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Chapter 1 THE NATURE OF INTERNATIONAL LAW What is international law? The traditional definition of international law is that it is a body of rules and principles of action which are binding upon civilized states in their relations to one another. States are the sole actors in this definition and, in...

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Chapter 1

THE NATURE OF INTERNATIONAL LAW

What is international law? The traditional definition of international law is that it is a body of rules and principles of action which are binding upon civilized states in their relations to one another. States are the sole actors in this definition and, in the past, public international law dealt almost exclusively with regulating the relations between states in diplomatic matters and in the conduct of war. Today, sovereign states remain as the principal subjects of international law; but they are now joined by international organizations and even by individuals.' Thus, the Restatement (Third) of Foreign Relations Law of the United States, which U.S. courts generally consider as the most authoritative work on the subject, defines international law as the law which deals “with the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical.”2

Scope of international law. The expansion of the scope of international law is nothing short of revolutionary: New subject matters are being added, new subjects of international law are being recognized, non-Western states are flooding into the community of nations, political and social principles are changing, international organizations are assuming new roles. This is being affected by various factors: rapid changes in technology, the multiplication of the number of states with differing backgrounds and achieving loose forms of cooperation, fear of war, rising demands for social reform.

'Subjects of international law will be treated at greater length in Chapter 5. 2

§ 101. Hereinafter to be cited as RESTATEMENT.

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INTRODUCTION TO PUBLIC INTERNATIONAL LAW

The topics that are covered by international law today include the regulation of space expeditions, the division of the ocean floor, the protection of human rights, the management of the international financial system, and the regulation of the environment. Beyond the primary concern for the preservation of peace, it now covers all the interests of contemporary international and even domestic life.

Is international law a law? The question is sometimes asked whether international law is indeed law. The basic challenge to international law as law is the claim that there can be no law binding sovereign states. Moreover, there exists no international legislative body. There is, of course, the General Assembly of the United Nations; but its resolutions are generally not binding on anybody. There is no international executive. The Security Council was intended to be that entity but it is often effectively hamstrung by the veto power. Neither is there a central authority that can make judgments binding on states. The International Court of Justice can bind states only when states consent to be bound. Moreover, national officials tend to find justification for whatever they do. Psychologically too, the allegiance to one’s sovereign state can be very strong to the point of defying reason. When the chips are down, national policy or interest is often preferred over international law. Enforcement of international law is a real problem for several reasons. Frequently, there is no assured procedure of identifying violation. Even the powers of the UN have reference largely to lawbreaking that takes the form of an act of aggression or threat to peace. But there are many violations of international law which are not of this nature. Most of the time, all the UN can do is censure. For these reasons, it is said that what is called international law is not law because it is commonly disregarded. These objections are based on an exaggerated notion of sovereignty as embodying an individualist regime. This, however, is not the reality. The reality is social interdependence and the predominance of the general interest. The reality is that States are bound by many rules not promulgated by themselves. As Henkin observes, “It is probably the case that almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.”3

3

Henkin, HOW NATIONS BEHAVE 42.

CHAPTER 1 THE NATURE OF INTERNATIONAL LAW

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Brierly adds: “The ultimate explanation of the binding force of all law is that man, whether he is a single individual or whether he is associated with other men in a state, is constrained, in so far as he is a reasonable being, to believe that order and not chaos is the governing principle of the world in which he lives.”4 In the ultimate analysis, although the final enforcer is power, fundamentally, there is a general respect for law because of the possible consequences of defiance either to oneself or to the larger society.

Some theories about international law. If international law is a law, what is its theoretical basis or what makes it a law? Command theory. In the view of John Austin, a renowned legal philosopher, law consists of commands originating from a sovereign and backed up by threats of sanction if disobeyed. In this view, international law is not law because it does not come from a command of a sovereign. Neither treaties nor custom come from a command of a sovereign. This theory, however, has generally been discredited. The reality is that nations see international law not as commands but as principles for free and orderly interaction. Consensual theory. Under this theory, international law derives its binding force from the consent of states. Treaties are an expression of consent. Likewise, custom, as voluntary adherence to common practices, is seen as expression of consent.5 In reality, however, there are many binding rules which do not derive from consent. Natural law theory. The natural law theory posits that law is derived by reason from the nature of man International law is said to be an application of natural reason to the nature of the state-person. Although the theory finds little support now, much of customary law and what are regarded as generally accepted principles of law are in fact an expression of what traditionally was called natural law. Some dissenters, however, see no objective basis for international law. They see international law as a combination of politics, morality and self-interest hidden under the smokescreen of legal language.

4

Brierly , THE LAW OF NATIONS 55-56

treaties and custom will be treated in subsequent chapters.

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INTRODUCTION TO PUBLIC INTERNATIONAL LAW

In the ultimate analysis, however, the best answer is pragmatic. Fundamentally, there is a general respect for law and also there is concern about the consequences of defiance either to oneself or to the larger society. International law is law because it is seen as such by states and other subjects of international law.

Public and private international law. A distinction should be made between public international law, sometimes referred to only as international law and which is the subject matter of this book, and private international law, more commonly called conflict of laws. Public international law governs the relationships between and among states and also their relations with international organizations and individual persons. Private international law is really domestic law which deals with cases where foreign law intrudes in the domestic sphere where there are questions of the applicability of foreign law or the role of foreign courts.

Brief historical development of international law. From Ancient law to the League of Nations What may be called ancient international law governed exchange of diplomatic emissaries, peace treaties, etc., in the world of ancient Romans and even earlier. There is evidence of treaties concluded between Jews and Romans, Syrians and Spartans. The progressive rules of jus gentium, seen as a law “common to all men,” became the law of the vast Roman empire. Modem international law began with the birth of nation-states in the Medieval Age. The governing principles were derived from Roman Law or Canon Law which in turn drew heavily from natural law. Hugo Grotius, Dutch, is considered father of modem international law. He authored De Jure Belli ac Pads. What he called the “law of nations” was later given the name of “international law” by the British philosopher Jeremy Bentham. Before Grotius was Alberico Gentili, Oxford Professor of Roman Law (De Jure Belli) and the Spanish theologian Francisco de Vitoria and the Jesuit theologian Francisco Suarez; Samuel Pufendorf, German (De Jure Naturae Gentium); Emmerich de Vattel, Swiss (The Law of Nations). These were generally natural law people.

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The positivist approach reinterpreted international law not on the basis of concepts derived from reason but rather on the basis of what actually happened in the conflict between states. With the emergence of the notion of sovereignty of states came the view of law as commands originating from a sovereign and backed up by threats of sanction if disobeyed. In this view, international law is not law because it does not come from a command of a sovereign. Neither treaties nor custom come from a command of a sovereign. The following are some of the significant milestones in the development of international law: (a) The Peace of Westphalia, which ended the Thirty Years War (1618-1648) and established a treaty based framework for peace cooperation. (It was at this time that pacta sunt servanda arose.) (b) Congress of Vienna (1815), which ended the Napoleonic Wars and created a sophisticated system of multilateral political and economic cooperation. (c) Covenant of the League of Nations (1920) which included the Treaty of Versailles which ended World War I. In the aftermath of World War I, the victors decided to create an institution designed to prevent the recurrence of world conflagration. Thus, the League of Nations was bom. Its membership consisted of 43 states which included the five British dominions of India, Canada, South Africa, Australia and New Zealand. The United States did not join. The League created the Permanent Court of International Justice. From the end of World War II to the end of the Cold War The League of Nations failed to prevent World War II. Thus, the formulation of a new avenue for peace became the preoccupation of the victors. Hence was founded the United Nations in 1945. This marked the shift of power away from Europe and the beginning of a truly universal institution. The universalization was advanced by decolonization which resulted in the expansion of the membership of the United Nations. New states, carrying a legacy of bitterness against colonial powers, became members of the UN.

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INTRODUCTION TO PUBLIC INTERNATIONAL LAW

It was during this period that three major groupings of states arose. The Western states, although they were not all completely of one mind, formed one group. Some remained satisfied with the status quo while others were more open to Third World demands and supported social and legal changes. As to international legislation, however, they insisted on two points. First, legal provisions miust'be clear and precise. Second, any substantive rule must be accompanied by an implementation mechanism that can spot and correct violations. Another grouping consisted of the socialist states led by the Soviet Union. They formed the “socialist camp.” They sought to avert Western intrusion into domestic affairs even as they sought relatively good relations with the West for the sake of economic and commercial interchange. They also sought to convert developing nations to their ideology. The third group, the developing countries, formed the overwhelming majority. The group consisted mainly of former colonies suffering from underdevelopment together with newly industrializing countries such as the Philippines, Malaysia, Thailand, Singapore, and South Korea who had earned their independence through armed or political struggle while remaining under the influence of Western or socialist ideas. This was the Cold War period which succeeded in maintaining peace through the balancing of the two super powers, the United States and its allies on the one hand and the Soviet Union. The end of the Cold War The dissolution of the Soviet Union resulted in the end of the Cold War with the re-emergence of international relations based on multiple sources of power and not mainly on ideology. Many of the Baltic states were restored to statehood. Yugoslavia collapsed and fragmented. The newly bom Russian Federation did not inherit the Soviet Union’s position as a superpower. At present there is only one super power, the United States, politically and ideologically leading the western states. The United States acts both as world policeman (but in an obviously selective manner as dictated by its own interests) and also as global mediator.

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Meanwhile, socialist countries are no longer united with some of them depending on the support of Western states. For their part, the developing countries seem to have veered away from ideological orientation and towards market orientation instead and towards fighting poverty and backwardness. As for the United Nations, it seems to have declined as an international agency for the maintenance of peace.

Chapter 2

THE SOURCES OF INTERNATIONAL LAW

What sources are. The task of ascertaining what the laws are in the domestic sphere is a relatively simple matter. Domestic laws are found in statute books and in collections of court decisions. It is an altogether different matter with international law. In the absence of a centralized legislative, executive and judicial structure, there is no single body able to legislate and there is no system of courts with compulsive power to decide what the law is nor is there a centralized repository of international law. Thus, there is the problem of finding out where the law is. This problem is exacerbated by the anarchic nature of world affairs and the competing sovereignties. Nevertheless international law exists and there are “sources” where, with some effort, the law can be found. Sources are often classified into formal sources and material sources. Authors, however, differ in defining these concepts. Formal sources can refer to the various processes by which rules come into existence. Thus, for instance, legislation is a formal source of law. So are treaty making and judicial decision making as well as the practice of states. Material sources, on the other hand, are not concerned with how rules come into existence but rather with the substance and content of the obligation. They identify what the obligations are. In this sense, state practice, UN Resolutions, treaties, judicial decisions and the writings of jurists are material sources in so far as they identify what the obligations are. They are also sometimes referred to as “evidence” of international law. The doctrine of sources lays down conditions for verifying and ascertaining the existence of legal principles. The conditions are the observable manifestations of the “wills” of States as revealed in the processes by which norms are formed — that is, treaty and state prac-

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CHAPTER 2 THE SOURCES OF INTERNATIONAL LAW

tice accepted as law. The process of verification is inductive and posi- tivistic. It is the process of finding what laws the states themselves have created and what laws they are willing to place themselves under. It is a manifestation of the fact that international law is characterized by individualism. It is interesting, however, that the most widely accepted statement of the “sources” of international law, that is, Article 38(1) of the Statute of the International Court of Justice, does not speak of sources. Rather, Article 38 is primarily a directive to the Court on how it should resolve conflicts brought before it. Article 38 says: 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognized by contesting states; b. as law; c.

international custom, as evidence of a general practice accepted the general principles of law recognized by civilized nations;

d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 2. This provision shall not prejudice the power of the Court to decide ex aequo et bono, if the parties agree thereto.1 Article 38 is a declaration by states that these are the laws under which they are willing to be bound. Thus, another statement of sources is the Restatement (Third) of Foreign Relations Law of the United States which says: 1. A rule of international law is one that has been accepted as such by the international community of states a) customary law;

in

b) agreement; or

by

the

form

of

international

'Article 59 says: “The decision of the Court has no binding force except between the parties and in respect to that particular case.”

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INTRODUCTION TO PUBLIC INTERNATIONAL LAW

c) by derivation from general principles common to the major legal systems of the world. 2. Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation. 3. International agreements create law for the states parties thereto and may lead to the creation of customary international law which such agreements are intended for adherence by states generally and are in fact widely accepted. 4. General principles common to the major legal systems, even if not incorporated or reflected in customary law or international agreements, may be invoked as supplementary rules of international law where appropriate. Briefly, therefore, the “sources” of international law are custom, treaties and other international agreements, generally recognized principles of law, judicial decisions and teachings of highly qualified and recognized publicists. We shall discuss these sources one by one.

Custom or customary law. Custom or customary international law means “a general and consistent practice of states followed by them from a sense of legal obligation.” (Restatement) This statement contains the two basic elements of custom: the material factor, that is, how states behave, and the psychological or subjective factor, that is, why they behave the way they do. The material factor: practice of states or usus The initial factor for determining the existence of custom is the actual behavior of states (usus). This includes several elements: duration, consistency, and generality of the practice of states. The required duration (diuturnitas) can be either short or long. An example of customary law that is the result of long, almost immemorial, practice is the rule affirmed in The Paquete Havana2 on the exemption of fishing vessels from capture as prize of war.

2

175U.S. 677,687 (1900).

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We are then brought to the consideration of the question whether, upon the facts appearing in these records, the fishing smacks were subject to capture by the armed vessels of the United States during the recent war with Spain. By an ancient usage among civilized nations, beginning centuries ago, and gradually ripening into a rule of international law, coast fishing vessels, pursuing their vocation of catching and bringing in fresh fish, have been recognized as exempt, with their cargoes and crews, from capture as prize of war. In the North S...