Public International Law - Research Paper Example

International Law as an Aspect of International Relations Introduction Law exists solely in the context of society. Vice-versa, society cannot exist and thrive without the order of law. In the ancient times, when states exercised (or perceived that they exercised) “absolute, unconditional and imprescriptible” sovereignty within their boundaries, the law was what the legislature had determined it was, according to its own prescribed processes. This domestic law was enforced because there was a need not only to define individual rights and obligations, but to delineate where the practice thereof transgresses into those of others. Life in a society necessitates regulation if that society is to function and prosper. As technological advances and economic developments have brought nations together to interact in ways not before thought possible, the world has become a single society – a community, as it were – of states. In the same way that individuals interacting with each other tend to cause conflict that requires the rule of law, so too do the interaction of states necessitate the imposition of order and a set of principles by which these states may relate confidently with each other. At the onset, these rules were mainly unwritten and dictated by custom. But modern life has progressed in sophistication and complexity that written rules have become indispensable. But unlike domestic law where the rules were fixed by a superior individual or body and enforced on subjects or citizens on pain of some form of chastisement, international law was for the most part an accumulation of unstructured agreements among equals who, admittedly, have no firm recourse against each other in the event of non-compliance. The peculiarities and implications that proceed from this situation, which define the nature of international law, comprise the subject that this paper seeks to address. Brief background on international law – definition and sources International law is not easily defined. The definition found in the Oxford English Dictionary states: "[I]nternational law, the law of nations, under which nations are regarded as individual members of a common polity, bound by a common rule of agreement or custom; opposed to municipal law , the rules binding in local jurisdictions." In the Restatement of the Law (Third), the Foreign Relations of the United States , Section 101, it states that international law “consists of rules and principles of general application dealing with the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical." International law emanates from many sources. According to Article 38 of the Statute of the International Court of Justice, there are three such sources: (1) the international conventions of general or particular nature; (2) international custom, as evidence of a general practice accepted as law; and (3) the general principles of law recognized by civilized nations. Some experts would be inclined to include the “unilateral acts” as another source, although others similarly knowledgeable would oppose, viewing these acts as specific expressions of the will of States. Two other subsidiary sources would include judicial decisions (i.e., of the International Court of Justice) and the teachings of only the most highly respected publicists of the different member States. Some would include the ideas of equity and justice, cornerstones of natural law, as sources of international law. The International Court of Justice has been, after all, founded on these principles, and its judges are expressly authorized to decide a case ex aequo et bono, to found their judgments on arguments of equity (Art. 38 (2) of the Statute of the International Court of Justice. Special mention should be made of some documents. For instance, Chapter VII of the Charter of the United Nations impose legal obligations on the whole world and thus bear political significance to the relations among States. In the past, the Security Council adopted the following measures this Chapter: military and economic sanctions against Ethiopia, Eritrea, Iraq, Yugoslavia, Sierra Leone, Angola’s UNITA, and the Afghan faction of the Taliban, among others. Created also under this Article are special tribunals, such as that convened to prosecute war crimes / crimes against humanity in the territory of former Yugoslavia and in Ruanda. There are some basic principles of international law worth mentioning at this point. There are five fundamental principles enunciated in the Vienna Convention on the Law of Treaties (Vienna Convention) of 1969, which in general apply to the manner by which States relate to one another. These are the principles of free consent and good faith, pacta sunt servanda, omnia convention intelligitur rebus sic stantibus, and favor contractus. Under the principle of free consent, international agreements are binding solely upon the parties thereto, and cannot bind third States without their consent. This principle prohibits the use of threat or force against other nations except in specific circumstances. Furthermore, when a State gives its consent, it binds itself in respect of its entire territory, and not retroactively, except if the clear intention is otherwise. (Articles 28 and 29 of the Vienna Convention). Good faith (bona fide) is of fundamental importance in that if States do not behave in good faith, then there is no point to relying on all the treaties and conventions arrived at between them. The principle of good faith “requires fairness, reasonableness, integrity and honesty in international behaviour” (The International Whaling Commission (IWC), July 2001). Being a subjective element of behaviour, however, good faith is difficult to prove. Pacta sunt servanda is loosely translated to “a treaty is binding upon the parties”. This means that in case of conflict between a treaty or international agreement and the statutes of domestic law, the State is to abide by the treaty or international agreement. A party to the treaty, international agreement or convention is not authorized to invoke the provisions of its internal law to justify its failure to abide by the terms of the treaty, agreement or convention. Rebus sic stantibus is understood, in a broad sense, to mean that extraordinary circumstances may lead to the termination of a treaty. Such circumstances may consist of a material breach of a given treaty, permanent disappearance of an object indispensable to the treaty’s execution, or in the fundamental change of circumstances unforeseen by the parties, such as an outbreak of hostilities between signatory States. (Articles 60-62 of the Vienna Convention). The rebus sic stantibus clause may be considered as an implicit reservation in the consent expressed by a State to be bound by a treaty. (Sources of International Law, n.d.) Favor contractus in general states that it is better to seek the maintenance rather than the termination or expiration of a treaty, for reasons of form. Therefore, unless another treaty otherwise provides, the fact that the number of parties to a multilateral treaty falls below the number necessary for its entry into force does not terminate the effectivity of the treaty (Article 55 of the Vienna Convention). In practice, the most significant application of the favor contractus principle is contained in Articles 20-22 concerning reservations; that is, whereas a reservation has to be accepted implicitly or explicitly by at least one other State Party, it can be withdrawn at any time without the consent of the State or States which had accepted it in the first place. This is the only explicit exception to the principle of free consent. Another example of favor contractus is Article 74, which provides that the severance or absence of diplomatic relations does not prevent concerned States from concluding treaties between themselves. Jurisdictional immunity is another principle of International Law that proceeded from international comity. It concerns the question of the extent to which States, or their organs or State enterprises, can be sued in the civil courts of other States, and how far there can be execution on property of a foreign state. Originally, what prevailed was absolute immunity for all States, but it proved difficult to apply without consent from the foreign States. Presently, what is being fundamentally applied throughout the world is restrictive immunity, or immunity granted only in the case of particular types of property. (Keever, 2006) Distinctions between between international law and domestic law It is important to understand the principles of international law and treaties in order to understand the distinctions between international law and domestic law. However, it is important to first deduce the theories by which international law and domestic law may be seen in relation to each other. These are known as the theory of dualism and the monist theory. The theory of dualism argues that international law and domestic law are separate and distinct legal orders. Thus, international law is not directly adaptable (it cannot directly be given effect) in the domestic setting. International law needs to be transformed into domestic law by some legal process defined within the jurisdiction of the States. A good example is the legal system in the United Kingdom. In parliamentary systems based on the United Kingdom model, treaties only become integrated into UK’s municipal law if parliament passess an enabling act. This approach exemplifies the theory of dualism in its requirement that a treaty be transformed into domestic law through an act of parliament. The basis of this approach is in the doctrine of separation of powers. The executive is empowered to conclude international treaties. If treaties could automatically be integrated into domestic law without an act of parliament, then the executive would effectively legislate, that is, would be able to substantially change domestic law without check by the legislature. (Jennings, 2003) The theory of monism, on the other hand, takes the perspective that all law is part of the same universal order, and thus does not need to be transformed to apply in the nature of municipal law. An example of such a system is Switzerland’s law. International norms have immediate validity in that they are at once part of the domestic legal order without special procedure when they enter into force for Switzerland. This ‘automatic’ incorporation holds for both customary and treaty law. The Federal Court has determined that international law must be considered as federal law because its nature requires its full application within the country. In theory, Switzerland’s law is monist in approach. In practice, the primacy of international law is all-encompassing and applies to customary and treaty norms. The Constitution mandates the application of international law in Federal Court, and individuals can directly invoke international law provisions. However, the Court can only apply norms that are sufficiently precise and clear to form the basis for a concrete decision, but even if the international law is too imprecise to allow direct invocation in court, it is nevertheless part of Swiss law. (Cullet, 1999, pp. 2-3) Another example of a State which abides by monism is the United States of America. In contrast to the parliamentary systems of the UK type, the American constitution allows for treaties to become part of domestic law without transformation through legislation. The US Constitution provides for treaties to which the US is a party to become the law of the land. This provision was intended to assure the supremacy of treaties over the laws of the US states. As for the principle of the separation of power, the US Constitution requires the Senate to give its “Advice and Consent” to the American President making the treaty, unlike the parliamentary system where parliamentary approval is not required for the executive act of becoming party to a treaty. Therefore, the Senate must give its nod in order for a treaty becomes the law of the land. There thus exists a legislative check to the power of the executive to conclude treaties, and the separation of powers is maintained. Not all treaties will be self-executing, however, and legislation is sometimes required. For instance, a treaty cannot enact criminal law by itself. If a treaty required the signatory States to criminalise certain acts, the US Congress would have to enact an appropriate law. How then are international law and domestic law differentiated? Nye (n.d.) points out that "[i]nternational law is not like domestic law" (p. 162) even though there may exist a rough parallel to the legislative power of a state. Public international law may be deemed to be, in some aspects, similar to domestic law in that, embodied within its accumulation of treaties and agreements, are commonly observed norms which are the generally accepted practices of states and thus comprise its “customary law”. (p.163) The following are the most salient differences between international law and domestic law: 1. Domestic law is the product of legislatures and customs, sometimes called common law, while international law is arrived at through treaties, conventions, and customs. 2. Domestic law involves provisions for enforcement, adjudication for individuals (you can go to court yourself and bring suit), and orderly revision by legislation. International law may impose sanctions, but such sanctions do not have the compelling force among the member-States that domestic law has on the citizens (Nye, pp. 162-163). 3. Law within a state thus ordinarily requires a government with executive, judicial, and legislative powers, while tenets of international law emanate from many sources, such as treaties between countries and international agreements; in short, no single body empowered and acting as a legislature passes statutes that shall comprise international law. Nye notes other problems, specifying two ways in which international law differs from domestic law: 1. They differ dramatically in enforcement and adjudication. In domestic law, there is the executive branch and its various agencies that enforces the law, and erring citizens may be fined or imprisoned, which is a very potent motivation for an individual to be made to observe the law. In international law, there is no executive that could make a state accept a court decision. International politics is a “self-help system” (Nye, p. 163). 2. Normally in international law, enforcement was sometimes provided by the more powerful member-States. Adjudication in international law is by states, not by individuals International entities with legal personality to sue and be sued in the International Court are States, international organizations or agencies, and, on very rare occasions and when the situation warrants it, individuals who have committed a crime in international law for which the possibility of an individual as party thereto is provided for. Instead of any of the worlds billions of citizens bringing cases to the international court, only the states can bring cases, and they are unlikely to bring cases unless they think they have a reasonable chance of winning. (Nye, p. 163) Even if a state lost, it could simply ignore the international court, and probably would unless a stronger state intervened with force. What are the consequences of these dissimilarities and weaknesses? Nye tells us: “International law basically reflects the fragmented nature of international politics. The weak sense of community means there is less willingness to obey or restrain oneself out of a sense of obligation or acceptance of authority. The absence of a common executive with a monopoly on the legitimate use of force means that sovereign states are in the realm of self-help and in the realm of force and survival. And when matters of survival come up, law usually takes second place.” (Nye p. 164) Harmonizing international law and domestic law While there are fundamental differences between international law and domestic law, that does not mean that these two legal systems, necessary as they are in the regulation of modern life could not be harmonized. In the evolution of the European Union legal system, for instance, the primary objective of the European Court of Justice and the European Commission has been not so much to create and impose EU law as international law, but more so to encourage national courts and regulatory agencies to adapt and enforce the precepts of EU law as national law. In his new book, Why Europe Will Run the 21st Century, author Mark Leonard writes, “Europe’s weapon is the law.” In it he describes Europe’s power in the world as “a transformative power,” founded on a democratization strategy that requires member States to “swallow all 80,000 pages of European laws and adapt their own legislation to accommodate them”; in the same time, they then accept continual monitoring by EU officials to verify whether they are in fact abiding by their new commitments. The result has been a “rebuilding [of] these countries from the bottom up.” Indeed, “[t]he European model is the political equivalent of the strategy of the Jesuits: if you change the country at the beginning, you have it for life.” (Slaughter & Burke-White, 2006, p. 332) In another study, this time on the Argentinian legal system, author ChavezTafur, in his article Using International Law to By-pass Domestic Legal Hurdles examined the legal ploy used in the Menéndez case which made use of international law to circumscribe a domestic barrier. The abstract gives a brief but captivating account of the case, that reads like a Hollywood storyline: “Thirty-one years after committing their crimes, General Menéndez and seven other represores were sentenced by an Argentinean Federal Tribunal to prison terms ranging from 18 years to life in prison for the kidnapping, torture and murder of four members of a political opposition group. The crimes were committed as part of a widespread and systematic attack against those opposed to the military regime that ruled Argentina from 1976 to 1983. According to national legislation, however, they should have been shielded from prosecution by the statute of limitations found in Article 62 of the Penal Code. To circumvent this procedural hurdle in domestic law, the Tribunal relied upon international criminal law, describing the offences as crimes against humanity, maintaining that the statute of limitations did not apply to such crimes, and then proceeded to sentence the accused exclusively for domestic crimes.” Thus by the ingenious implementation of international law, the Tribunal nimbly sidestepped a domestic obstacle which, rightly or wrongly, worked to the local law enforcers’ advantage. Another jurisdiction wherein international law and domestic law have been combined in a distinct but complementary manner is in Canada. This State follows a dualist approach with respect to the domestic application of international treaties and agreements. In a way this mirrors the approach in other Commonwealth countries such as the United Kingdom, Australia and New Zealand. In Canada, international treaties and agreements are not self-executing. An international treaty alone cannot give rise to an action in the domestic courts, and neither can Canadian courts grant judgments mandating specific performance of a treaty. Domestic legislation is required in order for treaty obligations to be given the force of law domestically. On the other hand, with respect to customary international law, Canada’s approach is monist in the sense that customary international law automatically forms part of domestic law. In the event of inconsistencies between the international law and domestic law, however, domestic legislation would prevail. This is in contrast to the system in UK wherein the international law is given effect – its spirit is adapted into domestic law (i.e. the municipal statute is given an interpretation that accommodates the intent of international law) - in the case when the two would conflict. Not all states are able to effortlessly “marry” their obligations to abide by international law with the letter and precepts of domestic law. A number of them support very narrow constructions of international law. These include the Peoples Republic of China, the military junta which has held power in Burma, and the Russian Federation. These states view their jurisdictions as having free rein over their own affairs. They maintain that sovereignty—and thus what some view as the basis of sovereignty (i.e., force and coercion, by military or other means)—is the only true international law. International law, if it is regarded at all, is acknowledged where it serves the state’s interests. More and more, however, these states are gradually redefining their philosophy, since enhanced relations with other countries tend to provide greater economic advantages in the international market. Conclusion: Why international law is better described as an aspect of international relations Some legal experts have expressed doubts whether international law is true law. John Austin (1885) defined law as “a body of rules for human conduct set and enforced by a sovereign political authority.” If so, international law does not qualify as true law, since there is no sovereign which promulgates it, and neither is there a sovereign that enforces it. In case of violation, the tribunals set up by the society of nations are hardly adequate to adjudicate it. Both Hobbes (1949) in De Cive or the Citizen, and Puffenderof (1934) in De Jure Naturae et Gentium, libri octo, both deny the legal force of the law of nations. On the other hand, Brown (1917), in his treatise International Realities 21, refers to the functions of international law as “the compulsive force of reciprocal advantages and fears of retaliation”. International law is true law if the coercive acts of States are permitted only as a reaction against delict, and accordingly, the employment of force for any other end is forbidden. (Coquia & Santiago, 1998). Whether international law is law in the strictly legal sense ascribed to it by Austin depends upon the nature of its coercive power. International law is definitely NOT law in its usual denotation, in the sense that domestic law is law. It is merely a body of rules established in custom, or by a treaty by which the intercourse between civilized nations is governed. Obedience to it is voluntary and cannot be enforced by a common sovereign power. (Hackworth, 1903). On the basis of their sovereignty and, thus, independence, the equality of all States forms the foundation of international relations, and these relations are manifested and formalized in that body of principles we have termed “international law.” END REFERENCES Austin, J. (1885) Lectures on Jurisprudence 6, 5th ed., as cited in Coquia & Santiago (1998), International Law 5th ed., Central Professional Books ChavezTafur, G (2008) “Using International Law to By-pass Domestic Legal Hurdles”, Journal of International Criminal Justice, the Oxford Journals, Oxford University Press. Accessed on April 10, 2009 from http://jicj.oxfordjournals.org/cgi/content/abstract/6/5/1061 Coquia, JR & Santiago, MD (1998), International Law, 3rd ed., Central Professional Books, Inc. Cullet, P. (1999) “International Environmental Law in Domestic Courts: Switzerland” IELRC Working Paper, International Environmental Law Research Centre. Accessed on April 10, 2009 from http://www.ielrc.org/content/w9901.pdf Eid, E. (2001) “Interaction between International and Domestic Human Rights Law: A Canadian Perspective”, Sino Canadian International Conference on the Ratification and Implementation of Human Rights Covenant, The International Centre for Criminal Law Reform and Criminal Justice Policy Feliu, V (2008) Introduction to Public International Law Research. Accessed on April 10, 2009 from http://www.nyulawglobal.org/Globalex/Public_International_Law_Research.htm Jennings, M. (2003), Practical Treaty Making; The Relationship Between Treaties and Domestic Law. Australian Government, Department of Foreign Affairs and Trade. Accessed on April 10, 2009 from http://www.dfat.gov.au/treaties/workshops/treaties_global/jennings.html Lynch, P. (2006) Harmonising International Human Rights Law and Domestic Law and Policy. Accessed on April 10, 2009 from http://www.austlii.edu.au/au/journals/MelbJIL/2006/10.html McKeever, K. (2006) Public International Law, Arthur W. Diamond Law Library, Accessed on April 10, 2009 from http://www.law.columbia.edu/library/Research_Guides/internat_law/pubintResearching Public International Law Nye, JS (2008) Understanding International Conflicts: An Introduction to Theory and History, 7th ed. Longman Publishing Group. Slaughter, AM & Burke-White, W. (2006) “The Future of International Law is Domestic (or, The European Way of Law)”, Harvard International Law Journal, vol. 47, no. 2 Sources of International Law, (n.d.) Accessed on April 10, 2009 from http://www.walter.gehr.net/ The Association of the Bar of the City of New York and The Center for Human Rights and Global Justice, New York University School of Law, New York, NY The Committee on International Human Rights (2004) Torture by Proxy: International and Domestic Law Applicable to ‘Extraordinary Renditions, Read More