International Law
International Law
A common law of mankind?
The article under this heading deals with the nature, scope, and study of international law. Major areas of the field are discussed in Adjudication, article on International Adjudication; Conflict OF Laws; International Legislation. Various international legal problems are analyzed in Diplomacy; Disarmament; Human Rights; International Conflict Resolution; International Crimes; Sanctions, International; Space, Outer, article on Political AND Legal Aspects. Especially relevant to the development of the field are the biographies of Grotius; Kelsen; Moore, John Bassett; SuÁrez; Vattel. Related material can be found under International Organization; International Relations; Public Law; and in the detailed guide under Law.
Two fields of jurisprudence claim the title “international law.” Private international law, also known as conflict of laws, consists of the principles by which national courts decide which of two or more national systems of law should apply to a transaction marked by international elements of place, participation, or subject matter. Apart from treaty, these principles rest solely upon national authority, and the title “international” for this field is therefore in dispute, though the transnational features of the claims involved provide some justification for it. What is more commonly and undisputedly understood by international law is public international law, and it is with this alone that the present article is concerned.
Scope and development
The traditional definition of public international law presents it, in the much quoted words of Brierly ([1928] 1963, p. 1), as “the body of rules and principles of action which are binding upon civilized states in their relations with one another.” There are, unhappily, ambiguities in this hallowed description that rob it of the accuracy expected of definition. It begs essential questions. In what sense, for example, is what we call international law binding upon states? What is the meaning and relevance of “civilized”?
We move nearer to the facts when we describe international law as the complex of rules, principles, standards, and procedures more or less observed by governments in their business with one another. Governments habitually assert that they are scrupulously observing internationally approved norms of official conduct in such business. They even acknowledge a legal obligation so to act. But they also reserve the right to determine for themselves what the rules are. Their submission to impartial adjudication is either by special agreement or, if made in advance, subject to such exceptions as “political disputes” and “domestic jurisdiction.” General also is the tacit reservation of self-preservation as defined by the interested state party, whereas in national systems this plea is subject to judicial scrutiny and limited by the rights of others. We have not yet reached in the international sphere that basic rule of modern legal systems which requires universal submission to impartial determination of what the law is in any given situation.
Such reservations narrow the scope and limit the efficacy of international law. When all these qualifications have been made, however, it remains true that the norms grouped under that title do play a part in shaping the policies and determining the conduct of governments and do serve importantly in the resolution of international conflict. They are invoked in the assertion of title to territory and in support of the authority of states therein, while on the other hand they define responsibilities for injuries to alien persons and enterprises within the national jurisdiction. These norms stipulate the freedom of the high seas and set limits to the maritime jurisdiction of states. They define rights and duties in the air and are being extended to outer space. They regulate diplomatic and consular interchange and the conclusion and effect of treaties. Historically, they have limited the scope and moderated the savagery of war, though the conditions of a nuclear age call for drastic revision of what used to be the most highly elaborated portion of international law.
In our time, more than ever, it is useful for even the most powerful state to make out a broadly respected legal case for any important international action it may wish to take. The “parliamentary diplomacy” that has become so familiar in the multifarious activities of the United Nations and in incessant ad hoc conferences requires constant justification of national policies, and the support of a strong majority reduces the material and other costs of performance. The appeal to law is accordingly a commonplace of international political debate. As for international arbitral and judicial proceedings, these depend for their present limited success, as well as for their promise of increasing efficacy as a substitute for war, upon exhaustive argumentation and reasoned decision couched in international legal terms. The resulting “case law” clarifies and enriches the fund of principles available for the rational disposal of disputes among nations.
References to law binding upon governments abound in the ancient, medieval, and modern literature of East and West alike. Until a relatively recent time these references were essentially exhortations, more or less elaborate and more or less direct, to personal sovereigns, urging them to obey laws imposed by God or nature or the consensus of mankind upon all human beings regardless of rank and position. Their special object was to persuade the sovereign that, vast as his authority might be, he was still subject to jus divinum, jus naturae, and jus gentium (a mixture never clearly analyzed) both in his treatment of those under his own rule and in his dealings with other sovereigns and their peoples. Sovereignty, though the highest human authority, was represented as a divine trust, to be administered under a supreme law.
In the Western world these invocations of divine and natural law and law of nations took on increasing precision and system with the Renaissance. The emergence of independent and powerful nation-states, with their violent rivalries in Europe and their arrogant claims to newly discovered lands and seas, sharpened the need for legal demarcation of rights and duties. More or less coherent essays and treatises, with dominant emphasis on the just occasions and lawful conduct of war, were written by such jurists and theologians as Pierino Belli (1563), Balthazar Ayala (1582), Francisco de Vitoria (1557), Francisco Suárez (1612-1621), and Hugo Grotius (1625). Gradually, in spite of Samuel von Pufendorf’s dogma (1688, book 2, chapter 3, § 23) that natural law is alone binding on the state, the authority of customary practice embodying general consensus became dominant in the mixture. In England, Richard Zouche (1650) made this his chief source. In Neuchâtel, Emer de Vattel did his confused best to keep a foot upon the natural-law foundation; but it was his treatment of such practical matters as maritime rights and duties, the privileges of rulers and their diplomatic agents, contraband, and the general relations of belligerents and neutrals (1758) that won for his work the unrivaled respect that it enjoyed for most of a century. His German contemporary Jo-hann Jakob Moser established (1777-1780) the pure strain of positivism that set the tone for the literature of the subject in the nineteenth century.
Positivism, the doctrine that law is necessarily man-made and that the consent of states, expressed in the form of customary practice or treaty, is the sole basis of international law, has since that time continued to be the prevalent theory underlying the actual conduct of states. It has been reinforced of late by the energetic adherence of the Soviet Union and by the explosive emergence of new states insisting upon independence and the right to question norms established before they became recognized members of the “family of nations.”
Both in the classrooms and in learned treatises, positivism has recently come under heavy attack. Natural law, which has never ceased to have its champions, is recruiting new believers, while the sociological analysis of law-making processes in all their complexity de-emphasizes the role of consent in the international order, as it has de-emphasized the role of command in the national sphere (Hart 1961, chapters 5 and 10). The jurist who approaches his subject from a general study of social processes is likely to regard law as a crystallization of a culture, a communal way of life, deriving its authority from all the factors that hold a community together.
Main schools of thought
The range of contemporary thought upon international law may be indicated by a brief notice of two contrasting doctrines and some intervening positions.
We begin with the doctrine that asserts the primacy of international law. National law is a subordinate, delegated order, the validity of its content being determined by the international order. State sovereignty is merely the competence assigned by international law to the state. Like the law of the state, the law of the international community is a coercive order, and its rules do not depend for their validity upon the consent of the state to which they are being applied. They are derived from a basic norm, which has been variously stated as pacta sunt servanda, agreements are to be kept (Anzilotti 1923, chapter 2), “States ought to behave as they have customarily behaved” (Kelsen 1945, p. 369), and “The will of the international community must be obeyed” (Lauterpacht 1933, p. 421). Since the legal orders of the states belonging to the international community are derivatives of the international order, their authority has its ultimate source in this basic norm.
The works produced under the banner of international primacy have had the merit of bringing into sharp relief the contradictions inherent in traditional theories of international law, and the best of them present an admirably coherent image of a supranational order at a stage of development at which it could do for a world community what national legal orders do for the best-governed states of our time. Yet, though the doctrine does little more than draw out the logical implications of daily official utterances on the legal aspects of international relations, the image projected is remote from present realities and prospects. One index of this remoteness is the summary rejection of the doctrine by Soviet jurists, for whom state sovereignty is the greatest of the commandments and who insist that national and international law are necessarily separate orders, each with specific character, the former being an order of subordination, the latter an order of coordination among equal subjects (V. I. Lisovskii 1961, pp. 7-8).
At the other end of the scale we find a school that conceives of law as a process that determines how the collective power of a community is in fact applied. Its so-called rules are neither commands nor derivatives of any a priori universal principle or postulate and do not dictate specific decisions. They are principles developed in the life of a community, reflecting its prevalent demands, identifications, and expectations. Their function is to direct the attention of decision makers to factors that should be taken into account (McDougal & Feliciano 1961, pp. 62-63, 96, and passim). The duty of the administrator, legislator, or judge in the national or international order is, then, to examine claims in all their relevant aspects and to make the decision that will go furthest to promote the values of the community which he serves.
This doctrine is criticized on the ground that it unduly reduces the compulsory character of law and endows it with a degree of flexibility that is incompatible with its stabilizing function. It appears to favor a government of men, not of law. The familiar dichotomy is of course false, except insofar as it contrasts the extremes of fixed prescription and personal caprice. Adherents of the “policy-sciences” school rightly observe that no verbal formula can dispense with or escape interpretation varying with time, circumstance, and personality; and they maintain that their approach goes furthest toward decision in full cognizance of community interests and consequences. Perhaps a more substantial objection is that, as a model for decision makers, what they offer amounts to a counsel of perfection. In its insistence upon recondite analysis of contending claims, the doctrine would seem to demand qualities and qualifications that no present mode of selection calls for in the responsible actor.
Between the two schools of thought just sketched stand others, differing among themselves in detail, but united in rejecting, on the one hand, the Olympian view that attributes primacy to the international order and, on the other hand, a suspected trend toward identification of law and behavior. Explicit or implicit here is the dualism, unquestioned until recent times, that separates national and international orders into distinct systems deriving their authority from different sources. The more recent writers in this category start from a re-examination of the relative roles of law and power in the relations of states, make allowance for the transforming effect of environmental change, admit that the legal rule may be a passing balance of shifting interests, but at the same time emphasize its temporarily imperative intent and stabilizing function. The reality of international society or community, which is taken for granted in most theory, is here questioned, and the characterization of the international order as a legal system is accordingly held dubious (de Visscher 1953). “Law in the making” would be a more accurate, yet sufficiently optimistic, description of norms operating in a milieu where subjectively determined national interests still enjoy marked priority over collective values. Insofar as sociological refinement of the tools used by decision makers and their advisers would lead to a more enlightened calculus of interests, the need is admitted. The tendency, however, is to look to a revolution in morals, rather than in legal theory, as the necessary condition of an effective world order.
The Soviet approach
The practical value of theory, in the field of international law as elsewhere, may be measured in terms of the light thrown upon paths of potential development. From this point of view, current Soviet theory, taken at its face value, appears full of promise for the legal integration of a world community. It asserts the development, under Soviet leadership, of a new law of nations implementing the central principle of “peaceful coexistence,” which is presented as a Soviet invention. This principle, as elaborated in the program of the Communist party of the U.S.S.R., has five premises or components, namely (1) renunciation of war as an instrument of settling differences between states and the substitution of pacific means; (2) equality, understanding, and trust among states, with full consideration of one another’s interests; (3) nonintervention in internal affairs and recognition of each people’s right to decide for itself all questions concerning it; (4) strict respect for the sovereignty and territorial integrity of all countries; (5) the development of economic and cultural cooperation on the basis of full equality and mutual advantage (Akademiia Nauk 1951, pp. 11-15; Tunkin 1963, pp. 26-37).
If we add to these, as the same program does, the corollary principle of general and complete disarmament “under strict international control” as the efficient way of securing peaceful coexistence, we have before us on paper the outline of a world order that might well satisfy the most devout idealist.
The program is not, however, generally accepted at its face value. In its insistence upon state sovereignty, implemented in practice as this has been by Soviet opposition to every proposal suggestive of world government, it manifests an insuperable inner contradiction. Since, moreover, it is accompanied by the firm declaration of continued class struggle on an international scale, it is regarded in influential Western quarters not as a manifesto of peace but as a covenant of conflict by all means short, at best, of war. Armed violence is indeed by no means excluded, since international continuance of the class struggle is assured by the avowed policy of encouraging “wars of liberation,” and this holds out the disturbing prospect of unlimited incitement to rebellion. Yet, despite such skepticism, the slogan of “peaceful coexistence” has had sufficient appeal to add another item to the crowded agenda of the United Nations. The General Assembly’s sixth (legal) committee has been given the ambitious task of working out an agreed statement of the “International Law of Peaceful Relations.” Unless the aim is merely a declaration of vague general principles, this would seem to call for a total codification of the law of peace, an enterprise already assigned to the International Law Commission.
A common law of mankind?
Recent developments in the theory and practice of international relations have led some observers to the conclusion that international law has entered a stage of transition—from a system governing states as units engaged in increasingly complex interchange to the common law of a world community (Jenks 1958). The theory dominant in the nineteenth century that made states the sole persons or subjects of international law came under attack by eminent publicists after 1918. Their assertion of rights and duties lodged directly in the individual by the international order was substantiated by the joint Allied tribunals, which in 1946 found enemy officials personally responsible for crimes against humanity. The trend continued in the more recent multilateral declarations and conventions designed to secure the international protection of human rights, even between governments and their own nationals. The simultaneous multiplication of international agencies devoted to the promotion of individual welfare throughout the world pointed in the same direction. The economic sphere witnessed a concurrent growth of common national patterns in the regulation of world-wide private business and a broad movement toward the unification of private law to facilitate the interchange of personnel, goods, and services. More and more, law was becoming transnational (Jessup 1948; 1956). Theory and practice alike seemed to be breaking through the hard crust of the state with a practical assertion of the belief that the purpose of social, economic, and political institutions is, after all, not the grandeur of groups but a better life for individual human beings.
Multifarious as these unifying activities have become, however, it is important not to exaggerate their total effect or to underestimate the resistance that still guards the sanctuary of state sovereignty in East and West alike. Given the existing conflict of ideologies and political objectives, any rapid advance to a common law of mankind interpreted by supranational courts and commissions and enforced by supranational agencies is a remote prospect. Not even the fear of imminent nuclear extinction has sufficed to launch the revolution in the ideas and aims of leaders and of peoples that must precede the organization of a universal legal order backed by a monopoly of force.
The development of international law must then in all probability proceed along conventional lines, the resulting norms depending as hitherto upon the good will of governments and their perception of advantage, rather than upon any powerful supranational enforcement agency.
The “progressive development and codification” called for by article 13 of the United Nations Charter is necessarily a slow and arduous enterprise. Yet there are some encouraging proofs of progress, particularly in the law of the sea, diplomatic and consular intercourse, and outer space. Putting the premium they do on sovereignty, Soviet jurists emphasize the state’s consent as the necessary basis of rules binding upon it. Because consent is more clearly expressed by participation in treaties than in the obscure and debatable growth of rules by usage, they regard treaties as the one efficient method of developing international law and have begun not merely to express but to prove some interest in codification by multilateral convention. Their position here has, in spite of the suspicious posture of representatives of the U.S.S.R. in the early work of the United Nations International Law Commission, found favor among the newly independent nations, to whom codification offers the opportunity of active participation in the law-making process.
There remains the vital question of submission to international adjudication. No single step could carry us further toward the rule of law on a world scale than the general establishment of compulsory jurisdiction. This must await a marked reduction in that distrust of the West that underlies the Soviet argument that no impartial adjudication is possible between the sharply opposed systems of communism and capitalism. It must also await the withdrawal by certain Western powers of their unlimited reservation of domestic jurisdiction.
Percy E. Corbett
BIBLIOGRAPHY
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