Dusautoir Laurane

TD PIL GP 12

EXERCISE 1

« DIALOGUE » ON THE CONCEPT OF PUBLIC INTERNATIONAL LAW

What difference does it make that an alliance or an organization such as NATO or the FSB, is
of a political or of a legal nature ?

Public International Law (PIL) is a set of norms and rules that governs the relationships and
obligations between states, international organizations, and other actors in the international
community. It is also known as the Law of Nations. It covers a wide range of issues and is based on
the principle of sovereign equality of states, and its rules and principles are derived from international
treaties, customary international law, and general principles of law. PIL ensures stability, organization,
and consistency in international relations and is enforced through international courts and tribunals.
Organization in Public International law, can either be of a political or a legal nature. This essay will be
based on the question : What difference does it make that an alliance or an organization such as
NATO or the FSB, is of a political or of a legal nature ?
We will be answering to that question by commenting these quotations :
- Oleksii Reznikov, Ukraine Defense Minister, 13/01/2022, BBC interview.
“Ukraine as a country, and the armed forces of Ukraine, became a member of NATO. De facto, not de
jure”.
- Financial Stability Board Charter, Article 23, Legal Effect
“This Charter is not intended to create any legal rights or obligations.”

First of all, what is the difference between a political or a legal nature ?

Agreements of a political nature are not legally binding. They do not create obligations under
international law and have more of an advisory and recommendatory role. They are created for the
purpose of promoting cooperation between states for political, economic, or social goals.
Agreements of a legal nature, such as treaties and conventions, are legally binding under
international law. These agreements create obligations for states that are enforceable under
international law. In other words, states are bound to respect and comply with the provisions of these
agreements, and may be held accountable for non-compliance.

Is the nature of FSB and NATO legal or political ?

NATO (North Atlantic Treaty and Organization) is a political and military alliance of North
American and European countries formed in 1949 with the main objective of ensuring the collective
defense and security of its member countries. NATO promotes stability, security, democratic values,
and provides a platform for cooperation on security issues. It is considered an organization of a legal
nature that commits its members to protect each other and promotes solidarity within the alliance.
Indeed, NATO binds its members together as we can see in Article 5 that says any attack on a NATO
member in Europe or North America “shall be considered an attack against them all.”
However, Oleksii Reznikov, the Ukraine Defense Minister, said on 13 janvier 2022 that
Ukraine « became a member of NATO. De facto not de jure ». De jure means that there is a legal
recognition, if states have ratified the treaty they are legally recognized as a Member of NATO and
thus, are legally bound to the Treaty according to International law. Whereas De facto means the
opposite, it is a factual recognition. Therefore, Ukraine, being a De facto member of NATO, does not
have the same rights and obligation, it is not legally bound to the treaty. Although there is no legal
treaty that recognizes Ukraine as a part of NATO, its members can still offer support. During the
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TD PIL GP 12

Russian invasion, France and the United States provided aid to Ukraine in the form of weapons and
resources a few months into the conflict. If members of a treaty de facto are not legally bound to it,
this raises several questions : Is PIL really binding ? and do states generally comply with PIL ?
In reality, the PIL is not enforceable for all nations but only for those that have agreed to it
through international agreements and conventions. According to the theory of voluntarism,
International Law is a result of the voluntary actions of states and other players in the international
community. Voluntarism allows states the freedom to decide whether they want to take part in the
creation and enforcement of International Law. The validity of International Law is contingent on the
states' voluntary agreement. Thus, Contracts formed under obligation or constraint can be considered
invalid since they are not based on the parties free and voluntary consent. Immanuel Kant, believed
in voluntarism, for him, international law is based on the voluntary agreement and cooperation of
states, rather than on coercion or force. But according to the theory of objectivism, International Law
is not just a representation of state actions, but rather a series of objective rules that possess their
own validity, regardless of state acceptance or will. This means that states are obligated to abide by
and respect these universal rules, as they stem not from sovereign power, but from societal necessity.
As for whether states generally comply with PIL, the answer is generally positive. If a state
fails to follow the rules, then the time and energy invested in establishing and preserving those rules
would be in vain. As the theory of normativism says, International Law is a set of legally binding rules
that states have a duty to respect and follow. Therefore, if a state does not fulfill its responsibilities and
obligations imposed on it by an organization of a legal nature, that organization will impose sanctions
on the state. For example, the International Nations has imposed multiple rounds of sanctions on
North Korea in response to its nuclear weapons program and ballistic missile tests and thus, violated
International Law. These sanctions restrict trade, financial transactions, and access to technology that
could be used for military purposes.

The Financial Stability Board (FSB) is a global organization aimed at promoting financial
stability worldwide. Its charter serves as the organization's foundation and outlines its purpose,
powers, structure, independence, goals, responsibilities, and decision-making processes. The article
23 of the FSB charter provides “This Charter is not intended to create any legal rights or obligations.”
Therefore, it is considered as an organization of a political nature, because the members of FSB are
not bound to the charter and it has more of an advisory role.
However, law is supposed to be binding and if an organization of a political nature doesn’t
create any legal obligation, we can thus ask a question : Is PIL really Law ?
Positivist theorists argue that international law is valid and binding because it is created and
sustained by the practices and expectations of states. According to this view, international law is law
simply because states treat it as such, and comply with its norms and rules as a matter of obligation.
John Austin’s view was that the essence of law is the existence of a sovereign who has the power to
create and enforce rules. A recommendation can become a law in a country iIf a Member of the FSB
decides to apply it in his territory. However, Realist theorists, on the other hand, question the validity
and binding nature of international law, and argue that it simply reflects the interests and power of the
strongest states in the international system. According to this view, international law is not truly law,
but rather a tool used by states to advance their interests and achieve their goals. But is the theory of
realism true, does PIL simply reflect the interest of the strongest states ?
For Francisco de Vitoria and Hugo Grotius, PIL thinkers, PIL doesn’t simply reflect the interest of
the strongest states. Indeed, they believe in the theory of Natural Law, based on universal principles
of justice and morality that exist independently of state practice and belief. They suggest that PIL is
based on universal moral principles and is not limited to any particular culture or civilization. PIL is
binding and applies to all states regardless of their will. Every state must respect PIL in the Interest of
people and not just the strongest states, for principles of morality and justice. We can take the
example of peremptory norms which apply to all states in order to respect the interest of all states
such as the prohibition of use of force.
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TD PIL GP 12

In conclusion, in the context of international organizations, the difference between political and legal
nature determines the level of binding commitment that the members of the organization have to each
other, and the consequences of non-compliance. Political agreements may have symbolic value, but
lack enforceable obligations, while legal agreements establish legally binding obligations for the
parties involved. We can also argue that PIL is binding for states who consented to it and for states
who ratified the treaty, even in an organization of a legal nature such as Ukraine's de facto
membership of NATO.