International Law

Municipal Law is law within a given country.  Municipal legal systems provide for law making processes (legislation), law enforcement, and adjudication.  There is a hierarchical court system, culminating usually in a high court or supreme court.  Judgments of the courts are enforced by the executive and can lead to imprisonment and fines for those found guilty.

International Law lacks many of the characteristics of municipal legal systems.  There is no world legislature which makes international law.  There is no global police force to arrest wrong doers nor a global justice department to try those arrested.  There is no hierarchy of trial and appellate courts with clearly defined jurisdiction. 

There are so many differences between the international system and international law on the one hand and state-societies with their municipal legal systems that the question has arisen whether international law is indeed law properly so-called?

Is International Law really law properly so-called?  The answer depends on your definition of law.  John Austin's positivistic definition of law said no.  Austin held that IL lacks a definite sovereign law-creator, courts with compulsory jurisdiction, and overwhelming sanctions to punish transgressions.  Hans Kelsen suggested that war is the sanction behind international law.

While it is true that international law differs from municipal law, it is, in my opinion, law properly so-called.  The Austinian definition is too narrow.  A proper definition of law must be able to explain all the varieties of law, of which there are at least three:  customary laws of pre-state societies; municipal legal systems of modern state-societies; and international law operating within the international system.

The Creation of International Law.  The question of how international law is created is generally answered in textbooks on international law under the heading of "the sources of international law.  There are five ways of creating international law, that is five sources.

     Sources of International Law (Art 38, ICJ)

          1.  State practice or customs

          2.  Treaties

               Bilateral

               Multilateral

          3.  Arbitral and Judicial decisions

          4.  General Principles of Law abstracted from Major Municipal Legal Systems

          5.  Writings of Publicists

 A Brief History of International Law.  It is only since the development of the modern state system after the Treaty of Westphalia that we can begin to talk about international law.

International law refers to the legal rules whereby the international system operates.  It defines the primary subjects of international law, that is the sovereign states.  It regulates the relationships between states and other international actors.  It defines the condition of peace, war, and neutrality.  It establishes rules for the conduct of war, the recognition of states, the dissolution of states, the recognition of governments, the rules of diplomacy and diplomatic etiquette, and many other subjects.

The origins of international law are somewhat diffuse since the earliest writers on international law had to invent a new terminology of law out of existing medieval and ancient legal traditions. 

Hugo Grotius is generally considered the father of international law. His De Jure Belli ac Pacis, generally translated as The Law of War and also Peace, is a very eclectic work.  He mixes ideas of natural law and positivism.  His most lasting contribution was his advocacy of the freedom of the seas.

The early publicists on international law interwove ideas of divine law (found in the Bible, natural law (God's laws as discernable through human reason), the jus gentium of the Romans (as a common law derived from the many different laws of the many cultures conquered by the Romans), the just war doctrine of the Roman Catholic Church, the jus inter gens, and the Law of Nations.

The term international law was coined in the early 19th century by the British utilitarian and law reformer, Jeremy Bentham. Until then, it was known as The Law of Nations.

The Law of War is the oldest part of Law of Nations.  The aim was to limit the violence of war.  The concern with creating a law of war derived from the horrible behavior of mercenary armies during the Thirty Years War.  Modern armies with their uniforms and disciplined training are a relatively recent development connected to the creation of the modern, centralized, bureaucratic state.  The law of war dealt with how to treat prisoners of war, treatment of civilians during a time of war, civilian casualties; the rights of neutrals; the code of naval warfare, and similar topics.

The Law of Peace attempted to define the rules for the recognition of states (sovereigns) and governments.  Originally, we are talking about the rights of kings, rules of succession, inheritance of titles and property, treatment of the king's ambassadors and other diplomatic personnel.  The law of peace is largely a set of protocols for behavior in an aristocratic society, where titles and ranks are all important.

Some of the ideas of the Law of Nations derive from the natural rights doctrines developed by Thomas Hobbes.  Before the formation of modern states and their governments, human beings were held to have lived in a state of nature.  In the state of nature, all human beings were equal and had the natural right to defend their lives, appropriate property at will, and enjoy whatever liberties they could get away with.  These natural rights, according to Hobbes, produced a state of nature which was "nasty, brutish, cruel, and short."  It was only through the social contract and the formation of government that human beings escaped these terrible conditions.  John Locke took Hobbes's ideas and sanitized them by assuming that human beings, even in a state of nature (before the formation of government and law), behaved fairly decently.  Hence Locke's social contract was revocable and produced a limited government, whereas Hobbes had advocated an irrevocable compact and an absolutely powerful Leviathan. 

Whereas human beings everywhere in the West had formed governments, the community of nations was still in a state of nature.  The Law of Nations, therefore, was the set of rules which governed the behavior of Sovereigns in a continuing state of nature.

The Law of Nations recognizes that all states are equal.  This is called the sovereign equality of states.  All states, like individuals in the hypothetical state of nature, had the natural right of life, that is they can defend their lives.  For states, this translates into a right of existence and self-defense. 

Natural Rights Doctrine:  state of nature; sovereign equality; right to self-defense; sovereign immunity; domestic jurisdiction; raison d'etat; so-called rights and duties of states.

Positivism.  During the 19th century, most of these legal theories rooted in the middle ages and the early modern period were swept away.  Law properly so-called was a command of a definite sovereign backed by sanctions.

International law could not meet that definition and was, at best, a kind of second rate law, like customs and traditions in primitive, pre-state, societies.

There was no higher authority above each sovereign state.  States did, however, deal with each other:  they exchanged ambassadors, traded with each other, and went to war with each other.  In their dealings with each other, states made treaties.  These treaties did have a kind of legal and moral authority.  These treaties, according to the positivists, were the primary source of international law.  Ultimately, however, the legal basis even of treaties depended on the consent of the parties. States which violated their treaties too frequently would be distrusted; no one would deal with them; they might even provoke a war.  International law was obeyed most of the time because it was in the self-interest of states to do so. 

According to the positivists, international law applied only to sovereign states.  Only states were the subjects of international law; individuals and non-state groups could only be the object of international law.

The international system depended on power, military might, and the fortunes of war.  International law was a useful tool of power and it provided some organizing principles but ultimately each state was sovereign, free to do as it pleased. 

Reciprocity was an important principle underlying international law.  If I mistreat your prisoners of war, you'll do the same to mine.

Traditional versus the New International Law.  In the 20th century, international law has undergone a major transformation.  New subjects have been added (in addition to sovereign states).  At the end of World War I, largely at the urging of the American President Woodrow Wilson, the League of Nations was established.  The League was an international organization.  It was an Inter-Governmental Organization  (IGO).  Its members were sovereign states, but the League also had a limited legal status in its own right.  A new structure had emerged within the international system and new rules were made.  Treaties were negotiated which made aggressive warfare violations of international law.  There was even an effort to outlaw war entirely.  Only wars sanctioned by the League were legitimate.  The principle of collective security was to replace the traditional balance of power.

New subjects of international law:  international organizations, individuals, multinational corporations.

The United Nations Charter.  Resolutions of the General Assembly and Security Council.  Quasi-Legislative Powers of the United Nations.  Outlawing War.  Genocide.

Human Rights Conventions.  Economic Interdependence.  Regimes and Complex Interdependence.

International Law

Creation of International Law:  State Practices or Custom, Treaties, Domestic Courts, International Adjudication, United Nations, Other International Organizations, General Principles of Law, Publicists  

Theories of Law:  Divine Command, Natural Law, Customary Law, Roman Law, Jus Gentium, Natural Rights, Positive Law, Sociological Jurisprudence

Suarez, Grotius, Vattel, Bentham, Austin, Oppenheim, Lauterpacht, Brierly, Kelsen, McDougal, Hart

Possible Outline

A.  The International System:  Power and Politics

   1.  High Politics Between States During a Time of Peace:

       Honor, Pride, and Ideology

   2.  National Interest: Who Are the Good and Bad Guys

   3.  System Maintenance:  Maintaining Power and Influence

   4.  Armaments, Arms Sales, Arms Races, and Disarmament

   5.  Maintaining Hegemony and Spheres of Influence

   6.  Alliance Building and Maintenance

   7.  International Trade, Aid, and Finance

   9.  Cultural Exchanges and Sports Competitions

   10. Humanitarian Aid

B.  International Law:  General

   1.  The Obligation to Abide by International Law

   2.  The Obligation to Honor Treaties and Other Agreements

C.  Traditional International Law

   1.  The Legal Equality of States

   2.  The Territorial Integrity of States

   3.  Access to Vital Natural Resources and Technology

   4.  Non-Interference in the Internal Affairs of States

       (Domestic Jurisdiction)

   5.  Recognition of States and Governments

   6.  Questions of Jurisdiction

        a.  Territorial Jurisdiction

        b.  Jurisdiction over Nationals

        c.  Jurisdiction over Foreign Nationals

        d.  Universal Jurisdiction

   7.  Immunity from Jurisdiction

        a.  Sovereign Immunity

        b.  Diplomatic Immunity

        c.  Consular Immunity

        d.  Act of State Doctrine

   8.  Subjects of International Law

   9.  The High Seas

   10. Neutrality

   11. War

        a.  Causes of War

        b.  Steps Leading Toward War

        c.  Declarations of War

        d.  The Conduct of War:  Land, Sea, Air, & Space

        e.  Prisoners of War

        f.  Termination of Hostilities

        g.  Peace Treaties

   12.  Colonies and Dependent Territories

   13.  Extraterritoriality

   14.  Objects of International Law

D.  New International Law

   1.  Transformation in the Twentieth Century

   2.  The Growth of International Adjudication

   3.  Development of International Organizations

   4.  Efforts to Outlaw War

        a.  League of Nations

        b.  Kellogg-Briand Treaty

        c.  United Nations System

             i.   Right to Self Defense Remains

             ii.  Wars of Aggression are Illegal

             iii. Peaceful Settlement of Disputes Mandated

             iv.  Wars May Be Authorized by UN

   5.  War is Still Legal

   6.  The Costs of War: Human and Economic

   7.  International Refugees and Displaced Persons

   8.  The Fear of Nuclear War During the Age of Bipolarity

   9.  Nuclear Proliferation

   10. Arms Control

   11. Disarmament

   12. Civil War

   13. Terrorism

   14. The Future of War

   15. The Right of Self-Determination of National Minorities

   16. The Ending of European Colonialism

   17. Internationalization of Trade and Commerce

   18. Development of Global Economic Institutions

   19. The Quest for the Protection of Human Rights Through

       International Law

        a.  War Crimes

        b.  Genocide

        c.  Humane Treatment of Political Prisoners

        d.  Protection of Aliens or Foreign Nationals

        e.  Protection of Private Property from Seizure

            Without Fair Compensation

        f.  International Protection Against Gross Human

            Rights Violations (The Universal Declaration of

            Human Rights)

        g.  Civil, Political, Economic, Social, and Cultural

            Rights

        h.  Humanitarian Intervention

E.  Conflict of Law or Private International Law

    1.  Conflicting Standards in Different Municipal Legal

        Systems

    2.  Whose Jurisdictions  Is It?

    3.  The Special Legal Status of Foreign Nationals

    4.  Contracts and Private Property

    5.  International Commerce and Finance

    6.  Multinational Corporations and Host Governments

    7.  International Communications and a Free Press

    8.  Copyrights, Patents, and Intellectual Property

    9.  Nationalization and Claims of Sovereign Immunity

    10. The Home State as Champion of Private Interests

    11. Linkage of Public and Private International Law

    12. Transnational Law

F.  The Future of International Law

    1.  Growth of International Organizations

    2.  Procedures for Changing the Status Quo without

        Recourse to Violence or War

    3.  A Global Human Rights Court

    4.  Punishment for Violators of International Law