CHAPTER 1

INTRODUCTION

States and law faculties of higher educational institutions are encouraged to include international law as a core subject in their curricula. They are also encouraged to introduce courses in international law for students studying law, political science, social sciences and other relevant disciplines; they should study the possibility of introducing topics of international law in the curricula of schools at the primary and secondary levels. They should also consider introducing public international law courses geared towards career training and the establishment of clinical programmes in various areas of international law. Co-operation between institutions at the university level among developing countries, on the one hand, and their co-operation with those of developed countries, on the other, should be encouraged.1

On 17 November 1989 the UN General Assembly passed Resolution 44/23 by which it declared the period 1990–99 the United Nations Decade of International Law. Among the purposes of the Decade are the promotion of the acceptance of and respect for the principles of international law and the encouragement of the teaching, study, dissemination and wider appreciation of international law. The adoption of the resolution by the 183 member states of the United Nations indicates the ever-increasing significance of international law.

The purpose of this Sourcebook is to provide a clear and comprehensive guide to the major topics of international law. It has been the author’s aim to include all the up-to-date material necessary for the reader to achieve the level of discussion expected of a good student during classes and for the preparation for examinations. It is hoped that this Sourcebook can be used both as a textbook and as a cases and materials book. International law is a subject for which a Sourcebook is particularly appropriate: the sources of its rules are numerous and diverse and many of these sources are not always readily available in the standard law library. The Sourcebook has been written so as to provide an entire and comprehensive undergraduate course in public international law, although it should also prove useful to those who simply wish to find a particular source.

This chapter provides a general introduction to the subject of international law by examining the definition, nature and scope of the subject. It is also useful at this stage to place modern international law in its historical context by tracing its development over the last three centuries.

A new and very small sovereign state was admitted as a member of the United Nations in the 1970s. Within the United Nations the de facto position is that each sovereign state is equal and has one vote in the United Nations General Assembly, even though beneath that technical equality the usual hierarchy exists with the richest and most powerful states exerting the most influence. The newly appointed representative from the newly independent state did not initially

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1Resolution adopted by the United Nations General Assembly – Resolution 51/157 United Nations Decade of International Law (A/RES/51/157 16 December 1996).

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grasp that the quality was supposed only to be formal. Consequently he or she spoke at length on every topic which fell for debate to the obvious chagrin of the representatives of the larger and greater states. At last, in considerable frustration, he was taken off into the office of a delegate of one of the great states, upon the wall of which hung a large map of the world. The ‘Important Delegate’ explained to the unimportant new representative his position by showing the vast area of the map covered by such states as the US, Canada, Ghana, and even New Zealand, when compared to the tiny dots which represented the new delegate’s country. The new delegate’s immediate response was to ask a question

– ‘who drew that map?2

The question ‘who drew that map?’ can partially be answered by an investigation of the historical development of international law. Closely linked to the question of ‘who’ are the questions of ‘how’ and ‘why’ which will also be addressed in this chapter. With a grasp of the theoretical underpinnings, the ‘map’ of international law, investigated in subsequent chapters, will be more understandable.

1.1Historical development

The modern system of international law is a product, roughly speaking, of only the last four hundred years. It grew to some extent out of the usages and practices of modern European states in their intercourse and communications, while it still bears witness to the influence of writers and jurists of the sixteenth, seventeenth, and eighteenth centuries, who first formulated some of its most fundamental tenets. Moreover, it remains tinged with concepts such as national and territorial sovereignty, and the perfect equality and independence of states, that owe their force to political theories underlying the modern European state system, although, curiously enough, some of these concepts have commanded the support of newly emerged non-European states.

But any historical account of the system must being with earliest times, for even in the period of antiquity rules of conduct to regulate the relations between independent communities were felt necessary and emerged from the usages observed by these communities in their mutual relations. Treaties, the immunities of ambassadors, and certain laws and usages of war are to be found many centuries before the dawn of Christianity, for example in ancient Egypt and India, while there were historical cases of recourse to arbitration and mediations in ancient China and in the early Islamic world, although it would be wrong to regard these early instances as representing any serious contribution towards the evolution of the modern system of international law.3

The Law of Nations, or International Law, may be defined as the body of rules and principles of action which are binding upon civilised states in their relations with one another. Rules which may be described as international law are to be found in the history of both the ancient and medieval worlds; for ever since men began to organise their common life in political communities they have felt the need of some system of rules, however rudimentary, to regulate their intercommunity relations. But as a definite branch of jurisprudence the system which

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2Mansell, Meteyard and Thomson, A Critical Introduction to Law, 1995, London: Cavendish Publishing at p 1.

3IA Shearer, Starke’s International Law, 11th edn, 1994, London: Butterworths at p 7.

2

Introduction

we now know as international law is modern, dating only from the 16th and 17th centuries, for its special character has been determined by that of the modern European state system, which was itself shaped in the ferment of the Renaissance and the Reformation.4

The origin of the international community in its present structure and configuration is usually traced back to the Peace of Westphalia (1648), which concluded the ferocious and sanguinary Thirty Years War. However, it was not then that international intercourse between groups and nations started. From time immemorial there had been consular and diplomatic relations between different communities, as well as treaties of war and peace and treaties of alliance; reprisals had been regulated for many years, and during the Middle Ages a body of law on the conduct of belligerent hostilities had gradually evolved. A peace treaty going back to approximately 3100 BC has come to light – concluded in the Sumerian language between Eannatum, the victorious ruler of the Mesopotamian city state of Lagash, and the representatives of Umma, another Mesopotamian city state, which had been defeated. And yet all these relations were radically different from current international dealings, for the body politic itself was different.5

It can be seen that there is widespread agreement that the modern system of international law developed from Western European origins. With the gradual break up of the Holy Roman Empire after 1648, states such as England, the Netherlands, France and Spain became strong and independent from any superior authority. Without the influence of Papal or Imperial laws, new rules were developed to govern inter-state relations. These rules owed much to doctrines of canon law and of Roman law. The basis of the system was the consensus of equal, independent sovereign states and the rules could therefore be created by express agreement or develop out of a continued common practice. Holding such a view of the development of international law has important consequences both for the nature and definition of international law6 and for the sources of international law.7 However, while the perception of modern international law as a phenomenon of medieval Western European origins tends to be the prevailing one there are those who take a different view:

As all the introductory historical sections of the leading textbooks agree, it was not until this time8 that there appeared, in the shape of nation states possessing unlimited sovereignty, those subjects of international law which, together with the simultaneously and universally blossoming theoretical study of constitutional and international law, provided the doctrinal bases for a legally ordered system of states. At this time the only open question was the date when the international law of the modern era was supposed to have begun. After some hesitation, a willingness was expressed to go back a good century before Grotius, to Charles VII’s Italian Campaign of 1649, to Machiavelli and Bodin, to the

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4JL Brierly, The Law of Nations, An Introduction to the International Law of Peace, 6th edn, 1963, Oxford: Oxford University Press at p 1.

5Antonio Cassese, International Law in a Divided World, 1986, Oxford: Oxford University Press at p 34.

6See, for example, the views expressed by Hall, Westlake and Oppenheim at p 9.

7Discussed in Chapter 3.

8ie the modern era – post 1648.

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overseas expansion of the European maritime powers and to the theories of the Spanish late scholastics. Everything lying further back, even in the cases where important development factors were recognised, was consciously left out of consideration … It was evident from a comparatively early point that the basic requirements for an international legal order were fully present in the European society of states not just at the beginning of the modern era, but, at the latest, by the end of the 13th century. It was recognised that the concepts of law and legal validity underlying European international law, the justifications which were always necessary when an action entailed intervention in a foreign area, the duty to participate in common sanctions against disturbers of the peace, and other basic ideas all went back to the early era of the ancient Greek polis, ie to the sixth century before Christ. It was further recognised that, not merely in the modern eras but at all times, international legal practice was accompanied by the theoretical ideas and claims of theologians, philosophers, historians and, later, lawyers. What this means is that, although the theory of the modern era became vastly more detailed over what had hitherto been customary, it hardly contained anything in principle that was new. Since the beginning of the 1930s, following in the footsteps of historical and archaeological research, the history of international law finally began to explore the wider world beyond Europe. First of all the history of international law turned to the ancient Near East – which also includes Egypt – and to later international legal developments in the region, in particular, those brought into being from the sixth decade of the seventh century onwards by the formation and spread of Islam. The most incisive changes to the picture handed down by the 19th century may, however, be expected from the efforts which only began in recent decades to uncover international legal developments which, of their own volition, appeared in the world outside Europe and away from the Mediterranean. As yet, no more than a start has been made. It is nevertheless possible, even given the gaps in our knowledge, to accept that there is, beyond the world of the Near East and Europe (which understandably claimed the attention of early researchers), evidence of international law scattered over the earth in abundance.9

The end of World War I is almost unanimously considered as the end of an epoch in the history of the law of nations. It is also generally accepted that this caesura was more profound than those of 1648 or 1815, which marked previous transformations of international law, adopted it to the changing character of the state system which was fashioned and conditioned by the sequence of Spanish, French and British supremacy. It is generally accepted that by 1919 the classical system of international law had given way to a different system, often called ‘new’ or ‘modern’ international law. However, terminological confusion may result from the ambiguity inherent in the words ‘new’ and ‘modern’. Historians customarily see ‘modern times’ as beginning at the end of the 15th century, and the new type of international law which developed from this juncture, the ‘classical’ system, is often called ‘modern international law’. In the interest of avoiding confusion the author prefers to use the term ‘post-classical’ to denote the type of international law which began to evolve in 1919. Together with the classical system, it forms part of modern – in contrast to medieval – international law.

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9Wolfgang Prieser, ‘History of the Law of Nations’ in R Bernhardt (ed), Encyclopedia of Public International Law, Vol II, 1995, pp 717–18.

4

Introduction

In the wake of World War II and as a consequence of a new balance of forces and deep structural changes in the state system, post-classical international law was again significantly modified. What began in 1919 entered into a second stage in 1945 – a stage, however, which both continued and developed the traits of the first post-classical period. In comparison with the law of preceding centuries, the two latest stages belong together and justify their classification within a coherent post-classical system.

The basic and characteristic feature of the classical system was its close commitment to the modern sovereign state as the sole subject of international law. Deriving from this basic structure, two other elements helped to form the shape of the classical system: the unorganised character of the international community, composed of a multitude of sovereign states as legally equal, if de facto unequal members; and the acceptance of war as the ultimate instrument of enforcing law and safeguarding national honour and interest.

Starting in 1919, a different system of international law developed, based on a new concept of the nation state which, by force of circumstances, was more receptive to the idea of some restrictions of its sovereign rights (eg in the field of minority protection) and more sensitive to the rights of the human individual and his legal protection. For the first time in history, an attempt was made to organise the international community within a League of Nations, which was intended to become a universal framework for regulating the peaceful intercourse of nations and for preventing armed conflict. War as an instrument of national policy was intended to be restricted by the League Covenant, and subsequently outlawed by the Kellogg-Briand Pact (1928).10

1.2Definitions and the nature of public international law

International law is the body of rules which are legally binding on states in their intercourse with each other. These rules are primarily those which govern the relations of states, but states are not the only subjects of international law. International organisations and, to some extent, also individuals may be subjects of rights conferred and duties imposed by international law. International law in the meaning of the term as used in modern times began gradually to grow from the second half of the Middle Ages. As a systematised body of rules, it owes much to the Dutch jurist Hugo Grotius, whose work, De Jure Belli ac Pacis, Libri iii, appeared in 1625, and became a foundation of later development.

That part of international law that is binding on all states, as is far the greater part of customary law, may be called universal international law, in contrast to particular international law which is binding on two or a few states only. General international law is that which is binding upon a great many states. General international law, such as provision of certain treaties which are widely, but not universally, binding and which establish rules appropriate for universal application, has a tendency to become universal international law.

One can also distinguish between those rules of international law which, even though they may be of universal application, do not in any particular situation give rise to rights and obligations erga omnes, and those which do. Thus, although all states are under certain obligations as regards the treatment of aliens, those

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10William G Grewe, in R Bernhardt (ed), Encyclopaedia of Public International Law, Vol II, 1995 pp 839–40.

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obligations (generally speaking) can only be invoked by the state whose nationality the alien possesses: on the other hand, obligations deriving from the outlawing of acts of aggression, and of genocide, and from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination, are such that all states have an interest in the protection of the rights involved.11 Rights and obligations erga omnes may even be created by the actions of a limited number of states. There is, however, no agreed enumeration of rights and obligations erga omnes and the law in this area is still developing, as it is in the connected matter of a state’s ability, by analogy with the actio popularis (or actio communis) known to some national legal systems, to institute proceedings to vindicate an interest as a member of the international community as distinct from an interest vested more particularly in itself. The International Court of Justice has held that proceedings in defence of legal rights or interests require those rights or interests to be clearly vested in those who claim them (even though they need not necessarily have a material or tangible object damage to which would directly harm the claimant state), and that the actio popularis ‘is not known to international law as it stands at present’.12 Although the notion of actio popularis is in some respects associated with that of rights and obligations erga omnes, the two are distinct and, to the extent that they are accepted, each may exist independently of the other.

International law is sometimes referred to as ‘public international law’ to distinguish it from private international law. Whereas the former governs the relations of states and other subjects of international law amongst themselves, the latter consists of the rules developed by states as part of their domestic law to resolve the problems which, in cases between private persons which involve a foreign element, arise over whether the court has jurisdiction and over the choice of the applicable law: in other terms, public international law arises from the juxtaposition of states, private international law from the juxtaposition of legal systems. Although the rules of private international law are part of the internal law of the state concerned, they may also have the character of public international law where they are embodied in treaties. Where this happens the failure of a state party to the treaty to observe the rule of private international law prescribed in it will lay it open to proceedings for breach of an international obligation owed to another party. Even where the rules of private international law cannot themselves be considered as rules of public international law, their application by a state as part of its internal law may directly involve the rights and obligations of the state as a matter of public international law, for example where the matter concerns the property of aliens, or the extent of the state’s jurisdiction.13

The title and subject matter of this book is Public International Law. For convenience we shall use the terms public international law and international law interchangeably. The subject has also been known as the Law of Nations and the Law of War and Peace. International law must be distinguished from municipal, internal or domestic law. As a starting point, international law can be said to apply only between those entities that can claim international

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11Barcelona Traction case (Second Phase) [1970] ICJ Rep at p 32.

12South West Africa cases (Ethiopia and Liberia v South Africa) (Second Phase) [1966] ICJ Rep at p 47.

13Oppenheim’s International Law, edited by Jennings and Watts, 9th edn, 1992, Longman at pp 4– 7 (footnotes omitted).

6

Introduction

personality, whilst municipal law is the internal law of states and regulates the conduct of individuals and other legal persons within the jurisdiction. Public international law should also be distinguished from private international law. Private international law, or the conflict of laws, is the term used to describe the body of rules of municipal law that regulates legal relations with a foreign element such as, for example, contracts of sale between persons in different countries or marriages between persons from different legal systems.

It can be argued that the functions of international law are different from the functions of municipal law. In the main, international law is not concerned with the rights and duties of individuals, except where states have agreed that this should be so. International law plays a major role in facilitating international relations. It is clearly of considerable importance in the drafting of diplomatic documents and treaties, as well as, in appropriate instances, in the drafting and application of internal legislation. It should also be remembered that law can never be totally separated from questions of political reality. In international law, the political and the legal are extremely closely intertwined. International law cannot exist in isolation from the political factors operating in the sphere of international relations.

On another level, international ‘law’ needs to be distinguished from international ‘non-law’. Reference is sometimes made to international comity or international usage to indicate those norms of behaviour that are outside the rules of law, properly called. Some writers argue that the problem is resolved with the adoption of a comprehensive definition of law, while others deny that a definition is either possible or desirable. To some extent the problem of identifying the rules of international law is dealt with in Chapter 3, but at this early stage it may be useful to refer to some of the various concepts and definitions of the subject that have been offered.

International law, as its name implies, is a form of law. In your law studies, you have come across various other forms of law – contract law, land law, LA Law. Well, international law is no different in principle from any other form of law. However, since none of you will have anything but the most infantile ideas about the theoretical nature of law in general, it’s not really very exciting of me to say that international law is law like any other law.

It’ll probably never have occurred to you, and maybe no one has ever told you, that law is an aspect of the systematic structure of a society. There’s been a great deal of discussion down the centuries about just how law fits into the general structural system of society. Some really heavy names have had all sorts of seriously weird ideas about that – Plato and Confucius and Moses and Nietzsche and Hitler – people like that. But the long and the short of it all is that society is not quite like a poem, and society is not quite like a motor-car, but society is a bit like both of them.

Society is like a poem because it’s a creation of human consciousness, for human consciousness. Society is a work of the imagination, like literature. But society is also a bit like a machine, such as a car, because it’s designed to process specific inputs into specific outputs, following a structured system. And the structured system determines the relationship of the output to the input. And the result of it all is that society, like a motor-car, is designed to travel from A to B, namely, from the past to the future.

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Well, one input into society is the activity of individual human consciousness, imagination and reason. And the output is social consciousness which then reenters individual consciousness and pre-existing social consciousness. So there’s a systematic loop – with the individual human being making society, as society makes society and the individual. Society and the individual make society and the individual. Our first slogan.

A poem works because there are conventions of vocabulary and grammar and syntax, and there are great semantic force-fields in which the poem is placed, force-fields of associative meaning and shared meaning. So the poem is an output from the poet and an input into the reader into which the reader also puts an input. A poem does not exist in quite the same way that a particular table exists: it is any number of resultants formed from all the interacting inputs and outputs.

In the case of a particular society, the society creates great semantic force-fields for itself, as an integral part of its self-creating as a society – religion, mythology, morality, philosophy, art and so on. And then systematic principles of society’s functioning – social vocabulary and grammar and syntax, as it were – determine the specific outputs of the given society, determine the interactive effect between society and its members, and between the society and other societies.

The totality of the systematic processes of society is presented to society in what we call a constitution. The constitution of a society is a bit like the personality of a human person: it’s a structured summation of a particular functioning identity, evolving over time, forming itself over time. The constitution forms the society as the society forms its constitution. Society is a system constituting itself as a system. Another slogan.

One aspect of the constitution of a society is its legal constitution. This is a specifically organised set of social sub-systems which process social material in a particular way. The constitution of a society carries the society from its past to its future. The society continues over time and space because it continues in the consciousness of its members and of those who observe it. And the continuation over time and space of a society is achieved by ordering the willing and acting of the members of society in accordance with the constitution of the society.

The law, made under the legal constitution, organises legal relations – that’s to say, it organises the interactive willing and acting of two or more members of society. If you and I are bound by a legal relation – say, a right or a duty – then, if we will and act in conformity with the legal relation, we act in the way society wanted us to act. The legal relation socialises our behaviour, or, to put it another way, the legal relation universalises the particularity of our behaviour in the social interest.

But, of course, there are not only two people involved in a legal relation. A legal relation involves many other people in its implementation. A legal relation is really the focus of a network of legal relations. And legal relations necessarily involve what is called accountability.

Accountability means that society watches the way in which its legal relations take effect. It monitors them socially – social accountability; and it monitors them legally – legal accountability, including the monitoring through legal proceedings. Accountability means that the implementation of legal relations feeds back into the total social process, being judged in terms of society’s values, leading perhaps to protest or dissent, leading perhaps to a change in the law.

So law is an intensely dynamic thing, flowing from the past of society into its future, tending to make the future of society into what society has willed in the

8

Introduction

past that its future should be. That’s why some of us define the law as specifically retained acts of social willing. The law is an ever-changing set of retained acts of social willing. Our third slogan.

So society is a purposive enterprise, inventing purposes for itself in the form of values, organising itself to achieve its purposes.

One way in which society acts is through economic action, that’s to say, through transforming material reality and ideal reality in ways which society values as conducive to its survival and prospering. And that’s an important social function of law. The law is used to make economic transformation possible. The law of property, contract, money, corporate law – and so on – are sets of legal relations which are designed to organise particular forms of social transformation, especially economic transformations.

So that’s what all society is and what all law is. And that means that we now already know what international society is and what international law is.

International law is, simply, the law of international society. The whole human race seeks its survival and prosperity through transforming the world in accordance with its values. The whole human race uses social processes to cause its future to be in accordance with what it wills that its future should be.14

1.2.1 The traditional view

The view expressed in the most recent edition of Oppenheim represents a retreat from the traditional conception of international law as the law of nations, exclusively the province of nation states. For example, Hall in 1890 wrote:

International law consists in certain rules of conduct which modern civilised states regard as being binding on them in their relations with one another with a force comparable in nature and degree to that binding the conscientious person to obey the laws of the country, and which they also regard as being enforceable by appropriate means in case of infringement.15

Four years later Westlake stated, ‘international law is the body of rules prevailing between states’.16

Oppenheim was even more explicit when he wrote, ‘states solely and exclusively are the subjects of international law’.17

In 1927, the Permanent Court of International Justice was called upon to decide a dispute between France and Turkey. In the course of the judgment the court found it necessary to set down the parameters of international law:

International law governs relations between independent states. The rules of law binding upon states therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims.18

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14Philip Allott, ‘New International Law – The First Lecture of the Academic Year 20—’ in

Theory and International Law: An Introduction, 1991, London: BIICL at pp 108–10.

15WE Hall, A Treatise on International Law, 3rd edn, 1890, Oxford: Clarendon Press.

16Westlake, International Law, 1894, Cambridge: Cambridge University Press.

17Oppenheim, International Law, 1st edn, 1905, London: Longmans.

18The Lotus case PCLJ Ser A, No 10 (1927).

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1.2.2 The modern view

Although international law may have developed as a system of rules governing the relations between sovereign states, it has developed beyond that. The establishment of the League of Nations after the First World War marked a shift in approach to international relations which received further impetus with the setting up of the United Nations Organisation in 1945. The Nuremberg War Crimes Tribunal in 1946 raised questions of the international obligations of individuals and the Universal Declaration of Human Rights 1948 suggested the possibility of individual international rights. In the wake of the United Nations, a number of other super-national organisations were established, all raising questions of their status within the community of nation states. In 1949 the International Court of Justice was asked by the General Assembly of the United Nations for its opinion on matters arising out of the assassination of a UN representative in Jerusalem. In the course of its judgment the court stated:

… [the United Nations Organisation] is a subject of international law and capable of possessing international rights and duties, and … has capacity to maintain its rights by bringing international claims.19

It was becoming clear that it was no longer adequate to discuss international law in terms of a system of rules governing exclusively the relations between states.20 Later definitions reflected this fact:

International law can no longer be adequately or reasonably defined or described as the law governing the mutual relations of states, even if such a basic definition is accompanied by qualifications or exceptions designed to allow for modern developments; it represents the common law of mankind in an early stage of development, of which the law governing the relations between states is one, but only one, major division.21

Some definitions continued to stress the primacy of states, for example:

‘International law’ is a strict term of art, connoting that system of law whose primary function it is to regulate the relations of states with one another. As states have formed organisations of themselves, it has come also to be concerned with international organisations and an increasing concern with them must follow from the trend which we are now witnessing towards the integration of the community of states. And because states are composed of individuals and exist primarily to serve the needs of individuals, international law has always had a certain concern with the relations of the individual, if not to his own state, at least to other states ... even the relations between the individual and his own state have come to involve questions of international law ... Nevertheless, international law is and remains essentially a law for states and thus stands in contrast to what international lawyers are accustomed to call municipal law … 22

Other definitions give greater acknowledgment to non-state entities:

International law is the body of rules of conduct, enforceable by external sanction, which confer rights and impose obligations primarily, though not

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19Reparation for Injuries Suffered in the Service of the United Nations case [1949] ICJ Rep at p 174.

20See also Chapter 5.

21C Jenks, The Common Law of Mankind, 1958, London: Stevens.

22C Parry in M Sorensen (ed), Manual of Public International Law, 1968, London: Macmillan (emphasis added)

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Introduction

exclusively, upon sovereign states and which owe their validity both to the consent of states as expressed in custom and treaties and to the fact of the existence of an international community of states and individuals. In that sense international law may be defined more briefly (though perhaps less usefully), as the law of the international community.23

1.2.3 Contemporary theories

Although the early development of international law owes considerable debt to natural law concepts, much of the discussion about its nature over the last 100 years has been held within the broad church of legal positivism. Analysis of international law tended to concentrate on the activities of states and the identification of positive legal rules. Underlying the theories was a firm view that international law was based on the consensus of states to be bound. After the Second World War, world events increasingly undermined this view of law. The independence of former colonies raised the issue of the extent to which new states could be truly taken to consent to existing rules of international law.

International law (or more precisely public international law) is an autonomous system of law that is distinct from the national legal systems of specific states. International law operates in the international system and represents its normative subsystem.

In literature one may find different definitions of the international system. Some of them are so wide that they encompass, in effect, all of human society. In the present context there is no need to analyse these definitions.

What is then the international system in which international law is a component part?

That system encompasses states, international (inter-state) organisations, various associations of states (eg the non-aligned movement and the Group of 77), nations and peoples struggling for their independence, and also certain state-like formations (eg free cities and the Vatican). That, then, is the inter-state system. It includes not only the subjects that have been listed but also relations among them (international relations in the narrow sense of the word), international legal and other social norms (norms of international morality, international comity, international customs) and also mutual interactions among all the components of the international system and between that system itself and its components. Such a system does indeed exist. Lenin noted that ‘we are living not merely in a state but in a system of states’.

What is important for international legal science is that aside from other components the concept of ‘international system’ also includes international law. It follows that international law must be viewed in its mutual interaction with them, while international relations must be studied in their interaction with international law and not independently of it ...

The basic task of international law is to contribute to a normal functioning of the international system and to ensure peace and a resolution of international problems through legal means, on the basis of agreements among sovereign and equal states.24

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23Hersch Lauterpacht, Collected Papers, Vol 1, 1970, Cambridge: Cambridge University Press.

24G Tunkin (ed), International Law: a textbook, 1982, Moscow: Progress Publishers.

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The onset of the Cold War and the dominance of the two super-powers brought into question the extent to which the behaviour of the United States and the Soviet Union was guided by positive legal rules. In the 1950s the American Realists turned their attention from analysing municipal legal systems to international law. They found that law was not determined by legal rules nor by precedents but that judicial decision making was an intuitive act motivated by a desire to do justice in a particular context. International law needs to be studied in the context of international society and not merely as a collection of legal rules capable of being understood on their own.

Another approach, often referred to as ‘sociological jurisprudence’, involved an attempt to move away from simple analysis of rules to consider international law as an integral part of the diplomatic and political process. Notable here is the work of Myres McDougal whose policy-oriented approach sees law as a process of decision-making rather than a system of rules and obligations. McDougal has been criticised for minimising the legal content of the study of international law, and later writers, such as Richard Falk, while adopting the general approach of McDougal, have sought to place greater emphasis on the importance of legal rules and structures.

Two criticisms are often advanced against international law. One group of critics has accused international law of being too political in the sense of being too dependent on states’ political power. Another group has argued that the law is too political because founded on speculative utopias. The standard point about the non-existence of legislative machineries, compulsory adjudication and enforcement procedures captures both criticisms. From one perspective, this criticism highlights the infinite flexibility of international law, its character as a manipulable facade for power politics. From another perspective, the criticism stresses the moralistic character of international law, its distance from the realities of power politics. According to the former criticism, international law is too apologetic to be taken seriously in the construction of international order. According to the latter, it is too utopian, to identical effect.

International lawyers have had difficulty answering these criticisms. the more reconstructive doctrines have attempted to prove the normativity of the law, its autonomy from politics, the more they have become vulnerable to the charge of utopianism. The more they have insisted on the close connection between international law and state behaviour, the less normative their doctrines have appeared ...

Many of the doctrines which emerged from the ashes of legal scholarship at the close of the First World War explained the failure of pre-war international doctrines by reference to their apologist character ... Writings by Hersch Lauterpacht, Alfred Verdross and Hans Kelsen among others, created an extremely influential interpretation of the mistakes of pre-war doctrines. By associating the failure of those doctrines with their excessive closeness to state policy and national interest and by advocating the autonomy of international legal rules, these jurists led the way to the establishment of what could be called a rule approach to international law, stressing the law’s normativity, its capacity to oppose state policy as the key to its constraining relevance.

The approach insists on an objective, formal test of pedigree (sources) which will tell which standards qualify as legal rules and which do not. If a rule meets this test, then it is binding. Though there is disagreement between rule approach lawyers over what constitutes the proper test, there is no dispute about its

12

Introduction

importance. The distinctions between hard and soft law, rules and principles, regular norms and jus cogens, for instance, are suspect: these only betray political distinctions with which the lawyer should not be too concerned. Two wellknown criticisms have been directed against this approach. First, it has remained unable to exclude the influence of political considerations from its assumed tests of pedigree. To concede that rules are sometimes hard to find while their content remains, to adopt HLA Hart’s expression ‘relatively indeterminate’ is to undermine the autonomy which the rule approach stressed. Second, the very desire for autonomy seems suspect. A pure theory of law, the assumption of a Volkerrechtsgemeinschaft or the ideal of the wholeness of law – a central assumption in most rule approach writing – may only betray forms of irrelevant doctrinal utopianism. They achieve logical consistency at the cost of applicability in the real world of state practice.

The second major position in contemporary scholarship uses these criticisms to establish itself ... Roscoe Pound’s programmatic writings laid the basis for the contemporary formulation of this approach by criticising the attempt to think of international law in terms of abstract rules. It was, rather, to be thought of ‘in terms of social ends’.

According to this approach – the policy approach – international law can only be relevant if it is firmly based in the social context of international policy. Rules are only trends of past decision which may or may not correspond to social necessities. ‘Binding force’ is a juristic illusion. Standards are, in fact, more or less effective and it is their effectiveness – their capacity to further social goals – which is the relevant question, not their formal ‘validity’.

But this approach is just as vulnerable to well-founded criticisms as the rule approach. By emphasising the law’s concreteness, it will ultimately do away with its constraining force altogether. If law is only what is effective, then by definition, it becomes an apology for the interests of the powerful. If, as Myres McDougal does, this consequence is avoided by postulating some ‘goal values’ whose legal importance is independent of considerations of effectiveness, then the (reformed) policy approach becomes vulnerable to criticisms which it originally voiced against the rule approach. In particular, it appears to assume an illegitimate naturalism which – as critics stressing the liberal principle of the subjectivity of value have noted – is in constant danger of becoming just an apology of some states’ policies.

The rule and the policy approaches are two contrasting ways of trying to establish the relevance of international law in the face of what appear as wellfounded criticisms. The former does this by stressing the law’s normativity, but fails to be convincing because it lacks concreteness. The latter builds upon the concreteness of international law, but loses the normativity, the binding force of its law. It is hardly surprising, then, that some lawyers have occupied the two remaining positions: they have either assumed that international law can neither be seen as normatively controlling nor widely applied in practice (the sceptical position), or have continued writing as if both the law’s binding force as well as its correspondence with developments in international practice were a matter of course (idealist position). The former ends in cynicism, the latter in contradiction ...

The difficulty in choosing between a rule and a policy approach is the difficulty of defending the set of criteria which these put forward to disentangle ‘law’ from other aspects of state behaviour. For the rule approach lawyer, the relevant criteria are provided by his theory of sources. For the policy approach, the corresponding criteria are provided by his theory of ‘base-values’, authority or some constellation of national or global interest and need, because it is these

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criteria which claim to provide the correct description of social processes themselves. To decide on the better approach, one would have to base oneself on some non-descriptive (non-social) theory about significance or about the relative justice of the types of law rendered by the two – or any alternative – matrices. Such a decision would, under the social concept of law and the principle of the subjectivity of value, be one which would seem to have no claim for objective correctness at all. It would be a political decision ...

The formality of international law makes it possible for each state to read its substantive concept of world society as well as its view of the extent of sovereign freedoms into legal concepts and categories. This is no externally introduced distortion in the law. It is a necessary consequence of a view which holds that there is no naturally existing ‘good life’, no limit to sovereign freedom which would exist by force of some historical necessity. If this kind of naturalism is rejected – and since the Enlightenment, everybody has had good reason to reject it – then to impose any substantive conception of communal life or limits of sovereignty can appear only as illegitimate constraint – preferring one state’s politics to those of another.

It is impossible to make substantive decisions within the law which would imply no political choice. The late modern turn to equity in the different realms of international law is, in this sense, a healthy admission of something that is anyway there: in the end, legitimising or criticising state behaviour is not a matter of applying formally neutral rules but depends on what one regards as politically right, or just.25

International law is not rules. It is a normative system. All organised groups and structures require a system of normative conduct – that is to say, conduct which is regarded by each actor, and by the group as a whole, as being obligatory, and for which violation carries a price. Normative systems make possible that degree of order if society is to maximise the common good – and, indeed, even to avoid chaos in the web of bilateral and multilateral relationships that that society embraces. Without law at the domestic level, cars cannot safely travel on the roads, purchases cannot be made, personal safety cannot be secured. Without international law, safe aviation could not be agreed, resources could not be allocated, people could not safely choose to dwell in foreign lands. Two points are immediately apparent. The first is that this is humdrum stuff. The role of law is to provide an operational system for securing values that we all desire – security, freedom, the provision of sufficient material goods. It is not, as is commonly supposed, only about resolving disputes. If a legal system works well, then disputes are in large part avoided. The identification of required norms of behaviour, and techniques to secure routine compliance with them, play an important part. An efficacious legal system can also contain competing interests, allowing those who hold them not to insist upon immediate and unqualified vindication. Of course, sometimes dispute resolution will be needed; or even norms to limit the parameters of conduct when normal friendly relations have broken down and dispute resolution failed. But these last elements are only a small part of the overall picture.

The second point is that, in these essentials, international law is no different from domestic law. It is not, as some suppose, an arcane and obscure body of rules whose origin and purpose are shrouded in mystery. But, if the social purpose of

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25 Martti Koskenniemi, ‘The Politics of International Law’, in (1990) 1/2 EJIL 4 at pp 9–13, 31.

14

Introduction

international law and domestic law is broadly similar, there are important differences arising from the fact that domestic law operates in a vertical legal order, and international law in a horizontal legal order. Consent and sovereignty are constraining factors against which the prescribing, invoking, and applying of international law norms must operate.

...

There is a widely held perception of international law as ‘rules’ – rules that are meant to be impartially applied but are frequently ignored. It is further suggested that these rules are ignored because of the absence of effective centralised sanctions – and, in turn, that all of this evidences that international law is not ‘real law’ at all.

The view that international law is a body of rules that fails to restrain states falls short on several counts. In the first place, it assumes that law is indeed ‘rules’. But the specialised social processes to which the word ‘law’ refers include many things besides rules. Rules play a part in law, but not the only part. I remain committed to the analysis of international law as process rather than rules and to the view I expressed many years ago, when I said:

When … decisions are made by authorised persons or organs, in appropriate forums, within the framework of certain established practices and norms, then what occurs is legal decision-making. In other words, international law is a continuing process of authoritative decisions. This view rejects the notion of law merely as the impartial application of rules. International law is the entire decision-making process, and not just the references to the trend of past decisions which are termed ‘rules’. There inevitably flows from this definition a concern, especially where the trend of past decision is not overwhelmingly clear, with policy alternatives for the future.26

Thus ‘rules’ are just accumulated past decisions. And, if international law was just ‘rules’, then international law would indeed be unable to contribute to, and cope with, a changing political world. To rely merely on accumulated past decisions (rules) when the context in which they were articulated has changed – and indeed when their content is often unclear – is to ensure that international law will not be able to contribute to today’s problems and, further, that it will be disobeyed for that reason.

The rejection of the perception of law as ‘rules’ entails a necessary consequence. It means that those who have to make decisions on the basis of international law

– judges, but also legal advisers and others – are not simply ‘finding the rule’ and then applying it. That is because the determination of what is the relevant rule is part of the decision-makers’ function; and because the accumulated trend of past decisions should never be applied oblivious of context. Although this reality has been regarded as anathema by many traditionalists, it was well understood by Sir Hersch Lauterpacht. He rejected the notion that the judicial function meant finding the appropriate rule in an impartial manner. The judge, he argued, does not ‘find rules’ but he ‘makes choices’ – and choices ‘not between claims which are fully justified and claims which have no foundation at all but between claims which have varying degrees of legal merit’.27

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26R Higgins, ‘Policy Considerations and the International Judicial Process’ (1968) 17 ICLQ 58 at pp 58–59.

27H Lauterpacht, The Development of International Law by the International Court, 1958, London: Stevens at p 399.

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The reason why some insist that international law is ‘rules’, and that all international lawyers have to do is identify them and apply them, are not hard to find. They are an unconscious reflection of two beliefs, deeply held by many international lawyers. The first is that, if international law is regarded as more than rules, and the role of the authorised decision-maker as other than the automatic applier of such rules, international law becomes confused with other phenomena, such as power or social or humanitarian factors. The second reason is that it is felt by many that only by insisting on international law as rules to be impartially applied will it be possible to avoid the manifestation of international legal argument for political ends.

I want to deal with each of these reasons in turn, and tell you why I do not agree with them. To seek to contrast law with power (in which task the perception of law as ‘rules’ plays an essential task) is fundamentally flawed. It assumes that law is concerned only with the concept of authority and not with power or control. International law is indeed concerned with authority – and ‘authority’ not just in the sense of binding decisions, but in the broader sense of jurisdictional competence, and more. Myres McDougal has explained:

By authority is meant expectations of appropriateness in regard to the phases of effective decision processes. These expectations specifically relate to personnel appropriately endowed with decision-making power; the objectives they should pursue; the physical, temporal and institutional features of the situations in which lawful decisions are made; the values which may be used to sustain decision, and so forth ... 28

So far, so good. But it is not the case, as is frequently supposed, that international law is concerned with authority alone, and that ‘power’ stands somehow counterpoised to authority, and is nothing to do with law, and indeed inimical to it. This view – which banishes power to the outer darkness (that is to say, to the province of international relations) – assumes that authority can exist in the total absence of supporting control, or power. But this is a fantasy. The authority which characterises law exists not in a vacuum, but exactly where it intersects with power. Law, far from being authority battling against power,29 is the interlocking of authority with power. Authority cannot exist in the total absence of control. Of course, there will be particular circumstances when power overrides authority. On such occasions we will not have decision-making that we can term lawful. But that is not to say that law is about authority only, and not about power too; or that power is definitionally to be regarded as hostile to law. It is an integral element of it.

What then of the other argument – that a perception of international law as other than neutral rules inevitably leads to bias and partiality? A classical statement of this view was made by Judges Fitzmaurice and Spender in the South West Africa cases in 1962, when they wrote:

We are not unmindful of, nor are we insensible to, the various considerations of a non-judicial character, social humanitarian and other … but these are matters for the political rather than for the legal area. They cannot be allowed

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28M McDougal, H Lasswell, and M Reisman, ‘The World Constitutive Process of Authoritative Decision’ (1966) 19 Journal of Legal Education 253 at p 256.

29For expression of this view, see G Shwarzenberger, ‘The Misery and Grandeur of International Law’, inaugural lecture 1963; see also M Bos, A Methodology of International Law, 1984, Amsterdam: North-Holland, esp Chapter XI.

16

Introduction

to deflect us from our duty of reaching a conclusion strictly on the basis of what we believe to be the correct legal view.30

This formulation reflects certain assumptions: that ‘the correct legal view’ is to be discerned by applying ‘rules’ – the accumulated trend of past decisions, regardless of context or circumstance – and that ‘the correct legal view’ has nothing to do with applying past decisions to current contexts by reference to objectives (values) that the law is designed to promote.

The classical view, so brilliantly articulated by Fitzmaurice but shared by very many others, is that international law can best perform its service to the community exactly by distancing itself from social policy. As the International Court of Justice put it in 1966: ‘Law exists, it is said, to serve a social need; but precisely for that reason it can do so only through and within the limits of its own discipline. Otherwise, it is not a legal service that would be rendered.’ 31 Of course, the International Court of Justice thought it self-evident as to where law does draw ‘the limits of its own discipline’. But what is self-evident to one is merely question begging to another.

Reference to ‘the correct legal view’ or ‘rules’ can never avoid the element of choice (though it can seek to disguise it), nor can it provide guidance to the preferable decision. In making this choice one must inevitably have consideration for the humanitarian, moral, and social purposes of the law. As I have written elsewhere:

Policy consideration, although they differ from ‘rules’, are an integral part of that decision making process which we call international law; the assessment of so-called extralegal considerations is part of the legal process, just as is reference to the accumulation of past decisions and current norms. A refusal to acknowledge political and social factors cannot keep law ‘neutral’, for even such a refusal is not without political and social consequence. There is no avoiding the essential relationship between law and politics.32

Because I believe there is no avoiding the essential relationship between law and policy, I also believe that it is desirable that the policy factors are dealt with systematically and openly. Dealing with them systematically means that all factors are properly considered and weighed, instead of the decision-maker unconsciously narrowing or selecting what he will take into account in order to reach a decision that he has instinctively predetermined is desirable. Dealing with policy factors openly means that the decision-maker himself is subjected to the discipline of facing them squarely (instead of achieving unconsciously desired policy objectives by making a particular choice, which is then given the label of ‘the correct legal rule’). It also means that the choices made are open to public scrutiny and discussion.

All this being said, there is still a problem we have to address. If international law is not the mere application of neutral rules in an impartial fashion, but requires choices to be made between alternative norms that could, in the context, each be applicable, then do we really have something other than a justification of the end by the means? This is the serious question, made the more so by the

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30South West Africa cases [1962] ICJ Rep at p 466.

31South West Africa cases [1966] ICJ Rep 6 at para 49.

32Higgins, ‘Integrations of Authority and Control: Trends in the Literature of International Law and Relations’, in B Weston and M Reisman (eds), Towards World Order and Human Dignity, 1976, New York: Free Press.

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events of the early 1980s. During the administration of President Reagan, the United States engaged in various acts of foreign policy which were designed not only to secure national goals but to secure certain objectives perceived as being in the interests of international order and justice. In particular, there occurred military interventions to remove totalitarian rulers and to allow a democratic freedom of choice to the peoples of the countries concerned. We may cite military action in Nicaragua in 1983, in Grenada in 1983, and in Panama in 1989. There has also been military action to punish perceived terrorism: here we may cite the US bombing of Libya in 1986. Each of these actions occasioned significant debate, among Americans and friends of the United States as much among others. There were widely differing views as to the lawfulness of these various actions under international law. The Legal Adviser to the Department of state and the scholars who supported the military interventions very much emphasised the social purposes of international law in their analysis of what was and was not permitted under the United Nations Charter and under customary international law.

My intention is not to enter the fray on the substance of these matters … Rather, I ask this question: if one shares the belief in the preferability of democracy over tyranny, and if one is committed to the policy-science approach to international law, whereby trends of past decisions are to be interpreted with policy objectives in mind, does it necessarily follow that one would have viewed all these actions as lawful? I think not.

In the first place, I do not believe that the policy-science approach requires one to find every means possible if the end is desirable. Trends of past decisions still have an important role to play in the choices to be made, notwithstanding the importance of both context and desired outcome. Where there is ambiguity or uncertainty, the policy-directed choice can properly be made. Some will say that, in a decentralised legal order, to allow one party to interpret the law to achieve desirable outcomes merely will allow another, less scrupulous party to claim to do the same. I am not greatly impressed with that argument. There is no escaping the duty that each and every one of us has to test the validity of legal claims. We will each know which are intellectually supportable and which are not, and it is a chimera to suppose that, if only international law is perceived as the application of neutral rules, it will then be invoked only in an unbiased manner. But it is in the common interest that some prohibitions should be absolute (for example, the prohibitions against some kinds of weaponry);33 and it is in the common interest that other kinds of limitation on conduct should be regarded as compelling, even if, on any single occasion, that prevents the achievement of an outcome otherwise to be regarded as desirable.

That being said, it is still quite wide of the mark to suggest, as some do, that, in the absence of third-party determination, the policy-science approach means simply whatever the policy-maker wants. It really carries matters no further for critics to say that this approach ‘can lead to international law being used by states as a device for post facto justifying decisions without really taking international law into account’.34 This simply begs the question of what international law is. Such a comment merely presupposes that there is a ‘real’ international law that all men of good faith can recognise – that is, rules that can

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33See Chapter 14 and ‘the Legality of the Use by the state of Nuclear Weapons in Armed Conflict’ [1966] ICJ Rep at p 1.

34GJH Van Hoof, Rethinking the Sources of International Law, 1983, Deventer: Kluwer at p 43.

18

Introduction

be neutrally applied, regardless of circumstance and context. And that is where the debate began.

Of course the debate on legal theory is not only about whether international law is ‘rules’ or ‘process’. But this is a critical aspect. Emphasis on rules is associated with, but not limited to, legal positivists – that is to say, those who conceive of law as commands emanating from a sovereign. Austin, the founding father of legal positivism, put it thus: ‘Every positive law, or every law simply and strictly so called, is set by a sovereign individual or a sovereign body of individuals, to a person or persons in a state of subjection to its authority.’35 Kelsen, seeking to give meaning to positivism in a horizontal, decentralised international legal order, where command and sovereignty are notably lacking, proposed the existence of a Grundnorm – the highest fundamental norm from which all others derived their binding force.36

Some leading scholars have sought to reconcile the ‘rule’ and ‘process’ approaches. Yet others, while showing an interest in these matters, have sought to avoid taking positions, insisting that they will merely address the substantive problems of international law on a pragmatic level. My view is that, superficially attractive though ‘reconciliation’ or ‘synthesis’ or ‘middle views’ may seem (as writers frequently want to claim to offer these attractive middle ways), they avoid or blur the essential questions rather than provide an answer to them. And pragmatism itself entails certain assumptions about legal philosophy, no matter how much it seeks to cut clear of the argument.37

More recently, and coinciding with the rise of the critical legal studies movement, there has been an increase in interest in international legal theory. Writers such as Anthony Carty, David Kennedy and Philip Allott have all made valuable contributions to this area of study by re-examining the nature of international law. A major reason for the increase in interest has been the perceived decline in the influence of the sovereign state, particularly in the light of events in the Balkans and elsewhere in Eastern Europe. Characteristic of the new approach is the view that the traditional ideal of international law is based on contradictory premises. Social conflict is resolved by political means and law is just one of the political weapons available. Such theorists argue that a universal definition of law is not possible and instead maintain that the study of law should involve analysis of the way in which states behave and the way in which they justify their behaviour.

‘Critical’ international legal studies constitute a so-called post-modern approach to international law. This is to assert that the discipline is governed by a particular, historically conditioned discourse which is, in fact, quite simply, the translation onto the international domain of some basic tenets of liberal political theory. It opposes itself to the positivist international law, as representative of an actual consensus among states. The crucial question is simply whether a positive system of universal international law actually exists, or whether particular states

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35J Austin, Lectures on Jurisprudence or the Philosophy of Positive Law, 5th edn, 1885, London: John Murray at p 34.

36H Kelsen, General Theory of Law and State, trans A Wedberg, 1949, Cambridge, Mass: Harvard University Press at p 113.

37Rosalyn Higgins, Problems and Processes, International Law and How We Use it (1994), Oxford: Oxford University Press at pp 1–8. The book is a revised version of Rosalyn Higgins’ General Course in International Law delivered to the Hague Academy of International Law.

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and their representative legal scholars merely appeal to such positivist discourse so as to impose a particular language upon others as if it were a universally accepted legal discourse. So post-modernism is concerned with unearthing difference, heterogeneity and conflict as reality in place of fictional representations of universality and consensus …

… There is a contradiction within international legal practice which consists in a virtually unending process of reification38 of the discourse of state consent into actually existing, constraining rules independent of states, which have only to be identified for problems of authority in relations between states to be resolved. In practice this leads to sterile and acrimonious attempts to ‘demonstrate’ that ‘the other side’ has ‘consented’ to a viewpoint which one prefers, an elusive exercise, given that the starting point will usually be a conflict of interest which supposes that neither party is ‘consenting’ to what ‘the other’ wishes.

The critical approach, far from denying the very existence of international law, allows a way out of this impasse precisely because it recognises the character of liberalism as a tradition. It does this by means of two devices. It recognises the absence of a central international legal order as an impartial point to which state actors can refer, ie the simple meaning to be given to the phrase ‘the disappearance of the referent’.39 At the same time it favours a mature anarchy in international relations, the recognition of states as independent centres of legal culture and significance, which have to be understood, in relation to one another, as opposing to one another very fragile, because invariably partial, understanding of order and community.

The role of the international lawyer in such an acutely relativised, self-reflective culture is now, more than ever, crucial. It is his function to resist phoney, reified, would-be universalist legal discourse in favour of the recognition of the inevitably restrictive and exclusive nature of individual state discourse. Above all this calls for the development of a new critical standard which is concerned with penetrating through the cultural symbols of pseudo-universalisation thrown up by individual state to assert themselves against one another. It is not the ambition of the critical international lawyer to substitute another pseudoimpartial legal order, but to facilitate the development of the process of inter- state/inter-cultural dialogue and understanding which may allow a coming together, however temporary and fragile. What is called for is scholarly work of legal translation, itself attempting to be impartial, to stand outside the circles of meaning projected by individual states.40

1.3Is international law really law?

One particular aspect of the discussion about international law has been the questioning by some writers of the very claim made to legal status. Much of the debate surrounding international law’s status as law can be traced to the

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38Reification means simply to consider or to make an abstract idea or concept real or concrete.

39Referent means the object or idea to which a word or phrase refers. A major thesis of postmodernism, very closely linked to the concept of reification is that words have, to a very significant extent, lost any outside referents, that concepts merely refer to one another in a process of mutual differentiation within language.

40Anthony Carty, ‘Critical Legal Law: Recent Trends in the Theory of International Law’ (1991) 2 EJIL 66 at pp 66–68.

20

Introduction

positivist legacy of John Austin. In his major theoretical work, The Province of Jurisprudence Determined, he wrote:

Laws properly so called are a species of commands … And hence it inevitably follows, that the law obtaining between nations is not positive law: for every positive law is set by a given sovereign to a person or persons in a state of subjection to its author ...

The positive moral rules which are laws improperly so called, are laws set or imposed by general opinion: that is to say, by the general opinion of any class or any society of persons. For example, some are set or imposed by the general opinion of persons who are members of a profession or calling: others by that of persons who inhabit a town or province: others, by that of a nation or independent political society: others, by that of a larger society formed of various nations ...

The body by whose opinion the law is said to be set, does not command; expressly or tacitly, that conduct of the given kind shall be forborne or pursued. For, since it is not a body precisely determined or certain, it cannot, as a body, express or intimate a wish. As a body, it cannot signify a wish by oral or written words, or by positive or negative deportment. The so called law or rule which its opinion is said to impose, is merely the sentiment which it feels, or is merely the opinion which it holds, in regard to a kind of conduct ...

The law obtaining between nations is law (improperly so called) set by general opinion. The duties which it imposes are enforced by moral sanctions: by fear on the part of nations, or by fear on the part of sovereigns, of provoking general hostility, and incurring its probable evils, in case they shall violate maxims generally received and respected.41

HLA Hart also questioned the nature of international law contrasting the ‘clear standard cases’ of law constituted by the legal systems of modern states with the ‘doubtful cases’ exemplified by primitive law and international law.42

Many serious students of the law react with a sort of indulgence when they encounter the term ‘international law’, as if to say, ‘well, we know it isn’t really law, but we know that international lawyers and scholars have a vested interest in calling it law’. Or they may agree to talk about international law as if it were law, a sort of quasi-law or near-law. But it cannot be true law, they maintain, because it cannot be enforced: how do you enforce a rule of law against an entire nation, especially a superpower such as the United States or the Soviet Union?

I THE ‘ENFORCEMENT’ ARGUMENT

One intriguing answer to these serious students of the law is to attempt to persuade them that enforcement is not, after all, the hallmark of what is meant, or what should be meant, by the term ‘law’. As Roger Fisher observed, much of what we call ‘law’ in the domestic context is also unenforceable. For example, where the defendant is the United States, such as in a case involving constitutional law, how would the winning private party enforce his or her judgment against the United States? Upon reflection, we see that the United States, whenever it loses a case ... only complies with the court’s judgment because it wants to. The winning party cannot hold a gun to the head of the

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41Austin, The Province of Jurisprudence Determined, 1955, London: Weidenfeld and Nicholson, at pp 133, 140, 141.

42See The Concept of Law, 1961, Oxford: Clarendon Press at p 3.

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United States to enforce compliance, even if there were a natural meaning to the term ‘head of the United States’. We can go even further than Professor Fisher did: every criminal law prosecution is a case of an individual pitted against the state (or the ‘people’ of the state). What is to stop the state from saying, ‘you were acquitted by the jury, but that was a travesty of justice, so we’re going to imprison you anyway’? How does the defendant, in handcuffs, stop the state from going ahead? In some countries, at some times, we have heard of dictators or military regimes proceeding with the imprisonment and execution of defendants who were acquitted by their own courts. In terms of power, there is nothing to stop the United States from disregarding adverse judgments of its own courts. In this sense, therefore, a great deal of what we normally call ‘law’ in the United States is unenforceable by private parties against the state.

It is no objection to this line of reasoning, by the way, to dismiss it as far-fetched. If one objects that the United States, in any event, routinely complies with adverse judgments of its own courts, then the international lawyer can answer that the same is true of rules of international law. As Louis Henkin put it, ‘almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time’.

But a more substantial critique of Professor Fisher’s analogy between cases involving the government as a party and international law cases is that most domestic litigation, after all, does not involve the government as a party. Most cases involve one citizen against another (‘citizen’ including artificial persons such as corporations), and to those cases the law is enforced by the full sovereign powers of the state against the losing litigant. This majority of cases, then, tends to define what we mean by ‘law’; it constitutes the paradigmatic instance of law. Therefore, the argument goes, the minority of cases that do involve the state or the United States as a party are, in a sense, parasitic upon the paradigmatic instance. We tend to regard this latter minority of cases as ‘law’ only because they share certain attributes with the generality of cases. But if we look hard at this minority of cases where the government is a party, we must concede that they are not really ‘law’ because, at bottom, they are unenforceable. They only appear to be law when looked at uncritically. In short, this line of argument concedes Professor Fisher’s major premise – that international law cases are similar to domestic cases where the government is a party – but denies his minor premise, that such cases are instances of ‘law’. Hence, international law is no more ‘law’ than constitutional law or even criminal law. As John Austin stated, both constitutional and international law are merely ‘positive morality’.

… Let us then consider a second line of reasoning against the proposition that enforcement is the hallmark of law. This argument is not associated with any particular writer, because it relies on early conceptions of law and also on the philosophy of law itself. If we consider what law is not, we soon realise it is not a rationale for the application of force. It is not a system of ‘might makes right’ in the sense that the state constantly has to compel people, at gunpoint, to behave in a certain way. If you look through a volume of cases, or even a volume of statutes or annotations, you will find that most of the matters therein concern the working-out of private arrangements in a complex society. Most of ‘law’ concerns itself with the interpretation and enforcement of private contracts, the redress of international and negligent harms, rules regarding sales of goods and sales of securities, rules relating to the family and the rights of members thereof, and other such rules, norms, and cases. The rules are obeyed not out of fear of the state’s power, but because the rules by and large are perceived to be right, just, or appropriate. No state could possibly compel people to obey all these rules

22

Introduction

at gunpoint; there would not be enough soldiers and policemen to hold the guns (a sort of extreme Orwellian vision of society), they would have to sleep sooner or later, and then anarchy might break out.

... If law is not, by and large, a body of rules that are enforced at gunpoint, what is an individual rule of law? Is it, as the 19th century positivists maintained, a command of the state that is backed by the state’s enforcement power? To be sure, some ‘laws’ might be just that: a dictator issues a command for his personal indulgence or whim, and if he has sufficiently satisfied his close advisors and the military in other areas, they will probably enforce his command. But most laws will not have this characteristic. Indeed, looking at the matter more microscopically, what is it that forces a judge to decide the case before her on the basis of precedent and statutes? Is another judge holding a gun to her head? Does she examine whether the law will be enforced to see whether it is law? How does she know, in advance of her own decision, what will be enforced?

This point came up in the famous case of Marbury v Madison,43 famous to generations of American law students but often misinterpreted. In that case, Chief Justice Marshall’s ‘bottom line’ was that the Supreme Court has no original jurisdiction to issue writs of mandamus. In short, there was no power to enforce that which the plaintiff demanded. If ‘law’ were coincident with enforceability, then, since under Marshall’s reasoning there was not power of enforcement in the Supreme Court because it lacked jurisdiction, nothing Marshall said in his opinion would have had any legal significance. To put it another way, lacking a ‘remedy’, the plaintiff would have no ‘right’, not even a right to get a decision from the Court on the question of ‘right’.

But Marshall took an entirely different tack. He began with the question: does the plaintiff have a right? He then asked the second question: if the plaintiff has a right, does he have a remedy? And his third question was, if the plaintiff has a remedy, can the relief issue form this Court? By putting the questions in this order, Marshall did the opposite of what the positivists would require. By dealing first with the question of ‘right’, Marshall was able to address that question wholly apart from whether there was a remedy or whether the remedy was available from the Supreme Court. As all law students know, Marshall answered his own question that there was indeed a right, and secondly, there being a right meant that the plaintiff had a remedy. By going through this reasoning, Marshall was able to establish the groundwork for his path-breaking assertion of judicial review of questions of constitutionality. He held that, in the face of a right and remedy, the congressional statute purporting to grant that remedy to the Supreme Court as a matter of original jurisdiction violated the Constitution. Marshall would not have been able to make his assertion of judicial review if he had begun and ended his opinion with the simple sentence, ‘we have no jurisdiction; case dismissed’. Hence, we see that in a case where by the Court’s own admission it lacked jurisdiction and the power of enforcement, nevertheless the Court was able to establish a point of fundamental substantive significance.

Marshall’s persuasiveness was dependent upon a consensus at the time he wrote his opinion that there could be such a thing as a ‘right’ without a legal remedy. This was part of a larger conviction in those days that the ‘law’ itself was not something that only works when a policeman is standing by ready to enforce it physically. Law indeed is something that is opposed to force. Right is not the

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43 5 US (1 Cranch) 137 (1803).

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same thing as might. In Continental countries, the word for ‘law’ is, as translated, the word ‘right’. In law, there is a fundamental element of right, of justice, dating back to Cicero’s and St Thomas’ equation of ‘right reason’ with the natural law (the latter being those reasonable rules that accommodate the peaceful affairs of persons in a society).

Under this argument that we are developing, the relation of force to law, of might to right, is a contingent and not a necessary relation. We can imagine a society under law where there is no force. People obey the laws, and no one disobeys. There is no need, in this idyllic utopia, for enforcement, because there is universal willing compliance. Surely we cannot claim that such a society does not have ‘law’. It is clear that the society is one that is under law, and that the contingent use of force is simply not necessary. To take an example closer to home, suppose that in some state of the Union there has not been a kidnapping since that state entered the Union. Would we say that the law against kidnapping in that state is not a law? Certainly no one would argue that if a law is so successful that it never needs enforcement, it is not a law. Thus, we can conclude from this hypothetical that enforcement is not intrinsic to, is not necessary to, the idea of law.

But you might object that enforcement must potentially be present, even if it is not invoked. In other words, in the state that has no kidnapping, it is nevertheless true that if someone commits this crime – or even contemplates committing it – the potential for enforcement is ever-present. It is this potential for enforcement, after all, that the positivists insist upon when they draw our attention to the necessary connection between a rule of law and its enforcement.

To take care of this objection, we may simply modify our previous hypothetical of the idyllic utopia. Assume not only that they have never had a need to enforce their laws, but also that they have no enforcement machinery – no police, no jails, no sheriffs, no marshals. They can still have a system of laws, as complex as you please, even without the potential for enforcement.

You might now object that we cannot prove something about the nature of law, an all-too-human institution, by postulating the existence of a utopia where the inhabitants never break the law. Can we modify our utopia to make it seem more realistic? Suppose occasionally someone breaks the law, but is ostracised from society. Suppose one who breaches a contract is considered a moral renegade who should not be entrusted with any further business dealings. These expressions of sharp social disapproval, and occasionally of ostracism, may work to discourage the few people who would disobey the law. They may not always work, but they may be potent enough to deter most of the people (a minority to begin with) who might consider breaking the law. Thus, our non-perfect utopia now consists of a regime where almost all of the laws are obeyed almost all of the time, where occasional disobedience is met with sharp social disapproval, and where occasionally, despite the ‘mechanism’ of social disapproval, occasional violations of the law occur. Is this not, nevertheless, a legal system?

A positivist might happen to object to this concept as follows: the idea of social disapproval, and sometimes social ostracism, is the same thing as a sanction. It constitutes a way of enforcing the law. Hence, by introducing this socialdisapproval factor into this utopia, we have simply underscored the original point – that law (except in idyllic utopias which do not exist) depends upon potential enforcement.

But if that is the positivist’s position, then the international lawyer should gladly concede the point. For international law recognises that the social-disapproval

24

Introduction

factor operates as a sanction. A nation among the community of nations which violates the law, for example, by disregarding a treaty obligation, would certainly be subject to social disapproval by the other nations. in this sense, international law is really ‘law’.

Now it is perhaps the positivist’s turn to beat a hasty retreat. The positivist may now want to retract the equation of social disapproval with ‘sanction’, for fear of including international law under the term ‘law’. Instead, the positivist will retreat to the original position that physical or even violent enforcement is necessary to make law ‘law’, and hence international law is not ‘law’. We may, however, suspect that the positivist is reshaping definitions in order to exclude the international case, rather than to arrive at a general definition of law. Consistent with this position, the positivist will have to argue that any legal system in which social disapproval functions as the sole sanction (for example, in a peaceful tribal society) does not have ‘law’. ‘Law’ is present only when, in addition to social disapproval, there is physical coercion stemming from the sovereign power of the state. But what if there is no need for physical coercion? The positivist must then conclude that there is no law.

Such a position would be difficult to defend, for if there is a society where people are so law-abiding that they get along only with the social-disapproval sanction, that society manifests a rather good case of ‘law’. It is strange to insist that, for there to be law, physical coercion must also be used even if there is no need for it.

Yet even the serious student of law may not be satisfied with the preceding argument in its entirety. We want to ask what happens if the need for physical coercion should arise. In the international system, at least, we have states which occasionally break the rules of international law and which seem not to be deterred by expressions of social disapproval from other states. This is a reality of international life. Therefore, unlike the tribal society where social disapproval may constitute an effective sanction, international society needs a physical sanction to underscore its rules, otherwise, the rules will occasionally be flouted. Perhaps they will be ignored most often when the ‘chips are down’, which is exactly when they most need to be enforced. How can we call such a system, dependent for its support on so feeble a mechanism as social approval, a ‘legal’ system?

It is hard to discern the logic behind the preceding objection, even while it is easy to understand it. We all recognise, and regret, that rules of international law are flouted on occasion, and we are all too aware of the fact that an outraged world public opinion simply is incapable of discouraging the violation. Should our conclusion then be that the rules of international law are not ‘law’ as we know the term, because as we know the term the ‘law’ involves the concept of physical enforcement? Yet, even in asking this, we acknowledge that physical enforcement is not a necessary characteristic of law (our ‘utopian’ examples). And we also acknowledge that, even in domestic cases, where the state is one of the parties, we cannot meaningfully speak of physical enforcement (Professor Fisher’s argument). These two arguments destroy most of the logical force of our position that international law is not really law, and yet, we may cling to that position.

Some early writers on the law of nations attempted to meet the enforcement objection head-on, by asserting that rules of international law are indeed enforced by the mechanism of war. A nation that violates the rules will be the object of a ‘just war’ initiated precisely to punish the transgressing nation and to enforce the validity of the rules. This argument today sounds like an archaic ploy, for we know enough about wars to have learnt that the ‘transgressing’ state

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Sourcebook on Public International Law

may occasionally win if it has the physical power to do so. Physical might bears no necessary connection to international right. Interestingly, the concept of a ‘just war’ has become, if possible, even more archaic under the collective security mechanisms of the League of Nations and its successor the United Nations. These bodies, in principle at least, are designed to stamp out acts of aggression wherever they occur. In other words, they are not set up for the purpose of enforcing international law, but simply for the purpose of enforcing international peace. It follows that if the peace is unjust, it will be enforced anyway. The United Nations seems to call for a ‘cease fire’ in disregard of the merits of the local conflict, and it appears to be concerned less with enforcing international law than with enforcing a prohibition against the use of force no matter what the justification.

Yet there is something in the notion of a ‘just war’ that may help us to fashion a more compelling case for the proposition that international law is really ‘law’ than the other arguments we have examined ... what I will label as reciprocalentitlement violation is a mechanism akin to the old ‘just war’ notion that underlies a realistic enforcement mechanism for international law.44

Some writers argue that much of the scepticism about international law could be equally applied to municipal law:

... the problem of the ultimate foundation of the binding character of law is in no way peculiar to international law.. It is a general legal problem, and arises just as much with regard to national law as it does for international law. No better illustration of this could be given than the one which is to be found in Salmond’s Jurisprudence. A man is told he cannot ride his bicycle along a certain footpath. he asks why, and is told because it is forbidden by a certain by-law. He asks what is the authority for the by-law, and is told that it is made under an Act of Parliament. But if he asks what is the authority for the Act of Parliament, and what is the source of the rule that Acts of Parliament have the force of law, there is, and can be, no final answer. As Salmond says, no statute can confer this authority on Parliament, for that would be to assume the power that has to be accounted for. Whence would the statute itself derive its validity? No doubt the legal force of Acts of Parliament derives from the Constitution, written or unwritten. But then it must be asked what it is that gives the Constitution legal force? In some countries the Constitution itself has been enacted: but what gave that enactment validity? If those who enacted it had the legal, as distinct merely from the physical, power to do so, whence did they derive it, what is the rule of law that conferred the power on them, and whence did it derive its validity? And so on. Ultimately there can be no answer, or there can only be a series of answers, no one of which can be absolutely final.

The reason why the difficulty is less obtrusive in the national than in the international field, is that in the national field the interim terms in the series afford a sufficiently satisfying practical basis for the obligatory force of the law to make the average person feel it unnecessary to go further – for instance, it is usually enough that the law has been enacted by the proper method, without enquiring what it is that confers legal force on enactment by that particular method. In the international field, however, there are no interim terms of quite the same kind. The absence of any patent and obvious source of obligation, such as might exist if there were an international legislature, deprives the international

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44Anthony D’Amato, ‘Is International Law Really “Law”?’ (1985) 79 Northwestern University Law Review at p 1300.

26

Introduction

jurist of any manifest point at which he can rest, and which he can regard as a satisfactory terminal point beyond which there is no practical necessity to go.

In such a position as this, the international lawyer might well take a leaf out of the mathematician’s book when the latter is faced with an infinite regress. One mathematical pronouncement on the subject45 is to this effect: that when the object of any search begins to recede in the repetitive fashion of a regress:

... you may rest assured that you are battering against a boundary of possible human knowledge – a boundary which manifests itself in that form.

The mathematician knows that, if this is the position, no useful purpose will be served, nor will any additional knowledge be gained, by going beyond the first and second, or, at most, the third term of the series; for with the third term, the regress is invariably entered. The international lawyer would be justified in adopting the same view. For those who favour the consent theory, for instance, there would be little practical object in going beyond the proposition that there is an overriding principle of customary international law, not itself deriving from consent, but having the consequence that the general consent of states to a rule, once given or shown to exist, makes that rule binding on each state, irrespective of its subsequent wishes. For those who see law in the hallmark of society – the maxim ubi societas ibi jus – and who consequently postulate the necessity for the existence of law in any society, there would be no need to go beyond a proposition to the effect that if law is a necessity of the international (or any other) order, this implies that the law must be binding, or it cannot serve its purpose. If law is necessary, that necessity must lie precisely in the need for obligatory rules as between members of a society, and it would involve an inherent contradiction to propound law as necessary, if it was not also necessarily binding. This way of putting the matter has considerable attractions.46

The international community, as a society whose members – or at least whose ‘basic members’ – are sovereign states, cannot possess a corpus of law similar to that of domestic law. The latter is created and imposed on the members of each national society by an authority which is juridically superior to them; in other words, the structure of the domestic legal systems is institutionalised and the law

–or at least a major part of it – is derived from institutional machinery. In the international society, on the other hand, the states, precisely because they are sovereign, are not subject to a hierarchical authority regarded as juridically imposed upon them as superior. The international community is therefore a noninstitutionalised society, that is to say endowed with only those institutions – the international organisations – which the ‘basic members’ have been pleased to create by agreement among themselves, institutions which they can, if they so desire, liquidate. International law, therefore, can only be composed – at bottom

–of rules which the sovereign states themselves establish in order to regulate the relations between them.’47

Other writers accept the nature of international law as law and cast doubt on the positivist use of municipal law as a model for law in general. Such writers

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45JW Dunne, Nothing Dies, 1946, London: Faber & Faber at p 32.

46GG Fitzmaurice, ‘The Foundations of the Authority of International Law and the Problem of Enforcement’ (1956) 19 MLR 1 at pp 9–11.

47Luigi Condorelli (Professor of International Law at the University of Geneva), in International Law: Achievements and Prospects, 1991, Bedjaoui (ed) London: Martinus Nijhoff and UNESCO, at p 179.

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argue that municipal law governs legal persons within a state, and such law is derived from a legal superior. International law operates on a different plane.

International law is a law of co-ordination, not, as is the case of most internal law, a law of sub-ordination. By law of co-ordination we mean to say that it is created and applied by its own subjects, primarily the independent states (directly or indirectly), for their own common purposes.48

The young reader embarking on the study of international law is aware that ‘law’ is a body of rules which a human community, a society or an entity sets up in order to govern respective relationships at a given time. Such a reader knows that, over the long term, the content of such law varies, particularly in terms of the type of regulation exercised over the relationships considered (law of subordination or equality, of constraint or freedom, such as feudal law, capitalist or liberal law, socialist law, colonial law, and so forth) or, of course, in terms of the subject areas and sectors of life to be regulated (civil, penal, commercial, aerial, medical law, and so forth), or again in terms of the countries or areas of civilisation (Roman law, Anglo-Saxon law, Islamic law, Chinese law, and so on). What informs the inquiry of the student as he sets out on what for him are the fresh fields of international law is therefore less the concept of ‘law’, on which he has already acquired some ideas, than the fact – which calls for some explanation

– that it is termed ‘international’.

Just as what is known as ‘municipal’ law is the set of rules governing the relationships of individuals, juridical persons, groups and entities among themselves within a given state, the law known as ‘international’ consists of a body of norms, in written form or otherwise, intended to discipline the relationships of states among themselves. Thus, in principle, it regulates the conduct of states and not that of individuals. states are still almost the only protagonists on the international stage. To be more precise, we should be speaking here of international ‘public’ law but the shorter expression is preferred in ordinary speech and we shall maintain its use here. The fundamental characteristic of this international law is thus that its function is to regulate the relations between states, in other words between entities known to be sovereign and which, in principle, assert their full independence of any legal order. This at once raises the problem (which lends international law its specificity and colour) of how these states which affirm their sovereignty can be subject to international law. If one postulates at the outset that there is no higher authority than the state, how can the norm of international law be produced for and applied by such a sovereign state? As might be expected, there is only one possible answer to this question, namely that, historically, it has not been possible for international law to be anything other than a law resting largely on the consent, whether express or tacit, of states and that this situation is bound to continue for a long time to come. This determines the true nature and real tonality of international law. It is more a law of co-ordination (between the sovereign jurisdictions of individual states) than a law of subordination such as municipal law, which regulates its subjects, where necessary through coercion exercised by the state apparatus.’49

The implication here is that international law and municipal law are two different species of law. This issue will be further referred to in the context of the monist-dualist debate discussed in Chapter 2. It should be noted here,

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48Rosenne, Practice and Methods of International Law, 1984, Dobbsferry, New York: Oceana at p 2.

49Mohammed Bedjaoui (Judge of the International Court of Justice), International Law: Achievements and Prospects, 1991, London: Martinus Nijhoff and UNESCO at p 2.

28

Introduction

however, that not all municipal law can be considered to be a ‘law of subordination’, derived from a legal superior. One only has to consider the development of public law in Britain to see an area of municipal law which is created and applied by its own subjects. Many of the rules of public law place restraints on government action although it is the government, as majority party in the House of Commons, that arguably has the power to make the law as it chooses.

Other writers have countered arguments about the validity of international law by pointing to the behaviour of states. For example, Brierly has written:

The best evidence for the existence of international law is that every actual state recognises that it does exist and that it is itself under obligation to observe it. states may often violate international law, just as individuals often violate municipal law, but no more than individuals do states defend their violations by claiming that they are above the law.50

The fact is that states, the principal subjects of international law, do recognise a system of legal rules which they refer to as international law. Louis Henkin summed up the position:

…almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.51

…the reality of international law, that is to say, the actual use of rules described as rules of international law by governments, is not to be questioned. All normal governments employ experts to provide routine and other advice on matters of international law and constantly define their relations with other states in terms of international law. Governments and their officials routinely use rules which they have for a very long time called the ‘law of nations’ or ‘ international law’. It is not the case that resort to law is propagandist – though it sometimes is. The

evidence is that reference to international law has been a part of the normal process of decision-making.52

When Iraq invaded Kuwait in August 1990, Saddam Hussein did not argue that there was no system of law preventing Iraq acting in the way it did. Rather he sought to justify military action on the basis of compliance with the rules of international law. Of course, the fact that states refer to and justify their actions in the language of international law is not conclusive proof that it exists. It may be argued that states behave according to pure self-interest and only refer to international law for purposes of legitimisation. Schwarzenberger has written that the primary function of law is to assist in maintaining the supremacy of force and the hierarchies established on the basis of power, and to give this overriding system the respectability and sanctity law confers. But this is not to deny international law’s status of law. It can and has been argued that municipal law exists to maintain the position of the ruling class. The actions of states cannot always be explained in terms of immediate self-interest. Even when extreme pragmatism governs state action and the result is the use of armed force, ultimately it is the rules of international law that are used to make the peace.

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50Brierly, The Outlook for International Law, 1944, Oxford: Oxford University Press at p 5.

51Henkin, How Nations Behave, 2nd edn, 1979, New York: Columbia University Press at p 47.

52Brownlie, ‘The Reality and Efficacy of International Law’ (1981) LII BYIL 1.

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International law receives a bad press because it is the breakdowns that make the news – but just because a law is broken does not mean that it does not exist.

1.4The enforcement of international law

International law is not imposed on states in the sense that there is no international legislature. As has been seen, the traditional Western view is that international law is founded essentially on consensus. As will be seen in Chapter 3, it has traditionally been created in two ways: by the practice of states (custom) and through agreements entered into by states (treaties). Once international rules are established they have an imperative character and cannot be unilaterally modified at will by states. Unlike municipal law, however, there is no uniform enforcement machinery. The full details of the various ways in which states are made to conform to their international obligations will be discussed throughout the book. The aim here is simply to introduce the range of mechanisms available.

1.4.1 The United Nations

Under Chapter VII of the Charter of the United Nations, the UN Security Council may take enforcement measures where it has determined the existence of a threat to the peace, breach of the peace, or act of aggression. This topic will be dealt with in more detail in Chapter 13. Suffice it to say at this stage that the measures available to the Security Council range from the use of economic sanctions, as in the case of the severance of air links with Libya as a result of the Lockerbie bombing in 1992, to the use of armed force in the case of Iraq. The Security Council’s main role is in maintaining international peace and security rather than in enforcing international law, but the two functions will often overlap.

1.4.2 Judicial enforcement

Reference has already been made to judgments of the International Court of Justice, which is the judicial organ of the United Nations. Its main role is to resolve legal disputes between states and its judgments are binding on the parties to the dispute. In addition to the ICJ there are a number of specialised international tribunals dealing with particular areas of the law and it is not uncommon for states to establish ad hoc tribunals to resolve differences. The whole issue of the peaceful settlement of disputes will be dealt with in more detail in Chapter 12.

1.4.3 Loss of legal rights and privileges

A common enforcement method used by states is the withdrawal of legal rights and privileges. The best known example is the severing of diplomatic relations, but sanctions falling short of this may include trade embargoes, the freezing of assets, and suspension of treaty rights. The adoption of such measures, and indeed the mere threat of them, can very often prove effective in enforcing international obligations.

30

Introduction

1.4.4 Self-help

In very limited situations, international law does countenance self-help in the sense of use of armed force. It is a fundamental rule of international law that the first use of armed force is prohibited but a right of self defence does exist and again the actual use or threat of action in self defence may be effective in enforcing international obligations. The law relating to the use of force, including the right of self defence, is discussed in Chapter 13.

Two further points can be made about enforcement. First, an important aspect of law is its role in helping to predict future action. The action of individuals and states is generally predicated on a presumption that the law will be observed. Although the existing laws may be criticised and reforms demanded, it is in the general interest that law is upheld. An important factor influencing the observance of international law is therefore reciprocity. For example, it is in a state’s own interests to respect the territorial sovereignty of other states as they will in turn respect its territorial sovereignty. Over 300 years ago Grotius could state:

... law is not founded on expediency alone. There is no state so powerful that it may not some time need the help of others outside itself, either for the purposes of trade or even to ward off the forces of may foreign nations untied against it ...

All things are uncertain the moment men depart from law.

The final point involves public opinion. Allusion has already been made to the role of law in the legitimisation of action. states are ever keen to show that their actions are compatible with international law and fear criticism based on the fact that they are failing to observe its rules. One only has to look at the role played by organisations such as Amnesty International in publicising abuses of international human rights law to recognise the effect that informed public opinion can have on state practice. Of course, no system of law can prevent atrocities being carried out. Just as municipal criminal law does not necessarily prevent the occurrence of murder and rape, international law cannot necessarily prevent genocide. It is worth considering whether multiracial elections would have taken place in South Africa if there existed no system of international law. For, arguably, it was the international law prohibition of apartheid, and the United Nations sanctions that were imposed on South Africa for its breach of the prohibition, that led to the demise of the white minority regime. The issue of human rights and apartheid will be further considered in Chapter 15.

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CHAPTER 2

THE RELATIONSHIP BETWEEN MUNICIPAL LAW

AND INTERNATIONAL LAW

2.1Introduction

International law is not confined to regulating the relations between states, and the scope of international law is no longer limited to the rules of warfare and the conduct of diplomatic relations. Matters of social concern such as health, education and economics fall within the ambit of international law and a growing body of rules sets down rights and duties for individuals. Even if it were still correct to speak in terms of international law being a system of rules governing the conduct of states, the fact remains that states are abstract entities which can only act through individuals. State actions are performed by individuals and it therefore follows that international rules have to be applied by individuals. Individual conduct within a state is the subject of municipal law and thus it can be seen that there is potential for the rules of international law to come into contact with rules of municipal law.

This chapter is concerned with the relationship that exists between international law and municipal law. That relationship gives rise to two main areas of discussion:

1The theoretical question as to whether international law and municipal law are part of a universal legal order (‘monism’) or whether they form two distinct systems of law (‘dualism’);

2The practical issue of what rules govern the situation where there appears to be a conflict between the rules of international law and the rules of municipal law: This may occur either:

(a)before an international court; or

(b)before a municipal court

2.2The theoretical issue

Historically there have been two main schools of thought: monism and dualism. Their ideas are outlined here but it should be noted that many modern writers doubt the utility of the monism/dualism dichotomy. Furthermore, courts faced with practical problems involving potential conflicts between the rules of international law and municipal law rarely refer to the theoretical issues. It is, however, instructive when considering actual court decisions to question their theoretical underpinnings.

The relationship between international law and municipal law has been the subject of much doctrinal dispute. At opposing extremes are the ‘dualist’ and ‘monist’ schools of thought. According to the former, international law and the internal law of states are totally separate legal systems. Being separate systems, international law would not as such form part of the internal law of a state: to the extent that in particular instances rules of international law may apply within a state they do so by virtue of their adoption by the internal law of the state, and apply as part of that internal law and not as international law. Such a view avoids any question of the supremacy of the one system of law over the other since they share no common field of application: and each is supreme in its own

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sphere.

On the other hand, according to the monistic doctrine, the two systems of law are part of one single legal structure, the various national systems of law being derived by way of delegation from the international legal system. Since international law can thus be seen as essentially part of the same legal order as municipal law, and superior to it,1 it can be regarded as incorporated in municipal law, giving rise to no difficulty of principle in its application as international law within states.

These differences in doctrine are not resolved by the practice of states or by such rules of international law as apply in this situation. International developments, such as the increasing role of individuals as subjects of international law, the stipulation in treaties of uniform internal laws and the appearance of such legal orders as that of the European Communities, have tended to make the distinction between international law and national law less clear and more complex than was formerly supposed at a time when the field of application of international law could be regarded as solely the relations of states amongst themselves. Moreover, the doctrinal dispute is largely without practical consequences, for the main practical questions which arise – how do states, within the framework of their internal legal order, apply the rules of international law, and how is a conflict between a rule of international law and a national rule of law to be resolved? – are answered not be reference to doctrine but by looking at what the rules of various national laws and of international law prescribe.2

2.2.1 Monism

Monism considers international law and municipal law to be both part of the same body of knowledge – law. They both operate in the same sphere of influence and are concerned with the same subject matter and thus can come into conflict. If there is a conflict, it is international law that prevails. Some, like Kelsen, argue that this is because international law is a higher law from which the state derives its authority and thus its ability to make municipal laws:

Since the basic norms of the national legal orders are determined by a norm of international law, they are basic norms only in a relative sense. It is the basic norm of the international legal order which is the ultimate reason of validity of the national legal orders too.3

Others, including Lauterpacht, argue on natural law grounds that international law prevails because it protects individuals, and the state itself is only a collection of individuals. It is supported by the natural law doctrine that authority and legal duty are both subject to the universality of natural law. A recent articulation of this view is to be found in the writing of Philip Allott:

Every legal power in every society in the world is connected with every other legal power in every other society in the world through the international law of the international society, the society of all societies, from which all law-making

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1There is an alternative theory which, while being monistic, asserts the supremacy not of international but of municipal law.

2Oppenheim’s International Law, Vol 1, 9th edn, 1992, London: Longman at pp 53–54.

3Kelsen, General Theory of Law and the State, 1945, Cambridge, Mass: Harvard University Press at pp 367–68.

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power is delegated.4

2.2.2 Dualism

The dualist doctrine developed in the 19th century partly because of the development of theories about the absolute sovereignty of states and partly alongside the development of legal positivism. Dualist doctrine considers international law and municipal law to be two separate legal orders operating and existing independently of one another. International law is the law applicable between sovereign states and is dependent on the common will of states for its authority; municipal law applies within the state regulating the activities of its citizens and has as the source of its authority the will of the state itself. On this basis neither system has the power to create or alter rules of the other. Since both systems may deal with the same subject matter it is possible for conflicts between the two systems to arise. Where there is a conflict between the two systems, a municipal court following the dualist doctrine would apply municipal law. This might lead to a state being in breach of its international obligations, but that would be a matter for an international tribunal.

2.2.3 A third way?

Both monism and dualism take the view that international law and municipal law can deal with the same subject matter. A third school of thought can be identified which, while subscribing to the dualist concept of two separate legal orders, argues that the two orders deal with different subject matters. Foremost among the advocates of this doctrine are two former judges at the World Court: Sir Gerald Fitzmaurice and Dionisio Anzilotti. In an opinion given in a case in 1939 Anzilotti stated:

It is clear that, in the same legal system, there cannot at the same time exist two rules relating to the same facts and attaching to these facts contradictory consequences ... It is for instance impossible that the relations between the two states should be governed at one and the same time by a rule to the effect that, if certain conditions are fulfilled, the Court has jurisdiction and by another rule to the effect that, if certain conditions are fulfilled, the Court has no jurisdiction – by a rule to the effect that in certain circumstances the state concerned may have recourse to the Court and by another to the effect that in the same circumstances the state has no right to do so, etc, etc. In cases of this kind, either the contradiction is only apparent and the two rules are really co-ordinated so that each has its own sphere of application and does not encroach on the sphere of application of the other, or else one prevails over the other, ie, is applicable to the exclusion of the other.5

Anzilotti seemed to support the view that the two sets of rules, international law and municipal law, each had its own sphere of application. In an earlier case he had indicated how international tribunals should deal with rules of municipal law:

From the standpoint of International Law and of the Court which is its organ, municipal laws are merely facts which express the will and constitute the

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4Allott, Eunomia: New Order for a New World, 1990, Oxford: Oxford University Press at p 308.

5The Electricity Company of Sofia and Bulgaria, Ser A/B, No 77 (1939).

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activities of states, in the same manner as do legal decisions or administrative measures.6

In a lecture to the Hague Academy of International Law, Fitzmaurice made the point even more forcefully:

The controversy [between monism and dualism] turns on whether international law and internal law are two separate legal orders, existing independently of one another – and, if so, on what basis it can be said that either is superior to one or supreme over the other; or whether they are both part of the same order, one or the other of them being supreme over the other within that order. The first view is the dualist view, the second monist ... A radical view of the whole subject may be propounded to the effect that the entire monist-dualist controversy is unreal, artificial and strictly beside the point, because it assumes something that has to exist for there to be any controversy at all – and which in fact does not exist – namely a common field in which the two legal orders under discussion both simultaneously have their spheres of activity ... In order that there can be controversy about whether the relations between two orders are relations of coordination between self-existent independent orders, or relations of subordination of the one to the other, or of the other to the one – or again whether they are part of the same order, but both subordinate to a superior order

– it is necessary that they should both be purporting to be, and in fact be, applicable in the same field – that is, to be the same set of relations and transactions. For instance ... it would be idol to start a controversy about whether the English legal system was superior to or supreme over the French or vice versa, because these systems do not pretend to have the same field of application

... There is indeed no basis on which it is even possible to start an argument, because, although these legal systems may in a certain sense come into conflict in particular cases, thus giving rise to problems of what is called Conflict Law, or Private International Law, each country has its own conflict rules whereby it settles such problems arising before its own courts. Ultimately therefore, there can be no conflict between any two systems in the domestic field, for any apparent conflict is automatically settled by the domestic conflict rules of the forum. Any conflict between them in the international field, that is to say on the inter-governmental plane, would fall to be resolved by international law, because in that field international law is not only supreme, but in effect the only system there is. Domestic law does not, as such, apply at all in the international field. But the supremacy of international law in that field exists, not because of any inherent supremacy of international law as a category over national law as a category, but for other reasons. It is, rather, a supremacy of exactly the same order as the supremacy of French law in France, and of English law in England – ie a supremacy not arising from content, but from the field of operation – not because the law is French but because the place, the field, is France. The view here suggested is neither dualist nor monist: it is precisely the view put forward in the following passage from Anzilotti, who is often miscalled a dualist in this respect:

It follows from the same principle that there cannot be conflict between the rules belonging to different juridical orders, and, consequently, in particular between international and internal law. To speak of conflict between international law and internal law is as inaccurate as to speak of the conflict between the laws of different states: in reality the existence of a conflict between norms belonging to different juridical orders cannot be confirmed except from a standpoint outside both the one and the other.

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6 Certain German Interests in Polish Upper Silesia, Ser A, No 7, p 39 (1926).

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The logic of this cannot be contraverted, and in actual fact, the necessity for a common field of operation as the basis of any discussion as to the relations between two legal orders, is recognised by modern protagonists of the monistdualist controversy. This can be seen from the following sentence in an article by a writer of the monist school, reading: ‘Two normative systems with binding force in the same field must form part of the same order’ – [italics added]. This may be true, or at least it is capable of discussion, if the two orders in question are binding in the same field, but not otherwise. Consider again a sentence such as the following one, taken from one of the most eminent and justly celebrated modern exponents of the positivist-monist view: ‘International law and national law cannot be mutually different and mutually independent systems ... if ... both systems are considered to be valid for the same space and at the same time.’ Everything here depends of course on the ‘if’ – which surely assumes the very point that has to be proved. What calls for question is precisely the phrase ‘valid for the same space at the same time’. Had this passage said ‘valid simultaneously for the same class of relations’, it would not have been open to question, though only because international and national law do not in fact govern the same set of relations. To say this is not to deny the validity of the monist view, but only its relevance in this particular connexion. Equally, the relevance of the dualist view is denied. Recognising, as they evidently do, that only relations between legal orders that operate in the same field can usefully and meaningfully be discussed, the protagonists of the monist-dualist controversy seem to be driven to trying to create the necessary common field – though it is more particularly the monists who seek to do this, since the dualists can rest quite content with the existence of two orders, provided they operate in separate fields. The endeavour to create a common field takes the form in effect of denying the existence or reality of the state, or reducing it to the sum total of the individuals composing it. For instance, the same eminent authority, evidently aware of the difficulty that must arise unless there is a common field, has suggested the following solution:

The mutual independence of international and national law is often substantiated by the alleged fact that the two systems regulate different subject matters. National law, it is said, regulates the behaviour of individuals, international law the behaviour of states. We have already shown that the behaviour of states is reducible to the behaviour of individuals representing the state. Thus the alleged difference in subject matter between international and national law cannot be a difference between the kinds of subjects whose behaviour they regulate ...

Formally, therefore, international and domestic law as systems can never come into conflict. What may occur is something strictly different, namely a conflict of obligations, or an inability for the state on the domestic plane to act in a manner required by international law. The supremacy of international law in the international field does not in these circumstances entail that the judge in the municipal courts of the state must override local law and apply international law. Whether he does or can do this depends on the local law itself, and on what legislative or administrative steps can be or are taken to deal with the matter. The supremacy of international law in the international field simply means that if nothing can be or is done, the state will, on the international plane, have committed a breach of international law obligations, for which it will be internationally responsible, and in respect of which it cannot plead the condition of domestic law by way of absolution. International law does not therefore in any way purport to govern the content of national law in the national field – nor does it need to. It simply says – and this is all it needs to say – that certain things are valid according to international law, and that if a state in the application of its

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domestic law acts contrary to international law in these respects, it will commit a breach of its international obligations.7

2.3The practical issue

2.3.1 Municipal law before international tribunal

There is ample judicial and arbitral authority for the rule that a state cannot rely upon the provisions or deficiencies of its municipal law to avoid its obligations under international law. One of the earliest authorities is the decision in the Alabama Claims Arbitration (1872).8 During the American Civil War, a number of ships were built in England for private buyers. The vessels were unarmed when they left England but it was generally known that they were to be fitted out by the Confederates in order to attack Union shipping. They were so fitted and caused considerable damage to American shipping. The US sought to make the UK liable for these losses on the basis that it had breached its international obligations as a neutral during the War. The UK argued that under English law as it stood there was no way in which it could prevent the sailing of the vessels. The arbitrator rejected the UK argument and had no hesitation in upholding the supremacy of international law. Similar rulings were made in the Serbian Loans Case (1929). In the Draft Declaration on the Rights and Duties of States 1949 prepared by the International Law Commission, Article 13 states:

Every state has the duty to carry out in good faith its obligations arising from treaties and other sources of international law, and it may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty.9

Similarly, Article 27 of the Vienna Convention on the Law of Treaties 1969 provides:

A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.

Although international tribunals will uphold the supremacy of international law over municipal law this should not be taken to mean that municipal law is of no relevance. Municipal law, and in particular domestic legislation, has an important role to play. Very often an international tribunal will have cause to examine domestic legislation closely to discern the practice of states. International tribunals have also looked to municipal law when considering ‘the general principles of law’ indicated as source of international law in Article 38(1)(c) of the Statute of the International Court of Justice, although it should be pointed out that the court will look at municipal law in general rather than any single system of municipal law.

Barcelona Traction, Light and Power Company Limited Case (Second Phase)10

38 In this field international law is called upon to recognise institutions of municipal law that have an importance and extensive role in the international

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7‘The General Principles of International Law Considered from the Standpoint of the Rule of Law’, 1957, 92 Hague Recueil at p 70ff – footnotes omitted.

8Moore, 1 Int Arb 495.

9YBILC 1949 p 286.

10Belgium v Spain [1970] ICJ Rep at p 3.

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field. This does not necessarily imply drawing any analogy between its own institutions and those of municipal law, nor does it amount to making rules of international law dependent upon categories of municipal law. All it means is that international law has to recognise the corporate entity as an institution created by states in a domain essentially within their domestic jurisdiction. This in turn requires that, whenever legal issues arise concerning the rights of states with regard to the treatment of companies and shareholders, as to which rights international law has not established its own rules, it has to refer to the relevant rules of municipal law. Consequently, in views of the relevance to the present case of the rights of the corporate entity and its shareholders under municipal law, the Court must devote attention to the nature and interrelation of those rights ...

50 In turning now to the international legal aspects of the case, the Court must, as already indicated, start from the fact that the present case essentially involves factors derived from municipal law – the distinction and the community between the company and the shareholder – which the Parties, however widely their interpretations may differ, each take as the point of departure of their reasoning. If the Court were to decide the case in disregard of the relevant institutions of municipal law it would, without justification, invite serious legal difficulties. It would lose touch with reality, for there are no corresponding institutions of international law to which the Court could resort. Thus the Court has, as indicated, not only to take cognizance of municipal law but also refer to it. It is to rules generally accepted by municipal legal systems which recognise the limited company whose capital is represented by shares, and not to the municipal law of a particular state, that international law refers. In referring to such rules, the Court cannot modify, still less deform them.

Another manner in which municipal law may be of importance in a case before an international tribunal arises from the doctrine of opposability. This doctrine allows one state to invoke against, or ‘oppose’ to, another state a rule of its own municipal law. As a general principle, provided that the rule of municipal law is not contrary to rules of international law it may be legitimately opposed in order to defeat the international claims of the other state. Thus, in the AngloNorwegian Fisheries case (1951)11 the ICJ held that a Norwegian law delimiting an exclusive fishery zone along almost 1,000 miles of coastline was not contrary to international law and therefore could be successfully opposed to defeat British claims to fish in the disputed waters.

2.3.3 International law in municipal courts

2.3.3.1 Transformation and incorporation

Before considering a number of examples of the treatment of international law by municipal courts it is necessary to explain briefly the concepts of transformation and incorporation. If, as the dualist theory maintains, international law and municipal law constitute two distinct legal systems, a practical consequence is that before any rule of international law can have effect within domestic jurisdiction it requires express and specific ‘transformation’ into municipal law by the use of the appropriate constitutional machinery, such

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11 [1951] ICJ Rep at p 116.

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as a municipal statute. A different view, and one reflecting the monist position, is that rules of international law automatically become part of municipal law as a result of the doctrine of ‘incorporation’.

Put at its simplest, transformation doctrine views rules of international law as being excluded from municipal law unless specifically included; the incorporation doctrine holds that rules of international law are included as part of municipal law unless they are specifically excluded.

2.3.3.2 British practice

Customary international law

As far as the rules of customary international law are concerned the English courts have generally adopted the doctrine of incorporation. Provided that they are not inconsistent with Acts of Parliament or prior authoritative judicial decisions, then rules of customary international law automatically form part of English law: customary international law is incorporated into English law. The 18th century lawyer, Blackstone, wrote:

The law of nations, wherever any question arises which is properly the object of its jurisdiction, is here adopted in its full extent by the common law, and it is held to be a part of the law of the land.12

In Buvot v Barbuit (1737)13 Lord Talbot declared that ‘the law of nations in its full extent was part of the law of England’. Lord Talbot’s statement was followed in a series of 18th and early 19th century cases. Cynics may suggest that the reason for this view was that at the time the international community was small and Britain had a major impact on the formation of customary international law.

Some doubt was thrown on the incorporation doctrine by the decision in R v Keyn (The Franconia) (1876).14 The Franconia, a German ship, collided with a British ship in the English Channel three miles off the British coast. The defendant was prosecuted for manslaughter of a passenger on board the English ship who drowned as a result of the collision and was found guilty. However, the question whether an English court had jurisdiction to hear the case was reserved for the Court of Crown Cases Reserved which decided by a seven to six majority that it did not. Cockburn CJ found that under international law, events occurring on board a foreign ship while it was on the high seas were governed by the law of the foreign state. It was only when the foreign ship came into the ports or waters of another state that the ship and those on board become subject to the local law. Unless, therefore, the defendant at the time of the offence was on British territory or on board a British ship, an English Court would have no jurisdiction. The question for the court was whether the collision had occurred in British territory. It found that according to English law, the three mile belt of sea surrounding Great Britain was not British territory. The court could also not find any clear rule of international law stipulating

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12Blackstone, Commentaries, IV, Chapter 5.

13(1737) Cas t Talbot 281.

14(1876) 2 Ex D 63.

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jurisdictional rights over a three mile territorial sea and therefore found that there was no basis for jurisdiction over Keyn. The case led to the passing of the Territorial Waters Jurisdiction Act 1878 which gave the English courts jurisdiction over the territorial sea. Some have argued that the judgment of Lord Cockburn supports the transformation doctrine. In the course of his judgment he discussed what the position would have been had the court been able to discern a clear rule of international law recognising a three mile territorial sea. He argued that even if unanimity could be found among states on the adoption of a three mile territorial sea it would amount to a new law and the courts were not able to usurp the role of Parliament in creating new law. However, other writers have confined the case to its particular facts and argued that the decision was only concerned with the existence or not of any jurisdiction over the territorial sea and did not amount to a rejection of the rule that international law is part of the law of England.

The confusion was not resolved in the case of West Rand Central Gold Mining Co v R (1905),15 Lord Alverstone CJ stated:

It is quite true that whatever has received the common consent of civilised nations must have received the assent of our country, and that to which we have assented along with other nations in general may properly be called international law, and as such will be acknowledged and applied by our municipal tribunals when legitimate occasion arises for those tribunals to decide questions to which doctrines of international law may be relevant. But any doctrine so invoked must be one really accepted as binding between nations, and the international law sought to be applied must, like anything else, be proved by satisfactory evidence, which must shew either that the particular proposition put forward has been recognised and acted upon by our own country, or that it is of such a nature, and has been so widely and generally accepted, that it can hardly be supposed that any civilised state would repudiate it. The mere opinions of jurists, however eminent or learned, that it ought to be so recognised, are not in themselves sufficient. They must have received the express sanction of international agreement, or gradually have grown to be part of international law by their frequent practical recognition in dealings between various nations ... Barbuit’s Case, Torquet v Bath and Heathfield v Chilton are cases in which the Courts of law have recognised and given effect to the privilege of ambassadors as established by international law. But the expressions used by Lord Mansfield when dealing with the particular and recognised rule of international law on this subject, that the law of nations forms part of the law of England, ought not to be construed so as to include as part of the law of England opinions of text-writers upon a question as to which there is no evidence that Great Britain has ever assented, a fortiori if they are contrary to the principles of her laws as declared by her Courts. The cases of Wolff v Oxholm (1817) and R v Keyn are only illustrations of the same rule – namely, that questions of international law may arise, and may have to be considered in connection with the administration of municipal law.

The incorporation doctrine was further qualified by the Privy Council in Chung Chi Cheung v The King (1939)16 where Lord Atkin stated:

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15[1905] 2 KB 391.

16[1939] AC 160.

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It must always be remembered that, so far, at any rate, as the courts of this country are concerned, international law has no validity save in so far as its principles are accepted and adopted by our own domestic law. There is no external power that imposes its rule upon our own code of substantive law or procedure.

The Courts acknowledge the existence of a body or rules which nations accept amongst themselves. On any judicial issue they seek to ascertain what the relevant rule is, and having found it, they will treat it as incorporated into the domestic law, so far as it is not inconsistent with rules enacted by statutes or finally declared by their tribunals.

The issue of the relationship of customary international law to English law was raised again in the important case of Trendtex Trading Corporation v Central Bank of Nigeria (1977).17 The case concerned issues of state immunity which will be further discussed in Chapter 8. In the course of their judgments all three members of the Court of Appeal accepted the incorporation doctrine, Shaw LJ stating, ‘What is immutable is the principle of English law that the law of nations ... must be applied in the courts of England’. The case also raised the question of the relationship between the doctrine of precedent and customary international law. The court had to consider whether stare decisis applies to rules of United Kingdom law that incorporate rules of customary international law so that a change in international law can only be recognised within the limits of that doctrine. Earlier cases seemed to suggest that the doctrine of precedent prevailed and that the courts could not recognise a change in the rules of customary international law if it conflicted with an earlier decision of the English courts. The majority in Trendtex rejected this view, Lord Denning stating:

... a decision of this court – as to what was the ruling of international law 50 or 60 years ago – is not binding on this court today. International law knows no rule of stare decisis. If this court today is satisfied that the rule of international law on a subject has changed from what it was 50 or 60 years ago, it can give effect to that change – and apply the change in our English law – without waiting for the House of Lords to do it.

The most recent confirmation of the incorporation doctrine applying to customary international law is to be found in the Court of Appeal judgments in Maclaine Watson v Department of Trade (1989). Their view was not contradicted in the House of Lords (1990) although their Lordships found that the case concerned the application of treaty rights rather than rules of customary international law.

Taken as a whole, the authorities would seem to support the incorporation doctrine and thus it can be said that customary international law will be applied by the English courts subject to two main conditions:

1If there is a conflict between customary international law and an Act of Parliament, the Act of Parliament prevails. It should be noted that, as a general rule of statutory interpretation, the courts will try to interpret statutes so as to avoid a conflict with international law. This does not of course apply if the statute is clear and unambiguous.

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17 [1977] QB 578.

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2If there is a conflict between customary international law and a binding judicial precedent laying down a rule of English law, the judicial precedent prevails. But following the Trendtex case the English courts may now depart from earlier judicial precedent which lays down a rule of international law if the international law has changed in the meantime.

One final point about the incorporation doctrine is that since customary international law is considered to be part of English law it does not need to be proved as fact by expert evidence, unlike the position with regard to rules of foreign municipal law. The British courts will take judicial notice of international rules, and may of their own volition refer to textbooks and other sources for evidence thereof.

Treaties

The British practice regarding treaties is different from that regarding customary law. The main reason for this is that the conclusion and ratification of treaties are matters for the executive, coming as they do under the scope of the prerogative. Parliament has no say in the making of treaties. If they were to have direct effect, the Crown could alter the law without recourse to Parliament: therefore it is established that treaties only become part of English law if an enabling act of Parliament has been passed. This point has been reiterated by the courts in a number of cases and should be familiar to those who have studied the doctrine of Parliamentary supremacy and the effect of British membership of the European Union.

Recent discussion of the place of treaties in English law took place in the House of Lords in Department of Trade v Maclaine Watson (1990).18 The question for the courts was whether a member state of an international organisation could be sued directly for the liabilities of the organisation. As has already been stated the Court of Appeal saw the matter as raising issues of customary international law. The House of Lords viewed the matter differently – they saw it as an issue of treaty rights, and explicitly confirmed that a treaty to which the United Kingdom is a party cannot automatically alter the laws of the UK. Only if a treaty is transformed into UK law by statute can it be enforced by the courts in this country; hence the need for the European Communities Act 1972 to transform the Treaty of Rome.

A treaty is a contract between the governments of two or more sovereign states. International law regulates the relations between sovereign states and determines the validity, the interpretation and the enforcement of treaties. A treaty to which Her Majesty’s government is a party does not alter the laws of the United Kingdom. A treaty may be incorporated into and alter the laws of the United Kingdom by means of legislation. Except to the extent that a treaty becomes incorporated into the laws of the United Kingdom by statute, the courts of the United Kingdom have no power to enforce treaty rights and obligations at the behest of a sovereign government or at the behest of a private individual.19

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18[1990] 2 AC 418.

19International Tin Council case [1990] 2 AC 418 per Lord Templeman.

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The usual way in which treaties are transformed into English law is by the passing of an enabling act to which a schedule is attached containing the provisions of the treaty to be enacted. For example the Diplomatic Privileges Act 1964 enacts the Vienna Convention on Diplomatic Relations 1961. Where the treaty is contained in a schedule it is an integral part of the Act and any interpretation of the statute will involve interpretation of provisions of the treaty. Full discussion of the international law rules on treaty interpretation is to be found in Chapter 4. The issue here is the rules of interpretation that the English courts use when considering the provisions of a treaty. The leading case is Fothergill v Monarch Airlines Ltd (1980).20 In that case the House of Lords was called upon to interpret the provisions of the Warsaw Convention for the Unification of Certain Regulations concerning International Air Travel 1929 which formed part of the Carriage by Air Act 1961. The House of Lords held that it was entitled to use the rules of treaty interpretation found in the Vienna Convention on the Law of Treaties 1969 even though such rules conflicted with the English rules of statutory interpretation.

On some occasions, Parliament may pass legislation to give effect to the terms of a treaty without enacting the treaty itself in a schedule. In such cases the question arises as to the extent to which the courts can have regard to the treaty in interpreting the statute. The leading case here is Salomon v Commissioners of Customs and Excise (1967)21 in which the Court of Appeal had to interpret the Customs and Excise Act 1952. The Act was intended to give effect to the Convention on Valuation of Good for Customs Services 1950, although no specific mention was made of the Convention in the Act. The court set down three principles to be applied in such cases. First, if the terms of the statute are clear and unambiguous, the court must give effect to them even if they conflict with the treaty provisions. Secondly, if the provisions of the statute are not clear and are capable of more than one meaning, the treaty can be used as an aid to interpretation and a presumption operates that Parliament cannot have intended to legislate contrary to international law. Thirdly, the court may refer to the treaty in such cases even if there is no reference to it anywhere in the statute. Extrinsic evidence can be brought to show that the statute was intended to give effect to the treaty. It must be noted that the rules regarding European law are different and reference should be made to the House of Lords decision in R v Secretary of State for Transport ex p Factortame (No 2) (1990)22 for a discussion of the relationship between English statute and European law.

Finally, there is the situation where an act of Parliament, while not intended to give effect to any specific treaty, deals with the same subject matter as a treaty to which the UK is a party. Again, it should be noted that there are specific rules dealing with the position of European law and reference should be made to textbooks on Constitutional law and European law for the position with regard to conflict between statute and law derived from the Treaty of Rome. In other situations the rules are fairly straightforward. The courts will

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20[1981] AC 251.

21[1967] 2 QB 116.

22[1991] 1 AC 603.

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always give effect to clear and unambiguous words contained in a statute even if they conflict with a treaty to which the UK is a party. Therefore in R v Secretary of State for the Home Department ex p Brind (1991)23 the House of Lords upheld the broadcasting ban on certain ‘terrorist’ organisations introduced under the provisions of the Broadcasting Act 1981 even though it was argued that it breached provisions of the European Convention on Human Rights 1950 to which the UK is a party. However, where there is some ambiguity in the statute the courts will endeavour to interpret it so as to conform with the UK’s international obligations. Similarly, if the common law is uncertain the courts should approach the issue on the basis that any decision should be in conformity with international obligations. Thus in Derbyshire County Council v Times Newspapers Ltd (1992),24 the Court of Appeal was asked to decided whether a local authority could sue for libel. The court held that it could not and in the course of his judgment Balcombe LJ expressed the view that since the domestic law was uncertain the court could take into account the provisions of Article 10 of the European Convention on Human Rights.

2.3.3.3 The practice of other states

It is impossible to discern any uniform practice among states, although a number of similarities in approach can be identified. The majority of states with a common law system adopt an approach similar to that in Britain. Those states which have a written constitution do have the opportunity to make the situation clear by making specific reference to the status of international law. For example, although US practice concerning customary law is similar to Britain, the US Constitution provides:

... all treaties made or which shall be made with the authority of the United states, shall be the supreme law of the land and the Judges in every state shall be bound thereby, anything in the Constitution or Law of any state to the contrary notwithstanding.25

To mitigate the effects of this rule, the US courts have distinguished ‘selfexecuting treaties’ which automatically become law and ‘non-self-executing treaties’ which require legislation by Congress to become law. Discussion of the distinction between self-executing and non-self-executing treaties has taken up much American court time and the implication of the various cases is that the distinction depends on the political content of the treaty. Where a treaty involves political questions the issue should be left to Congress but where a treaty contains provisions which are capable of enforcement as between private parties then it will be regarded as self-executing. Treaties in conflict with the US Constitution are not regarded as binding.

The constitutions of Austria, Germany and Italy all declare that the generally recognised rules of international law form part of the domestic system. For example, Article 25 of the Basic Law of Germany states:

________________________________________________________________________________________________________________________________________________

23[1991] 1 AC 696.

24[1992] QB 770.

25US Constitution Article VI, s 2.

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... the general rules of public international law are an integral part of federal law. They shall take precedence over the laws and shall create rights and duties for the inhabitants of the federal territory.

The courts in all three states have found that while such provision may apply to customary international law, the provisions of treaties do not automatically become part of municipal law. A different approach is taken by the Dutch constitution which provides that international treaties to which the Netherlands is a party become part of municipal law and prevail over incompatible provisions of Dutch law. No mention is made of the rules of customary international law and the Dutch courts have not considered international custom to be automatically part of Dutch law. As a general observation it can be said that few municipal courts have upheld the priority of international law over municipal law.

2.3.4 The relationship between international law and European law

An area of developing interest is the relationship between European law and international law although it has not yet been subject to the same degree of analysis as that given to the relationship between international law and municipal law. It is generally accepted that the European Union has a separate legal personality under international law and that European law constitutes a distinct legal order. Article 177 of the Treaty of Rome allows the European Court of Justice to rule on questions of the validity of European law and this can involve discussion of the relationship between it and international law. According to Article 228 of the Treaty of Rome, treaties concluded by the EU are binding on its institutions and on member states. They are regarded as forming an integral part of European law. Rules of customary international law will be upheld and applied by the European Court provided they are not incompatible with provisions of European law. A particular point which arises in respect of the EU is the extent to which a member state can rely on a rule of international law as a defence against it failing to fulfil obligations under European law. Article 234 of the Treaty of Rome provides that Community law leaves unaffected the treaty rights and obligations entered into between member states and non-member states if the conclusion of such agreements predates Community competence.

The monist conception is more in line with the ECJ’s conception of the European Community legal system,26 and it has applied it in its consideration of the relationship between international agreements and community law.

The ECJ has applied a very extensive interpretation of Article 177 in the context of international agreements. A Council Decision or Regulation concluding an international agreement (in the sense of internal EC acceptance) is one of the

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26See K Meessen, ‘The Application of Rules of Public International Law within Community Law’ (1976) 13 CMLR 485–501, pp 500–1; J Groux and P Manin, The European Communities in the International Order (Brussels, EC Commission, European Perspective Series, 1985); Hancher, ‘Constitutionalism, the Community Court and International Law’ (1994) 25 NYIL at pp 276–77.

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‘acts’ of a Community institution for the purposes of Article 177(1)(b).27 So too are the decisions of an Association Council since they give effect and the Association Council is entrusted with responsibility for the implementation of the agreement.28 Therefore, the ECJ has jurisdiction to rule on the ‘validity’ and ‘interpretation’ of those acts under the preliminary reference procedure.29 In the SPI and SAMI case the ECJ ruled that jurisdiction also extended to an agreement, the GATT, to which the EC had succeeded as a matter of law and so there was no Community act at all.30

In the International Fruit Co case it was submitted that validity extended to ‘validity under international law’.31 The ECJ accepted this. Thus the validity of a measure, ‘may be affected by reason of the fact that it was contrary to a rule of international law’.32 The ‘rule of international law’ could be derived from an international agreement, customary international law, or be a general principle of international law.33 However, only rules deriving from international agreements have been argued before the ECJ. Moreover, the ECJ has in fact never held a community measure invalid because it was contrary to international law. As the Court of the Community it is institutionally disposed to uphold the validity of community measures against rules in international agreements.34 However, where an international agreement can be given effect without having to invalidate a community measure, then the ECJ has been more receptive.35 It is also interesting to note two arguments of the Commission in cases decided in 1982. In Kupferberg it submitted that, ‘As a subject of international law particularly dependent on the proper functioning of the international legal order the Community has no interest in impeding that process by an a priori restrictive attitude to the direct effect of international agreements’.36 At the same time,

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27Case 181/73, Haegeman v Belgium [1974] ECR 449 pr 4 (hereinafter Haegeman); Case 104/81,

Hauptzollamt Mainz v Kupferberg [1982] ECR 3641 (hereinafter Kupferberg). Often a ‘sui generis decision’ is used. ‘If the agreement contains provisions which are capable of having direct effect, or which, if promulgated as internal legislation within the Community, would take the form of a regulation, the Council act concluding the agreement will often take the form of a Regulation. Otherwise, the sui generis decision is used’, I Macleod: A Manual of Law and Practice, 1996, Oxford: Oxford University Press at p 81.

28Case C-192/89, Sevince v Staatssecretaris van Justitie [1990] ECR I-3461 prs 9–10 (hereinafter Sevince); Case 30/88, Greece v Commission [1989] ECR 63 pr 13; Case 351/95, Selma Kadiman v Freistaat Bayern on the interpretation of Article 7 of Decision 1/80 of the EEC/Turkey Association Council.

29For a claim of alleged illegality of a bilateral fishing agreement concluded between the EC and Canada see Case T-194/95, Area Cova and Others v Council.

30Joined Cases 267 and 269/81, Amministrazione delle Finanze dello Stato v SPI and SAMI [1983] ECR

801.The succession by the Community is thus treated as having the same effect as an act of the Community. See AG Reisch in ’The SPI and SAMI case’; TC Hartley, ‘International Agreements and the Community Legal System: Some Recent Developments’ (1983) 8 EL Rev at pp 383–92.

31Joined Cases, 21 and 24/72, International Fruit Company NV v Produktschap voor Groentend en Fruit [1972] ECR 1219 (hereinafter IFC case).

32IFC case, para 5.

33See Article 38 of the ICJ.

34This partially explains why the ECJ’s restrictive interpretation of locus standi under Article

173.See TC Hartley, The Foundations of European Community Law, 3rd edn, 1994, Oxford: Clarendon Press at pp 361–92.

35See P Craig and G De Burca, EC Law – Texts, Cases and Materials, 1995, Oxford: Oxford University Press at pp 171–72.

36Kupferberg, p 3654.

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however, the Commission argued in the Polydor case that ‘the concept of direct effect, as developed in Community law, must not as such be transposed to the field of the Community’s international relations’.37

In the International Fruit Co case the ECJ stated two conditions that would have to be satisfied before a Community measure could be held invalid due to its incompatibility with international law. First, the Community must be bound by the provision of international law concerned. Secondly, the provision of international law must have direct effect in Community law. We consider these conditions in turn.

The Community must be bound by the provision of international law concerned: the binding nature of Treaties concluded by the Community

Treaties concluded by the Community and one or more states or international organisations, ‘shall be binding on the institutions of the Community and on member states’ (Article 228(7)).38 As a consequence of this, ‘it is incumbent upon the Community institutions, as well as upon the member states, to ensure compliance with the obligations arising from such agreements’.39 When the member states ensure respect for such obligations they are fulfilling obligations in relation to the Community as well as to the non-member country concerned.40 This obligation to the Community explains the ECJ’s view that when an international agreement to which the EC is a party comes into force its provisions ‘form an integral part of Community law’,41 and of the ‘community legal system’.42 So too the Decisions of an Association Council.43 This integration into community law means that the provisions have, for the purposes of community law, a community nature or character. Given this character, the interpretation and effect of such provisions should not vary between member states, for example, by having direct effect in some but not others.44 Similarly it should not be dependent on whether the application of the provisions is the responsibility of the Community institutions or the member states.45

The requirements of consistent and ‘uniform application throughout the Community’,46 is ensured by the ECJ, through its jurisdiction to interpret the provisions of such agreements.47 However, it is important to be clear that the ECJ has no direct jurisdiction under the EC Treaty to interpret an international

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37Case 270/80, Polydor Ltd v Harlequin Record Shops Ltd [1982] ECR 329, p 343 (hereinafter

Polydor).

38Formerly Article 228(2).

39Kupferberg, pr 11.

40Ibid, p 12.

41Haegeman, pr 5. Internal implementation does not appear to be necessary as a matter of principle.

42Kupferberg, pr 13.

43Sevince, pr 9; Greece v Commission [1989] ECR 63 pr 13.

44The concept appears elsewhere in EC law, for example, over regulations not being transposed by national laws and thereby losing their community character, Case 39/72,

Commission v Italy [1973] ECR 101.

45Kupferberg, pr 14; Case 12/86, Demeril v Stadt Schwabisch Gmund [1987] ECR 3719 pr 10 (hereinafter Demeril).

46Kupferberg, pr 14.

47See also Sevince, pr 11. Jurisdiction to interpret an international agreement could arise by way of a preliminary ruling or in a direct action, see Opinion 1/91 (First EEA Opinion), pr 38.

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agreement as between the EC and a non-member state party.48 It only has jurisdiction to interpret an international agreement ‘where its interpretation is relevant to the question of the validity of an act of a Community institution or to the question of the interpretation to be given for such an act’.49 Its interpretation of the provisions concerned is ‘for the purposes of [their] application in the Community’50 and ‘in so far as that agreement is an integral part of the Community legal order’.51 That interpretation is obviously not binding on the non-member state, though in practice it may be very influential.52 An international agreement could confer jurisdiction on the ECJ to interpret it for the purposes of its application in non-member countries.53 The original EEA Agreement did this. However, the ECJ has taken the view that such jurisdiction would only be compatible with the EC Treaty if the ECJ’s judgments have binding effect.54 Alternatively, an international court could be established or given jurisdiction to interpret an international agreement to which the EC is a party. The decisions of such a court would be binding on the community institutions, including the ECJ.55 Such a system or courts is, in principle, compatible with Community law:

The Community’s competence in the field of international relations and its capacity to conclude international agreements necessarily entails the power to submit to the decisions of a court which is created or designated by such an agreement as regards the interpretation and application of its provisions.56

As well as being bound as a treaty, the ECJ has also accepted that the EC can become bound by an international agreement by a process of substitution or replacement for the member states.57 This has been the case with the

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48Only states can be parties before the ICJ. A third state could refer a dispute over the interpretation of a Community agreement to the ICJ. Presumably a member state could also do in relation to the interpretation of the Agreement itself rather than matters of EC competence. Under Article 219 EC only the ECJ is to have jurisdiction over EC matters, see Opinion 1/91 (First EEA Opinion), pr 35, and the discussion in Opinion 2/94 (ECHR). A dispute over CFSP could also go to the ICJ although this is unlikely.

49AG Warner, in Haegeman, p 473.

50Kupferberg, pr 45.

51Opinion 1/91 (First EEA Opinion), pr 39.

52In effect the position of the ECJ is the same position as that of a national court interpreting an international agreement.

53Opinion 1/91 (First EEA Opinion), pr 59. Note also the 1971 Protocol to the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (1968) which provides for the ECJ to have jurisdiction to interpret the Convention. Only member states are parties. See C-389-92, Mund and Fester v Hatrex International Transport

[1994] ECR 1-467.

54Opinion 1/91 (First EEA Opinion), pr 61. The agreement was changed to make the judgments of the ECJ binding, see Opinion 1/92 (Second EEA Opinion) [1992] ECR I-2821 See also Case C-188/91, Deutsche Shell AG v Hauptzollamt Hamburg-Harburg [1993] ECR I-363.

55Opinion 1/91 (First EEA Opinion), pr 39.

56Opinion 1/91 (First EEA Opinion), pr 40. See Schermers 29 CML Rev, 991–1010. This would be of significance in relation to the jurisdiction of the European Court of Human Rights to interpret the ECHR in relation to the EC. See the discussion in Opinion 2/94 (ECHR).

57There are a number of possible explanations for this process including an analogy with Article 228 or the transfer of sovereignty from the member state to the EC with the consent of the third parties concerned. See Cheyne, ’International Agreements and the European Community Legal System’ (1994) 18 EL Rev at pp 581–98.

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GATT,58 and two customs conventions.59 Thus in the International Fruit Co case the ECJ found that the provisions of the GATT agreement were binding on the Community.60 The ECJ appears to treat such agreements as an integral part of the Community legal order in the same way as agreements expressly adopted by the EC.61 The ECJ has not accepted that the EC has succeeded to the European Convention on Human Rights.62

In the 1990s the EC has increasingly been faced with questions of state succession to treaties. German reunification, the disintegration of the USSR63 and of Yugoslavia, the separation of Czechoslovakia and the agreed secession of Eritrea from Ethiopia raised a series of issues for which Community practice has to develop. The results were inevitably variable and pragmatic with the 1978 Vienna Convention on Succession of States in Respect of Treaties providing analogous rules which have served ‘as a useful point of reference but no more’.64 The international law rules of state succession are themselves far from clear.

In Demirel the UK and Germany argued that in the case of a mixed agreement the ECJ’s jurisdiction only extends to those parts of the agreement which are within EC competence. Arguably, it does not extend to those parts of the agreement which are within member state competence.65 The ECJ responded that the question did not arise because Article 238 empowered the Community to guarantee commitments towards non-member countries in all fields covered by the Treaty. That obviously included the provisions on the free movement of workers that were in issue in the case. It made no difference to this conclusion that it was for member states to lay down rules which were necessary for giving effect in their territory to the provisions of an international agreement or the decisions adopted by an Association Council.66 The ECJ recalled its ruling in

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58IFC case. The ECJ has also held that it has exclusive competence to interpret the GATT for the purposes of EC law, SIOT v Ministero delle Finanze [1983] ECR 731 (hereinafter SIOT).

59The Convention on the Nomenclature for the Classification of Goods in Customs Tariffs and the Convention Establishing the Customs Co-operation Council. See Case 38/75, Douaneagent der NV Nederlandse Spoorwegen v Inspecteur der Invoerrechten en Accijzen [1975] ECR 1439.

60See also Joined Cases 267 and 269/81 Amministrazione delle Finanze dello Stato v SPI and SAMI

[1983] ECR 801.

61See Cheyne, ’International Agreements and the European Community Legal System’, p 5878; G Bebr, ‘Agreements Concluded by the Community and their Possible Direct Effect: from

International Fruit Company to Kupferberg’ (1983) 20 CMLR 35–73, p 43; Case C-69/89, Nakajima All Precision Co v Council [1991] ECR I-2069 concerning the GATT Anti-dumping Code to which the EC is a party. ELM Volker, ‘The Direct Effect of International Agreements in the Community’s Legal Order’, Legal Issues of European Integration, 1983/1, 131–45, pp 142–43, expresses a contrary view.

62See Cases 50-52/82, Administrateur des Affaires Maritimes, Bayonne v Dorca Marina [1982] ECR 3949. Opinion 2/94 (ECHR) would seem to reinforce that view.

63On the application of the Community’s anti-dumping procedures to a successor state see Case T-164/94, Ferchimex SA v Council [1995] ECR II-2681.

64See PJ Kuyper, ‘The Community and State Succession in Respect of Treaties’, in D Curtin and T Heukels (eds), Institutional Dynamics of European Integration: Essays in Honour of HG Schermers, Vol II, 1994, Dordrecht: Nijhoff at p 640. See also HG Schermers and NM Blocker, International Institutional Law, 3rd edn, 1995, The Hague: Nijhoff at pp 986–88.

65Demirel, see p 3725 (Germany) and p 3729 (UK).

66Demirel, pr 10.

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Kupferberg that the obligation of member states to lay down such rules was a community obligation.67

Pre-existing international commitments and the EC legal order

Article 234 protects third states by providing for the continuing effect of preexisting international agreements:

The rights and obligations arising from agreements concluded before the entry into force of this Treaty between one or more member states on the one hand, and one or more third countries on the other, shall not be affected by this Treaty.

Those international agreements with third states do not become part of the EC legal order. Whether the agreement has direct effect will depend on the national law of the member state concerned rather than on EC law.68 The agreements do not become binding on the EC,69 subject to the rare possibility of succession. Article 234 continues by providing that if there are incompatibilities between the international agreements and the EC Treaty then the member state concerned ‘shall take all appropriate steps to eliminate the incompatibilities concerned’. Member states are to ‘assist each other to this end’ and, ‘where appropriate, to adopt a common attitude’.70 This obligation should not be interpreted to the point of requiring member states to denounce agreements with third states.71 The number of cases in which member states seek to rely on Article 234 is increasing steadily.

Article 234 will effectively provide a member state with a defence when they would otherwise be in breach of their obligations under the EC Treaty.72 For example, in the Levy73 and Minne74 cases the effect of Article 234 was that Article 5 of the Equal Treatment Directive 76/207 could not be relied upon to prevail over the national provisions adopted to comply with an ILO Convention of 1948. The institutions of the Community are bound not to impede the performance of those obligations by the member state concerned.75 The third paragraph of Article 234 emphasises the common advantages to member states of EC membership. This would be consistent with an interpretation of Article 234 which only allows member states to rely on it when it has an obligation to a third state that is relevant. A member state should not be able to rely on Article 234 to

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67Ibid, pr 11. See TC Hartley, ‘International Agreements and the Community Legal System: Some Recent Developments’ (1983) 8 EL Rev 383–92, p 389.

68See Case 812/79, Attorney General v Burgoa [1980] ECR 2787, pr 10 (hereinafter Burgoa).

69Ibid, at 2808.

70A particular problem that can arise is where one member state interprets similar international obligations in a different way to other member states, see JM Grimes, ‘Conflicts Between EC Law and International Treaty Obligations: A Case Study of the German Telecommunications Dispute’ (1994) 35 Harv ILJ 535–64, pp 554–5.

71See Grimes, ‘Conflicts Between EC Law and International Treaty Obligations’. See also Opinion 1/76 (Rhine Navigation case), pr 2, on Article 234 justifying participation in an international agreement.

72See R Churchill and N Foster, ‘European Community Law and Prior Treaty Obligations of Member States: The Spanish Fisherman’s cases’ (1987) 36 ICLQ 504–24.

73Case C-158/91, Ministère public et direction du travail et l’emploi v Levy [1993] ECR I-4287.

74Case C-13/93, Office nationale de l’emploi v Minne [1994] ECR I-371.

75Burgoa, at 2808.

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gain a benefit or advantage.76 Article 234 cannot be relied upon in intracommunity relations if the rights of non-member states are not involved.77

The direct effect of international agreements

The concept of direct effect has been of fundamental importance in the development of the European Community Law system. The EC Treaty does not contain the concept of ‘direct effect’. There is a similar sounding concept of ‘direct applicability’ in Article 189 EC but that only refers to Regulations. The subject matter is similar to, but more extensive than, the international law concept of ‘self-executing treaties’.78 The ECJ uses the terms ‘directly effective’ and ‘directly applicable’ interchangeably.79 This work uses the term ‘directly effective’. If a provision of an international agreement is directly effective, as a matter of EC law, then it grants natural and legal persons rights that must be upheld by the national courts of the member states.80 One or more of the provisions of an international agreement can have direct effect even if the other provisions of the same agreement do not have direct effect.81

In accordance with Van Gend En Loos82 and subsequent case law, the general test for direct effect of community law measures is threefold:

1The provision must be clear and unambiguous.

2It must be unconditional.

3Its operation must not be dependent on further action being taken (by the community or by national authorities or international bodies such as an Association Council).

These strict criteria were intended to make the doctrine more acceptable to states. In practice, although these tests appeared rigorous when first introduced, over time they have been considerably relaxed in their application. To an extent they are not even applied as successive tests anymore. For internal measures direct effect may now be regarded as the norm rather than the exception. The test is essentially a practical one. If a provision lends itself to judicial application it will be held to be directly effective. Only when direct effect would create serious practical problems will the provision be held not to be directly effective. This supports the view that the test has become little more than one of justiciability:‘ A rule can have direct effect whenever its characteristics are such that it is

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76See Case 10/61, Commission v Italian Republic [1962] ECR 1, at 10; Case 812/79, Attorney General v Burgoa [1980] ECR 2787; Case C-158/91, Ministère public et direction du travail et l’emploi v Levy [1993] ECR I-4287.

77Cases C-241/91P and C-242/91P, Radio Telefis Eireann (RTE) and Independent Television Publications v Commission [1995] ECR I-743. On the replacement by Community regulations of social security conventions concluded between member states see Case C-475/93, JeanLouis Thevenon and Others v Landesversicherrungsanstalt [1995] ECR I-3813.

78See J Jackson, ‘Status of Treaties in Domestic Legal Systems’ (1992) 86 AJIL 310–40.

79In Case C-58/93, Yousfi v Belgian State [1994] ECR I-1353, A-G Tesauro considered the alleged distinction between direct applicability and direct effect and stated that ‘the difference between the expressions used, at least in the case law, is merely terminological and nonsubstantive’, pp 1357–58.

80See Bebr, ‘Agreements Concluded by the Community’; Volker, op cit; Bourgeois, ‘Effects of International Agreements in European Community Law’ (1984) 82 MichLRev 1250–73.

81So Polydor and Kupferberg concerned the same agreement with Portugal.

82Case 26/62 [1963] ECR 1.

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capable of judicial application’.83 It is possible that only part of an EC law can have direct effect.

This jurisprudence on direct effect of EC measures is important because there has been substantial legislative implementation of international agreements within Community law by means of Regulations and Directives. If a provision in such a measure has direct effect there may be no need to consider as a separate issue whether the international agreement concerned can have direct effect in its own right. This issue is particularly important, however, if no internal implementation measures have been taken.

Does the general test for direct effect apply to international agreements?

Formally, the answer appears to be yes.84 According to the ECJ’s wellestablished jurisprudence:

A provision in an international agreement concluded by the Community with non-member countries must be regarded as being directly applicable when, regard being had to its wording and the purpose and nature of the agreement itself, the provision contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure.85

The decisions of an Association Council must satisfy the same conditions as those applicable to the provisions of the agreement itself.86 However, the result of the practical application of this test has been that direct effect of international agreements has been the exception rather than the norm. This is the reverse of the situation with internal EC measures. We need to consider closely the ECJ’s approach to the interpretation of international agreements.

How does the ECJ approach the interpretation of international agreements?

The ECJ has rarely referred expressly to the generally accepted rules of interpretation in international law in the Vienna Convention on the Law of Treaties (1969).87 According to the ECJ, to determine the effect in the community legal system of the provisions of an international agreement, its ‘international origin’ has to be taken into account.88 Parties to an agreement can ‘[i]n conformity with principles of public international law’ expressly specify the

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83See P Pescatore, ‘The Doctrine of Direct Effect – An Infant Disease of Community Law’ (1983) ELRev 155–77.

84Ibid, pp 171–74.

85Demirel, pr 14; Case C-18/90, Office National de l’Emploi v Kziber [1991] ECR I-199, pr 15. N Neuwahl suggests that it is ‘not clear whether these criteria are sufficient in the case of an international agreement’, ‘Individuals and the GATT: Direct Effect and Indirect Effects of the General Agreement on Tariffs and Trade in Community Law’, in N Emiliou and D O’Keeffe (eds), The European Union and World Trade Law – After the GATT Uruguay Round, 1996, Chichester: Wiley at p 319.

86Sevince, prs 14–15.

87Examples are Opinion 1/91 (First EEA Opinion), pr 14, and C-432/92, R v Ministry of Agriculture, Fisheries and Food, ex p Anastasiou, [1994] ECR I-3087, both referring to Article 31 VCLT. The Vienna Convention on the Law of Treaties between States and International Organisations or between International Organisations (1986) contains broadly analogous rules. The EC is not a party. See P Manin, ‘The European Communities and the Vienna Convention on the Law of Treaties between States and International Organisations or between International Organisations’ (1987) 24 CMLR 457–81.

88Kupferberg, pr 17.

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effect of the provisions of an agreement in their respective legal orders.89 In practice they rarely do this and, in default, the question can come before the ECJ.90 It is then a question of interpretation of the agreement concerned.

The general approach of the ECJ to the interpretation of international agreements is to examine its provisions in the light of the general structure of the agreement and any amending or additional Protocols to it.91 Simultaneously, ‘The spirit, the general scheme and the general terms of the ... agreement must be considered’.92 In Haegeman the ECJ clearly read the international agreement concerned in the light of the EC provisions concerned. There was no reference to GATT or to the international backgrounds.

The aims and context of the agreement must also be considered, and its provisions analysed in the light of its object and purpose.93 The considerations which lead to a certain interpretation in a Community context do not necessarily apply in the context of an international agreement. The ECJ has stressed on many occasions that the EC Treaty creates a new and unique legal order notwithstanding that it was concluded in the form of an international legal agreement.94 The Treaty constitutes the constitutional charter of a Community based on the rule of law.95 Member states have limited their sovereign rights. Community law has primacy over the law of the member state and many of its provisions have direct effect.96 The Treaty pursues certain aims and objectives, and in particular, ‘by establishing a common market and progressively approximating the economic policies of the member states, seeks to unite national markets into a single market having the characteristics of a domestic market’.97 The provisions of the Treaty are not an end in themselves. They are only means to attaining the objectives of the EC and ‘making concrete progress towards European unity’.98 The interpretation and application of the Treaty, even against the same provisions in an international agreement, uses ‘different approaches, methods and concepts in order to take account of the nature of each Treaty and its particular objectives’.99 Stress is also often placed on the institutional structure of the Treaty system and that the Community has at its disposal instruments to achieve the uniform application of EC law and the progressive abolition of legislative disparities.100

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89Ibid. Presumably the parties could not all specify that an agreement does or does not have direct effect.

90Kupferberg, pr 17.

91Haegeman, pr 10. AG Warner at 469 stated that the expressions in question must be interpreted in the context of the association agreement read as a whole and against the background of the provisions of the EEC Treaty. This suggests a broader framework than just the EC. In Opinion 1/91 (First EEA Opinion) the ECJ’s interpretation of some of the Protocols to the EEA Agreement were very significant for its opinion.

92IFC Case pr 20; Case C-280/93, Germany v Council [1994] ECR I-4973, pr 105; Case 87/75,

Conceria Daniele Bresciani v Amministrazione delle Finanze Stato [1976] ECR 129 pr 16 (hereinafter Bresciani).

93Kupferberg, pr 23.

94Opinion 1/91 (First EEA Opinion) pr 21.

95Ibid.

96Ibid.

97Polydor, pr 16.

98Opinion 1/91 (First EEA Opinion), pr 17.

99Opinion 1/91 (First EEA Opinion), pr 51.

100Polydor, pr 20; Opinion 1/91 (First EEA Opinion), pr 21.

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By contrast, the various classes of international agreements to which the EC is a party pursue different and more limited objectives than the EC.101 In contrast to the EC Treaty, such an international agreement ‘merely creates rights and obligations as between the Contracting Parties and provides for no transfer of sovereign rights to the inter-governmental institutions which it sets up’.102 This is the case with free trade and co-operation agreements. Similarly with association agreements103 but, to the extent that they seek to prepare the associating state for membership, they are closer on the spectrum to the EC Treaty than mere free trade and co-operation agreements.104 In Bresciani it was important that the international agreement concerned was intended to promote the development of the associated states.105 The function of the provisions concerned is important and whether it is the same as that performed by similarly worded provisions of the EC Treaty.106 In any event the result is the same in that the interpretation given to the provisions of the EC Treaty cannot be applied by way of simple analogy to the provisions of other kinds of international agreements even if the wording is similar or even identical.107 ‘Such similarity of terms is not a sufficient reason for transposing to the provisions of the Agreement’, the case law of the Community.108 This is important because many of the EC’s international agreements reproduce the language of the EC Treaty. For example, the provisions of the EEA Agreement are textually identical to the corresponding provisions of EC law.109 Similarly, each of the different classes of EC agreements, for example, free trade, partnership and co-operation, Europe agreements tend to use identical provisions. Thus, the interpretation of any one agreement has significance for others in the same class, and sometimes for agreements in other classes.110

In a small number of cases the ECJ held that provisions of association agreements can have direct effect.111 So too can the Decisions of an Association Council which are directly connected with the agreement to which they give effect. In

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101Reference is often made to the Preamble or the first article of those agreements to determine their objectives and purpose: see, for example, Polydor, pr 10; Case C-280/93, Germany v Council [1994] ECR I-4973 pr 106.

102Opinion 1/91 (First EEA Opinion), pr 20.

103See Opinion 1/91 (First EEA Opinion), pr 15; Polydor, pr 18–20.

104In Demirel the Commission analysed the Association agreement concerned as ‘a combination of an association for the purposes of development and an association prior to accession’, p 3730. Also, ‘The concept of association has a very wide scope and covers various forms of relationship’, p 3730.

105Bresciani, pr 22.

106See Case 17/81, Pabst & Richarz KZ v Hauptzollamt Oldenburg [1982] ECR 1331, pr 26. For an important decision on the interpretation of ‘changes having equivalent effect’ in bilateral or multilateral agreements concluded by the Community see Case C-125/94, Aprile Srl en liquidation v Amministrazione delle Finanze dello Stato [1995] ECR I-2919.

107Kupferberg, pr 30; Polydor, pr 14; Opinion 1/91 (First EEA Opinion), pr 22; Case C-312/91,

Metalsa Srl v Italy [1993] ECR I-3751.

108Polydor, pr 15.

109Opinion 1/91 (First EEA Opinion), pr 22.

110In the Polydor case the UK submission noted that the provision in issue appeared in seven free trade agreements with EFTA countries, all of the Community’s agreements with Mediterranean countries, and in the GATT, p 340. See also Case C-103/94, Zoulika Krid v Caisse Nationale d’Assurances Vieillesse des Travailleurs Salaries [1995] ECR I-719.

111For example, Haegeman, Bresciani.

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Kupferberg (1982) the same reasoning was extended, in principle, to free trade agreements.112 The ECJ proceeded from one of the general rules of international law that there must be bona fide performance of every agreement.113It observed that in the absence of specific provisions on implementation in the agreement itself, international law did not specify the legal means appropriate for the full execution of a party’s commitments under an agreement. It was a matter of discretion for the party concerned.114 Accordingly, that the legal system of one party accorded direct effect to the provisions of an agreement, while the other party’s legal system did not, was simply a reflection of how the parties exercised their discretion as to methods of implementation. Such a situation did not in itself constitute a lack of reciprocity in the implementation of the agreement. In the context of an agreement on development, an imbalance in the obligations of the parties may be inherent in the special nature of the agreement itself.115 Similarly, that the parties have established a special institutional framework for consultations and negotiations on implementation is not in itself a justification for excluding the possibility of direct effect in principle.116 Provisions in an international agreement which set out a programme to be achieved would not normally satisfy the standard conditions for direct effect. However, this ‘does not prevent the decisions of Council of Association which give effect in specific respects to the programmes envisaged in the Agreement from having direct effect’.117 The non-publication of a decisions of an Association Council will also not serve to deprive a private individual of the rights which that decision confer on him.118 Finally, the existence of ‘safeguard clauses’ which enable parties to derogate from certain provisions of the agreement is also not itself sufficient to exclude the possibility of direct effect in principle.119 In principle then, neither the nature nor structure of a Free Trade Agreement prevented it from having direct effect in the community legal system.120

The direct effect of the decisions of an Association Council cannot be affected by the fact that under those decisions the rights concerned are to be established any national rules. Such provisions ‘merely clarify the obligation of the member states to take such administrative measures as may be necessary for the implementation of those provisions, without empowering the member states to make correctional or restrict the application of the precise and unconditional right which the decisions of the Council of Association grant ...’121

. . .

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112 Kupferberg, pr 22. See Bebr, ‘Agreements Concluded by the Community and their Possible Direct Effect’.

113Ibid, pr 18. Article 26 of the VCLT provides that ‘Every treaty in force is binding upon the parties to it and must be performed by them in good faith’.

114This is clearly correct. For example, the UK has not incorporated the European Convention on Human Rights.

115Bresciani, pr 23.

116Kupferberg, prs 19–20. Similarly in Fediol, pr 21.

117Sevince, pr 21.

118Ibid, pr 24. Non-publication would prevent the decision being applied adversely to an individual, ibid.

119Kupferberg, pr 21; Sevince, prs 19–20 in the context of an Association Agreement.

120Interestingly, AG Rozes has taken a different view, stressing the lack of reciprocity, the flexibility of the provisions, the limited objectives of the agreement, and the difference in the wording of the provisions concerned.

121Sevince, pr 22.

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The Relationship Between Municipal Law and International Law

Vertical and horizontal direct effect

Another preliminary question concerns the nature of direct effect in terms of vertical and horizontal direct effect. Vertical effect concerns the relationship between an individual or other private legal person and the state.122 For example, in cases concerning the direct effect of international agreements, the disagreement is often between the state (customs authorities, tax authorities) and an individual or a company. However, the ‘state’ has a particular community law meaning in this context (Foster v British Gas plc)123 and therefore covers ‘emanations of the state’ which for other purposes would be considered as private bodies.124 Horizontal effect concerns the relationship between one individual or private legal person and another individual or private legal person. Again, given the wide community interpretation of the state, this would be more accurately expressed as one ‘non-state emanation’ and another ‘non-state emanation’. For our purposes, the important question is whether the direct effect of international agreements is limited to vertical direct effect. Provisions of the Community Treaties can have both horizontal and vertical effect.125 Many provisions of the EC Treaties have been held to be directly effective both vertically and horizontally. The fact of their being addressed to states has been no bar to their horizontal effects. The same argument can be applied to international agreements. In all of the cases considered by the ECJ to date the argument has been one of the vertical direct effect of an international agreement, for example, against a customs authority. However, the Polydor case (1982) represented an example of an attempt to rely on the direct effect of a Treaty against a private party.

Finally, [as] Regulations and Directives are often used to implement international agreements it is important to note the possibility of them have direct effect. Regulations can have both vertical and horizontal direct effect, Directives, however, can have vertical direct effect, but not horizontal direct effect.126 Secondary legislation implementing an international agreement must, as far as possible, be interpreted in a manner that is consistent with it.127, 128

2.3.5The relationship between regional international law and universal international law

Since 1945, particularly in the areas of human rights and environmental protection, there has been a growth in the number of treaties setting down rules applicable to particular regions of the world. Specific treaties are discussed in subsequent chapters but it is worth highlighting here the potential problems which have yet to be fully resolved. In the event of a conflict between the

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122In a general sense, this regulation of the indiviudal-state relationship is one familiar to constitutional lawyers.

123Case C-188/89, Foster v British Gas [1990] ECR I-3133. It does not matter in which capacity the state is acting.

124For example, in the context of international personality or state immunity.

125Case 43/75, Defrenne v SABENA [1976] ECR 455.

126Case 152/84. Marshall v Southampton & SWHAHA (Teaching) [1986] ECR 723; Case C-91/92, Paulo Faccini Dori, Recreb Sri [1994] ECR I-3325.

127See Case C-64/94, Commission v FRG [1996] ECR.

128D McGoldrick, International Relations Law of the European Union, 1997, London: Longman at pp 117–33.

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regional rule and the rule of universal application, which rule is to prevail? As will be seen in Chapter 3, the problem may be resolved by use of one of the principles: lex posterior derogat priori (a later law repeals an earlier law), lex posterior generalis non derogat priori speciali (a later law, general in character, does not derogate from an earlier law which is special in character), or the principle lex specialis derogat generali (a special law prevails over a general law). However, such principles are not always easily applicable to specific circumstances and it is not always clear which is the special law and which is the general law. It will only be as state practice builds up that it will be possible to state with any degree of certainty the relationship between rules of international law of limited regional application and those rules which have universal, global application.

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