PUBLIC INTERNATIONAL LAW PROF. MERLIN M. MAGALLONA
Part I: Nature and Method of International Law I. Concept and Nature of International Law A. In General
Oppenheim, International Law, Vol. 1, pp. 4-23 Conception of the Law of Nations
Law of Nations or International Law is the body of customary and treaty rules which are considered legally binding by States in their intercourse with each other.
Universal International Law is such part of International Law as is binding upon ALL States, without exception. Particular International Law is binding on 2 or a few States only while General International Law are binding upon a great many States, including the leading States. Denial of the Legal Force of the Law of Nations
Austin and his followers defined law as a body of rules for human conduct set and enforced by a sovereign political authority. Following this definition, International Law cannot be considered law because there is not a sovereign political authority above the sovereign States which could enforce such rules.
A better understanding would be achieved if we recognize that rules of law must be enforced by external power. It should however be understood that for the existence of law, neither a law-giving authority nor courts of justice are essential. It is the community itself, which decides a question of law. The existence of legislature is only necessitated by the expansion of primitive communities. In more modern States, the legislature makes law, which courts of justice administer. However, this power still comes from the common consent of the community.
What, then, are the essential conditions of Law? Are these present in International Law? 1. There must be a community.
A community is a body of a number of individuals more or less bound together through such common interests as create a constant and manifold intercourse between single individuals.
This power unifying factor, their common interests (science, art, agriculture, industry, trade, etc), create an international community vulnerable only to occasional threats due to economic nationalism, political intolerance, and the pursuit of self-sufficiency o the part of sovereign States.
An undeniable existence both of customary and written laws is seen in International Law. 3. There must be a common consent of that community that these rules shall be enforced by external power. Examples of this so-called external power include:
a. Self-help and intervention on the part of other States which sympathize with the wronged one.
b. Subject to certain conditions, war is the ultimate instrument for defending violated legal rights vital to the existence of States.
c. The Charter provides for a system of sanctions for repressing the violation of its principal obligation.
Practice and the Legal Nature of the Law of Nations
States are of the opinion that they are legally and morally bound by the Law of Nations. They do not deny that there is a law between themselves. The States, in breaking the Law of Nations, never deny its existence, but recognize its existence through the endeavor to interpret the law of Nations as justifying their conduct.
Common Consent as the Basis of International Law
Common consent only means the express or tacit consent of such an overwhelming majority of the members that those who dissent are of no importance as compared with the community viewed as an entity in contradistinction to the wills of its single members.
In International Law, common consent manifested through customs, then mutual usage of certain rules, and finally to the development of a systematized body of rules which commended themselves so much to the needs and wants of the time that they became the basis of the subsequent development (Hugo Grotius’ work, De Jure Belli ac Pacis, librii iii). Even if it is not necessary to prove for every single rule of International Law that every single member of the international community has consented to it, still, no State can declare that it will in future no longer submit to a certain recognized rule of the Law of Law of Nations. The body of the rules of law can be altered by common consent only, not by a unilateral declaration on the part of one state.
States as the Normal Subjects of the Law of Nations
If International Law is based on common consent, what then are the normal subjects of the Law of Nations?
Primarily, International Law regulates the conduct of States but we must not forget that the conduct actually regulated is the conduct of human beings acting as organs of the State. Individuals and other persons may then be endowed directly with international rights and duties and constitute them to that extent, subjects of International Law.
1. Jurisdiction of the Courts of Danzig
States may expressly grant to individuals direct rights by treaty; such rights may validly exist and be enforceable without having been previously incorporated in municipal law.
2. Reparation for Injuries Suffered in the Service of the United nations
Entities other than States may be subjects of International Law. For the subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community.
NOTE: members of the international community are equal to each other as subjects of International Law.
Brierly, The Basis of Obligation in International Law, pp. 9-18
Many accept the doctrine that consent may be a basis of legal obligation. Sir John Salmond writes: “The law of nations is essentially a species of conventional law- that it has its source in international agreement- that it consists of the rules which sovereign states have agreed to observe in their dealings with each other.”
However, what if a state refuses to consent to be under the obligation of a previously entered into treaty? Without its consent, is it still bound? If so, does this challenge the validity of the doctrine that consent may be a basis of legal obligation? What are the ways by which a state comes under the obligations of international law, aside from expressly giving its consent to be bound by it?
1. A new state becomes subject to International Law as a matter of course, without their consent being either asked or given. This challenges the consent theory because these States may recognize International Law’s obligatory force but does not automatically mean that they have consented to it.
2. Hegelian doctrine of self-limitation and Jellinek’s theory of self-limitation assume that a state may create law for itself both in internal and external affairs. By this faculty, the state is able to subject itself, when it thinks fit, to its own private law, to recognize the personality of foreign states, and to bind its own will by entering into the international system.
3. States feel a sense of obligation, from the feeling that a certain course of conduct is legally incumbent upon itself, irrespective of its own wishes or interests.
The author points out that the Court may derive the law by which states will be bound from non-consensual sources. Sometimes, there is a need to find the relevant rule by a process of judicial reasoning rather than relying on the consent of the party litigant- States alone. In fact, Article 38 of the Statute of the Permanent Court of International Justice directs the Court to apply international conventions, international custom, as evidence of a general practice as accepted as law, the general principles of law recognized by civilized nations and
publicists, as subsidiary means for the determination of rules of law. Autograph question: who is the cutest
person in the block?
pp. 46-46
The State is an institution that claims the unique characteristic of having the exclusive control of the use of force. However, this feature is incapable of being the explanation of the binding force of law (as usually applied in international law). The theory that law is binding because it is the word of a sovereign (usually applied to the law of the state) is also insufficient to explain the binding force of law, and is in fact a widely rejected theory.
Note: Author then proceeds to answer the question: Does international law differ from the law of the State?
1. Do they concern different subjects? Not really.
Primarily, International Law involves States while the law of the State involves human beings. This distinction is, however, artificial.
M. Saleilles presents a true system, which he calls ‘la theorie realiste.’
Both the state and the individuals of whom it consists are and remain equally real entities, we may even say that they are equally real ‘persons’, provided that we can keep the juridical sense of that word uncontaminated by any of its non-juridical associations.
There are 3 truths which support the system presented by Saleilles:
1. that individuals who form an institution, whether it be the state or any other institution, do not disappear from the scene
2. an institution is a real and not a fictitious unity, and by juridical personality the law recognizes, but does not create, this unity
3. this unity which the institution has given to the individuals does not embrace the whole personality of each of them.
Conclusion: International Law and the law of the state do not, in reality, involve different subjects. The international juridical community has for its unit of membership the state, but it is not true that the unit is the state in abstraction from its individual members; it is the state as expressing their unity.
2. Do they differ in the form of sanctions? Does International Law provide for sanctions, in the first place?
No marked difference in sanctions because International Law, too, has sanctions. But there is very little temptation to violate International Law, because its yoke lies easily on the states
and also because to violate it habitually would invite reprisals and would not be in the interest of any state.
Conclusion: The real difference between International Law and state law in respect of enforcement lies not in any principle but in organization.
1. State law interferes with the individual’s freedom of action that in the course of centuries an organized system for the coercion of the recalcitrant has been built up.
- NA in International Law where the sense of a common interest in the law being enforced has been weak and where the need for systematic enforcement is less in proportion as the temptation to violate the law is weaker. (hindi extensive ang institutionalization)
2. International Law has less adequate legislative and judicial machinery. 3. Power in the international sphere is still largely unregulated by law. (hmm, di ko lam bakit sinama tong pp. 46-56)
Tunkin, International Law in the International System, 147 Recueil des Cours 78-84 (1975)
Is there a system of international law?
Tunkin says yes. He rejects the German doctrine that a system of law requires the existence of a supreme authority that creates the system. He says this doctrine is completely divorced from reality.
A system (IL) is a reality in itself. It is not something imposed upon a social reality from outside.
IL is a unit, an aggregate of legal norms in interaction. It is a specific component of the intl system which must not be confused with other components of the system.
The unified system of contemporary IL
The traditional division of IL into law of peace & law of war has been replaced by a new division of contemporary IL into (1) the law of co-existence – governing diplomatic interstate relations and (2) the law of cooperation – governing pursuit of common human interests (Friedmann).
This transformation resulted in:
1. greater unity in the intl level, as manifested in the ff. features of contemporary IL: - no more difference in status of States
- no more division of IL into law of peace & law of war
- growing number of principles of jus cogens contributing to unity; and at the same time…
Universalism & Regionalism in the system of IL
There are two levels of IL: (1) universal and (2) regional. Also, IL comprises of (1) General IL and (2) Particular IL.
Difference bet GL and PL:
1.GL results from the co-ordination of the wills of all or almost all States whereas PL results from the co-ordination of two or some States.
2.Norms of GL are created only by States whereas norms of PL can be created by other subjects of international law.
Similarities: They have the same legal foundation – the co-ordination of the wills of States – since even in GL there is no central legislative authority ∴ both are considered as belonging to corpus juris gentium.
What is the role of particular norms in international law?
1. Particular norms solve particular problems bec. general norms are not sufficient to properly govern relations bet. individual States
2. Particular norms provide for the proper functioning of general norms. In most instances, GL depends upon creation by States concerned of particular norms specifying rights & obligations based on general intl law.
* see Art. 41 of the Vienna Convention
Brownlie, The Reality and Efficacy of International Law, 52 BYIL 1 (1981) The reality of IL
The reality of IL cannot be denied on the excuse that it is imperfect. The actual use by governments of IL as part of the normal process of decision-making only proves that IL is a reality.
IL confronts inescapable features of the political landscape. [Like municipal law] Rules of IL are essentially principles of self-limitation, addressing the very agents who should apply the rules. They are immanent and internal.
The efficacy of IL
Brownlie looks at the efficacy of IL vis-à-vis the performance of national legal systems. Eccentrics appear in IL just as much as individual criminals exist in NLS. Compared to NLS, IL is not doing so bad.
Why does IL appear to be ineffective?
1. IL depends upon the application of standards within the natl legal & admin systems. Thus, the inefficacy of IL is only a consequence of the relative inefficacy of domestic law in enforcing IL standards. The biggest obstacle to treaty administration is the inability of natl administrations to cope with even minimal burdens under their intl obligations.
2. There is constant inflation (exaggeration) of the incidence of illegality in international life. People fail to acknowledge that many cases of illegal behavior on the part of States are really only ultra vires acts of a public body or minister. [It is not the State’s fault].
On Hart
Hart gives two specific qualities of the concept of law:
1. existence of primary laws (concerning human actions) & secondary laws (conferring powers to make and change primary rules); and
2. existence of rules of recognition (provides the system with a criteria for validity)
Brownlie criticizes Hart:
Hart puts misplaced emphasis on secondary rules and the compulsory jurisdiction of courts & legislature as normal marks of a legal system.
1
Secondary rules do not play that much of a decisive role in maintaining the more basic forms of legality in municipal systems. The operation of secondary rules may break down (as in the case of civil strife) without affecting the operation of the primary rules to any great extent.
Thus, Hart is wrong in giving a low status to PIL among other systems on the basis of the absence of secondary rules.
POINT BEING: Whether, in a given situation, the law is ultimately “effective” is a question of taste. In other words, it is a matter of political and moral evaluation.
When the law is seen to be “ineffective”, the cause is not “the law” but the absence of organization, political will, sufficient personnel or funding, and so forth.
Law, whether national or international, is not a source of alibis for politicians and administrators.
Higgins, Problems and Process: International Law and How We Use It (1994), pp. 1-16
Int’l law is not rules. It is a normative system which makes possible that degree of order if society is to maximize the common good.
Two Apparent points:
1. The role of law is to provide an operational system for securing desired values (security, freedom, etc)
2. Int’l is no different from domestic law What is Int’l Law?
Int’l Law is the entire decision-making process and not just the reference to the trend of past decisions which are termed “rules”. If it were rules, then it would not be able to contribute to and cope with a changing political world. Relying merely on rules when the context to which they were articulated has changed ensures that Int’l Law will not be able to contribute to today’s problems and it will be disobeyed for that reason.
Int’l law is decision-making by authorized decision-makers who are not simply finding the rule and applying it. The determination of what is the relevant rule is part of the decision-maker’s
makers make decisions, what occurs is legal decision-making.
Policy considerations, different from rules, are an integral part of the decision-making process called Int’l Law. Policy factors are dealt with systematically (properly considered and weighed) and openly (open to public scrutiny and discussion)
If law as rules requires the application of outdated and inappropriate norms, law as a process encourages interpretation and choice that is more compatible with the values we seek and objectives we seek to achieve.
In viewing Int’l Law as a process, there are still tools for authoritative decision-making on the problem notwithstanding the absence of a precise rule which must be applied. (by use of analogy, by reference to context, by analysis of alternative consequences)
Take Note: Law as a process does not entail a rejection of that core of predictability that is essential if law is to perform its functions in society.
To whom does Int’l Law apply?
- states in their relationship with each other - int’l organization
- in some circumstances directly to individuals (war crimes, rights, etc) What is the basis of Int’l Law?
1. Some writers suggest that it is in the natural order of things that certain matters should be regarded in a compulsory manner. An obligatory foundation to the basic precepts of justice is to be found in natural law.
2. Consent. Norms are binding because the states consent that they should be. This view is based on the concept of sovereignty that in turn emphasizes their freedom to act unilaterally save to the extent they agreed to be constrained. Consent has gradually been replaced by consensus
3. Reciprocity: If consensus, often tacit and unenthusiastic, is the basis of Int’l Law, then that consensus comes about because states perceive a reciprocal advantage in cautioning self-restraint.
Notes: Analyze IL as a process rather than a set of rules. When the authorized persons or organs make decisions, what occurs is a legal decision-making process. IL is a continuing process of arriving at authoritative decisions. This view rejects the notion of law as merely the impartial application of rules.
B. Changing Structure and Dimension of International Law
Magallona, “The Concept of Jus Cogens in the Vienna Convention on the Law of Treaties,” in International Issues in Perspective (1996)
Jus Cogens (JC) – are general norms of imperative character which the subjects of law cannot modify or set aside in their contractual relations; constitute irreducible minimum principles in the legal system; set above the wills of the parties to a contract
Jus Dispositivum – norms which can be derogated by private contracts
The concept of JC is identified with the notion of ordere public in municipal law which is the aggregate of fundamental norms on public policy and good morals which unify particular rules and principles in the legal order.
It is argued that JC could not yet mature in the field of Int’l Law because this concept presupposes the existence of an effective de jure order which is envisaged in the model of the municipal legal order.
The emergence of JC is defined by the condition that in the international legal order, the subjects (States) of the law are themselves the creators of the law on the basis of legal equality.
The process of identifying a general norm as JC is definitely a consensual mechanism. It is determined by the very real and concrete interests of States and therefore springs from the necessity internal to the system of their inter-relationships.
Example of JC norms: Nuremberg Principles, human rights, Sovereign equality of States, non-intervention , right of self-determination
Definition of JC under the Vienna Convention (VC)
Art 53: A treaty is void if at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present convention, a peremptory norm of (1) general int’l law (2) is a norm accepted and recognized by the int’l community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general int’l law having the same character.
Art 64: If a peremptory norm of general int’l law emerges, any existing w/c is in conflict with that norm becomes void and terminates.
1 and 2 in Art 53 are elements of JC which projects the consensual nature of such norm. However, the consensual nature should not lead to the formalism that character of JC finds explanation in mere expression of the State’s consent. It is the particular nature of subject matter with which it deals with that may give it JC character.
JC is either customary or conventional rule. It is also either universal or so recognized by a great majority of States.
The words “as a whole” in Art 53 precludes the possibility that an objection on any 1 State may operate as a veto to the characterization of norm as JC. Universal consent or unanimity is not intended as a basis for the determination of JC norm.
Function of Conventional Rules on JC
The specific function of JC norms is to limit the freedom of the parties to a treaty in determining the content of their agreement. Any treaty provision that contravenes a JC is either declared void under Art 53 or becomes void and terminates under Art 64.
Under Art 45 of the Convention, a State may lose the right to invoke a ground for invalidating, terminating, withdrawing or suspending the operation of a treaty through confirmation or acquiescence.
However, Art 45 does not cover Art 53 and 64 w/c points to the conclusion that the invalidity of a treaty arising from the violation of JC norms cannot be cured by confirmation or acquiescence of the parties. This serves to reinforce the objective of character of JC norms as criterion of Illegality and to project their importance over the narrow individual interests of the States.
Operation of Convention Rules on JC
A treaty in conflict with JC norm is invalid in Int’l Law but it can only be invalidated on that ground w/in the framework of the VC.
Limitations: Invoked only by parties to the VC Follow procedural requirement of VC Procedure:
1. Written notification by contesting party to other party stating grounds for invalidation, termination, etc, measures proposed to be taken and reasons therefor
2. Transmitted directly to the other party or depositary
3. 3 months after receipt of notice, if no raised objections, contesting party can effectuate the invalidation/termination of treaty by a declaration to that effect in an instrument communicated to other parties
4. If objections were raised, settle dispute through UN means (negotiation, mediation, other peaceful means); resort to Int’l Court of Justice in case of failure to reach solution after 12 mos.
Non-retroactivity of Convention Rules on JC
Art 28: establishes non-retroactive operation of treaties in general and provides for flexibility for the parties to stipulate expressly the retroactive effects of treaties
Treaties concluded after the entry into the force of convention is which are in conflict with JC are void under Art 53 or become void & terminate under Art 64.
Treaties concluded before the Convention’s entry into force are saved from the operation of Art 53 even if they conflict with JC norm. But under Art 64, they are affected by the invalidating force of the ‘new” JC norm when the norm is given binding force as such by the entry into the force of the Convention
Art 53: the date the Convention is enters into force. Art 64: the time of emergence of the JC norm.
2 categories of JC:
1. JC existing on the date of the VC’s entry into force
2. general norms becoming JC sometime later after VC has come into force Modification of JC
JC is not immutable. It is subject to change in keeping with the societal developments of global scale. But only a JC norm can supercede or partially change an existing peremptory norm.
The process of modification follows the same mechanism as its formation which is on the same consensual basis as any other norm of general int’l law.
Conclusion
One of the most significant features of progressive development in contemporary Int’l law is that the competence of States in treaty-making has ceased to be unlimited. The introduction of JV in VC can serve as transformative mechanism for discarding out-moded rules in the old Int’l Law and for replacing them with progressive principles.
Notes:
PACTA SUNT SERVANDA: States or other international persons are bound by treaties which have been regularly concluded and have entered into force and they must be carried out in good faith. The basis of the obligatory character of conventional rules or what is sometimes called sanctity of treaties is not clear.
Baxter, International Law on Her Infinite Variety, 29 Intl & Comp. LQ 549 (1980) As generally understood today: Principles of IL have a real existence and create obligations for states and individuals, even though they may not be enforced by sanctions.
Baxter’s radical assertion to be defended: That legal norms occupy a place in IL, even though they do not create rights or duties.
A great majority of norms which are laid down in international agreements are susceptible of enforcement through mechanisms, including resort to international tribunals and national courts, which ensure respect for these obligations. But there are norms of various degrees of cogency, persuasiveness and consensus which are incorporated in agreements between states, but do not create rights and duties.
as comprehending all those norms of conduct which states or persons acting on behalf of states have subscribed to, without regard to their being binding, or enforceable, or subject to an obligation of performance in good faith.
I. “SOFT / WEAK” Law – recognized as peculiar
e.g. treaties where states enter into an allegiance, agree to coordinate military action, declare neutrality of an area.
1. “Political Treaties” – There is an awareness that these agreements are vulnerable to the operation of rebus sic stantibus in the sense of established boundaries / status of territory. If a state refuses to come to the aid of another, nothing can force it to. The Vienna Convention does not refer to “Political Treaties” because it would add complexity and it would have supplied a basis from escaping from treaty obligations which is susceptible to abuse. But these “Political Treaties” are nevertheless kept alive by perceptions of mutual advantage and by political and economic force (so long as the states concerned see it to be in their natural interest to concert their policies.)
2. Other treaties regarding national security – the force making for compliance is that violation of agreement may being the whole structure tumbling down (agreements where easy release is available).
⇒ Nuclear Test Ban Treaty (1963) – violation of the treaty, justify it in withdrawing from the treaty. The right of denunciation is the threat that holds the parties to their obligation.
⇒ Geneva Protocol of 1925 for the Prohibition of the Use in War of Asphyxiating Poisonous or Other Gases, and of Biological Methods of Warfare – reserve the right to employ chemical warfare against the one who has violated, in effect brings the Protocol to an end.
Numbers 1 and 2 do carry some measure of obligation, although they may not be enforceable in the strict legal sense.
The following types of norms in international agreements have the common characteristic of not creating legal obligations which are susceptible of enforcement (soft law):
1. Pacta de Contrabedo – a provision of the treaty which calls for negotiations looked to the conclusion of further, more detailed agreements. These provisions cannot be enforced if the parties do not reach an agreement (agreements cannot be forced upon them, cannot be compelled to negotiate), e.g Treaty of Rome – established European Economic Community
2. Norms of treaties which are non-self executing, requiring further, more detailed treaties in order to give effect to the principal treaty
purposes. In the absence of institutional machinery, a party’s refusal to follow the recommendations / exhortations of the treaty cannot be met with any measures of compulsion.
⇒ Executive Agreements – (difficult to fit in the existing structure) US, after the Vietnam War, Congress found out that the President made commitments which were not submitted to the Senate for approval (outcome was the enactment of legislation which requires the Department of State to transmit the test of any international agreement (in writing), other than a treaty, to Congress within 60days).
§ The international significance of the agreements which were brought to enlighten is that there must be a vast mass of agreements, communications, and correspondence between governments and its officials to cooperate on some scientific work, to give effect to a treaty, to exchange information, etc.
§ Definition of treaty in Vienna Convention is unclear on how far international dealings should be codified (result in immense masses of paper)
§ It is probably fair to say that states have no intention of “enforcing” the forces that make for compliance – are manifold, but non-legal
§ These arrangements (executive agreements) are “soft law” – complied with in fact but not under the coercion of the principle of pacta sunt servanda
§ States do set up by agreement, machinery of cooperation and coordination which does not have the complexity of international agreement (not treaties but they soften the clash of interests)
§ The “soft” laws have been for about some time. But in recent years states have undertaken the preparation of instruments which deliberately do not create legal obligations but which are intended to create pressures and to influence the conduct of states and to set the development of IL in new courses (legal impact unclear)
⇒ Treaties which purport to lay down rules governing the behavior of States towards their nationals / towards aliens – sometimes ambiguous and will do nothing to control the conduct of states unless fleshed out by the decrees of court or other agencies.
Magallona, “Towards the Consolidation and Progressive Development of the Norms of International Economic Law,” in Magallona, International Law Issues in Perspective
A. 2 major qualitative changes in the historical development of the international community of states:
a. IL operated in a small circle of Christian states in Western Europe
b. Peoples of Africa, Asia, and Latin America were objects of colonial exploitation b) Emergence of independent states from the breakdown of the colonial system together
with the rise of the socialist community
B. Crisis between old and the establishment of the new international economic order a) Despite the collapse of the colonial system, exploitation and dependency
continued between old colonial powers and their former colonies.
b) Establishment of new economic order is essential to the economic upliftment of the developing countries.
C. Rationale and scope of international economic law
a) IL law must now reflect the basic interests and needs of the developing countries, which constitute a majority of the international community
b) Polarization of states on the basis of level of development
c) IL deals with the public-international aspect of one of the principal purposes of the UN: “to achieve international cooperation in solving international problems of an economic character.”
D. General content of international economic law
a) principles and norms of international economic law have matured and constitute a stage in the progressive development of:
a. fundamental principles and purposes of the UN
b. specific orientation of the general principles of law to the economic relations of states with different levels of development
c. work of various organs and agencies of the UN and of international conferences
b) International Economic Law deals with the regulation and coordination of economic activities of states, particularly legal issues relating to economic and technical assistance.
Notes:
In theory, consent may be withdrawn as fast as it was given but this results to instability of the legal order as predicted by Brierly.
Why do States hesitate in withdrawing its consent? Because in the first place, it gave its consent pursuant to its desire to establish international rules that create concrete relations to advance its concrete economic, political, social, and financial interest as the subject matter of the mutual exchange between states.
How do you know that a norm is a norm of international law? Look at the norm-creating process.
2 categories of norms:
a. inter se: rules which govern the relations of states among themselves b. erga omnes: rules which govern the
relations of states in relation to the international community
consensuality: element which controls norm-creating process; when one speaks of consent, one pertains to normative consent, a process is involved, it is not a simple matter of saying yes
What are the legal bases of international personality?
1. the moment a state is conferred statehood, it assumes international personality, primary subject of law. 2. could also be created by state like the
ILO
3. conduct between the states may become the basis of personality, for example when the action of the state becomes opposable to itself as in recognizing passports and envoys, that state cannot anymore deny recognition The Principle of Attribution: for a stet to be internationally responsible given the breach, the acts or omission must be attributable to the state, not its peoples.
Persistent Objection Rule: if a state persists in opposing the application of a general norm to itself, at the time when the norm was merely in the process of formation, then even when that norm consolidates or becomes binding law at later time, that state which persisted in objecting is not bound. But if persistent objection is only manifested the time when
then no amount of objection will make it not bound.
II. International Law and the International Community
H. Mosler, International Society as a Legal Community, 140 Recueil des Cours 1 (1974)
1. CONDITIONS OF EXISTENCE OF AN INT’L LEGAL ORDER
International Law (IL) existed only when the 2 necessary elements existed: 1) factual-a certain number of independent societies organized on a territorial basis exist side by side, and 2) psychological-a general conviction that all these units are partners mutually bound by reciprocal, generally applicable rules granting rights, imposing obligations and distributing competencies. In the first element, there exists an age-old tension between equality in law and difference in actual power.
There is a continuing influence of European tradition on current IL, emphasized by Mosler on 2 points: 1) the logical deduction from the nature of things and the nature of IL still contributes to current IL (e.g. by author) and 2) appreciation of the expansion of IL in today’s enlarged int’l society, w/c is no longer focused on Europe. This point partly explains the acceptance of the new members of the int’l society of a large part of int’l law originating in Europe even without European tradition. The extent of internal and external sovereignty has been diminished by the interdependence of the states (relative sovereignty) and the general tendency of centralization (because of the foundation of world organizations). Note that today’s IL takes into account the formerly unknown existence of international organizations (IO) and the resurrection of the individual as a part of the int’l legal order (ILO).
2. CHARACTERISTICS AND STRUCTURE OF THE INT’L SOCIETY a) historical perspective
The predominant feature of the States existing between the end of 18th Century and WW1,
was that it was a political unit of effective action, consisting of a people conscious (derived from either history, ethnic and linguistic unity etc) of being a nation. This group of nation-States was a closed community with a limited number of members. Although each was sovereign, such sovereignty has 2 meanings 1) political- acting according to one’s own will to the greatest possible extent and 2) law- there is no legal obligation on the State to show obedience to any superior. Since a legal community of equals in law and unequals in fact can’t function without political guidance, it is but natural that the task of directing political dev’t in the framework of society was assumed by the most powerful states. Since no single power was able to gain an overwhelming advantage, the result was the establishment and maintenance of certain balance of power between the great powers (see e.g by author). This led to a combination for the 1st time of a balance of on a higher greater power level , and the
political domination exercised by the great powers (that, as a group, dealt with matters of general interest) on smaller States within their sphere of influence. The lower-level balance of
power between medium and small sized states (that participated in matters of their own interest) was established on the assumption that these groups belonged in a sphere of influence of one or more (gasp! D.G. is that you?) hegemonic powers. This practice provided at a time which the theory of absolute sovereignty prevented the rise of IO the organizational element apparently indispensable to society with members equal in law but not in fact. This lesson in history (that a society consisting of immensely different sovereign states must pay a price for its continuing existence by allowing major partners a greater influence in the form of a hegemonic role) is still valid now. If historical dev’t leads to this, then the equivalent of an internal const’l law arises.
b) in its present state of development
The new ILO began around the time of WWs 1 and 2. Such experience of a world-scale destruction led to an the attempt to overcome, by means of international organization, the anarchy caused by the unlimited exercise of sovereignty. This was followed by an increase in the number of members of int’l society which also resulted in the addition of essential new characteristics: the institutionalized cooperation in IO, increasing interdependence in communications, economic and technical matters, the position of a few superpowers challenged by the non-aligned states and the reappearance of the individual and of human values in int’l law.
3. LEGAL RELATIONS BETWEEN SOVEREIGN STATES AND THE INTERNATIONAL COMMUNITY
In the present, a horizontal legal relationship existed between states. The only sanction for a breach of these rules was the reaction of the states injured by the act of another. In contrast, the so-called classical period, the states formed a legal community without any vertical element of subordination.
4. CONSTITUTIONAL ELEMENTS IN THE INTERNATIONAL COMMUNITY
In spite of the lack of a general constitution for the functioning of the int’l community there are many const’l elements of varying form and importance. Statues of IO have the essential features of a const but it its object is limited vis-a-vis internal const.. These statutes taken as a whole amount to a considerable element of const’l life in the int’l community. IL developed through the consensus of members of the int’l society. Since the principle of consensus is inherent in any kind of legal community, there must be a legal rule as to how the law is created and develops. This task is done by a compeytent organ of the memebers themselves develop the rules and principles they are to be bound. It is this basic principle which makes the international society a legal community.
5. “INTERNATIONAL PUBLIC ORDER” AND JUS COGENS
In any legal community, there must be a minimum of uniformity to maintain the community. This uniformity may relate to legal values, legal principles or legal rules. The whole of this minimum can be called the common public order. The int’l community can’t dispense (or exist) with this minimum of principles and rules. The public order of the the int’l community consists of principles and rules of enforcement of which is of vital importance to the international community as a whole that any unilateral action or any agreement which
The concept of a public order of the int’l community has a wider meaning than jus cogens. The rules belonging to it apply not only to the members of the int’l community acting as contracting parties but are also binding in relevant legal situations other than treaty relations. 6. GUIDING PRINCIPLES IN THE FORMATION OF THE POLITICAL ORDER IN INTERNATIONAL SOCIETY
The statement that principles and rules have emerged as generally accepted IL is the work of codification and interpretation; to define new principles and rules appropriate to the to new situations is the work of law creating. This 2nd task is a matter of policy, as something new is
to be created and a step forward is attempted. 1. political doctrines and maxims
§ Balance of influence among superpowers § Right to self-determination
§ Political doctrine based on political or geographical innovations-Doctrine of legitimacy/Doctrine of intervention
2.principles of friendly relations and co-operation between states
This is the most interesting achievement of the UN is the 7 principles of the declaration on principles of IL concerning friendly relations and cooperation among states as guidelines for the conduct of states (see p41 of the article). These principles are declared to be interrelated so that each principle shall be construed in the context of others. Reference to the legal effect attributed by the UN Gen. Ass to the principles individually and collectively is made in the final part of the resolution. Each principle is developed by detailed definitions w/c are in part contradictory, thus revealing that they are the result of a compromise of opposing views. Certain principles are nothing more than abbreviations of existing principles taken up the UN Charter. These and other questions have divided the principal Western and socialist states, the latter joined by the non-aligned states. The principles w/c were finally accepted have the unanimous support of the UN membership. This support is not weakened by the fact it is the result of a compromise.
Bedjaoui, General Introduction, International Law: Achievements and Prospects (1991)
1. International Law: A specific, unfinished and changing construct
Fundamental characteristic of IL-functions to regulate the rel’ns bet. States or between those known to be sovereign and which, in principle, assert their full independence of any legal order.
This is possible because IL is largely based on (express or implied) consent. Thus, IL is more of law of coordination than subordination. Such coordination took on a significant lease of life when it finally became institutionalized, which is opposite of exclusive and unfettered State control. This was accompanied by another step which transformed this coordination into cooperation bet. States through the emergence of international organizations (IO), resulting in qualitative changes. Later, the universal mission of these IOs and the promotion of the right of peoples to self- determination became the primary source and better organized
int’l community in which the traditional unshared competencies of the States were disciplined. This led to the emergence of new subjects of IL (individual, people, the human race) w/c figured as potential rivals to the State in the int’l order.
In sum, IL today is “developing” because of its extension to new areas. These changes in int’l rel’ns (IR) came about in int’l society after the upheavals of 2 world wars and decolonization affected classical IL. Throughout history, IL faced 3 periods of challenge: 1) Geographical 2) Ideological and 3) Economic.
2. From an Oligarchic law to a Law of community
Before the League of Nations came into existence, IL was nothing other than a European law, born of the marriage of a regional situation and a material power, and transposed, as the dominant law governing the entire range of IR. This classical IL was a system of norms having a geographical content (European-based), an ethical and religious inspiration (Christian law), an economic motivation (mercantilist) and political objectives (imperialistic). This IL worked on 2 distinct planes: 1) between “civilized” States and the rest of the world and 2) between the “civilized” States to the extent that each one of them enjoyed sovereignty and independence on a basis of full reciprocity. The Treaty of Westphalia (1648) replaced the turbulent co-existence of Christian countries to a “European system of states” w/c rested on a need for every European state to respect the status of the others. However, classical IL placed “uncivilized (meaning non-Christian)” outside the scope of its protection. Its function was to be a law of domination by exclusion of the “int’l” community, thus didn’t acknowledge other States as equals.
But this order, having been shaken by a number of “shockwaves” was progressively replaced by a law of int’l community: 1) the advent of a large number of new States made quantitative and qualitative changes in the int’l community which is now open; the process of selection had been replaced today by automatic or semi-automatic acceptance to IOs; 2) the new int’l legal order is responsible for the task of accommodating the dev’t of all peoples and of promoting int’l economic cooperation; and 3) the increased role of IOs led to the States acceptance of an institutionalized cooperation among themselves at price of relinquishment of sovereignty. But this “democratization” has only begun to win through and a great deal remains to be done in a world in which the economy plays an increasing role in perpetrating situations of domination.
3. From a Law of states to a Law for people
Fundamentally, IL remains a law w/c disciplines the jurisdiction of States in rel’ns bet. them. But it is also clear that it has begun to take an interest in the State’s conduct towards individuals. The active principle of this evolution was undeniably the right of peoples to self-determination. It was gradually discovered that the State is, in the final analysis, no more than a community of peoples. This discovery restores to IL its essential finality w/c is the service of human beings. The State is not alone in leading towards this goal: the int’l community also plays its part since the human individual is the supreme common heritage of mankind.
did not provide a means of putting the int’l legal order at the service of goals w/c address the needs of the human race. This involves the assessment of the priorities w/c the int’l community should set itself. Many of the finalities (ex. outlaw war or guarantee a certain minimum in the conduct of hostilities) w/c are proper to a juridical order of coordination and have been pursued for centuries as being of unquestionable validity will not be abandoned. The preservation of these values can’t be called into question under the pretext that it has been promoted since the remotest antiquity. But the principal areas of confrontation are, of course, those involving new finalities set by the present international community. By asserting the common good and by challenging the perpetuation of the logic of political, economic and military domination, the majority of States have set in train a process in which the emphasis is placed on whatever may be expected to contribute to the reducing the de facto inequalities between States and to promote greater heed for the long term interests of the globe. IL has been invested with a task of transforming international society and has been applied in the service o finalities such as peace, dev’t, human happiness and the ecological preservation of the planet.
O. Schacter, “The UN legal order: An Overview” in CC Joyner (ed.) The United Nations and International Law (1997)
Structure of the UN Legal Order
Ground floor: actions of states- including the demands and goals of the governments and other organized groups in furtherance pf their needs, wishes, and expectations
2nd level: activities of a legal character- the
formation and invoking of legal norms, and their application to particular situations.
3rd level: broad policy goals, aspirations, and
ideals that influence governments and the other actors
Law-making in the UN System
Neither the United Nations nor any of its specialized agencies was conceived as a legislative body. They were limited to recommendations aimed at coordinating the actions of their member states. The authority to impose mandatory rules was limited to the internal administration of the organization in question.
However, most of these bodies have utilized their recommendatory authority to achieve binding law where that served their aims and had the requisite political support.
Examples of Instrument of law-making in the UN system: 1. multilateral “norm-creating” treaty
- products of political process, usually marked by conflicting interests and concerns over grants of power
- all member states have a right to participate in the negotiation and adoption process on the basis of sovereign equality
2. resolutions that embody declarations of principles and rules of international law considered as authoritative evidence of binding international law on the following grounds: (a response to felt needs which must be addressed without the complicated and often, slow procedures involved in treaty making)
a. as authentic interpretations of the UN charter agreed by all the parties b. as affirmations of recognized customary law
c. as expressions of general principles of law accepted by states 3. law governing the internal governance of the international bodies
- includes the rules of procedure governing the conduct of principal organs and the rights of members in those organs
4. regulations applicable to the military forces engaged in peace keeping or enforcement activities: include rules of engagement, precepts of command and control, privileges and immunities
Interpreting and applying law
Arguments in the UN organs on interpretation fall into 2 categories:
1. lays stress on the aims and ideals of the institution as expressed in the Charter 2. argues on the basis of practice and precedent
UN interpretation does not usually have an adjudicative character. Primarily, it is to prepare a plan of action or to recommend state behavior to achieve a goal. Interpretation is implicit in the measures adopted, which are centered largely on the relation between means and ends in the specific contexts.
Controversies in interpretation are not the result of defective drafting or even of political compromise; it is, rather, a reflection of the plurality of values and aims in the international society. How then are these controversies resolved?-
PRINCIPLES OF INTERPRETATION
1. principle of effectiveness: priority to achieving the major purposes of the Organization overriding restrictive provisions of the Charter such that interpretations that are ‘generally acceptable’ settle the issue
2. Interpretation by majority votes based on political considerations: problematic for many states who fear that the integrity of the Charter may be impaired by political tendencies
Court to render advisory opinions on the interpretation of the Charter by political organs
o problematic because the IC has not been given review or appellate power to pass on decisions of the political organs unless it is asked for an advisory opinion by the organ
Compliance and enforcement
For a long time compliance and enforcement were on the margins of UN concern. However, public sentiment and the lengthening list of economic and social ills brought pressures on international bodies to give more than lip service to the principles they had adopted and urged on the states.
Categories of the Various Compliance and Enforcement Processes Used by UN Organs: 1. reporting and supervision procedures in a particular treaty or code of conduct
- supervision includes the procedure for individual or governmental complaints of violations such as those brought under the optional protocols to the covenants - includes fact-finding by an international authority
2. Facilitative measures taken by the United Nations to assist states in carrying out obligations imposed by law or by specific decisions of the organs
- armed peacekeeping forces to assist governments to comply with transborder truce and cease-fire agreements, use of observers for national elections
3. Direct penalty of expulsion from the Organization or from taking part in some of the latter’s activities
4. Nonmilitary enforcement action taken by the Security Council under Article of Chapter 7 of the Charter (imposing economic embargoes extending to trade and financial relations on either a comprehensive or selective basis)
5. Use of armed force
6. Judicial enforcement limited in respect of binding adjudication of cases in which the parties have accepted the Court’s jurisdiction
7. Self-help measures
a. reprisals: generally permitted if they do not involve the use of force and if they are directed to obtaining redress for the wrong committed and must not be disproportionate to the violations to which they respond.
b. retorsion: legal WON responsive to a prior illegal act. States are free to reduce trade, investment, or aid with another state, whether or not the other state acted illegally.
8. Public opinion (NGOs and civil society) Patterns and Politics of UN Law
Two areas stand out: human rights law and the law relating to peace and security.
In human rights law, it has been observed that the economic criteria originally applied to development have been supplemented with criteria of human development that incorporate many of the basic human rights, especially but not only those of an economic, social, and cultural character.
In the law of peace and security, the stakes are the highest. WON a United Nations Legal Order exists will be determined largely by the effectiveness of its efforts to maintain peace and security. Several concepts have to be discussed in relation to the law of peace and security:
1. Veto or principle of unanimity: embodied for political reasons by the permanent members primarily in their national interests
2. interpretive resolutions on basic Charter concerns: adopted by near-unanimity or consensus
In international economic law, there is the undertaking to give preferences to the less-developed countries.
What then are the basic postulates of international law?
1. States are regarded as the principal actors in creating and applying the law. 2. Independence and formal equality of States
3. principles of territorial integrity and pacta sunt servanda 4. Basic divide between the international and domestic domains Characteristics of the UN system:
1. Decision-making in the UN are essentially political processes shaped by the conditions of quasi-parliamentary procedures and the mandates of constituent instruments.
2. Substantive complexity of UN law-making and law application: states are compelled to define their national interest in relation to the collective interests of various groups of states and, ideally, in relation to the common interest of the whole community of states.
3. relative transparency and linkages to nonstate actors (experts, lobbyists, activists) III. Relation of International Law and Municipal Law
Oppenheim, op. cit., pp. 35-47 Dualistic View
International Law and Municipal Law are essentially different. Sources:
ML: custom grown up within the boundaries of the State concerned and statutes enacted by the law-giving authority
International Law: custom grown up among States and law-making treaties concluded by them
Relations they regulate:
ML: between the individuals under the sway of the State and the relations between the State and the individual
International Law: relations between States Substance of their law:
ML: law of a sovereign over individuals subjected to his sway International Law: between sovereign States
The Monistic Doctrine:
- some of the fundamental notions of International Law cannot be comprehended without the assumption of a superior legal order from which the various systems of Municipal Law are derived by way of delegation
1. Both regulate the conduct of individuals but in the international sphere, the consequences of such conduct are attributed to the State.
2. In both sphere, law is essentially a command binding upon the subjects of the law independently of their will.
3. Both are manifestations of a single conception of law. Law of Nations as Part of Municipal Law
1. In Great Britain:
a. customary rules are recognized and applied
b. Treaties affect private rights. The Crown is willing to allow Parliament to approve treaties prior to their ratification and that enabling legislation is passed before the treaty is ratified. c. English statutory law is binding upon English courts, even if in conflict with International Law but this does not mean that English law recognizes in all circumstance the supremacy of International Law.
2. In the United States:
- International Law is binding even if it conflicts municipal law and vice versa.
Municipal Courts must apply International Law even if it has not been expressly incorporated in the Municipal Law because of several presumptions:
1. presumption against the existence of a conflict between ML and International Law
- it is improbable that a State would intentionally enact a rule conflicting with the Law of Nations
2. In case of a gap between the 2 laws, it is presumed that such privileges are tacitly granted.
3. Even if a State may renounce International Law-endowed rights, municipal courts ought to presume that their State has tacitly consented to make use of such rights.
Fitzmaurice, The General Principles of International Law Considered from the Standpoint of the Rule of Law, 92 Recueil des Cours 5, pp. 68-94
Nature of the conflict problem
The fields in which DL and IL operate are distinct. Two different sets of relations are involved. The domestic field is the field of relations between private persons inter se or private persons-State whereas the intl field is the field of relations between States.
A. PHILOSOPHICAL
The monist-dualist controversy – its artificial & sterile character
It is useless to discuss the conflict bet DL & IL on the basis of the monist-dualist debate because DL & IL operate in different fields. They do not operate in the same set of relations & transactions ∴ there is no basis in which to even start an argument.
IL is supreme in the intl field not because of any inherent supremacy but because of the field of operation. IL is not only the supreme system in the intl field, it is the only system there is. Difficulties of the view that the State is only an aggregation of individuals
In order to create a common field bet DL & IL (and thus be able to compare them), it would be necessary to reduce the behavior of the State to the behavior of individuals representing the State.
But individuals whose function it is the carry out an obligation of the State does not act in any personal capacity. They are acting on behalf of the collectivity. Thus, the attempt to circumvent the personality of the State merely results in its reintroduction in some other form.
relationship is one of co-ordination, or of subordination, or of mutual subordination to a common superior order.
Therefore, IL & DL as systems can never come into conflict. What may occur is only a conflict of obligations – an inability of the State on the domestic plane to act in the manner required by international law.
Huh?
The fact that no one understands you doesn’t mean you’re an artist.
Any connection between your reality and mine is purely coincidental.
B. PRACTICAL Practical principles:
1. The State cannot plead the provisions of its national law, or of its constitution, as a ground for the non-observance of its intl obligations.
2. The State is under a general duty to cause its law & consti to conform or to be such as to enable the State to conform to its intl obligations.
3. The State cannot plead changes, even revolutionary changes in the State’s government, admin, dynasty, political or social system or regime, or in the personality of the head of State as an excuse for the non-performance of its intl obligations. When there is a new govt, there is no devolution of obligations or rights. The State and its entity and personality persist uninterruptedly.
4. When there is not merely a new regime but a new State:
a. The new State becomes ipso facto subject of general international law rights and obligations.
b. As to obligations undertaken by treaties, rights and obligations devolve in accordance with State Succession.
Brownlie, Principle of Public International Law Theoretical problems
Dualist: points to essential difference of IL and ML, primarily to the fact that they legislate diff. subject matter. IL is law bet. sovereign states. ML is law within a state. Neither legal order has power to create or alter rules of the other.
Monist: primarily asserts supremacy of IL over ML. (Although Kelsen, a monist, does not support this). It is IL which is ultimately concerned w/ the conduct & welfare of individuals. The state is disliked as an abstraction.
Monist-naturalist: IL & ML are subordinate to a 3rd legal order, usually postulated in terms of “natural law” or “general principles of law”, superior to both & capable of determining their respective spheres.
[3 theories above assume that ML & IL operate simultaneously in a common field in regard to the same subject-matter]
Coordination: (Fitzmaurice) ML & IL don’t conflict in systems bec. they operate in diff. spheres. Each is supreme in its own field. Their relation may only result in a conflict of obligations.
The relation bet. obligations of States & ML
State cannot adduce its own Consti w/ a view to evading obligations incumbent upon it under IL.
The Position of the Individual
The Intl Military Tribunal and many natl tribunals do not admit pleas by persons charged w/ war crimes that they had acted in accordance with their national law.
Issues of ML before Intl Tribunals
Cases in w/c a tribunal dealing w/ issues of IL has to examine ML of States:
1. As a matter of evidence, when tackling spheres of competence claimed by states – issues relating to expropriation, fishing limits, nationality etc.
2. When treaties contain provisions referring directly to ML or employing concepts w/c by implication are to be understood in the context of a particular natl. law.
3. When Intl tribunal is faced w/ the task of deciding issues solely on the basis of municipal law of a particular state. (i.e., Serbian Loans case)
ML as ‘facts’ before Intl tribunals 6 aspects:
1. ML as evidence of conduct in violation of rule of treaty or customary law 2. Judicial notice does not apply to matters of ML. Proof required.
3. Interpretation of their own laws by natl courts is binding on an intl tribunal.
4. Assumption that for any domestic issue, there must always be some applicable rule of ML, which will be ascertainable in the same way as other ‘facts’ in the case.
5. Intl tribunals can’t declare the internal validity of rules of natl law. ILO must respect the reserved domain of domestic jurisdiction.
6. ML are merely facts.
Issues of IL before Municipal Courts
Before municipal courts] Rules of IL are accepted as rules of law & are not required to be established by formal proof [unlike rules of foreign law]. But public policy requires special considerations in procedure whereby the executive is consulted on questions of mixed fact & law. This is in order to avoid the embarrassment of conflict of opinion.
How IL are given effect in the intl sphere (the English model)
Incorporation: Customary rules are to be considered as part of the law of the land, with the qualification that they are incorporated only so far as is consistent w/ acts of the legislature & prior judicial decisions of the State.
established usage.
Treaties: Become part of law if an enabling act of the legislature has been passed. Statute prevails over treaty. Resort to the text of a Convention may be had under the condition that there be cogent extrinsic evidence that the enactment was intended to fulfill obligations under a particular convention.
Self-executing treaties: Certain rules of IL don’t need incorporation in order to have internal effect.
Res judicata
There is no effect of res judicata from the decision of a municipal court so far as an intl jurisdiction is concerned. Although the subject matter may be substantially the same, the parties and issues will not be. However, considerations of admissibility may have the effect of creating an exception to this general rule.
Relation to sources of IL
Judicial decisions in municipal sphere provide prima facie evidence of attitudes of states on points of intl law and very often constitute the only available evidence of the practice of states.
Conclusion
Factors that operate on the subject matter of the relation between ML and IL:
1. Organizational – to what extent are organs of the states willing to apply rules of IL internally and externally?
2. Difficulty of proving the existence of particular rules of IL. In case of difficulty, municipal courts may rely on advice from the executive or existing internal precedents. 3. Courts will often be concerned with the more technical question as to which is the
appropriate system to apply.
Vienna Convention on the Law of Treaties
ART 27: A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.
Art.46: Provisions of Int’l law Regarding Competence to Conclude Treaties
1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance.
2. A violation is manifest if it would be objectively evident to any state conducting itself in the manner in accordance with normal practice and in good faith.
IV. Sources of International Law A. In General
