The Concept of Natural Law - Assignment Example

Question In ancient times there was little scope for international law, but the rise of nations in the middle ages made it necessary to have international law. This necessity arose out of the need to have rules on maritime navigation and rules respecting diplomatic officials. States began to find international lawlessness unbearable and soon adopted some form of international law. With the lack of a body to regulate international relations, most states looked at canon law and the Catholic Church for guidelines on international law. The desire for international law was catalyzed by international trade, which required merchants from one state to be protected against the activities of other merchants of another state. With the increase in international trade, warfare and exploration the need for international law became essential. Treatises between nations became useful as they were intended to be binding between the nations. The proliferation of treatises, practices, rules and customs became complex and scholars started to compile them into systematic treatises. Hugo Grotius provided the first comprehensive conception of international law in his treatise “De Jure Belli Ac Pacis Libri Tres” (Schmitt 2008). Grotius’s conception of international was grounded on natural law, human reason and custom. His argument in respect to natural law is that relations between nations should be governed by an international body based on divine justice and morality. The law between nations should be governed by the law of the people, established through the consent of the nations and founded on commitment and observance. In his view, things were either good or bad by their nature. According to Grotius, law is not derived from above but from principles which include maxims that promises must be honored and restitution is required for harm to others. These two values have served as the foundation for international law. Additionally, Grotius took a positivist view of international law. In his perspective, emphasis should be given to what is done as opposed to what ought to be done. It is noteworthy that although Grotius based his perspective of international law on natural law, he also posits that nations can create binding rules between themselves. Grotius was instrumental in the formation of the concept of international society. In this respect an international society is a community held together by believes that nations have rules that apply to all of them. Written agreements and customs form the basis of the law that governs this community (Grotius 2012). Another notable figure who made significant contribution in the development of international law was Thomas Hobbes. Like Hugo Grotius, Thomas Hobbes endorsed the natural law theory. Natural law concerns how an individual who seeks to survive and prosper would act. In this respect, natural law is derived from man’s natural rights. Hobbes argues that in a state of nature, all humans are equal by nature and everyone is willing to fight one another. Without a power to keep them in check, they are in a state where everyone has the natural right to do anything in order to preserve life. In this state, personal property and justice do not exist due to lack of law. According to Hobbes, order could only exist if individuals submit to the sovereign. Hobbes provides that the establishment of a sovereign requires people to agree to obey a common authority. Legal positivism arises because the source of law originates from the sovereign and the decisions of the sovereign need to be founded on morality. Accordingly, once a government is formed, the state of nature ceases to exist between individuals because the government enforces contracts and laws of nature. Conversely, there is no power between nations and as such nations have the right to preserve themselves the same way individuals can preserve themselves in a state of nature. However, there are certain notions that are discovered by reason and this is what develops a government that is formed by mutual contracts. This state of nature exists between independent nations but the same notions of laws of nature exist and form the basis for international law which necessitates associations between nations in order to enforce contracts and natural laws (Parry 2014). The Hobbesian state of nature is comparable to a state of anarchy where there is the absence of an international body to enforce law or resolve disputes. In such a state, nations achieve corporation under the system of anarchy where there is no intervention from an international third party. Because nations are sovereign they are self-determining and can do anything they wish. In such a state of anarchy, order may not be possible due to the lack of corporation between nations. However, survival is the main objective of any nation and nations attempt to limit external threats to its existence by adopting customs and treaties to guide relations between nations (Bull 1981). The concept of natural law, as conceived by Hobbes and Grotius, support the formation of a sovereign to enforce laws and contracts between its subjects. In order to have international law it is important to have sovereign nations who have a right to preserve themselves the same way individuals have the right in natural law. State sovereignty, as conceived by Hobbes and Grotius, is a basic element that is required for international law to operate. The right to war as provided for by Grotius limits instances where a nation can resort to war. This idea is relevant to international law because it limits the instances where it is justifiable for a nation to resort to war. In his view states were not unrestricted in the manner they could conduct war. This proposition is relevant to international law because it guides conduct of nations during war and forms the basis for the application of international law during war. Grotius also postulated that individuals are considered actors in the international society and have certain fundamental rights. His ideas of these fundamental rights informed the current laws on international human rights legislation as well as protection of individuals during war. Grotius also postulated for the intervention for acts which violate natural law and these ideas are relevant in justifying humanitarian intervention under international law. Grotius considered that no state has exclusive ownership of any part of the sea and therefore there exists freedom of the seas. These ideas of the freedom of the sea had a significant impact in the formulation of the UN convention on the law of the Sea. The Catholic Church also plays an important role in international law through the Holy See. The Holy See is a supreme organ of the Catholic Church which represents the Catholic Church in issues of international law. The Holy See exercises sovereign authority with nations, international bodies and other organizations. The Holy See represents an international body than can engage other international organizations and nations with respect to international law. The sovereign nature of the Holy See helps in the development of the mechanisms of international law. Its most significant role is the development of universal organs and regional organizations. The Holy See also plays a role in diplomatic relations and negotiation o treaties where the opinion of every sovereign is required. The Holy See represents the interests of the Catholic Church in making of laws that govern international conduct. Then Church plays a critical role because it represents the interests of everyone and not national interests. The rule of law under this perspective is based on the law human origin which is the foundation of natural law. Additionally, the Holy See develops rules that represent moral considerations. The participation of the Holy See is critical to avoid laws that only represent the will of the policy makers without taking into consideration the moral implications of such laws. The Holy See is a permanent observer at the United Nations. The Catholic Church has acted as a promoter of international corporation under the rule of law. The Catholic Church serves as a witness in respect to the proper intents and purpose of international law. The church ensures that there is a proper understanding of the limits of achieving justice, peace and prosperity in international law. The treaty of Westphalia gave Europe some form of international law which recognized state as sovereign. The treaty of Westphalia was grounded on the principles of state independence, sovereignty of a state and legal equality. The sovereignty in the treaty of Westphalia follows that each nation is sovereign and other external bodies are exclude through the concept of non-interference of the affairs of another. This concept recognizes each state as equal in international law and territorial integrity should be respected by all nations. The treaty of Westphalia is important in international law because it provided for sovereignty and territorial integrity which are important aspects in international law. The treaty is also important as it was instrumental in ending war between states in Europe and established some principles of international law that are relevant in the development of the current international system. The treaty is important to international law because it was the first treaty that legitimated the concept of state sovereignty which tis the basic element for the existence of international law. The treaty provided that states were free to govern their citizens without external interference. Sovereignty which was the basic element of the treaty, gave rise to the recognition of state sovereignty in the current international legislations. Question 2 Diplomatic immunity is legal immunity that is granted to diplomats to ensure that they are accorded safe passage and immunity from prosecutions and suits in the host country. The concept of diplomatic immunity is ancient and was used to exchange information between different parties. The concept of state sovereignty acknowledges that states are autonomous and no state can exercise jurisdiction over another. In Schooner Exchange v McFaddon, the Supreme Court noted that a foreign diplomat is free from the jurisdiction of local courts. Additionally a state can waive its jurisdiction over a foreign army if it grants permission for the army to enter its territory. The court further noted that the custom was well established that it would be wrong for a country to violate this custom without notice. The court’s decision in this case is regarded as the first definitive explication of the concept of foreign immunity. Diplomatic immunity is codified in the Vienna convention and is granted to individuals according to the amount of immunity required to undertake their tasks. The main objective for the adoption of the Vienna convention was that the concept of diplomatic immunity would foster friendly relations between nations. The convention provides that the host state must protect the property of foreign diplomats against intrusion or damage and prevent disturbance and impairment of dignity of diplomats. The immunity provided for by the Vienna convention covers immunity from search, seizure, attachment or execution. The convention further provides that diplomats have the freedom of movement and diplomatic bags cannot be opened. Diplomats cannot be arrested and neither can they be compelled to give evidence. The Vienna convention provides immunity to individuals according to their rank in the diplomatic mission and the need for immunity in the performance of diplomatic functions. Diplomatic agents and their immediate families, for example, enjoy immunity from most civil suits and complete immunity from all criminal cases. Technical and administrative staff has a lower immunity level while consular offices have a much lower immunity level. Consular employees, for example are immune only in respect to acts performed as part of official duties. While diplomatic premises fall under the jurisdiction of the host country, these premises are inviolable and cannot be entered without consent. Offenses committed in diplomatic premises are subject to the laws of the host nation but subject to principles of diplomatic immunity. (Armstrong, Farrell & Lambert 2012). Diplomatic immunity is essential because different countries have different judicial systems and these systems can be less favorable for individuals from another country. Immunity is also important as it protects diplomats from harassment by law enforcement from unfriendly governments. Although diplomatic immunity exempts foreign diplomats from the jurisdiction of the host nation, diplomats can still be held accountable for their crimes if the foreign country waives immunity or the individuals are charge d in their country. The concept of diplomatic immunity is often controversial because diplomats are not subject to liability even where they contravene laws. This controversy arises because diplomats with diplomatic immunity sometimes contravene laws intentionally. The abuse of the privilege of diplomatic immunity is a common practice among diplomats and some of the offenses these individuals commit include, espionage, drug trafficking, abuse of employees, tax evasion, driving under the influence, parking violations and financial abuse. Article 27 of the Vienna convention provides that diplomatic bags should not be opened. This implies that if individuals with diplomatic immunity decide to smuggle drugs into the host country they can do so without any legal repercussions because the bags cannot be opened. The loopholes in the concept of diplomatic immunity allow diplomats to abuse the privilege associated with diplomatic immunity (Bergmar 2014). Diplomatic immunity does not only apply to diplomats but also extends to former heads of state as seen in Regina v. Bartle and Commissioner of Police, Ex parte Pinochet (1999). The issue in this case was whether immunity extends to former heads of state and whether torture is a crime under international law. The court in its decision noted that court noted that Article 39 (2) of the Vienna convention provides that immunity shall cease when the functions of that individual have come to an end. However, the article further provides that acts performed by such an individual as a member of a mission shall continue to enjoy immunity. The court held that torture is a crime under international law. The torture convention created an exception to the common law rule which provides immunity for former heads of state from criminal proceedings. The court noted that Pinochet was not acting in a capacity that required immunity when the acts were committed and therefore he was not immune to the alleged criminal proceedings. Question 3 States relate to each other and conduct business with each other on the basis of an understanding of the legal status of these states. This understanding relates to the recognition of the status quo of each state. State recognition in international law includes two aspects; political acts and legal acts. There are two theories that are relevant in state recognition. The first theory provides that states do not exist legally until they are recognized by the international community. This theory follows that the creation of a new state is reliant on the acceptance by other states and the state will only have rights after it is recognized. The other theory provides that states obtain international recognition when they come into existence. This theory follows that the formation of a state is independent of the consent of other states. Recognition of a state can either be political recognition or legal recognition. The political act of state recognition implies that the recognizing state is willing to engage with the recognized state. Political recognition of a state is a decision of the recognizing state because international law does require such relations. These relations between these states can be brought about by bilateral treaties between the states or a unilateral declaration by the recognizing state (Goldsmith 2000). Because political recognition of a state is reliant on a state’s effective control over its territory, failure to maintain effective control may extinguish recognition. Legal recognition, on the other hand, does not rely on effective control over a territory and entity with rights does not cease to exist. Legal recognition requires that a state should have an independent and effective government which exercises state powers independently without external authority. The state should also demonstrate that it possesses sovereign title over its territory and the territory is clearly defined. Legal recognition also requires that a state is able to engage in foreign relations in an independent and unrestricted manner. The population of a state should also be under effective control of the state in order to be recognized under international law. Political acts do not necessarily form the basis of statehood and may not give rise to obligations but legal acts will give rise to obligations under international law. The distinction is also important because state recognition will require both elements but the legitimizing forces will be dominant in recognition (Goldsmith 2000). A separate legality is important in international law because it enables states to participate in the international community. A separate legality ensures that each state is independent and can engage with other states in foreign relations. Without the separate legality, a state cannot engage with other states because it does not have the authority to do so. Separate legality provides the state with the authority to effectively engage in relations with other states. The absence of a separate legality makes it impossible to recognize a state under international law because recognition requires elements that can only be achieved if there is separate legality. Separate legality enables a state to engage in international relations as a representative of the people in its territory. A separate legality demonstrates states independence and effective control over its territory, which are essential in state recognition (Lauterpacht 2012). Cases Regina v. Bartle and Commissioner of Police, Ex parte Pinochet 2 W.L.R. 827, 38 LLM. 581 (1999) Schooner Exchange v M’Faddon 3 L. Ed. 287 Reference list Armstrong, D., Farrell, T., & Lambert, H. (2012). International law and international relations. Cambridge University Press. Bergmar, N. M. (2014). Demanding Accountability Where Accountability Is Due: A Functional Necessity Approach to Diplomatic Immunity Under the Vienna Convention. Vand. J. Transnatl L., 47, 501. Bull, H. (1981). Hobbes and the international anarchy. Social Research, 717-738. Grotius, H. (2012). Hugo Grotius On the Law of War and Peace: Student Edition. Cambridge University Press. Lauterpacht, H. (2012). Recognition in international law (Vol. 3). Cambridge University Press. Parry, J. T. (2014). What is the Grotian Tradition in International Law? University of Pennsylvania Journal of International Law, 35, 2013-23. Ringmar, E. (2014). Recognition and the origins of international society. Global Discourse, 4(4), 446-458. Schmitt, C. (2008). The Leviathan in the state theory of Thomas Hobbes: meaning and failure of a political symbol. University of Chicago Press. Goldsmith, J. (2000). Sovereignty, International Relations Theory, and International Law. Stanford Law Review, 959-986. Read More