Obligatory Character of International Law

Extract

[...] Transition : However, reducing the obligatory nature of international law to the consent of States alone is not enough to explain reality. Certain rules impose themselves even without their consent, which shows the existence of common requirements. The foundation of the obligation is therefore also found in the needs of the international community. II) The obligatory character based on collective needs Exigences collectives affirmées au-delà du consentement - Certain norms exceed the simple will of States : - The Imperative Norms (Jus Cogens) : e.g. prohibition of genocide, slavery, armed aggression. [...]

[...] reflects the emergence of a a organised international community, beyond the state's will. The international law recognized as an autonomous order - The international law tends to be recognized as a true legal system : - Article 38 of the ICJ Statute lists the sources of international law, which articulate with each other without depending solely on the will of States - International courts assert the existence of a public international order. - In practice, States comply with international law International law thus appears as obligatory in itself, for it is recognized as indispensable to the functioning of the international society. [...]

[...] On what does the obligatory character of international law rest? By « foundations the justifications that explain the existence and the force of the obligation. The « character obligatory or 'binding' refers to the ability of law to constrain, even if it does not exist of centralized repressive means. Finally, the « international law corresponds to the set of legal rules that organize relations between States and more broadly, between the different subjects of international society. The functioning of international society is inscribed in a particular context. [...]

[...] This sovereignty may suggest that all international obligations rest solely on the will of each State. But, in practice, international relations show the opposite: States sign treaties, respect custom, and recognize, for some, the jurisdiction of courts such as the International Court of Justice. They also comply with the decisions of the Security Council when it acts in the name of collective peace and security. From this, States behave as if international rules really imposed themselves on them, which shows that the obligatory character of international law is recognized, even if it is sometimes contested. [...]

[...] The binding character of international law based on the consent of States State sovereignty as a foundation - The concept of sovereignty means that the state is subject to no higher authority. - Historically, international law is based on the idea that only binding obligations accepted engage the state. - International treaties illustrate this: Article 26 of the 1969 Vienna Convention enshrines the principle pacta sunt servanda. This approach feeds the idea that international law is only binding if states consent to it. [...]