The nature of international law

International law

The truth is that international law is neither a myth on the one hand, nor a panacea on the other, but just one institution among others which we can use for the building of a better international order.

First let us clear away any misunderstandings about private international law and transnational law.

Private international law/conflict of laws

Private international law is an unfortunate term for what is more properly and accurately called conflict of laws. That is the body of rules of the domestic law2 of a state which applies when a legal issue contains a foreign element, and it has to be decided whether a domestic court should apply foreign law or cede jurisdiction to a foreign court.3 Many of the rules are now found in legislation.

Naturally, over time the domestic rules grow closer as states come to adopt similar solutions to the same problems, but they remain domestic law. Established in 1893, the Hague Conference on Private International Law seeks primarily to harmonise domestic rules on conflict of laws, and since 1954 has concluded some thirty-six multilateral treaties. These must be distinguished from treaties that seek to unify or harmonise states’ substantive domestic laws, such as on carriage by air or sea, or intellectual property. UNIDROIT is an international organisation with fifty-nine member states that seeks to harmonise domestic laws, especially commercial. Despite its name, it is neither a UN body nor a UN specialised agency. But UNCITRAL is a UN body charged with promoting the harmonisation of international trade law.

A legal matter can raise issues of both international law and conflict of laws, particularly on questions of jurisdiction,8 and today the distinction between international law and conflict of laws can be blurred as more international law, treaties in particular, reaches right down into the internal legal order, as exemplified by the law of the European Union.9 Nevertheless, it is still vital to appreciate the distinctions between different categories of law, their purpose and how they develop.

Transnational law

This term seems to have been coined to describe the study of any aspect of law that concerns more than one state, in particular conflict of laws, comparative law (the study of how the laws of different states deal with a particular area or issue of domestic law), supranational law (European Union law) and public international law, particularly in the commercial field. It may bring useful insights into the development of law, but one should not be led into believing that we are now living in a world where all laws of whatever type are rapidly converging. Within many states, especially federations and even in the United Kingdom, there are separate systems of domestic law, and this is likely to continue for a very long time.

The nature of international law

International law is sometimes called public international law to distinguish it from private international law, though, as already explained, even this can lead to misunderstandings. Whatever the connections international law has with other systems of law, it is clearly distinguished by the fact that it is not the product of any national legal system, but of the states (now over 190) that make up our world. In the past, international law was referred to as the Law of Nations. Although it had been developing over many centuries, international law as we know it today is commonly said to have begun properly with the Dutch jurist and diplomat, Grotius (Hugo de Groot), 1583–1645, and with the Peace of Westphalia 1648. That event marked not only the end of the Thirty Years War but also the end of feudalism (and, with the Reformation, obedience to the Pope) and the establishment of the modern state with central governmental institutions that could enforce control over its inhabitants and defend them against other states. But since those states had to live with each other, there had to be common rules governing their external conduct. Although rudimentary rules had been developing ever since civilised communities had emerged, from the mid-seventeenth century they began to develop into what we now recognise as international law.

But is international law really law?

Unfortunately, this question is still being asked, and not only by students. The answer depends on what is meant by law. Whereas the binding nature of domestic law is not questioned, new students of international law are confronted with the issue: is international law merely a collection of principles that a state is free to ignore when it suits it? Whereas every day newspapers report crimes, it is usually only when a flagrant breach of international law occurs that the media take notice of international law. This can give a distorted impression of the nature of international law.

International law has no ready sanction for its breach. Because there is no international police force or army that can immediately step in, international law is often perceived as not really law. Yet the record of even the most developed domestic legal systems in dealing with crime does not bear close scrutiny.

Although it is as invidious as comparing apples and oranges, in comparison with domestic crime states generally do comply rather well with international law. If, as H. L. A. Hart argued, law derives its strength from acceptance by society that its rules are binding, not from its enforceability, then international law is law. The raison d’être of international law is that relations between states should be governed by common principles and rules. Yet what they are is determined by national interest, which in turn is often driven by domestic concerns. Those matters on which international law developed early on included freedom of the high seas and the immunity of diplomats. Both were vitally important for the increasing international trade, the famous 1654 Treaty of Peace and Commerce between Queen Christina and Oliver Cromwell epitomising this new reality. As we will see when we look at the sources of international law, its binding force does not come from the existence of police, courts and prisons. It is based on the consent (express or implied) of states, and national self-interest: if a state is seen to ignore international law, other states may do the same. The resulting chaos would not be in the interest of any state. While the language of diplomacy has changed over the centuries from Latin to French to English, international law has provided a vitally important and constantly developing bond between states. As this book will show, today in many areas of international law the rules are well settled. As with most domestic law, it is how the rules are to be applied to the particular facts that cause most problems.

To look at the question from a more mundane point of view, international law is all too real for those who have to deal with it daily. Foreign ministries have legal departments. Some are large: the US State Department has some 150 legal advisers; the UK Foreign and Commonwealth Office thirty-five, including some seven posted in Brussels, Geneva, New York and The Hague. Their task is to advise on a host of legal matters that arise in the conduct of foreign affairs. They also have the conduct of cases involving international law in international, foreign and UK courts and tribunals. If international law is not law, then they and their legal colleagues in other foreign ministries are drawing their salaries under false pretences. Which brings one to international lawyers.

Date: 2016-03-03; view: 1566