Natural law

In almost complete contrast to the consensual approach is the theory of inter­national law based on natural law doctrines or 'the law of nature'. This presupposes an ideal system of law, founded on the nature of man as a reasonable being. Thus, rules of law are derived from the dictates of nature as a matter of human reason. International law is said to derive its binding force from the application of 'the law of nature' to the methods of law creation used by states. Natural law can be con­trasted with positive (consensual) law, the latter being based on the actual practice of states while the former is based on objectively correct moral principles.

Empirically, natural law theory finds little support in international law. Given that the method of law creation in international law is so heavily dependent on consent or practice, it is difficult to maintain that there is some guiding body of principles to which states defer when creating law. In general, concrete rules of international law are derived from what states actually do, rather than what 'the law of nature' supposes they should do. However, 'natural law' may be a good descriptive label for such concepts as equity, justice and'reasonableness which have been incorporated in substantive rules of law,, such as those dealing with the

The nature of international law and the international system

continental shelf, human rights, war crimes and rules of jus cogens. In this sense, natural law may be part of the sources of international law under the category 'gen­eral principles recognised by civilised nations' (see Chapter 2). Natural law does not, however, explain why international law is binding, especially if we remember that the states of the world are so diverse that it is impossible to find any universal moral or ideological thread tying them together.

1.6.4 Ubi societas, ibi jus

It may be that the juridical origin of international law lies in practical necessity. It can be argued that 'law' is the hallmark of any political community which exists for the common good. Law is necessary for the society to function and, because it is necessary, it is ex hypothesi binding. Therefore, because international society is a community of interacting and interdependent states, it also needs rules governing its life. These are the rules of international law which provide a set of stable, orderly and predictable principles by which the society can operate.

Obviously, this view of international law is a pragmatic and uncomplicated one. To a certain extent it is tautologous because it stipulates that international law is binding because it has to be binding. Apart from this objection, is it also true that states form a 'community' at all? There appear to be few shared values and each state seems more concerned with the interests of itself and its nationals than with the common good. Yet, this is a rather one-sided view of international society and, whatever the practice of a minority of states, isolationism is a thing of the past. There is little alternative to cooperation and compromise in most areas of international activity. The merit of this pragmatic view is that it roots the binding quality of international law in an 'extra­legal' concept. It does not seek to explain international law in terms of the way its rules are created, their substance, or by reference to some higher authority. Rather, the legal quality of international law lies in the fact that it is needed and that this is recog­nised by states themselves, the legal persons to whom it is addressed.

1.6.5 Variations on a theme

As well as the general theories of international law considered in the previous sec­tions, there are many variations of these themes. These relate both to the structure of international law as a whole and to specific topics within the body of substantive international law. Some of these truly discuss the juridical origins of international law, while others argue for one or other philosophical or theoretical approach to the interpretation or application of existing rules. The following is a selection:

(a) Deconstructionist theories. Some jurists (e.g. Koskenniemi) argue that inter­national law has no legal objectivity at all. It is not a system of 'law' in the sense that it can be used to justify or criticise international behaviour on a rational or objective basis. It is, rather, a conjunction of politics, morality and self-interest that can be used alternatively to justify or condemn any behaviour according to the stand­point of the critic. Legal language and the apparent habit of obedience are seen as smokescreens for behaviour that would have occurred in any event and for reasons unrelated to the existence of a so-called legal rule.

(b) 'Value' orientated theories. Some jurists (e.g. McDougal, Lasswell and Feliciano) see the role of international law as the pursuit of certain pre-existing community

The nature of international law and the international system

values. All rules should be interpreted and applied consistently with these values. Of course, this presupposes that there is agreement as to what these 'values' actually are, although 'world public order' is a favourite starting point.

(c) Realist theories. Some jurists argue that the real importance of international law lies not in the validity or otherwise of its claim to be law, but in the impact it makes on the conduct of international relations (see the analysis in Scott, 5 EJIL (1994) 313). It is enough to justify the existence of international law that it is accepted as a major influence on international politics; whether or not it is accepted as law is neither here nor there, nor whether it is disobeyed or obeyed. Its function as the oil in the engine of international politics is what matters.

(d) Non-statist theories. Some jurists reject the fundamental concept of inter­national law as a system of law created primarily by states for states. They argue, from differing starting points, that this is a far too narrow view of international law, especially in the modern era (see e.g. Allot in Eunomia). Such jurists often stress the importance of international law for individuals, or as a means of achieving justice (sometimes at the expense of stability) or as a means of accommodating the cultural and ethnic diversity of a modern international society that is no longer centred on Europe. This is a favourite theme of the modern era and gains many supporters because of the possibility that international law could be used to check the excesses of otherwise sovereign states. Whether such a view of international law would be possible without the foundations laid by legal rules that were undoubtedly created by states, for states, is an open question.

Any attempt to reach a conclusion about the nature of international law or its claim to be a 'system of law' is bound to attract criticism from all sides. Yet it must not be for­gotten that the origin of the binding character of law is a general problem. It is an issue for national law as well as international law. Usually, in national legal systems there are formal institutions, like the UK Parliament, whose task is to create law and which may be regarded as a 'source of law'. However, while the existence of such institutions enables us to identify what is or is not 'a law', they do not explain why it is law. It may be that the constitution authorises Parliament to make law, but from where does the constitution derive its authority? This is a problem we have seen before. In national systems, the search for the juridical origin of law goes beyond the existence of institu­tions or constitutions and international law loses nothing in this respect by their absence. The juridical origin of law is a large question and it is a mistake to think that only international law fails to find an answer. In the end, if an answer to this question is needed, the first and most powerful reason why international law is to be regarded as law is that it is recognised as such by the persons whom it controls, the states and other subjects of international law. If this begs the question somewhat, we should remember that international law is not the only system to be unsure of the answer.

Date: 2014-12-21; view: 1409