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By Mufid Abdulla:
Part 2 of a 3-part historical study
International law developed to deal with newly-arising states
The French monk Émeric Crucé (1590-1648) elaborated the idea of having representatives of all countries meet in one place to discuss their conflicts, so as to avoid war and preserve peace. He suggested this in his Nouveau Cynée (1623) and chose Venice as the city for all representatives to meet. He suggested that the Pope should preside over the meeting. Of course, during the Thirty Years War (1618-1648), this was not acceptable to the Protestant nations. He also said that armies should be abolished and called for a world court. Though his call to abolish armies was not taken seriously, Émeric Crucé deserves his place in history, through his foresight that international organisations are crucial to solve international disputes. The statesmen of the time believed no nation could escape war, and so they prepared for it. King Henry IV’s chief Minister, the Duke of Sully, proposed the founding of an alliance of the European nations that was to meet to arbitrate issues and wage war, not between themselves but collectively against the Ottoman Turks. He called it the Grand Design, but it was never established.
Modern international law is often affirmed as the product of modern European civilization. The seafaring principalities of India established legal rules for ocean navigation and regional commerce. The Greek system of independent city-states bore a close resemblance to the contemporary nation state system. The Aetolian and Achaean leagues of the 3rd century BC represented early organisational efforts at international cooperation, and facilitated the development of arbitration as a dispute-settlement technique.
International law
International law is different from private international law. In its most general sense it consists of rules and principles of general application, dealing with the conduct of states and of international organizations, and with their relations. International law concerns the structure and conduct of states, international organizations, and, to a certain degree, multinational corporations and individuals. Public international law: regulates the relationship between states and international entities; regulates competing demand; and establishes the framework for predictable and agreed behaviour among parties. Private international law selects between conflicting municipal systems of law to regulate the relationship between persons, as defined both legally and naturally. The necessity for international law arose in the context of increased international communication, trade, and conflict.
The scope of international law
International law establishes the framework and the criteria for identifying states as the principal actors in the international legal system. The existence of a state presupposes control and jurisdiction over territory. International law deals with the acquisition of territory, state immunity and the legal responsibility of states in their conduct with each other. The law is similarly concerned with the treatment of individuals within state boundaries. There is thus a comprehensive regime dealing with: group rights; the treatment of aliens; the rights of refugees; international crimes; nationality problems and human rights.
Furthermore, it generally includes: the important functions of the maintenance of international peace and security; arms control; the pacific settlement of disputes; and the regulation of the use of force in international relations. Even when the law is not able to stop the outbreak of war it has developed principles to govern the conduct of hostilities and treatment of prisoners. International law is also used to govern issues relating to the global environment and global economy such as international waters, outer space, global communications and world trade. Whilst municipal law is hierarchical or vertical, with the legislature enacting binding legislation, international law is horizontal, with all states being sovereign and theoretically equal. Because of this, the value and authority of international law is dependent upon the voluntary participation of states in its formulation, observance, and enforcement. Although there may be exceptions, most states enter into legal commitments with other states out of enlightened self-interest rather than adherence to a body of law that is higher than their own. As D. W. Greig notes, international law cannot exist in isolation from the political factors operating in the sphere of international relations. Traditionally, states were the sole subjects of international law.
The State and conflicts over international law
The 17th,18th and 19th centuries saw the growth of the concept of a ‘nation state’, which comprised a nation controlled by a centralized system of government. The concept of nationalism became increasingly important as people began to see themselves as citizens of a particular nation, with a distinct national identity. Until the beginning of the 20th century, relations between nation states were dictated by Treaty – unenforceable agreements to behave in a certain way towards another state. Many people now view the nation-state as the primary unit of international affairs. States may choose to voluntarily enter into commitment under international law, but they will often follow their own counsel when it comes to an interpretation of their commitments. As the 20th century progressed, a number of violent, armed conflicts, including WW1 and WWII, exposed the weaknesses of a voluntary system of international treaties.
Many people feel that these modern developments endanger nation states by taking power away from state governments and ceding it to international bodies such as the UN and the World Bank. Some scholars and political leaders have recently argued that international law has evolved to a point where it exists separately from the mere consent of states. There is a growing trend toward judging a state’s domestic actions in the light of international law and standards. A number of states, notably within the United Nations, vehemently oppose this interpretation, maintaining that sovereignty is the only true international law and that states have free reign over their own affairs. Similarly, a number of scholars now discern a legislative and judicial process to international law that parallels such processes within domestic law. Opponents of this point of view maintain that states: only commit to international law with express consent; have the right to make their own interpretations of its meaning; and that international courts only function with the consent of states because international law is a relatively new area of law, its development is uncertain and its relevance and propriety hotly disputed.
There are three primary sources of international law:
- International treaties law
- Custom law
- General principles of law
International treaty law is comprised of obligations that states expressly and voluntarily accept between themselves in treaties. Customary international law is derived from the consistent practice of states accompanied by opinio juris – that is, the conviction of states that consistent practice is required by a legal obligation. Judgments of international tribunals as well as scholarly works have traditionally been looked to as persuasive sources for custom in addition to direct evidence of state behavior. Attempts to codify customary international law picked up momentum after the Second World War with the formation of the International Law Commission (ILC). Codified customary law is made the binding interpretation of the underlying custom by agreement through treaty. General principles of law are those commonly recognised by the major legal systems of the world. Certain norms of international law achieve the binding force of peremptory norms as to include all states with no permissible derogations. Legal principles common to major legal systems may also be invoked to supplement international law when necessary.
Interpretation of international law
Where there are disputes about the exact meaning and application of national laws, it is the responsibility of the courts to decide what the law means. In international law as a whole, there are no courts which have the authority to do this. It is generally the responsibility of states to interpret the law for themselves. Unsurprisingly this means that there is rarely agreement in cases of dispute.
Enforcement by States
The force of international law has always come from the pressure that states put upon one another to behave consistently and to honour their obligations. As with any system of law, many violations of international law obligations are overlooked. If addressed, it is almost always through diplomacy, and regard for the consequences to an offending state’s reputation. Though violation may be common, in fact, states try to avoid the appearance of having disregarded international obligations. States may also unilaterally adopt sanctions against one another, such as the severance of economic or diplomatic ties, or through reciprocal action. In some cases, domestic courts may render judgement against a foreign state for an injury, though this is a complicated area of law where international law intersects with domestic law. States have the right to employ force in self-defence against an offending state that has used force to attack its territory or political independence.
Enforcement by international bodies
States can also upon mutual consent, submit disputes for arbitration by the international court of justice, located in the Hague, Netherlands .The judgements given by the court in these cases are binding although it possesses no means to enforce its rulings. The court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the charter of the United Nations to make such a request.
History
Through the ages a code developed for relations and conduct between nations. Even when nations were at war, envoys were often considered immune to violence. The first formal attempts in this direction, which over time have developed into current international law, stem from the era of the Renaissance in Europe. In the Middle Ages, it had been considered the obligation of the church to mediate in international disputes. During the Council of Constance(1414) Pawel Wlodkowic – Rector of Jagiellonian University (Krakow, Poland), theologian, lawyer and diplomat – presented the theory that all, including Pagan nations have right to self-govern, to live in peace and possess their land. At the beginning of the 17th Century, several generalisations could be made about the political situation:
1. Self-governing, autonomous states existed.
2. Almost all of them were governed by monarchs.
3. Land, wealth, and trading rights were often the focus of wars between states.
