INTERNATIONAL LAW DECISIONS IN THE UK COURTS

Critically assess the role played by International Law in decisions in the UK courts.

Critically assess the role played by International Law in decisions in the UK courts

Introduction

Since international law is about the way in which nations generally agree to behave towards one another, the notion of sovereign immunity is a rule of international law par excellence. A discussion of the origins and status of this rule brings us quickly upon questions of the very nature of international law, and perhaps even of law as such.

The current early stages of the development and codification of much international law harks back to a time when national law was experiencing analogous growing pains.

The communal courts before the Norman Conquest "declared" a customary law. That is, they drew upon local established practice to determine rights or duties in controversies.

These local declarations of law grew into a more generalised and formalised legal system, in common law, case law and statutes set out by Parliament. Today, international law is very much in its infancy, little more advanced than was national law at its earliest times. International law is still very much based on local declarations of what is perceived to be the general custom amongst nations. (However, even the question of how courts ought to decide what in fact qualifies as a general custom is a tangled subject of debate, often turning on individuals' views of the nature of law itself) This customary law approach follows what is known as the 'positivist' theory of law, where law codifies how nations have already generally tended to act, shying away from a more active prescription of how we ideally ought to act; the theory stresses decentralized lawmaking by the participants in the international legal process, and casts an international tribunal in the role of a declarer of a customary norm rather than of creative law-maker.

Of course, there do exist some international bodies whose members have agreed upon the self-imposition of some international laws, and these sometimes involve as much creative lawmaking as the codifying of what is already practised. International human rights agreements are by far the most striking move forwards from the realpolitik of legal positivism - does any nation in the world live up to the ideals set out in the human rights treaties they have signed and ratified?

 The idea of human groups or nations keeping their noses out of others' business is as old as time - as old as war, often the implication of violating this rule of international etiquette. And just as animals would usually rather avoid a physical fight, preferring to settle a dispute by posturing and mutual assessment of strength and fighting ability, so nations may try to settle disputes by diplomacy. The diplomats are allowed to bring the protection of respect for territorial sovereignty with them; it is understood that a nation's legal jurisdiction does not extend beyond its borders or to visiting officials from beyond its ...