International Law, State Sovereignty, Consent of States, Collective Necessities, Autonomous Legal Order, Sources of International Law, Treaties, Custom, General Principles of Law, International Court of Justice, Jurisdiction
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Abstract
This document discusses the obligatory character of international law, its sources, and the role of state consent versus collective necessities.
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[...] - Similarly, some obligations are qualified as erga omnes, that is, opposable to the entire international community. The prohibition of torture, for example, is not just a commitment between two states, but an obligation towards all others. Thus, every state has an interest in acting against a behavior that does not respect these obligations, even if it is not directly concerned. - In addition, the United Nations system shows this collective constraint: in fact the Security Council can adopt binding resolutions thanks to the United Nations Charter, in order to maintain international peace and security. [...]
[...] However, limiting the obligatory character of international law to the consent of States only does not allow for a realistic account. Some norms impose themselves even without their consent, which reflects the existence of collective requirements that are superior to them. The foundation of the obligation must therefore be sought in the necessities proper to the international community. II) The obligatory character based on collective necessities However, certain rules impose themselves on States even without their consent, because they reflect essential common requirements Gradually, international law aims to be recognized as a true autonomous legal order, independent of the will of the State alone Collective requirements asserted beyond consent - Certain rules of international law have a particular value that makes them obligatory regardless of the consent of States. [...]
[...] In order for a custom to arise, it is therefore necessary that of behaviors repeated (practice), as well as the conviction of States that they are acting in accordance with a legal rule ( [...]
[...] And even when they contest certain rules, they mostly try to justify their position in law, which confirms the recognition of its obligatory character. - International law thus appears increasingly binding because it is perceived as indispensable to the functioning of the international community. Its constraint no longer comes only from the wish of states, but also from the need to ensure stability, security, and justice. [...]
[...] 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 "obligatory" or "binding" refers to the capacity 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. [...]
