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Reflections on the Existence of a Hierarchy of Norms in International Law
Juan Antonio Carrillo Salcedo1
Full text available: PDF format *
1.
As international law is required to govern a fundamentally different society from that within the state, it therefore has specific functions adapted to the needs of that society. Indeed, alleged imperfections so often complained of in international law are for the most part only structural features inherent to the system, since they correspond to the needs of international society.
International law is applicable to relations among independent entities, and so has features which distinguish it from internal state law. States are simultaneously the creators and subjects of its norms; as sole authority on the laws they formulate, states themselves assess their meaning and scope. It is thus the individual states that interpret the obligations to which they - like their partners, the other states - are subject. Finally, it is they who decide as to the legality of their own conduct or that of third parties towards them. Hence the fragmentary nature of international law, and its relativism, the consequence of the equal nature and poorly institutionalized structure of international society.
It is however important to assess the proper extent of differences between international and state society. If not, presenting a radical opposition between two models of social structures and two paradigm legal systems (the centralized, institutionalized internal order, and the decentralized, poorly institutionalized international order) would be more an exaggeration than an empirical truth.
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1
Professor of Law, University of Seville. Translated by Iain L.
Fraser, revised by Stephen Skinner.
© 1990-2004 European Journal of International Law
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Tuesday, October 14, 2003 12:43PM