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INTERNATIONAL LAW NOTES INTERNATIONAL LAW The nature and philosophy of International Law Law has different meanings. I. One definition: “The result at any given time of an evolutionary law making process whereby the international community develops a system of rules to guide relations between sovereign nations.” The international law at any given time is the product of this law making process. a) International law differs from national law in two respects. i) Historically, at least, there has been no legislature or law making authority. ii) No police force or any institution to enforce obedience to the law or impose sanctions for breach of it. This has led some to contending that “International law is not law”. However please note, that the governments of every state in the world, act on the assumption that relations between sovereigns are governed by law. b) Defining international law as a “law making process” denotes that it is subject to constant change. As we have said, international law of any given time is the result at that moment of the changing law making process. Consequently, international law will be a constantly changing process that will keep in step with advancing needs of the community of sovereign nations c) There is also a static aspect of law. The Naturalist school of law (Aristotle Jefferson, Socrates, and Plato) held there were certain immutable laws of Nature. Man’s job was to search for, and discover them. Cicero, Rome’s greatest lawyer, put it this way; ‘True law is right reason consonant with nature, world-wide in scope, everlasting and unchanging. The law does not differ for Rome or Athens, for the present and the future, but one eternal and unchanging law will be valid for all nations and for all times.” d) In opposition the “Positivist” school which holds law is independent of outside influence such as abstract notions of justice or the inherit needs of man. Instead it insists; “Only that law which has been made so by the express act of the community,” In other words, the international community adopts, enacts, or posits law, and that is that only source of international law that there is. II. Purposes of International Law Generally speaking, law is an instrument without which people would be unable to live together. The purpose of law is to introduce order into the relations of society’s members,

or relations of sovereign nations to each other, through the establishment of known or predictable barriers to conduct. The more sophisticated the society, the greater the need for law. For example, there is a principle, generally accepted by nations that prisoners of war should not be tortured. During Vietnam war, this was often violated. One of the penalties that attached was that the U.S has delayed recognition which hurts tourist trade, etc. Hence torture involves an international law barrier. III.

Basis of International Law

A. Positivist school – the consent of states is sole basis B. Naturalist school – the law lies in “fundamental rights of states” (Natural rights) C. A third, perhaps more correct view, pointed out by Prof. Bierly. :Law of Nations (6th ed) p. 52, is that “A customary rule is observed, not because it has been consented to, but because it is believed to be binding” Individual sovereign nations are not asked whether they accept rules of law, and are not permitted to withdraw their consent. They either obey the law or find themselves punished by or excluded from the society or community whose rules they refuse to accept. In the 18th and 19th century, admittance to the family of “civilized” nations was considered as a privilege. Recognition carried with it admittance to a community of states governed by rules that were predictable and orderly. IV)

Who makes it, why is it obeyed, lawful and unlawful use of force

A. In individual nascent societies, law arises from collective social pressure to restrain conduct. From this, a short step to punishment for transgressors. To insist that before we can have law there must be some body or legislature which “makes” law is to be historically inaccurate. True, in democracies, as members began to number in millions, legislatures evolved because of the need to make rules through representative because assembly of all members was impossible. But where the number of members is quite small (number of sovereign states in world is only about 160) it is possible to get by without a legislature. B.

How are laws made in the international community?

Largely in the same way as nascent societies or primitive tribes – by interaction of the conduct of each upon the others. i) some times because of past practice, the limits on some kinds of conduct can be anticipated. ii) Where no past practice a country simply acts and waits to observe reactions of other countries. iii) Since general assembly of UN acts as a forum for international debate, a state can act and obtain a much guided consensus reaction. iv) One disadvantage of not having a legislature is that it is more difficult to discover the content of the law. Where does one look? C.

Why is law obeyed?

1) People obey law because they consider it to be in their own interest to do so. State like individuals, have personal and public motivation. At personal level we

compete with others, act selfishly yet we have a public motivation to recognize the rules which help operate society benefit us personally so it is with nations. People obey laws because they agree with them. The absence of a police force in the service of the community is not therefore a relevant factor in understanding the nature of law, whether in national or international context. D.

Lawful and unlawful use of force

1. Man’s greatest need for restraint is in use of force yet from a national standpoint his survival depends upon sufficient armed force to overcome internal rebels or external aggression. Though the unlawful use of force by members of society, e.g. bank robbery can be contained and punished by the use of greater force upon which the survival of society depends. What distinguishes societies of men from community of states is that in international law there is no force at the disposal of the community of nations. [a limited exception in recent years, are the so called peace – keeping forces of the United Nations] Article 2(4) of the UN charter provides for two rules relating to the use force by states: a) “all members shall refrain in their international relation from the threat or use of force against the territorial integrity or political independence of any state” Article 51 provides “..nothing in the present charter shall impair the inherent right of individual or collective self-defence against an armed attack” The two clauses can be summarized; Force can be used lawfully in self-defense, and is unlawful in all other circumstances (unless by U.N. itself, or on its behalf) Relation between international law and other legal systems I Within a given system; two rules conflict. Within a given legal system as well as two different legal systems, where two rules contradict each other, two rules have developed, 1 st from Roman law, the Islamic and then western law. rules A

lex posterior derogate priori - the later rule supersedes the earlier one.

B. lex specialis derogat generali a special rule (or norm) supersedes a general rule e.g. two states renounce any privileges for their consular offices while they are also parties to the Vienna Convention on Consular Relations which establishes such privileges, they cannot accuse each other of violating the Vienna Convention because the special provision of their bilateral agreement supersedes the more general provisions of the Vienna convention. C. A third rule, over-riding the first two is that regardless of whether which of two rules is earlier or later, specific or general, a superior rule (or norm) always supersedes an inferior one. For example, if the anti-monopoly provisions of the Treaty of Rome (between sovereign states) conflicts with a bilateral treaty between Germany and France authorizing establishing of a joint venture or partnership which will monopolize German and French

business in a particular area, the anti-monopoly provision of the Treaty of Rome would supersede the belated treaty provision between German and France. II. Municipal (Internal) law. The three legal systems which conflict so as to cause concern to international lawyers are: (1) international law and (2) municipal internal) law (3) more recently, supra national law A. Defined: Municipal or internal law, is the system of law that governs persons, situations, and institutions within a state. It embraces sub-systems such as civil law, commercial law, criminal law, constitutional law and administrative law. Municipal law draws its authority from the state, which also enforces the law. B. Most states have a constitution, from which the legislature, executive, and judiciary derive their authority to enact sub-ordinate laws. Most constitutions confer law making power on a central authority, e.g. Costa Rica; other constitutions provide for a central legislative body as well as decentralized subordinate law – making bodies. Mexico and the United States are examples of a dual government (state and federal). Usually sovereign power as a state to exclusively handle foreign relations is given to the Central Federal government. Article 2 sec 2 of US constitution gives president power to make treaties provided two thirds of senate concurs. Article 1, sec 10 no state shall enter into any treaty, alliance or confederation. Generally each state also has its constitution. Such internal state structures, as noted in United States Constitution supra has no effect on the sovereign central relations involving international relations. However some federated governments may delegate limited power to states to conduct a certain amount of international relations on their own, e.g. California trade delegation to Japan. C. Conflicts between Federal. over questions of international law

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Federal municipal law (internal) law system: A question of whether a subordinate state law can conflict with federal treaty law is decided by the highest court in the federal system. In a Missouri - versus – Holland 252 US 416 (1920). the United States Supreme court held that a law authorizing the hunting of Canada geese was unconstitutional and therefore invalid and not enforceable where it clashes with the text of a treaty between the US and Canada which had been negotiated by the president and approved by two thirds of congress. D. Jurisdiction- International municipal law. If a problem is primarily national in nature e.g. Missouri - versus – Holland, which primarily involved a state challenging the federal treaty making power, then a national court, will apply municipal (internal) law. If it is a purely international dispute e.g. between sovereign nations international law should be applied by an international court. There is no inter-mediate ground. In an international court, the status of municipal (internal) law is considered as an issue of fact, not of law, hence an error of the international court, in correctly ascertaining the municipal rule has been held sufficient to justify setting aside an international arbitration award. Suppose, for example, a US manufactures electric shavers for 90 cents. Sylvania, a sovereign state manufactures them for 1 dollar. To equalize, US and Sylvania enter into a treaty whereby the US will impose an export tax on US manufacturers of 10 cents per shaver, so that the US and Sylvania cost prices are equal in world competition. However, the US constitution (municipal or internal law) prohibits an export tax (art 1, sec 9). The US fails to levy the export tax and Sylvania claims a loss of sales and damage because of the US failure to levy the 10 cents exports tax. The US argues that to levy the tax violates

internal (municipal) law (act 1, sec 9) The international court holds that it does not and awards damages to Sylvania the US. A week later, the US Supreme court holds that any export tax violates Art 1, Sec. 9 (internal law). The mistake of fact by the international court, namely in ascertaining the status of US internal law would be a proper basis for reversing the international court ruling. 3. International law in Municipal (internal) courts, Theoretically internal (municipal) courts could ignore international law in any case that is before them. Yet some states provide in their constitutions that the international law shall be in conformity with international law. Other states, such as England, by Act of Parliament, called an enabling Act incorporate the substance of international treaties into municipal (internal) law. In the US, the treaty is the “supreme law, law of land” but becomes effective after two thirds of Senate ratify it following the negotiation of the treaty by the President. Although sometimes congress implements a treaty with legislation, e.g. Migratory Bird Act of 1919 (implementing Canada – US treaty). Other states such as France provide that after some administrative act, such as publishing a treaty in a newspaper, it becomes official municipal law and must be enforced as such by the internal court system. Whatever system is used to reflect international law into local law, it is desirable because if municipal (internal law) is inconsistent with international law, an adverse decision in a municipal (internal) court may result in a trail de novo in the international court. Thus in Mortensen - versus – Peters (High court of Judiciary Scotland) an Act of parliament made it an offence for any person to trawl fish in the Moray Firth – even outside the 3 – mile. The Scottish national court held the Act applied to Mortensen Danish. Mortensen argued that a national Act (municipal law) could not apply to an alien outside the 3 – mile international law limit. After being overruled by a Scottish court, the Danish Foreign office lodged a diplomatic protest with the U.K., which apologized and paid reparations. It is to avoid such conflicts between municipal land and international law that states try to have municipal law – either by “transformation” or incorporation” reflect the rules of international law. 3. Customary international law. Most customary international law is reflected in municipal (internal) law, as we have seen, and hence internal court decisions usually reflect this law. For example, the doctrine of sovereign immunity is reflected in Texas Trading and Milling Corporation V Fed Republic of Nigeria, pp 1067 – 1068. where there is no municipal law, case law/decisions to resolve or determine an international law question the municipal courts will then look to international case law, follow it, declaring that (following a tradition of Anglo-American origin) that “international law is part of our law” III Supranational law So far, only example is the EU. EU law is enacted by an institution that is not a State; their laws apply and must be followed by any municipal (internal) court of any particular member state. In the EU, law is enacted by either the council of Ministers. After consultation with parliament, on recommendation from Commission, it can pass rules and regulations e.g. environmental rules where Treaty of Rome is silent. The Commission is a supra national body and since 1955 has passed hundreds of regulations and decisions moving Common Market toward closer union. It is supranational because the Commission individuals do not represent states. Central characteristic - Super national law has a strong resemblance to a Federal law system such as US, Mexico or India, because enactment of EU law is not only binding on member states (e.g. France, England, Italy) but also is a part of their municipal law. Note that EU has started out as a law making body whose enactments bind the internal

(municipal) law systems of its members, but those enactments seem to be moving the EU members in the direction of a federal system, e.g. “the United States of Europe” with very substantial surrender of sovereignty by the member states in such areas as (1) issuing money (2) eliminate of tariff barriers, and (3) possibly passing armies (analogous to the US of America). B.

Theories regarding precedence at one system over another

1) Monist – all legal systems are made up of “law” which has same basic characteristics. 2) Dualist – hold that international law is fundamentally different from internal municipal law as regards (a) origin of the rules (b) subject matter they govern (c) hence no international rule of law is binding in municipal sphere vice versa. 3) Three theories of priority or precedence. i) Municipal (internal) law is superior to the other two: This is the weakest theory because (1) it can not be enforced beyond the internal level and (2) to adopt the theory of superiority of municipal law is in effect the negation of international law. ii) International law is superior (1) it favours the harmonization of municipal law by the state to conform to international law (2) principles of international law are more important because if not resolved they can lead to disastrous wars. iii) International law and municipal law are equal in rank. This theory is often adopted by national courts which often seek to sustain a rational rule of law even though it conflict with an international rule. C, Transformation of international law into municipal law by re-enactment, can be applied in reverse to transform municipal law into international law. Thus international organizations such as ILO have re-enacted municipal law dealing with civil servants to covet their own civil servants. When a national law is re-enacted at the international level it becomes a part of the international level.

D. Special situation of EU. Article 234 preserves prior treaties of members but requires renegotiation with 3rd parties states. (1) The court of justice plays a key role. Its rulings become law for all the member states. (2) Doctrine of direct effect, Decisions of the Court of Justice apply directly to citizens of member nations who may also invoke EEC principles directly in national courts. (3) It is still unresolved. France and Germany’s contention that EU law cannot supersede clear constitutional provisions that conflict. (4) EU law supersedes general international law for member states. Hence they must take disputes

BRIEF HISTORY OF INTERNATIONAL LAW One reason most writers abstain from and attempt to define international law is that it is at best, an imprecise term which is best understood by examining its historical evaluation and development. I. Early beginning- In pre-history time mankind lived in families, such as those uncovered by Dr. Lewis Leakey in Tanzania’s Olduvai Gorge. Homo habilis families grouped into clans and tribes which formed larger groups, and finally nations. For example, the 12 tribes of Israel which are described in Genesis crossed the Red sea from Egypt 1500 BC, formed two kingdoms about 750BC (Judea and Israel) which were then united under David about 700 B.C. By this time there were other kingdoms and nations. King David made an uneasy truce with the Philistines (Book of Kings), and Israel carried on negotiations for alliance with or warred against other nations such as the Assyrians, Egyptians, Romans. International law developed in two contexts (1) independent communication co-existed in isolation from each other, e.g. Greek city – states, Biblical groups, e.g. Hittites, Amalekites, Amorites, Hebrews and similar groups in Asia (now Turkey), e.g. Tarsis, Lystra, Troas, Derbe, Cappadocia, Ephesus and (2) Amalgamation of groups with common beliefs and traditions, into centralized empires, e.g. China, Egypt, Examples of both kinds of nations or sovereign and powers are found in all parts of the world, in Africa, South America, Asia, India and Europe. Both systems presented the need for international law. Early precedents for international law, arose from the Greek city states which conducted war, conclu...