The History and Nature of International Law.ppt

Public International Law ILAW 510The History and Nature of International Law

Ancient WorldsThe ambiguity of the term international law leads to various different answers to the question of when international law began.

If by international law is meant merely the ensemble of methods or devices which give an element of predictability to international relations (as in the silent-trading illustration), then the origin may be placed as far back as recorded history itself.

If by international law is meant a more or less comprehensive substantive code of conduct applying to nations, then the late classical period and Middle Ages was the time of its birth.

If international law is taken to mean a set of substantive principles applying uniquely to states as such, then the seventeenth century would be the starting time.

If international law is defined as the integration of the world at large into something like a single community under a rule of law. Then the nineteenth century would be the earliest date.

If international law is understood to mean the enactment and judicial decisions of a world government, then its birth lies (if at all) somewhere in the future-and, in all likelihood, the distant future at that.

Ancient GreeceAncient Greece adopted two institutions from oriental civilization: (1) the technique of treaties and (2) the art of diplomacy.

Added two on its own (1) international arbitration and (2) proxeny (state hospitality) which is the origin of consular protection of foreigners.

Religious considerations such as (1) war should be avoided (2) soldiers killed in battle were entitled to a burial (3) prisoners were to be ransomed and exchanged or slaved but not killed.

Not considered law but they were set of rules for the proper conduct of relations between Greek polis to describe the political organization of cities.

Imperial Romes contribution was the development of:

Jus fatiale consisting of religious rules which governed Romes external relations and formal declarations of war which, inter alia, recognized the inviolability of ambassadors and was at the origin of the distinction between just and unjust war; and

Jus gentium which governed relations between Roman citizens and foreigners. It became an essential part of Roman law and thus greatly influenced all European legal systems and, through them, public international law.

The doctrine of just war by Cicero.

He said:

there is even such a thing as a law (jus bellicum) and the terms of the oath must often be observed with an enemyRegulus would have no right to violate by perjury the terms and agreements made with a foreign enemy

The doctrine of the universal law of nature known as natural law.

The Universalist Outlook: Medieval Natural LawThe European Middle Ages became the great age of natural law thought.

Natural law conceptions developed under the umbrella of the Catholic Church.

The idea was not specifically Christian in its inception, but rather was a legacy of the classical Stoic and Roman legal traditions.

The dominant tradition represented by Thomas Aquinas was rationalist in outlook, holding the content of the natural law to be susceptible of discovery and application by means of human reason rather than of revelation.

There continued to be, as in the ancient period, a distinction between the jus natural and the jus gentium.

The jus gentium was much lesser than the two, being seen largely as an application of the broader natural law to specifically human affairs.

Sometimes was regarded as comprising universal customs of purely human creation-and therefore as a sort of supplement to natural law.

It was collection of laws common to all nations, affecting individuals in all walks of life, from the highest to the lowest and dealing with all aspects of human social affairs- contract, property, crime and the like.

States like private persons, were permitted lawfully to wage war for such purposes as the punishment of wickedness or generally for the enforcement of the law but not for vainglory or conquest or oppression.

This in fact was the conceptual kernel of natural laws most outstanding contribution to international law: the doctrine of the just war.

The Pluralist Outlook: The Italian City-StatesThe tension between the universalistic and the pluralistic outlook is revolved around the debate over the legal status of the various independent city-states of northern Italy.

These obtained substantial de facto independence from the Holy Roman Empire in the late twelfth century, when the cities of the Lombard League defeated the forces of Emperor Frederick I.

There was, however, considerable debate over what this independence really meant.

Two of the most prominent medieval lawyers Bartolus and his student Baldus concluded that the cities were independent in the sense of being wholly self-governing and independent of one another, but that, in their relations inter se, they continued to be subject to rules of the empire.

Developments in State PracticeIt is from the pluralist rather than universalist side of the great medieval conceptual divide that we must look for innovations in State practice.

Much of the state practice in the Middle Ages consisted of traditional; ways inherited from ancient times.

The area of diplomatic relations is an example, with diplomats increasingly being accorded a broad degree of immunity from judicial process in host states.

Beginning in about the eleventh century, European (chiefly Italian) States began to conclude bilateral treaties that spelled out various reciprocal guarantees of fair treatment.

These agreements, sometimes concluded with Muslim States, granted a range of privileges to the foreign merchants based in the contracting States, such as the right to use their own law and courts when dealing with one another.

Certain aspects of the conduct of war witnessed a high level of refinement in the Middle Ages-most notably the law on the ransoming of POWs (a welcome step forward from the alternatives of enslavement and killing).

The Middle Ages-Two sets of truly international rules developed:

(1)Lex marcatoria which consisted of rules of conduct and fair dealing between merchants.

The commercial activities required the establishment of a common legal framework.

(2)Maritime customary law which maritime customs and usages were formed.

The rules of the sea based on the Rhodian Sea Law were compiled into widely recognized collections.

From the 1648 Peace Treaty of Westphalia to the 1815 Congress of ViennaThe period of classical international law.

The 1648 Treaty of Westphalia recognized the principles of sovereignty, territorial integrity and the equality of States.

It legitimized the principle of non-interference in the affairs of a State and recognized that a State was independent from the church.

The treaty established a system of balance of power which lasted until the French Revolution and the Napoleonic Wars, and was aimed at preventing wars.

The intellectual support for new ideas was provided by scholars, in particular the Anglo-Dutch School represented by Hugo Grotius and Alberto Gentilli.

At the end of eighteenth century, the enlightenment ideals supporting the aspirations of the British colonies in North America fighting for independence from the British monarchy and supporting the French people and fighting the Frances monarchist tyranny, feudal aristocratic privileges and the Catholic clergy had great influence on the development of human rights and the principle of self determination.

From the 1815 Congress of Vienna to the outbreak of World War 1 (WWI) in 1914The 1815 Congress of Vienna codified the law on diplomatic agents and missions, prohibited slave trading and laid the foundations for the free navigations of rivers which flow through at least two European States.

The main features of international law during the period from 1815 to 1914 were the principles of sovereignty, balance of power, legitimacy and equality between nations.

The unorganized character of the international community, which was composed of a multitude of sovereign States legally equal;

The acceptance of war as the ultimate instrument of enforcing law and safeguarding national honor and interest;

The recognition of States as the only subjects of international law.

The Positivist RevolutionThe major feature of the nineteenth century was the dominant role of positivism.

The expression positive law refers to the man-made law of particular States, in contrast to divine law (i.e. the command of God) or natural law.

What was distinctive about positivism as a school of jurisprudential thought was the doctrinal insistence that positive law is the only true law, i.e., the wholesale and principled rejection of natural law as a valid or binding guide to conduct.

One of the most central aspect of positivism was its close attention to questions of the sources of international law, and in particular, to the proposition that international law was fundamentally an outgrowth or feature of the will of the States of the world.

Rules of law were created by the States themselves, by consent, whether express (in written treaties) or tacit (in the form of custom).

International law must now be seen as a law between States and not a law above States.

International law, in other words, was now regarded as a corpus of rules arising from, as it were, the bottom up as the conscious creation of the States themselves, rather than as a pre-existing, eternal, all-enveloping framework in the manner of the old natural law.

International law was now seen. So to speak, a world of fragments, an accumulation of specific, agreed rules, rather than as a single coherent picture.

The 19th century was the century of positivism which was introduced by French philosopher Auguste Compte.

He posited that humanity had gone through three stages of development: theological which focused on religious idea, the metaphysical which concentrated on legalistic and jurisprudential ideas; and positive which rejected the past superstitions, ideas and dogmas to focus on scientific studies of objectively ascertainable facts.

The positivist theories were developed by john Austin and Jeremy Bentham and came to dominate jurisprudential thinking in general, including the theory of international law.

Is international law really law?In The Province of Jurisprudence Determined (1954), Austin reasoned that proper law is positive law and consists of a series of commands or edicts issued by a sovereign who habitually received obedience from subjects obeying such commands.

Such commands are backed by threat of sanctions for breaches or disobedience.

He saw a sovereign as an absolute authoritative institution that was indivisible and not subject to other entity.

He conceived that the law as positive creation or result of the will of the sovereign.

Strictly speaking, every law properly so called is a positive law.

Since international law does not have a central authority, similar to sovereign, which creates law or issues commands for obedience, Austin argued that international law is not positive law.

Rules of international law did not qualify as rules of positive law by this test, not being command of any sort, were placed by Austin in the category laws improperly so called.

He regarded international law as positive morality rather than law.

The status of international law as law has been challenged at both the theoretical by John Austin (1790-1859) and by HLA Hart (1907-1992) and at the practical level

The main arguments against the existence of international law as law is the international law does not have any legislature, judiciary or executive within the ordinary understanding of these terms, responsible for creation, interpretation and enforcement of that law.

The most convincing arguments in favor of the existence of international law are that States recognize and observe international law with the consequence that there is substantial order in international relations and the international law is practiced on a daily basis by international lawyers, intergovernmental organizations and other non-states actors and applied by domestic and international courts.

In International Law and the Controversy Concerning the Word Law Glanville Williams (1954) takes a different approach to the definition of law.

He argues that a word such as law has multiple meanings in multiple contexts.

Consequently, the only intelligent way to deal with the definition of a word of multiple meaning like law is to recognize that the definition, if intended to be of the ordinary meaning, must itself be multiple.

If Williams approach were adopted there would be no difficulty in resolving the issue as to whether international law is law, because the word law can be used in one sense to describe the rules in the domestic setting, and in a different sense to describe those in the international context.

In his view, words do not necessarily have a single true meaning and thus the word law is used only as a label to describe certain phenomenon or state of affairs.

So what matters is not the word used, but the existence of that idea or phenomenon. Thus the phrase international law uses the word law to describe the orderly arrangements in the international sphere.

In law, then, what are the usual general characteristics that may be identified as basis for a definition?

Even though the details of the definition of law may vary, depending on different theorists and what they choose as the essential elements of law, there is general agreement that law broadly consists of enforceable rules established by common consent or by an authorized institution to regulate human conduct; breaches of these rules attract sanctions.

The issue is whether international law has these characteristics?

Definition of international lawProf Shearer defined international law as body of law which is composed for its greater part of the principles and rules of conduct which states feel themselves bound to observe, and therefore, do commonly observe in their relations with each other, and which includes also:

The rules of law relating to the functioning of international institutions or organizations, their relations with each other, and their relations with states and individuals; and

Certain rules of law relating to individuals and non states so far as the rights or duties of such individuals and non-state entities are the concern of the international community.

In SS Lotus Case ( France v Turkey), the PCIJ provided the following definitions:

International law governs relations between independent states. The rules of law binding upon states therefore emanate from their own will as expressed in conventions (treaties) or by usage generally accepted as expressing principles of law established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims.

The Restatement (Third) of Foreign Relations Law of the United States provides the following definition:

International law, as used in this Restatement, consists of rules of general application dealing 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.

Enforcement of International Law

The fact that international law has no centralized process of enforcement does not mean that international law is not obeyed. A state obeys international law because:

The prospective long-term advantage of compliance prevails over any short term advantage resulting from violation of international law;

It wants to maintain its good reputation; it fears retaliatory measures or measures based on reciprocity that may be taken by a victim state (the three Rs compliance)

The UNSC may take various measures, including the use of force, under Chapter VII of the UN Charter to force a State to comply with international law.

It is bound under many international treaties to accept the compulsory jurisdiction and the judgments of a body established by treaty to deal with disputes arising out of it.

It fears public opinion both at home and abroad.

Situations to which international law is relevantCo-operation-States are naturally independent in many ways and international law facilitates co-operation;

Co-existence-States have to co-exist with one another and a way of facilitating this is to define their relationship by making treaties and other consensual agreements; and

Conflict-Here, the role of international law is confined to two main functions, i.e. the prescribing of technical rules of conduct and the keeping of any conflict to a minimum.

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