Chapter 1: The Nature and Development of International Law

Introduction

Aa The basic object of law is the regulation of a society. Law is a tool to regulate interactions among its members. There can be no society without a system of law to regulate the mutual relations of its members. International law assumes a society of nations primarily, and it governs and regulates the relationship of the members of this society. International law is aimed to have an orderly international society and strives to maintain international peace and security

International law is a branch of law that is comparatively of recent origin. The ‘self-interest’ appears to be the basic reason for the observance of international law. Humans, as rational and reasonable beings, believe that order, not chaos, is the governing principle of the world. The main object of international law has been to create and promote an ordered system to regulate international relations. However, we cannot disregard the importance of a just world order. Therefore, it has been appreciated that states need to ensure not only stability but also justice in the system. In striving for justice, therefore, international law is akin to municipal law. Its focus is to endeavor for a just world order.

In time, interactions between the states became stronger and the need arose for regulating the relations inter se. European States claim to have laid the foundations of the practices and rules to regulate these relations. The body of rules that governed their relations were named the law of nations and subsequently also known as international law. It has also been termed as transnational law.

Definition of International Law

The majority of the earlier standard works on international law define it as a system composed solely of legal rules and principles binding upon civilized nations only in their mutual relations. For example, according to Oppenheim, “Law of Nations, or International Law is the name for the body of customary and conventional rules which are considered binding by civilized States in their intercourse with each other” (Oppenheim, 1955). Similarly, Brierly writes that “Law of Nations or International Law may be defined as the body of rules and principles of action which are binding upon civilized States in their relations with one another” (Brierly, 1963).

Modern Definition

Aaaaaaa Schwarzenberger, for example, defines it as the “body of legal rules which apply between sovereign States and such other entities as have been granted international personality” (Schwarzenberger, 1957). Starke similarly defines international law as that body of law that 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 also includes: (a) the rules of law relating to the functioning of international institutions or organizations, their relations with States and individuals and (b) certain rules of law relating to individuals and non-State entities so far as the rights and duties of such individuals and non-State entities are the concern of the international community” (Starke, 1989).

The Nature of International Law

There has always been a controversy regarding the nature of international law. Critics of international law deny its legal character and do not consider it as “true law”. Critics always draw a parallel with municipal (State) law and are wary of the absence of a legislative body, the hierarchy of courts, and enforcement machinery under international law. They argue there is no machinery at the international level that is similar to a State that would make, implement, and enforce law. The breaches of international law that led to wars or armed conflicts, non-observance of treaty obligations, and other blatant violations of international law have been quoted as examples of total absence of an international legal system. Critics have also used the absence of effective sanctions as another reason for challenging its legal character. However, scholars of international law reject this narrow approach and point out the binding character of international law among the nations. There is no doubt that international law remains binding even during wartime, as some of the rules governing the relations between belligerents as well as between belligerents and neutrals are strictly observed.

International law has been termed as weak law. Critics of international law argue that it differs remarkably from municipal law in many respects such as the absence of an elected legislature to frame laws, the absence of courts with compulsory jurisdiction over all disputes or the absence of an independent third-party disputesettlement mechanism, and the lack of effective sanctions to punish those subjects (states) who break the rules.

The Problem of Enforcement in International Law

States from different geo-political groupings have widely different interests in certain respects and thereby affect the enforcement of international law. It is true that international law is not as effective as national law; nevertheless, it is wrong to assert that the role of international law is negligible. It is also wrong to say that to maintain peace and order is the only purpose of international law. Even in the best legal systems, crimes or other violations cannot be prevented. One cannot speak of international law in its ideal form, where nations totally obey the rules. Simply because nations promote opposing values and interests. What matters is that international law meet the changing needs of the international society, that international law is observed by nations in their relations, and that disputes be resolved in an orderly and peaceful manner. Violations of international rules by States do not invalidate international law as a legal system.

Basis of International Law

Jurists have long struggled to identify the basis of obligation in international law, i.e., from which sources international law derives its binding authority. There are two main schools of thought about its foundation: the naturalist school and the positivist school.

The Naturalist School and the Doctrine of Fundamental Rights

In the beginning, the law of nature had the semi- theological association. The law of nature was considered to be divine law, ordained by God to the dictates of natural reason of human beings, and thus acquired its sanctity or binding force.

By the fifteenth and sixteenth centuries, when the modern international law started getting its form and content, the natural law had made heavy inroads and assumed strong ideological moorings. This can be clearly seen in the writings of Francisco de Vittoria (1480-1546), Francisco Suarez (1548-1617) and Alberico Gentilis (1552-1608). International law was binding on the States because it was part of the law of nature. However, it was Hugo Grotius (1583-1645) who secularized the concept of natural law while making a distinction between jus naturale and jus gentium. He based the law of nations on customs and treaties in addition to the law of nature. The law of nature, according to him, was the dictate of right and reason, not of divine prescriptions.

Vattel in his work titled Droit Des Gens (The Law of Nations) stated that the “necessary Law of Nations” contains those precepts that are dictated to States by natural law and equally binding on both States and individuals. Since States are composed of persons and their policies are laid down by persons, these persons are subject to natural law in whatever capacity they act. He held the view that to overview and control the conduct of another State by one or more States would be contrary to the law of nature. This viewpoint has the genesis of the doctrine of fundamental rights (Vattel cited in Starke, 1989).

Given the academic/intellectual works of the naturalists, one may easily conclude that there is no unanimity among the naturalists on the very basis of law. The law of nature has been used merely as a metaphor to identify it with some other concepts or a set of beliefs such as religion, general interests of the international community, justice, and reason. Furthermore, it keeps itself aloof from the actual practice of States and it does not take into account the evolution of the State as a political institution. As a result, it has become a subjective doctrine and its significance has gradually declined.

However, the concept of natural law greatly influenced the growth of international law. It created respect for international law and gave it a humanistic bent. The twentieth century saw the revival of the law of nature in a modified and profound manner, particularly in the field of human rights in the aftermath of the Second World War. Natural law also influenced the development and growth of international criminal law. Reason and justice, associated with the law of nature, are considered to be fundamental for the growth and development of international law.

The Positivist School and the Consent Theory

The theory known as positivism or the consent theory emphasizes the consensual nature of international law. It has found wide support among jurists, and the chief exponent of this theory was Bynkershoek. Other jurists such as Zorn, Triepel and Anzilotti later defended the theory, though with some refinements. They believed in the primacy of customary rules and treaty rules. According to these jurists, the rules of international law and municipal law are equally binding, since both are created by the will of the State that is the source of the validity of law. In other words, it is the will of the State that commands obedience both in municipal law and international law.

The Concept of Auto-Limitation

Positivists start from the premise of the State’s sovereignty, which is without any limitation. States adopt certain rules of international law only because they voluntarily restrict their sovereignty. This is known as auto limitation (self-limitation) theory, that is, the sovereignty is absolute unless a State agrees to its limitation. As Georg Jellinek argues, the rules of international law becomes binding upon States because they consent to the limitations on their sovereignty.

True Nature of International Law

Doctrinal considerations apart, the true basis of international law lies neither exclusively in natural law nor solely in the consent of States, but in variety of factors that impel States to obey the law. It is clear that compliance becomes a problem only in a few critical and politically sensitive cases, where enforcement has a direct bearing upon the relative power of the nations concerned.

In such cases, power rather than law determines compliance and enforcement. However, it is better to obey a rule of international law than to lose all the advantages of participating in a society of nations. A nation will hesitate to infringe the rules of international law where it has similar interests with other nations such as the rules related to the protection of foreign diplomats. Most rules of international law are based on similar and complementary interests of nations. Self-interest appears to be the basic reason for compliance, and voluntary compliance generally does not need any specific enforcement. As Oliver J. Lissitzyn suggests, there are three reasons for obeying the law: self-interest, sense of moral obligation, and habit. Of these three, selfinterest is probably the most basic reason for the observance of international law (Lissitzyn , cited in Mahajan, 1979).

Historical Development of International Law

Modern international law has its origin in the fifteenth and sixteenth centuries following the disintegration of the Holy Roman Empire. It grew out of the customary practices of European States in their mutual intercourse and, naturally, it was affected by the political theories prevalent in Europe at the time. In fact, international law was a by-product of the gradual increase in the power of nation-States that replaced the European feudal political and economic system. Nevertheless, throughout its course of development, international law remained predominantly European in character. In addition, in the earlier stages it was confined only to the relations among Christian States.

Development During the Classical Period

Although modern international law is the outcome of the developments of the last five hundred years, rules existed in all ages to regulate the relations between independent nations since ancient times. The ancient civilizations of Egypt, Greece, India, and Rome had advanced notions of law that were antecedent to today’s international law. For example, rules and practices concerning the conduct of war, treaties as well as privileges and immunities of ambassadors were very much in evidence in ancient India. There is historical evidence of recourse to arbitration and meditation in ancient China and in the early Islamic world. Independent/autonomous Greek city States also established rules to regulate relations among themselves such as issuing a prior declaration of war and enslaving the prisoners of war. Nevertheless, these rules were deeply influenced by the notions of religion and morality. Similarly, the Roman Empire, which extended throughout Europe, devised rules to govern its relations with other sovereign nations on the basis of equality. These rules were legal in nature. The influence of Rome on the growth of international law became profound in the era of Renaissance, when these rules were redefined to regulate the relations between European nations.

International law was first extended beyond Europe at the end of the nineteenth century when new independent States emerged in North and South America out of rebellion from their European colonial masters. The Ottoman Empire became the first non-European subject of international law in the mid-nineteenth century. However, it is only after the First World War that modern international law became applicable to non-European nations, mainly from Asia, Africa, and Latin America. In fact, prior to this period, Western nations even applied the “system of capitulation” by which their nationals were subject to their national consular courts rather than to the national law of the capitulating State, such as in China, Iran, and the Ottoman Empire. The Treaty of Lausanne, however, formally abolished the capitulations in the new Turkish Republic.

Development Since World War I

The twentieth century witnessed the proliferation of international rules. The creation of the League of Nations in 1920, pursuant to the 1919 Treaty of Versailles, marked the beginning of a new era, whereby international law applied to all nations, regardless of size and geographical location. As stipulated in Article 1 of its Covenant, membership in the League was open to “any” State. This trend continued with the United Nations, and Article 4 of the UN Charter reads that “membership in the UN is open to all peaceloving States.”

Bringing war criminals to justice through the international military tribunals at Nuremberg and Tokyo following the Second World War, creating ad hoc Tribunals for Former Yugoslavia and Rwanda, establishing the International Criminal Court, and enforcing human rights law around the world have made individual the focal point of international relations in the second half of the twentieth century. These developments induced doctrinal changes. Jurists, who have until recently considered States as the sole subject of international law, would no longer ignore the role of the individual in international law.

With the increasing interdependence among nations and the global effects of new technological developments on developments on outer space, seabed, and environment, there has outer space, sea-bed and environment, there has been a growing awareness of the need for universal rules or a common law of mankind that would transcend the national borders and manage the relations not only among States but also among other actors, including individuals, corporations, NGOs, and international institutions. In such circumstances, the job of establishing new rules of international law becomes very critical and challenging.

International Law and Municipal Law

Municipal courts have to face situations calling for the application of the rules of international law. Similarly, an international tribunal may need to determine the precise status and effect of a rule of municipal law, if the case before the tribunal has some connotations of municipal law. In those cases in which there is a conflict between municipal law and international law, the question of primacy, whether international law takes precedence over municipal law or vice-versa, becomes important for the decision of the court. Besides, the question of primacy before municipal courts is determined mainly by the constitutional law of the State.

There are two principal theories put forward by scholars on the relationship between international law and municipal law: monism and dualism. According to monism, international law and municipal law are, in general, the components of one system of law. On the other hand, according to dualism, they represent two entirely distinct and self-contained legal systems. These two theories also explain how international law will be made applicable under the municipal legal system of a State.

Jurists have been disputing whether international law or municipal law should have primacy if a conflict arises between the two. Since dualists attach significance to the sovereignty of the State will, they give primacy to municipal law over international law. Because the State is independent, it should enjoy complete liberty and exercise full sovereignty. On the other hand, monists are divided on this issue. Some monists give primacy to international law while others to municipal law.

According to positivists, municipal law is logically a complete system. The rules of international law cannot impinge upon municipal law unless these rules are specifically adopted by, or incorporated into, municipal law. Put differently there is no automatic application of international rules at the national level. To make a rule effective at the national level, each State determines its own mechanism. The national legislature may ‘transform’ it into a rule of national law, which will be applied by the national courts as a rule of national or municipal law. It is argued that unless there is a ‘transformation’ of a treaty into municipal law (i.e. legislation for implementing the treaty provisions), it cannot be enforced in the municipal field. Positivists consider treaties as promises and municipal statutes as commands. To make treaties binding municipally, transforming them into national law is formally and substantively necessary.

Nevertheless, monists criticize this approach on the grounds that it presumes the consensual character of international law, whereas municipal law is considered to have non-consensual nature. The distinction between treaties and statutes is merely of form and procedure, but the real objective of both treaties and statutes is the same, that is, to stipulate certain legal rules for certain situations. In this sense treaties are commands in the same way as statutes, and not every treaty needs transformation to become binding at the national level.

Monists, on the other hand, maintain that the application of rules of international law to the municipal sphere is a continuation of one single process that starts with the creation and acceptance of those rules by the State. The constitutional rules of international law delegate to each State the right to determine the procedure and means to make treaties effective at the municipal level. State enjoys complete sovereignty and widest liberty of action, and this process does not impinge upon the sovereignty of the State. The fact that national organs have this liberty indicates the relative weakness of international law, however, it does not invalidate the theory because the State will incur international responsibility where it allows or commits a violation of international rules. In fact, the entire monist-dualist controversy is academic because both international law and municipal law have their own sphere of activity. There is no indication that either theory is perfect to encompass all the aspects of doctrinal controversy surrounding the relationship between international law and municipal law or has had a significant impact on national laws. Except as a shorthand indication of the general approach of a particular State on the implementation of international rules, these theories do not throw much light on the relationship between international law and municipal law. Practice of international tribunals and municipal courts suggests that the two legal systems are rather complementary. In addition, it would not be correct to compartmentalize States into two groups as monists or dualists, since there are as many ways of giving effect to international law as there are national legal systems.