Principles of Public International Law

Question: “Law will never really play an effective part in international relations until it can annex to its own sphere some of the matters which at present lie within the domestic jurisdiction of the several states.” Discuss

‘The principles and regulations established in a community by some authority and applicable to its people, whether in the form of legislation or of custom and policies recognised’.

The aforementioned is a definition of law as defined by the American Heritage dictionary of the English Language.

If we apply this definition of community in its strictest sense it becomes increasingly difficult to subscribe to the view that there is an international community at large. If we begin to analyse statistics that show that there are over 7000 languages in the world, approximately 10,000 distinctly different religions, and a disputably infinite number of ethnic groups across just the 195 countries that comprise our global society, then it becomes patently clear that we would be better off highlighting our divisiveness rather than our prospects as a global community.

Our collective history as human beings, however, tells a different story about our common interest and the way in which we have formally raised and torn down barriers to promote the same. We have, on the other hand, been separated on the basis of differing ideologies and the exercise of exclusive nationalism. Since the latter is a sentiment which resides in particular nations which have at their core a set legal framework validating their very existence and their interaction with other nations, it is essential to any study of law’s application to international relations.

How does a sovereign nation reconcile its very sovereignty with its growing need to be integrated into a shrinking global society with its concomitant shrinking global economy? It is clear that some compromises must be made. Before we consider any specific cases in which states have decided to relinquish some of their sovereign power, we must consider the implications of the term sovereignty itself, the elements of sovereignty and its importance to a nation-state.

Much has been written on the topic of sovereignty. Definitions vary slightly from one text to the other but they all have at their core, when specifically referring to the idea of state sovereignty, the idea of legitimate authority. In Sohail H. Hashmi’s discourse on sovereignty in the book ‘State Sovereignty, Change and Resistance in International Relations’, he asserts, referring to the concept of legitimate authority, that it is “ a broad concept – not a definition but a wide category – that unites most of sovereignty’s tradition.” He further notes that authority can be defined as “The right to command and correlatively, the right to be obeyed” and is only legitimate “when it is seen as right by those living under it.”

It is to be noted that legitimate authority is not simply the idea of more power. R.P. Wolf, the twentieth century political philosopher and individual anarchist, illustrates the difference more sharply in a classical example in which he argues “if I am forced at gunpoint to hand over my money, I am subject to power; if I pay my taxes even though I think I can cheat I am recognizing legitimate authority.”

We must recognize, however, that though legitimate authority is the overarching principle on any discourse on state sovereignty, there are specific elements of state sovereignty that are crucial, which every sovereign state holds dear to it and attempts to retain regardless of seemingly necessary or stipulated concessions of power, influence or authority to the international community.

They include International Legal Validation (of a sovereign state), Interdependence Sovereignty and Domestic Sovereignty. International Legal Validation can be viewed as the right of the state to be a sovereign entity as prescribed by ‘international law’. It is legitimate authority as a legal construct or as Hashami puts it “legitimate authority” that is “prescribed by the law.” (Hashami, pg 18)

The author Stephen D. Krasner in his book ‘Sovereignty, Organised Hypocrisy’ describes this element of sovereignty as international legal sovereignty. He states that it “refers to the practices associated with mutual recognition, usually between territorial entities that have formal juridical independence.”

At its core international legal validation concerns issues of the recognition of states. If one were ignorant about the political climate on the global front, the natural answer to the question ‘how did a state become a state?’ would be that ‘the would-be state must satisfy the defined stipulations (in international law) for becoming a state.

Following this line of reasoning would inevitably lead one to the very first article of the Montevideo Convention on Rights and Duties of States, which since 1933 set out that “The state, as a person of international law should possess the following qualifications: (a) permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other states.”

It does not take much political savvy, however, to understand that the legal criteria for statehood and the actual criteria for being recognized as a state by the international community at large is a de facto and de jure issue.

As Krasner postulates “States have recognized other governments even when they did not have control over their claimed territory, such as the German and Italian recognition of the Franco regime in 1936, and the American recognition of the Lon Nol government in Cambodia in 1970. States have continued to recognize governments which have lost power, including Mexican recognition of the Spanish republican regime of 1977, and recognition of the Chinese Nationalist regime by all of the major Western powers until the 1970s.

States have refused to recognize new governments even when they have established effective control, such as the British refusal to recognize the July monarch in France until 1832, the US refusal to recognise the Soviet regime until 1934.” (Krasner, pg 15)

The recognition of states is definitely an area in which the law (as prescribed by the Montevideo Convention and more recently the EU, which has almost identical tenets concerning the recognition of states) has proved ineffective in international relations precisely because of the political agendas and consequently domestic jurisdiction of the several states which reflect the political climate in which they operate.

States attempt to hold on to this type of sovereignty because it affords them clout and validation in a global society in which interdependence is not just an ideal but a tool for survival, at the very least and a necessary aid to prosperity at the very most. The point here is not that nonrecognition brings with it a form of absolute isolation which renders the unrecognised state permanently barred from international commerce and diplomatic relations.

What is of paramount importance, however, is the fact that nonrecognition brings with it an air of uncertainty concerning the unrecognised state, particularly in the eyes of multinational firms which as a result may be more reluctant to invest. Krasner notes that “by facilitating accords, international legal sovereignty offers the possibility for rulers to secure external resources that can enhance their ability to stay in power and promote the security, economic, and ideational interest of their constituents.” (Krasner, pg 17)

Interdependence sovereignty is the ability of a state to regulate the flow of information, goods, ideas and people into and out of its country. States try to hold on to this type of sovereignty because their ability to do this is directly related to their ability to effectively take control and organise their own polity, which in essence is domestic sovereignty which states must hold on to by definition i.e. in order to be a state in the first place. We shall consider reasons which prompt states to relinquish some of their sovereignty later in our discussion.

We have thus far acknowledged, via several examples, based on the politics involved in the process of mutual recognition of states, that the issue of international legal sovereignty or international legal validation is a de facto versus de jure consideration. Is this, however, a trend in the legal procedures in international relations?

The law, based on our previously defined definition, must be applicable to the actors in the community in which it is operating. If, in the realm of international relations, the law can be voluntarily and regularly flouted by those who come under its subjection then serious questions arise about the very existence of ‘international law’.

It must be duly noted though that states undeniably operate within the workings of a law order which to a large extent regulates their day to day interactions with one another and which is autonomous in its operations. There are a countless number of international treatises that are steadfastly observed on a day to day basis.

Examples include international agreements which facilitate the smooth to and fro transport of letters which are transported to all corners of the globe at fixed rates which are stipulated by the Universal postal union, the establishment of hundreds of football leagues worldwide- the individual countries who oversee them all subscribing to the specific rules and regulation set out by the world governing body in football, F.I.F.A. and the Vienna Convention on Diplomatic Relations which afford diplomats exemption from prosecution within the courts of the country in which they are stationed.

It is evident then that there is a legal framework that regulates the goings on of international relations. We have to probe a bit deeper into the workings of this system in order to ascertain whether or not it can accurately be characterised as international law.

It can be argued that upon examination of our above examples of situations in which law plays an effective role in international relations, that the circumstances demand that such broad and far-reaching legal action be undertaken. The methods may vary but in order for letters to be transported globally there must be some standardisation procedure.

This sort of necessary ‘self-coercion’ can be observed in a slightly different manner in the operations of international trade and commerce. Often times when two countries have a trade dispute they seek to resolve it in the World Trade Organisation (W.T.O.), the foremost international authority on trade and trade disputes.

The country that loses the dispute, in a legal case which is heard before a court of law under the auspices of the W.T.O., more often that not abides by the decision. This, again, is not necessarily because the losing party has a great respect or reverence for ‘international law’ or the W.T.O. per se, but rather because it is within its interest to do so. As Harris explains, “The great majority of the rules of international law are generally observed by all nations without actual compulsion, for it is generally in the interest of all nations concerned to honour their obligations under international law.” (Harris pg 8)

He further argues that a nation will be “reluctant to disregard its obligations under a commercial treaty, since the benefits that it expects from the execution of the treaty by the other contracting parties are complimentary to those anticipated by the latter. It may thus stand to loose more than it would gain by not fulfilling its part in the bargain. This is particularly so in the long run since a nation that has the reputation of reneging on its commercial obligations will find it hard to conclude commercial treaties beneficially to itself.” (Harris pg8)

There is, evidently then, a law amongst nations, which is effective regardless of the reason for it being so. The problem of defining this law amongst nations as ‘international law’, however, lies in part because of those very cases in which it is flagrantly disregarded. For any legal system to functional optimally it must operate in a community in which there is a legislative system to make laws as it sees fit, a judiciary to implement the administration of justice and an executive body to enforce the law. Now grant it, generally speaking, there is no formal legislative system in international relations, when countries enter into agreements with each other the signing of treaties is usually undertaken and this serves as the source of law that is meant to dictate the terms of their agreement.

However, unlike what is the case in municipal law, there is no definite enforceability method. There is no one authority that can guarantee the compliance of states to international treaties or conventions. We have already made the point that in most cases compliance has become second nature – but what of the cases (though they are scarce) in which it is not? Within the domestic law arena there are cases in which the law is glaringly broken. Once there is enough evidence to convict the wrongdoer, he is convicted and punished. The punitive measures that are undertaken would have been pre-determined by the legislative body and subsequently enforced by an executive body. There is no such arrangement in the international domain. As Harris puts forward “The problem of enforcement becomes acute, however, in that minority of important and generally spectacular cases, particularly important in the context of our discussion, in which compliance with international law and its enforcement have a direct bearing on the relative power of the nations concerned. In those cases…considerations of power rather than of law determine compliance and enforcement.” (Harris, pg 9) Therein lies the difficulty in saying that there is a law of nations.

Having established the problematic nature of ‘international law’ or a ‘law of nations’, we shall henceforth temporarily ignore our challenges with nomenclature for the purposes of our remaining discussion. That being said, it is of critical importance to analyse the impact of international law on municipal law and vice versa. There is an ongoing dispute between theorist who believe that international law and municipal law are two separate legal orders and theorist who believe that they are part of the same legal order. The formative argument is known as dualism while the latter is known as monism.

There is no one argument based on either monism or dualism that comprehensively settles the dispute.

“On the international plane, international law is invoked and applied on a daily basis by states and intergovernmental organisations. With minor exceptions, it is the only law that applies to the conduct of states and international organisations in their relations with one another. Here international law is a distinct legal system, comparable in its scope and function to a national legal system.” (Buergenthal-Murphy, pg 3)

The point mentioned above is very valid and gives credence to the dualism argument. Diplomatic relations, as discussed earlier, are dealt with strictly on the international plane.

In order to see the appeal of the monism argument however we have to look no further than the argument establishing the Caribbean Court of Justice (C.C.J.). Article XXIII of this agreement is as follows:

1)Each contracting party should, to the maximum extent possible, encourage and facilitate the use of arbitration and other means of alternative dispute resolution for the settlement of international commercial disputes. 2)To this end, each contracting party shall provide appropriate procedures to ensure observance of agreements to arbitrate and for the recognition and enforcement of arbitral award in such disputes.

The C.C.J. is a court whose aim is to have a “determinative role in the further development of Caribbean jurisprudence through the juridical process” is thus an international legal authority. In order for its smooth operation it must nevertheless depend on the domestic jurisdictions of its member states.

Monism and dualism can hence be viewed as fluid concepts which exist in varying degrees.

Though we noted that the operations of the C.C.J. can give credence to the monism argument, this is not so for all international organization and agreements. The operations of the European Union (E.U.) for the most part are done independently of its member states (as there is a parliament which sets laws that are binding to the EU members).

Besides the fact that this can be used to illustrate one example in which dualism is at play, it brings us to the crucial consideration of treaties, conventions and multilateral agreements which make international agreements like the C.C.J. and the E.U. possible.

‘The Revised Treaty of Chaguramas’ and the ‘Treaty of Maastricht’ are the treatise which birthed the C.C.J. and the E.U. respectively. Treaties and Conventions are paramount to international law because they serve as sources of international law in an international community in which there is no sole international legislative body which establishes international laws.

One of the biggest challenges to international law is the challenge of compliance. In the eyes of most states their sovereignty is paramount and so agreements which diminish it in any form are entered into tentatively. However over time there have been international agreements which have proved effective in advancing the political, economic, and social needs of specific states and as the opportunity cost of surrendering some of ones sovereignty becomes bigger more states seek to enter into these international agreements.

A perfect example of this reality is that of the Treaty of Maastricht, which birthed the E.U. The benefits that states have accrued since joined the E.U. have been unprecedented and as a result more and more European countries are seeking to join. Some of the major benefits of E.U. member states are listed below:

1)Elimination of foreign exchange transaction costs with other E.U. countries 2)Elimination of exchange rate uncertainty of one country’s currency against. This has improved the quality of information on which consumers and firms base their decisions. 3)Inflation has been kept in check so that new countries that have joined the E.U. joined a low inflation area. This continues to contribute to economic efficiency and credibility of the European central bank. 4)Protection against illegal immigration

5)Tighter overall security as there is a common computer record of dangerous individuals, traffickers, terrorists and missing persons. 6)Europol, which is a European police office set up by the treaty of Maastricht, is an organization designed to fight drugs, crime and terrorism in the countries of the member states. The office establishes a system for the exchange information among the national police and legal systems.

The aforementioned are just a few of the many benefits of the E.U. Others are centered in benefits to tourism (as boundary restrictions between member states are relaxed) and education.

Treaties can clearly go a long way in creating elements of international law. The member states often voluntarily give up some of their sovereignty but welcome the benefits they receive in return. From our investigations we have noted cases in which law has proved effective without being invasive in a country’s domestic jurisdiction.

We have discussed several examples which include the formal organization of a well run diplomatic community and the smooth overseeing of world football by its governing body F.I.F.A. We have also observed cases in which it is necessary for law to extend its reach into the sphere of municipal law to establish its effectiveness in international law.

Examples include the establishment of the E.U. and the C.C.J. In the case of the latter problems in efficiency arise as the sovereign member states have been reserved in relinquishing key aspects of their sovereignty as evident by Article IV of the treaty establishing the C.C.J. which stipulates that judges of the court are to be selected by the executive branch of the several member states.

The former body transcends such problems for the very reason that the latter doesn’t – because it requires its member states to cede a sizeable amount of their sovereignty in order to create a legislature which has the power to make laws concerning the affairs of the member states.

It is true that there are many cases in which law plays a very effective role in international relations without having to annex to its own sphere any of the matters which lie within the domestic jurisdiction of the several states. On the contrary, it is also true that there are some issues, which are impossible to effectively resolve through the avenues of law without the comprehensive integration of domestic law into the realm of international relations and this in itself is a monumental challenge because it often requires sovereign states to surrender some of their sovereignty, which oftentimes, they are not willing to do.

Bibliography

Brownlie, Ian , Principles of Public International Law, Fifth Edition, New York: Oxford University Press 1998

Hashmi, Sohail.H, State Sovereignty- Change and Persistence in Industrial Relations, Pensylvania: Pensylvania State University Press 1997

Krasner, Stephen, D, Sovereignty- Organized Hypocrisy, New Jersey: Princeton University Press 1999

Moore, Margaret, National Self-Determination and Secession, New York: Oxford University Press 1998

Harris , D.J, Cases and Materials on International Law , Sixth Edition, London: Sweet and Maxwell 2004

Buergenthalm, Thomas and Murphy, Sean D, Public International Law in a Nut Shell, : Thompson/West 2002