The International Community: A Large Municipality - Research Paper Example

Topic “Bentham, the inventor of the expression ‘international law’, defended it by simply saying that it was sufficiently analogous to municipal law.” (H.L.A. Hart, The Concept of Law Oxford, Oxford University Press, 2nd ed.: 1994) Title The International Community: A Large Municipality? Name/course/institution/date/course supervisor etc can be either here or on a separate title page- could also include your name in the footnote of each page, on the left if you want to. The Essay The general public finds it convenient to refer simply to “The law” implying that there is one, universally accepted and externally imposed set of rules by which society is governed. Very often, this concept is tied to the individual’s sense of morality and values, perhaps stemming from religious beliefs or cultural experience. Hence it can seem that what is legal is not to be questioned in that one system of law is very much like another since humans do understand what is right and what is wrong. Legal practitioners and theorists, however, do debate and consider law as constructed, and this Bentham’s statement, as referred to in the topic of this essay, that international law can, to all intents and purposes, be equated with municipal law. There is, though, some contention that this is not sufficient as a justification, or a critique, of international law. Many municipal legal systems represent comprehensive, effective, developed and current frameworks of law, and international law, in comparison, is not always as satisfactory. Certainly the international legal system is continually developing, but it is not in all instances effective, neither is it always current. The contemporary structure of the world and international relations presently do affect international law, and do on occasion highlight its inadequacies. As basis for the concept of law, this essay will consider the proposals made by H.L.A Hart1 as a general guide to define what a legal system should be and seek to evaluate international law in relation to these outlines. While Hart’s work is comprehensive, and to some degree critical of statements such as Bentham’s in relation to international law, the essay will go 1 Hart The Concept of Law published in 1961and as a 2nd edition in 1994 will inform this essay throughout further to arrive at a critique of international law based on Hart’s thinking and personal argument. A general conclusion will be reached regarding the nature, coherence and effectiveness of international law. In overview, laws need to be defined as rules which people agree to be subject to, wither within their communities, or on a wider level, which they agree to within their societies or States. To have effective legal systems, the individuals within communities, societies or the States of the world must agree to abide by the laws they have recognised, and acknowledge the authority of the institutions or people who are appointed to manage those laws. There is, in the making of laws, likely to be some overlap between moral and legal rules but, more importantly, whether there is moral justification for a law or not, there has to be widespread convention within the community or society which recognises a law.2 On both the level of local and international legal systems, Hart argued that there should be a rule of recognition.3 Some norms of a society do fall within the authority of the legal system, while others are socially accepted norms, not always framed by legal structures. All laws, though, are not necessarily connected to morality but do serve to coerce the members of a society into acceptable behaviours and practices. But laws can only be valid when private citizens meet their obligations, or obey the rules, according to the law, and public officials enact the conduct set out within those laws to manage and enact the legal system.4 Often if a legal system is able to meet such criteria, and there are no political reasons for defying the legal system, the population at large will with few exceptions, obey the law. 2 Hart The Concept of Law p.258 3 See: Hart, The Concept of Law (general reading) 4 Ibid at pp. 110 and 116 The two levels of law referred to above, represent Hart’s contention in “The Concept of Law” that both primary and secondary laws exist within a legal system. Primary laws govern conduct, usually under some threat of punishment or sanction, of all the members of the society or community. Secondary laws govern the way the legal system is managed: how laws are created; how they can be changed; how and why they are cancelled. It is vital that laws of both types are clearly understood by individuals. This is possible only when clear statements of rules, obligations and privileges are made, and the formulation, imposition and enactment of laws are widely recognised as valid. Perhaps most essentially, who has power within this legal process must be understood and accepted by a population.5 Always, a very definite realisation has to exist that the validity of laws can be challenged. Often the primary laws can be challenged through processes described in the secondary laws. In fact, morality can be (not exclusively, though) the grounds on which to challenge the validity of a law.6 Simultaneously the overarching consideration must be that recognition, acceptance of the validity and effective enactment of a legal system will qualify it as a fully developed system. It is on these grounds that international law can be considered to be incompletely developed as a legal system. Although international laws are continually challenged and changed, through institutions such as the International Court of Justice (ICJ) it is often the case that laws generated to govern international conduct – wither within the State, or inter-State – are not recognised by all States, neither are they accepted as binding, nor effectively imposed on States by the international community or international organisations. Woodrow Wilson, United States President after World War II, proposed that there should 5 See Hart. (general reading) 6 Ibid at p. 250 the following general principles underpinning international law: “1) there should be a right of a people to choose its own form of government; 2) there is a right of a people to be free from other rule; and 3) there should be continuous consent of the government by way of a representative democratic government.”7 It can be argued that not even these, seemingly obvious parameters, have not in sixty years been achieved globally. Further, laws stemming from the sentiments of people such as Wilson, formulated by international organisations such as the United Nations Organisation (UNO) have not been implementable.8 There are, though, numerous sources of international law – including the UNO’s proclamations – but also far beyond these.9 Notably the General Principles of the UNO state that the general principles of law recognised by civilized nations are a source of international law. The only source of such principles is to be found in the common principles of municipal law.10 This suggests that international law is, at least, modelled on established legal principles. By similar reasoning, international custom is viewed as “... evidence of a general practice accepted as law.”11 The reservation this writer, Sloane, has to his own statement above, is to question whether such laws would be derived from principles of equity and justice, or legal logic. They are both “... objective principles universally valid regardless of recognition by any territorial 7 Lloyd Brown-John, ‘Self-determination and Separation’ (1997) Policy Options Magazine September at p. 40 8 See: UNO 1966 Convention on Economic, Social and Cultural Rights; 1970 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation between States 9 Sloane, ‘General Assembly Resolutions Revisited’ (1982) British Yearbook of International Law Oxford at pp. 39-150 10 Van Hoof, Rethinking the Sources of International Law quoted in Ibid at p. 78 11 Sloane, ‘General Assembly Resolutions Revisited’ (1982) at p. 65 authority,” and “... expressions of the ethical or moral conscience of mankind, of a general word conscience if basic concepts of equity and justice or the underlying spirits and aims of the UN.”12 On some levels, this is in opposition to Hart’s (and by implication Bentham’s) argument that it is not only moral custom that determines rules.13 Further, Article 38 (1) of the International Court of Justice outlines more areas it finds acceptable as sources of international law. These include international conventions, where the rules that States expressly recognise by participants, or contesting States, are formalised.14 International operational agencies also are recognised as establishing law: the International Court of Justice is obviously included, but reference is also made in Article 38 (1) to such bodies as the International Law Commission (ILC) and the United States Commission on International Trade Law (UNCITRAL), which do create laws published for the international community in specialised fields.15 Additional or subsidiary sources of international law are additionally recognised in Article 38 (1) (d) of the ICJ. Subject to the conditions of Article 51, the work of prominent and recognised legal practitioners of any nation should be able to determine rules of law.16 Consensus can also establish law,17 as may “Manifest Community Law”18 generating laws from worldwide conferences, or as argued by Sloane, the recommendations of the General Assembly of the United Nations. 12 Ibid at p. 46 13 See: paragraph 5 of this essay 14 Sloane, ‘General Assembly Resolutions Revisited’ (1982) at p. 49 15 Ibid at p. 80 16 Ibid at p. 83 17 Lissitzyn, International Law Today and Tomorrow (1965) as quoted in Ibid p. 90 18 Sloane, ‘General Assembly Resolutions Revisited’ (1982) at p. 93 One of Hart’s contentions19 was that community expectations may be sources of law, and this may apply to international law, too. Given that there are areas on the international scene where there is no law, or sovereignty, Sloane has argued that such organisations as the UN General Assembly from communities of States, in effect, which do then form community expectations, and thus valid international law.20 He bases this proposal on the Reparations case heard in the ICJ, where the commentary asserts that already then the UN had become the “... supreme type of international organisation.”21 Yet, the UN is often powerless to enforce legislation even today, in light of the VETO rights given to permanent Security Council members, and the refusal of some States to acknowledge the authority of the UN. There are certainly, then, some similarities between municipal law, and international law, in terms of the sources from which these legal systems are derived. And there are also some superficial similarities between these systems in the implementation of laws. In both cases, express consent is not required: international customary law can be held to be binding on a State, 22 just as a member of a community need not expressly to have indicated that he/she agrees with a municipal law in order to be subject to it. Likewise, customary law argues in favour of the general principle that “... we ought to behave in the way our fellow men behave and during a certain of period of time used to behave.”23 This argument may certainly hold true for the population of a community bound together by location, culture and values, but it appears that, internationally, many rogue States do exist, the rulers of which do not in any way accept the 19 Hart, The Concept of Law (1961) at pp. 91-96 20 Sloane, ‘General Assembly Resolutions Revisited’ (1982) at p. 94 21 Reparations, ICJ Reports, 1949, at p. 179 22 Charney, The Persistent Objector Rule and the Development of Customary International Law (1982) at p. 2 23 Ibid at p. 18 customary nature of international laws. It has been noted (see Paragraph 6 of this essay) that laws need to be clearly stated and understood by the population they will apply to. If this is to apply to international law, it cannot be “... irredeemably indeterminate ...”24 Iain Scobbie argues that the content of international laws should not be determined by States’ behaviour: rather it should be a normative code, able to override State behaviour, will or interest.25 Again quoting Koskieniemmi, however, Scobbie proposes that international law is indistinguishable from politics.26 The interests of powerful states, whether they are economically powerful, or politically influential, do influence the foundation of and implementation of international law. International law is further weakened, according to Scobbie, when judges who have specific national interests in mind, or at best particular cultural biases, are required to make judgements beyond the established rules – already noted as indeterminate, above – using their own discretion and through interpretation.27 The question is whether reliance on legal argument and evidential rules and action regulated by personal interpretations and specific contexts is advised. Similar debates are present in more localised legal systems but the ramifications of human errors persist in both legal systems, sometimes with disastrous effects for individuals in local contexts, and for whole populations in the international context. 24 Koskieniemmi, ‘The Structure of International Law Argument’ quoted in Scobbie, Towards the Elimination of International Law (1990) at p. 290 25 Scobbie, Toward the Elimination of International Law: Some Radical Scepticism About Sceptical Radicalism (1990) at pp. 344-346 26 Koskieniemmi, ‘The Structure of International Law Argument’ quoted in Scobbie, Towards the Elimination of International Law (1990) at p. 345 27 Scobbie, Toward the Elimination of International Law: Some Radical Scepticism About Sceptical Radicalism (1990) at p. 356 State practice, though, also can be a source of international law. Contrary to this point of view, is the argument that States’ internal legal systems should not influence international law unduly. Judge Nyholm dissented from the majority ruling in the Lotus case28 when he commented: “There must have been acts of state accomplished in the domain of international relations, whilst mere municipal laws are insufficient.” The majority of rulings since then have nonetheless recognised and acknowledged national legal systems. Akehurst gives evidence to argue that the ILC, for example, always views national laws, and similar laws from states other than the ones in focus, as “primary evidence of state practice.”29 The proviso is that state practice has to be accompanied by legal statement.30 Also, it is possible, Akehurst argues, that special or regional customs can co-exist with general customary rules, as long as the international rules are acknowledged, too. A complete, developed legal system should, however, apply equitably to all its constituents. The reality is that States can, and do, escape being subject to an international law by consistently, from the inception of that law, opposing it. They also implement their own legal systems nationally, in priority to international laws.31 For example, countries base their legal systems on ideological, or religious morality, rather than secular values. This means that in practice it is often easier to implement a legal system effectively for a homogenous population, as is frequently the case within a single State. This is clearly not as simple a process in the heterogeneous international community of States. 28 The Lotus case PCIJ Series A No. 10 (1927) at pp. 59-60 cited in Akehurst, ‘Custom as a Source of International Law’ British Yearbook of International Law (1976) at p. 9 29 Akehurst, ‘Custom as a Source of International Law’ (1976) at p. 9 30 Ibid at p. 10 31 Ibid at p. 53 States have distinctly different ethnic, cultural and values-based identities, and in many States, a dominant group within the State does tend to determine law. Another complication is the issue of globalisation, increasingly becoming the current and future trend among the world’s populations. “The formal expressions of statehood including territorial boundaries, standing armies and international sovereignty are eroding on favour of alternative definitions of, and organisational structures for, community and identity.”32 If people identify themselves more by religious grouping, or gender, or sexuality, than by nationality, do State laws, or indeed international laws, apply to them? Vast migration across the globe has also come to characterise the modern international arena. In 2000, 175 million people lived outside their place of birth: 158 million of these were urban migrants; 16 million were refugees and 900 000 were asylum seekers.33 While this may imply that international law is no longer effective when applied to States at all, it may also require an effective, universal system of law be available to apply to anyone, regardless of their state of origin. Yet it still seems that international law is often unenforceable, even by agreement, and that international law continues to emphasise State sovereignty. Indeed, short of coercive measures, such as sanctions or even invasions and occupations by stronger nations, international law cannot be consistently applied. To return, finally, to the system of law categorised by Hart34 as developed and effective: International law is not presently, nor is it ever likely to be, a fully developed legal system. Perhaps ideally, international law should be seen as sufficiently analogous to municipal law – in reality, international law is not yet as effective a legal system as municipal law. 32 Anderson, Antiquated before they can ossify: States that fail before they form (2008) at p. 4 33 Boyle, The Challenge of Worldwide Migration (2003) at p.10 34 Hart, The Concept of Law (1994) References C. Lloyd Brown-John, ‘Self-determination and Separation’ Policy Options Magazine Ontario: September 1997 (pp 40-43) H.L.A. Hart, The Concept of Law Oxford, Oxford University Press, 2nd ed.: 1994 I. Scobbie, ‘Toward the Elimination of International Law: Some Radical Scepticism About Sceptical Radicalism’ British yearbook of International Law Oxford, Oxford University Press: 1990 (pp 339-362) J. I. Charney, ‘The Persistent Objector Rule and the Development of Customary International Law’ British Yearbook of International Law Oxford, Oxford University Press: 1982 (pp 1-24) L. Anderson, ‘Antiquated before they can ossify: States that fail before they form’ Journal of International Affairs, Fall 2008, vol. 58, no. 1(copyrighted to The Trustees of Columbia University in the City if New York) M. Akehurst, ‘Custom as a Source of International Law’ British Yearbook of International Law Oxford, Oxford University Press: 1976 (pp 1-53) M. Koskieniemmi, The Structure of International Law Argument Helsinki, Finnish Lawyer’s Publishing Company: 1989 M.W. Boyle, ‘The Challenge of Worldwide Migration’ (trans. M.W. Boyle) Le Suisse et le Monde 3 The Federal Department of Foreign Affairs Switzerland: 2003 (pp10-11) ‘Reparations’ ICJ Reports, 1949 (p 179) Read More