A brief appraisal of international law

Assignment (3): Do a Brief Appraisal of International Law

A Historical Perspective

Although Western culture and its political organization provided the foundation of modern international law, the basic concept of international law could be discerned in political relationships thousands of years ago.[1] One of the first pieces of evidence of international law is a solemn treaty signed around 2100 BC between the rulers of Lagash and Umma (small city states in Mesopotamia) which defined their boundaries.[2] In the Middle Ages, Church power and control dominated in Europe as the entire continent was Christian and the ecclesiastical law applied to all, notwithstanding tribal or regional affiliations.[3] This period was characterized by struggles between the religious authorities and the rulers of the Holy Roman Empire, which were eventually resolved in favour of the Papacy. However, the triumph of the Church over secularism was relatively short.[4] It should be noted that at that point in time, the authority of the Holy Roman Empire and the supranational character of canon law were in vogue, particularly the influence of the Church on the rules governing warfare and the binding nature of agreements.[5] Despite this, commercial and maritime law developed rapidly. English law established the Law Merchant, a code of rules covering foreign traders that was declared to be universally applicable.[6]

In 1576, following the rise of the modern state and the liberating of international relations, the concept of sovereignty was systematically analyzed by Jean Bodin in his Six de la Republique.[7] He based his study on his perception of the politics of Europe rather than on a theoretical discussion, and focused on the necessity for a sovereign power within the state that would make the law.[8] He argued that while such a sovereign could not be bound by the laws he himself made, he was subject to the laws of God and of nature.[9] The early scholars of international law were deeply involved with the concept of natural law and used them as the basis of their philosophy. Shaw notes that ‘included within that complex of natural law principles from which they constructed their theories was the significant merging of Christian and natural law ideas that occurred in the philosophy of St Thomas Aquinas.’[10] Aquinas maintained that natural law formed part of the law of God, and was the participation by rational creatures in the eternal law – it complemented the eternal law which had been divinely revealed. Reason, Aquinas argued, was the essence of man and thus must be involved in the ordering of life according to the divine will.[11]

The approach to modern international law can be traced back to the Spanish philosophers of that country’s Golden Age – the leading figure of this school was Francisco Victoria, a professor of theology (1480-1546).[12] Francisco, who was part of the Spanish Renaissance, was a Roman Catholic jurist, philosopher and theologian and founder of the School of Salamanca.[13] His religious background helped him to contribute to the just war (jus bellum iustum) theory, a concept also understood in the tradition of military ethics.[14] Although Victoria’s contribution to international law is significant, it is controversial whether he could be described as the father of international law in the same way as others such as Aberico Gentili and Hugo Grotious.[15]

Suarez (1548-1617) was also a scholar and professor of theology. He postulated that the obligatory character of international law was based on natural law, while its substance derived from the natural law rule of carrying out agreements entered into.[16] However, it was Hugo Grotius (1583 –1645), a Dutch scholar and theologian, who excised theology from international law. He developed a comprehensive system of international law with his work becoming the popular text on the subject.[17]

The period from the 1648 Peace of Treaty of Westphalia to the 1815 Congress of Vienna marked a new era in the history of international law. This is considered to be the period when ‘classical’ international law was formed. International law in its modern form started with the break-up of the feudal state system and the formation of society into free nation states. This is commonly traced back to the period leading up to the 1648 Peace Treaty of Westphalia which brought to an end the Thirty Years War in Europe.[18] The main aim of the Congress was to establish a new balance of power between the political forces in Europe that would ensure lasting peace and maintain the status quo in Europe by repressing political revolution. Thus, from the 1815 Congress of Vienna to WW1, international law was based on the principles of sovereignty, balance of power, legitimacy (in the sense of restoration of ‘legitimate’ governments to power and prevention of political revolutions) and equality between nations.[19]

Interaction between International and Domestic Laws

The structure of the domestic polity of nation states normally consists of a law-making body, an executive or law enforcement body, and a compulsory system of courts as essential features of its legal system.^[20] Lack of these established structures is a critical deficiency inherent in international law and a significant point of difference between it and the municipal laws of nation-states. The UN, which can be considered to be the leading institution for enacting rules binding on all states under international law, lacks a central legislative body per se.^[21] The concept of legislation is unfamiliar in international law.[22] If legislation implies a normative act promulgated unilaterally by an authorised organ and contains general abstract and directly binding legal norms,[23] there is no person or process in international law entrusted with the power to habitually enact legislation. Instead, law-making in the international system is multi-sourced and multi-layered, whilst its content and binding force varies.[24] The General Assembly has the power to adopt recommendations which of course, are not binding upon member states.^[25] Under Article 25 of the UN Charter, the Security Council has the power to make decisions that would be binding on all member states; decisions taken by the Security Council would involve for example, matters that constitute a threat to international peace and security. Regardless of the threat to international peace and security, the Security Council may be prevented from making such decisions by the veto power vested in each of the five permanent member states.^[26] Similarly, treaties and international custom re-enacting agreements between sovereign states are rules that are not imposed from above by any central law-making body.^[27]

In executing its decisions, the UN is not a world government and therefore lacks the power to direct states to comply with the law. It also lacks a permanent police force to punish violators of the law.^[28] While it is true that the UN is able to raise forces to police certain situations, the fact remains that there is no permanent force at its disposal for restoring peace and order instantly.^[29] Similarly, while international courts, such as the International Court of Justice (ICJ), exist under the ambit of international law, unlike the judiciary in sovereign states, these international courts have adjudicating powers only over those states that have consented to their jurisdiction.^[30]

The interplay between international law and domestic law often reflect the struggle between state sovereignty and the international legal order.^[31] Gerry Simpson sees in the interplay between equality and inequality, between great power and outlaw status, ‘the essence of international law since at least 1815’.[32] The basic focus of international law is seeking to organize international society in accordance with the general interests of the international community. The doctrine of state sovereignty can be advanced as an argument to protect a state against the intervention of international law into its national legal system.^[33] As international law began to intrude[34] into certain issues which are basically domestic, there has been a constriction and diminution in the areas of law which can be considered to be governed exclusively by the municipal law of a state.^[35]

In an effort to explain the tension between these two systems of law, reference is usually made to the so-called monist or dualist theories of international law.^[36] The dualist theory views domestic law and international law as separate and distinct entities, each with its own power to settle the effect any external rule of law might have within it.^[37] They differ, in the first instance, in terms of their sources – sources of domestic law are customs grown from within the boundaries of the state concerned and statutes enacted by the local legislature, while the sources of international law are customs that have developed among states and law-making treaties concluded by them.^[38] Secondly, the two legal systems differ in terms of the relations they regulate. While domestic law regulates relations between individuals under the authority of a state and the relations between the state and the individual, international law regulates relations between independent sovereign states.^[39] Thirdly, the two are different in terms of the substance of their legal provisions. Whereas domestic law is a law of a sovereign over individuals subjected to its authority, the international legal order is not above, but between, sovereign states, and is therefore a weaker law.^[40]

The implications of this is that on the one hand, international law (as is generally thought) is not effective in a domestic legal order, (depending on the constitutional provisions of a particular domestic legal system itself.^[41] Domestic law on the other hand, is (as is thought) incapable of imposing itself on the international legal order as a state may not rely on its own domestic law as a ground for repudiating, for example, an international legal obligation.^[42]

Conversely, the monist theory views international law and municipal law as component parts of a single universal legal order in which international law has a certain supremacy.^[43] Monists reject the dualist notion that the subject of the two systems of law are essentially different, arguing that apart from there being a single universal legal order, it is ultimately the conduct of the individuals that is regulated by law. The only difference is that in the international sphere, the consequences of such conduct are attributed to the state.^[44] They argue further that in both legal realms, law is essentially a command binding upon the subjects of the law independently of their will.^[45] They assert that the two legal systems must be regarded as manifestations of a single conception of law.^[46]

It must be stated that, international and municipal law as systems cannot really come into conflict.^[47] What may likely occur is, strictly speaking, as Harris puts it: ‘conflict of obligations, or an inability for the State on the domestic plane to act in the manner required by international law.’^[48] He further explains that international law does not necessarily purport to govern the content of national law in the national field. It simply stipulates that certain things are not valid according to its rules, and that if a state in the application of its domestic law acts contrary to those rules in these respects, it will commit a breach of its international obligations.^[49] It must be noted however that this ‘fear’ of committing a breach of international obligations often compels states to be wary of international law when enacting or applying their domestic laws.

The notion of international and domestic legal systems of both the dualists and monists were taken into account while drafting the UN’s Article 13 of the Draft Declaration on Rights and Duties of States 1949, which provides that: ‘Every state has the duty to carry out in good faith its obligations arising from treaties and other sources of international law, and it may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty.’

A number of judicial and arbitral decisions have been taken on the provisions of Article 13. For instance, in Alabama Claims Arbitration^[50] the Arbitral Tribunal rejected the argument that because its constitutional law was not such as to provide it with the power to interfere with the private construction and sailing of the ships concerned, Great Britain had not violated its obligations as a neutral state in the United States Civil War by allowing the construction and sailing to occur, saying that Britain cannot justify itself for a failure in due diligence on the plea of insufficiency of the legal means of action which it possessed.^[51] It is noted that many courts or tribunals do not expressly apply monist or dualist theory. In the above case, the ICJ held, that ‘a piece of national law cannot be regarded as an excuse for the breach of obligations given by international law’. The court said that: ‘…the government of Her Britannic Majesty cannot justify itself for a failure in due diligence on the plea of insufficiency of the legal means of action which it possessed… It is plain that to satisfy the exigency of due diligence, and to escape liability, a neutral government must take care… that its municipal law shall prohibit acts contravening neutrality.’[52] In a similar case this court also held, that ‘it is the duty of every state to bring its domestic law in line with international law.’[53]

Enforcement of International Law

As questions have often been raised about the limits of enforcement of international law, the question may also be raised about why do states then need to be cautious of their international law obligations in relation to their domestic legislation. Essentially, the enforcement of rules of international law depends largely on the goodwill of states. Nations recognize that the observance of law is in their own interest, and that every violation may also bring particular undesirable consequences.^[54] Although lack of a central authority with powers to enforce rules in a regular and consistent manner is an issue that provokes scepticism about the enforcement of international law,^[55] it nevertheless has a number of sanctions for breach of a rule with a view to ensuring compliance.

Chapter VII of the UN Charter gives power to the Security Council to direct its members either individually or collectively to apply force against any state whose violation of its obligations under international law might constitute a threat to international peace and security.^[56] For example, by virtue of Resolution 221 of 1966, the Security Council authorized the United Kingdom to use force on the high seas to prevent oil tankers from reaching the port of Beira when their oil was destined for Rhodesia.

Kelsen is quoted to have said that international law is true law because, broadly speaking, it provides sanctions, such as the adoption of reprisals, war, and the use of force generally, and makes the employment of these sanctions lawful as a counter-measure against a legal wrong, but unlawful in all other cases…^[57] Harris appears to take exception to this position .^[58]

[1] Shaw, M.N., International Law, (6^th ed.), Cambridge University Press, (2008), p. 13.

[2] Alina, K., Public International Law, (4^th ed.), Routledge, (2010), p.8.

[3] Nussbaum, A., A Concise History of the law of Nations, Macmillan, (1954), pp. 17-23.

[4] Shaw, M.N., supra note no. 1 at p. 19.

[5] Nussbaum, A., supra note no. 3 at pp. 17-18.

[6] Holdsworth, G., A History of English Law, London, Vol. 5, (1924), pp. 60-3, as quoted by Shaw, M.N., supra at p. 19.

[7]Shaw, M.N., supra no. 3 at p. 21.

[8] Ibid.

[9] Meron, T., The Authority to Make Treaties in the Late Middle Ages, 89 AJIL, (1995), p. 1.

[10] Shaw, M.N., supra no. 1 at p. 22; also Nussbaum, A., supra note no. 3 at pp. 79-93.

[11] Ibid.

[12] Nussbaum, A., supra note no. 3 at pp. 79-93.

[13] See e.g. Woods, T.E. (Jr.), How the Catholic Church Built Western Civilization, Washington, DC: Regnery Publishing, (2005).

[14] Charles, G., Michael, Q., “Ill: The Structure of the Tradition”- Just War: The Just War Tradition: Ethics in Modern Warfare, United Kingdom: Bloomsbury Publishing PLC, (26 Sep 2007), pp. 11-15.

[15] Anthony, P., “Victoria: Political Writings”, in Kant, I., et al., The History of Political Thought, UK: Cambridge University Press, (1991), p. xvi.

[16] Ibid at pp. 84-91 and also pp. 92-3.

[17] Shaw, M.N., supra no. 1 at p. 24.

[18] Alina, K., Public International Law, (4^th ed.), Routledge, (2010), p. 11.

[19] Ibid.

[20] Dugard, J., International Law, A South African Perspective, (3^rd ed.), Jute & Co., Claremont, (2010), at p. 2.

[21] Ibid at p. 3.

[22] Nicholas, T. Security Council Legislation, Article 2(7) of the UN Charter and the Principle of Subsidiarity, Adam Smith Research Foundation Working Papers Series 2011:05, (2011), p. 3.

[23] See Brunee, J., International Legislation, Max Planck Encyclopaedia of Public International Law at:

http://www.mpepil.com

[24] See generally Boyle, A., & Chinkin, C., The Making of International Law, Oxford, Oxford University Press, (2007).

[25] Ibid.

[26] Szasz, P., ‘The Security Council Starts Legislating’ 96 American Journal of International Law (AJIL) (2002), p. 901; Dugard, J., supra.

[27] Dugard, J., supra note no. 20.

[28] Ibid.

[29] Ibid.

[30] Ibid.

[31] Dixon, M.; McCorquaodale, R.; Williams, S., Cases and Materials on International Law, (5^th ed.) Oxford University Press, (2011), p. 101.

[32] Simpson, G, Great Powers and Outlaw States, Unequal Sovereigns in the International Legal Order, University of Cambridge, (2004), p. vii.

[33] Ibid.

[34] See generally Bradley, A., and Goldsmith, J.L., Customary International Law as Federal Common Law: A Critique of the Modern Position, The Harvard Law Review Association, Vol. 110, No. 4, (1997), pp. 815-876.

[35] Ibid.

[36] Ibid. See also Borchard, E., ‘The Relationship between International Law’ 27 Virginia Law Review, No. 2, (1940), p. 137..

[37] Janis, M.W., International Law (5^th ed.), Wolters Kluwer, Law & Business, The Netherland, (2008), p. 165.

[38] Dixon, M.; McCorquaodale, R.; Williams, S., supra note no. 31 at p. 101.

[39] Ibid.

[40] Ibid; see also Chellaney, B., International Law only for Weaker States?, The Hindu,

http://www.thehindu.com/opinion/lead/international-law-only-for-weaker-states/article5479314.ece (accessed 25 April 2012).

[41] Janis, M.W., supra note no. 37.

[42] Ibid.

[43] Kelsen, H., Principles of International Law, (2^nd ed.) Tucker, (1966), pp. 553-588; Janis, M.W., ibid at p. 88.

[44] Dixon, M.; McCorquaodale, R.; Williams, S., supra note no. 31 at p. 102.

[45] Ibid.

[46] Ibid.

[47] Harris, D.J., Cases and Materials on International Law, (6^th ed.), Sweet & Maxwell London, (2004) p. 68.

[48] Ibid and italics are mine.

[49] Harris, D.J., supra p. 68.

[50] United States of America v Great Britain, Moore (1872), 1 Int. Arb. 495 at 656.

[51] See Harris, D.J.; supra note no. 47 at p. 69.

[52] Alina, K., supra note no. 18 at p. 150.

[53] See e.g. Nicaragua v. The United States of America – Merit Judgment, (1986), ICJ, 1.

[54] Dixon, M.; McCorquaodale, R.; Williams, S., supra note no. 31 at p. 2.

[55] Dugard, J., supra note no. 20 at p. 6.

[56] Ibid.

[57] Harris, D.J., supra note no. 47 at p. 10.

[58] See Harris for details ibid at p. 10.