etymology:

      The word state and its cognates in some other European languages (stato in Italian, estado in Spanish and Portuguese, état in French, Staat in German) ultimately derive from the Latin word “status”, meaning "condition, circumstances". Latin status derives from stare, "to stand," or remain or be permanent, thus providing the sacred or magical connotation of the political entity.

      The English noun state in the generic sense "condition, circumstances" predates the political sense. It was introduced to Middle English c. 1200 both from Old French and directly from Latin.

      With the revival of the Roman law in 14th-century Europe, the term came to refer to the legal standing of persons (such as the various "estates of the realm" – noble, common, and clerical), and in particular the special status of the king. The highest estates, generally those with the most wealth and social rank, were those that held power. The word also had associations with Roman ideas (dating back to Cicero) about the "status rei publicae", the "condition of public matters". In time, the word lost its reference to particular social groups and became associated with the legal order of the entire society and the apparatus of its enforcement.

      The early 16th-century works of Machiavelli (especially The Prince) played a central role in popularizing the use of the word "state" in something similar to its modern sense. The contrasting of church and state still dates to the 16th century. The North American colonies were called "states" as early as the 1630s.[citation needed] The expression "L'État, c'est moi" ("I am the State") attributed to Louis XIV, although probably apocryphal, is recorded in the late 18th century.

      3) Elements of the State:

      A State stands identified with its four absolutely essential elements:

       

      a/Population:

      State is a community of persons. It is a human political institution. Without a population there can be no State. Population can be more or less but it has to be there. The people living in the State are the citizens of the State. They enjoy rights and freedom as citizens as well as perform several duties towards the State.

       

      b/ The territory:

      Territory is the second essential element of the State. State is a territorial unit. Definite territory is its essential component. A State cannot exist in the air or at sea. It is essentially a territorial State. The size of the territory of a State can be big or small; nevertheless it has to be a definite, well-marked portion of territory.

      Further, it must be noted that the territory of the state includes not only the land but also, rivers, lakes, canals inland seas if any, a portion of coastal sea—territorial waters or maritime belt, continental shelf, mountains, hills and all other land features along with the air space above the territory. The territory of the state can also include some islands located in the sea.

      c/ Government:

      Government is the organisation or machinery or agency or magistracy of the State which makes, implements, enforces and adjudicates the laws of the state. Government is the third essential element of the State. The state exercises its sovereign power through its government.

      d/ Sovereignty:

      Sovereignty also constitutes an essential element of the state. Sovereignty denotes the supreme or ultimate power of the state to make laws or take political decisions establishing public goals, fixing priorities and resolving conflicts—as also enforcing such laws and decisions by the use of legitimate force. In fact, sovereignty denotes the final

      authority of the state over its population and its territory. This authority may be exercised by the government of the day, but it essentially belongs to the state from which it is derived by the government.

      Finally, sovereignty is the existence of a political organization that exercises its authority over the territory and the population. The concept has been theorized by the jurist Jean Bodin. The state is home to the sovereign power. This is what differentiates the state from the society.

      II/ International Organizations

      International organizations can be defined in a variety of ways, given the considerable differences in their status (for-profit, not-for-profit, etc.), structures, objectives, functions, financing, working languages and membership rules. However, they are all intergovernmental entities, established through a constitutional instrument (such as a treaty or agreement) that provides each of them with its own decision-making powers that are distinct from those of its member states, as well as a jurisdiction, permanent structures and the means of attaining a common goal and specific objectives on an international scale. An International Organization constitutes a legal person (i.e., a “body corporate” or a corporation) and, as such, it can sign agreements with other entities, own moveable assets and immoveable property, bring actions, suits or other legal proceedings, and claim certain privileges, such as tax immunity. These attributes enable the organization to be an actor on the international scene.[2]

      III/ Nationality of individuals, companies, etc.

      Individuals are generally not regarded as legal persons under international law. Their link to State is through the concept of nationality, which may or may not require citizenship. Nationality is the status of being treated as a national of a state for particular purposes. Each State has wide discretion to determine who is a national. The most common methods of acquiring nationality at birth are through one or both parents and/or by the place of birth. Nationality can also be acquired by adoption and naturalization.

      Companies, ships, aircraft and space craft are usually considered as having the nationality of the State in whose territory they are registered. This is important because in many circumstances.

      States may have international obligations to regulate the conduct of their nationals, especially if they are carrying out act activities outside their territory.[3]   


      [1] Dr. El-Sayyed El-Araby, AN INTRODUCTION TO THE STUDY OF LAW, AL-ISRAA edition , Cairo, P 67.

      [2] Louis Sabourin, Encyclopedic dictionary of public administration:

      http://www.dictionnaire.enap.ca/

      https://dictionnaire.enap.ca/dictionnaire/docs/definitions/definitions_anglais/international_organizations.pdf

      [3] Dr. El-Sayyed El-Araby, AN INTRODUCTION TO THE STUDY OF LAW, AL-ISRAA edition , Cairo, P 70.

  • Chapter N°4

    • International Obligations ( Sources Of Law) Page

      INTERNATIONAL OBLIGATIONS (SOURCES OF LAW)

      Introduction:

      It is generally accepted that the sources of international law are listed in the article 38(1) of the statute of international Court of Justice, which provides that the Court shall apply:

      a) International conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

      b)  International custom, as evidence of general practice accepted as law; the general principals of law recognized by civilized nations;

      c)   Subject to the provisions of article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. [1]

        I/Treaties

      In contrast with the process creating law through custom, treaties (or international conventions) are a more modern and more deliberate method. Article 38 refers to 'international conventions, whether general or particular, establishing rules expressly recognised by the contracting states'. Treaties will be considered in more detail chapter 16 but in this survey of the sources of international law reference must be made to the role of international conventions.

      Treaties are known by a variety of differing names, ranging from Conventions, International Agreements, Pacts, General Acts, Charters, through to Statutes, Declarations and Covenants. All these terms refer to a similar transaction, the creation of written agreements whereby the states participating bind themselves legally to act in a particular way or to set up particular relations between themselves. A series of conditions and arrangements are laid out which the parties oblige themselves to carry out.

       

      The obligatory nature of treaties is founded upon the customary inter- national law principle that agreements are binding (pacta sunt servanda). Treaties may be divided into 'law-making' treaties, which are intended to have universal or general relevance, and 'treaty-contracts, which apply as between two or a small number of states. Such a distinction is intended to reflect the general or local applicability of a particular treaty and the range of obligations imposed. It cannot be regarded as hard and fast and there are many grey areas of overlap and uncertainty.

      Treaties are express agreements and are a form of substitute legislation undertaken by states. They bear a close resemblance to contracts in a superficial sense in that the parties create binding obligations for themselves, but they have a nature of their own which reflects the character of the international system.[2]

      Treaties, as Article 38(a) infers, may be between two states (bipartite) or between several states (multipartite). A distinction is sometimes drawn between law-making treaties ("traite-lois") and "treaty contracts" ("traité-contracts"). The essence of the distinction lies apparently in the fact that "treaty contracts", being agreements between relatively few parties can only create particular law between the signatories, whereas treaties to which there are many signatories create law per se. However, all treaties involve a contractual obligation for the parties concerned, and consequently, create law for all parties agreeing to the terms of the treaty. In other words, a bipartite treaty does not create a lesser law than does a multipartite treaty. Multipartite treaties may admittedly have a wider effect, and as such, may be regarded as law-making, in that not only do they have a greater number of signatories, but the provisions of such a treaty may become customary international law.[3]

      II/Custom

      International custom – or customary law – is evidence of general practice accepted as law through a constant and virtually uniform usage among States over a period of time. Rules of customary international law bind all States. The State alleging the existence of a rule of customary law has the burden of proving its existence by showing a consistent and virtually uniform practice among States, including those States specially affected by the rule or having the greatest interest in the matter. For example, to examine the practice of States on military uses of outer space, one would look in particular at the practice of States that have activities in space.[4]

      III/General Principles of Law

      General principles of law recognized by civilized nations are often cited as a third source of law.

      These are general principles that apply in all major legal systems. An example is the principle that persons who intentionally harm others should have to pay compensation or make reparation.

       

      General principles of law are usually used when no treaty provision or clear rule of customary law exists.[5]

      IV/Judicial Decisions

      Judicial decisions may be applied "subject to provisions Article 59". Article 59 states that "... the decision of the court has no binding force except between the parties and in respect of that particular case". There is no rule of stare decisis in international law whereby the court is obliged to follow its previous decisions. Nevertheless, in spite of the absence of stare decisis in international law, the International Court of Justice and international tribunals examine previous decisions, and do take them into account when seeking the solution to a subsequent dis**. There is obviously value in judicial consistency-it will promote some degree of certainty for those participating in the legal system as to what the law on a particular issue. Although, strictly speaking, the International Court of Justice is only to apply the law and not to make law, it has delivered a number of judgments and advisory opinions which have been influential in their contribution to the development of international law, for example Reparations Cases (legal personality of the United Nations) the Nottebohm Cases (genuine link between individual and claimant state), the Anglo-Norwegian Fisheries from which the territorial sea may be drawn) and the Legality of the Use by a State of Nuclear Weapons in Armed Conflict. Similarly, arbitration decisions have contributed to the growth of international law, for example the Alabama Arbitration Awards (duties of a neutral state), the Island of Palmas (evidence of territorial sovereignty). Caution should be exercised when assessing the contribution of a particular decision, for example the court may be equally divided and the casting vote of the President may be necessary for a decision as in the Lotus Case. Similarly, the importance of an arbitration decision will depend, for example, on the subject-matter involved and the parties concerned.                                           

      Before assessing the contribution of any arbitration decision to the development of international law, reference should be made to the contents of the compromis; namely the agreement concluded between the parties to the arbitration which may specify, for instance, the tribunal's jurisdiction and the law to be applied. Law, other than international law, or in addition to international law, may be employed by an arbitration tribunal and if this is the intention of the parties it must be stipulated in the compromis. In the Trail Smelter Arbitration, for example, the Tribunal was instructed to "apply the law and practice followed in dealing with cognate questions in the United States of America, as well as international law and practice". It is therefore necessary to remember that an arbitration tribunal, in settling a dis** between two states, may not be applying international law or, at least, exclusively international law.

      A judicial decision by the International Court of Justice may give the stamp of law to an alleged rule of custom.[6]


      [1] Dr. El-Sayyed El-Araby, AN INTRODUCTION TO THE STUDY OF LAW, AL-ISRAA edition , Cairo, P 73.

      [2] MALCOLM N.SHAW, INTERNATIONAL LAW, Sixth Edition, CAMBRIDGE UNIVERSITY PRESS, 2008, P 93.

      [3] Rebecca M.M. Wallace, International Law, Third Edition,Sweet and Maxwell Limited, Great Britain, 1997, P 19.

      [4] Dr. El-Sayyed El-Araby, AN INTRODUCTION TO THE STUDY OF LAW, AL-ISRAA edition , Cairo, P 77.

      [5] Dr. El-Sayyed El-Araby, Op Cit, P 80.

      [6] Rebecca M.M. Wallace, Op Cit, P 25.

    • Task N° 2 Devoir

      Explain the role of the following United Nations bodies in relation to the maintenance of international peace and security:

      1- The Security Council.

      2- The General Assembly.

      3- The International Court of Justice.

      Note: The answer must be included as a PDF file.

      The answer should not exceed one page.