Mindel Scott

Essay on the Origin of International Legal Order and Its Nature

 The detection of subjective elements is notoriously difficult in international practice, as they are mainly States. Self-determination has both an external and an internal dimension (Crawford, 1979; Alston, 2017). The external dimension, the right of a people to be free from colonial subjugation or foreign occupation and control, was historically the most transformative at the time of decolonization (Crawford 1979). The internal dimension concerns the right of peoples to democratic governance at home (Franck 1992) and has become increasingly important in discussions on the role of international law in promoting democracy. In addition to the possibility of exceptionalism, Razian theory faces the challenge of how to incorporate proper respect for state sovereignty. For example, to what extent does respect for sovereignty mean that certain matters fall within the competence of States and on which international law cannot invalidate or annul their decisions? The question is largely analogous to what arises in the domestic context: to what extent is the authority of the State limited by respect for the autonomy of its citizens, so that the State should not seek to impose obligations in certain matters, such as the choice of profession or spouse, even if its policies would lead to: that citizens better follow the reasons that apply to them? Of course, the state is an institution that does not have the fundamental moral status of the individual, but the question arises because of the value of collective identity and self-determination, which is protected by sovereignty. In this context, Raz controversially proposed a mutually exclusive relationship between state sovereignty and strong international human rights law (Raz 2010). Beyond the sovereignty of States as a limitation of the legitimacy of international law, a more general question arises as to how this authority is limited by its own principle of subsidiarity, which promotes the resolution of political issues at the most local level possible (Føllesdal 1998; Finnis, 2016). Finally, the absence of creation by democratic means poses a particular challenge to the claim of international law to legitimate authority, particularly vis-à-vis States that are themselves democracies (see section 4.5). (ii) It was also assumed that the best analogy was with the public jurisdiction of the State, where fault was not a necessary element. What States promise each other is that they will honour the commitments they accept, that is, international legality, not that they will not maliciously or negligently violate the norms of expectation. 19De Jure Belli ac Pacis (1625), lib. II, chap.

21, § 2, 2. On this doctrine culpa, see, for example, G. Cohn, “La théorie de la responsabilité internationale”, RCADI, vol. 68, 1939-II, pp. 240 et seq. With the exception of this particular tradition of natural law, proponents of the absolute conception of sovereignty were generally regarded as “deniers of `international law` (Hinsley 1986: 184). The criticism is that there can be no international law if one does not accept that States must be irrevocably subject to an authority other than their own, at least on certain matters; The possibility of submitting to an external authority must be regarded as a necessary condition of international law, even minimal. State responsibility refers to the responsibility of the main subject of international law, the State.

The violation of the law takes place here in the context of an inter-State relationship: a State is the author and a State is the injured entity. International responsibility refers to the broader context of the relations of all international subjects, i.e. all organs and persons with a certain international legal personality.42 The general principle is that all legal persons in a legal system are equally responsible for violations of rights they commit.43 It is true that the practice of international responsibility in relation to subjects other than States is rather rare. however, the principles of State responsibility were applied by analogy to other institutions. This fact demonstrates once again the fundamental unity of the rules of responsibility. These descriptive questions influence the conceptual argument concerning the legal character of international law. If the main drivers of rule-making operate only on the basis of consent or depend on the conviction and subjective mindset of those who are supposed to restrict the rules, the legal character of international law would be seriously compromised at best; Or, at worst, completely lost, because international law would be deprived of the inherent claim to legitimate authority, a claim that its norms are merely legally binding and are not meant to be voluntary or otherwise subjective. Many critics argue that customary international law, with its reliance on vaguely specified levels and combinations of state practice and opinio juris, makes the existence and content of international legal norms very vague and thus violates the constitutional need for publicity and clarity (Goldsmith & Posner 2005). Moreover, the process of reform of customary international law over time, in which States may violate existing customary norms in order to produce new norms, violates the rule of law requirement of congruence between law and official conduct.

These criticisms have led to efforts to produce reports on the formation of customary international law, ensuring greater determination and eliminating the need to violate existing customs in order to create new customs. Another view, however, is that greater fidelity to the rule of law requires contract law regimes to increasingly replace customary law (for opposing views, see Bradley (ed.) 2016).