Theory of International Law

Robert Kolb

• Publisher: Hart Publishing
• Year: 2016
• ISBN:
  9781782258834
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

This book seeks to analyse various aspects of international law, the link being how they structure and marshal the different forces in the international legal order. It takes the following approaches to the matter. First, an attempt is made to determine the fundamental characteristics of international law, the forces that delineate and permeate its applications. Secondly, the multiple relations between law and policy are analysed. Politics are a highly relevant factor in the implementation of every legal order (and also a threat to it); this is all the more true in international law, where the two forces, law and politics, have significant links. Thirdly, the discussion focuses on a series of fundamental socio-legal notions: the common good, justice, legal security, reciprocity (plus equality and proportionality), liberty, ethics and social morality, and reason.

Part One

The Main Pillars of the Legal System

1

History and Characteristics of International Law

According to predominant modern opinion, law is a set of rules shaping decision-making processes. It is therefore an objective concept vested with a certain formalism, keeping some distance between the precept and the various social facts. The relative distance between the norm and the fact allows the impersonal and equal application of the latter to social actors. With that, a series of qualities we vitally attach to the law (or to the rule of law) is in most cases realised: the generality of the rule, the uniformity of its application, the clarity of the precept, the foreseeability and security of the law, reciprocity and regularity, the concept of obligation and the ‘ought to be’, as well as the sanctions under the rules. It should be noted that all these notions are in some way linked with the modern State.

In history, law was for a long time conceived of very differently. In primitive societies, the main legal notion was an authorisation given to elders, chiefs or other subjects vested with social prestige, to decide disputes arising in society. The decision-making process, not the rule, was at the heart of the matter. The act of deciding constituted the body of the law (enmeshed with religion, rites and social beliefs); whereas for us, today, the normative framework of the power to decide is the reason of the law. In ancient times, the decision created a sort of situational norm; today, the norm is seen as determining the situational decision. The ancient power of decision was thus a sort of prius; its domestication by the rule is a modern conception, linked with the idea of the rule of law: ‘power or government of law, not of men’.

The final shift from a system based on decisions to a system based on rules came with the Natural Law School of the Enlightenment, which flowed from a new conception of the role of law with regard to power: the first must now limit the second. In the Roman law tradition, as had prevailed up to that time in Europe, power scarcely affected the law since it remained largely aloof from it. Roman law was essentially limited to regulating interpersonal relations between equals (citizens) and non-equals (eg citizens/slaves), that is, it principally contained rules of private law, quod ad singulorum utilitatem in the formula of Ulpian (Dig, 1,1,1,2). Political power had its own separate rules and reasons. Certain legal rules existed in this regard, for example on fiscal law (fiscus Ceasaris), on sacral law (jus sacrum vel pontificium), on certain crimes against the State or Emperor, on alliances and on war. But these rules remained marginal within the legal system, and they were little studied in the many analyses of the jurisconsults. There is no doubt that this predominance of ‘private law’ stemmed from the conviction that the original political power could hardly be tamed by legal rules. This realistic vision, separating the law quite neatly from the raison d’Etat, and private law from public ‘law’, lasted for centuries. In the Middle Ages, still, lawyers were civil lawyers or canon lawyers, not public lawyers. In a certain sense, however, power relations penetrated into the private law system: some ‘public law’ relations were construed by analogy to private law concepts, such as, for example, the vast system of vassalage, based on contract law.

The emergence of the modern State consolidated territorial entities vested with sovereign power. Many factors contributed to the concentration of State power in the hands of its highest rulers, for example: mercantilism and a monetary economy; the creation of huge public administrations; the establishment of standing professional armies; the elimination of intermediary powers within the States, etc. This concentrated and expanding power, conscious of its might, purported to reject, as much as possible, the unwelcome pretense of the law to limit and control its expression. However, such exorbitant power, often in the hands of a monarch, was contrary to the interests of the new, rising middle class (bourgeoisie) enjoying economic autonomy and engaging in commerce. It is therefore understandable that the Natural Law School, dominated by exponents of this new class, sought to rein in this excessive power and to place it, at least partially, under the control of the law. Public law thus becomes the gist of the matter: only public law norms could limit the power of the State.¹ But if the main aim of the law is now to ‘limit the power’, it can no longer be conceived of as a simple decision-making process: bare decisions are the hallmark of power. In opposition to the fluctuations and flexibilities claimed by political power in order to keep its decisional leeway (now under the growing mask of sovereignty), law is called on to crystallise into rules if it wants to perform the new functions to be ascribed to it.

These new rules of public law are generally conceived of as having universal reach, in particular when they are linked with the rule of law: legality of action; separation of powers (in the words of Montesquieu, ‘it is an eternal experience that man vested with power is tempted to abuse it’); equality of legal subjects and equality before the law; the notion of the legal person (connoting now the ability to enjoy subjective rights and to enforce them, contrary to the old notion of the subject being subjected to power); human liberties and human rights; non-retroactivity of law and the impersonal nature of legislation; publication of the laws; the prohibition of ad hoc constituted tribunals and the guarantee of the so-called natural judge; and so on. Private law itself penetrates into the halls of public law. It is now the State that legislates, codifies, ensures sanctions and grants procedural devices so as to realise private law and subjective rights of persons. Therefore, the law in its entirety becomes identified with the State, with its Constitution, with the guarantees of enforcement and sanction. Natural law, once codified, transits towards the positive law of the State. Ultimately, the whole legal phenomenon is subjected to the State model at the same time as the latter territorially consolidates and the constitutional movements reach their peak.

By these developments, legalistic and hierarchical State law is more and more markedly set in opposition to international law. The latter remains aloof from these powerful shifts towards centralisation, and continues to be the regulator of an anarchical society. The State organisation of the law, its construction as universal and general norms, the role of the various administrative bodies, as well as the centralised sanction mechanisms, all these evolutions make it difficult to extend the legal phenomenon, thus conceived, to international relations. In an international society dominated by equal powers without a common superior (coordinative character of international law), with its fragmentary and often bilateral norms, with its absence of organs entrusted with the enforcement of the law, how could one imagine a law sufficiently detached from power and its contingencies, ie a law limiting power and thus objectively applied? A significant number of lawyers have indeed denied a legal character to international law, obsessed, as it were, by strict municipal law analogies, in particular the notion of sanction. In this view, the modern law of the State reflects the entirety of the legal phenomenon: international law is not like internal law; thus, international law is not law at all. This is a radical attack.

From the preceding, we may emphasise two aspects. First, law has generally transited from a decision-making process (ie a model of movement) to a body of rules (ie a more static model). Primitive societies were dominated by decision-making. More advanced societies—like the Roman Empire—were in transition: they acknowledged rules, as in the Twelve Tables or in the Perpetual Edict, but the gist of the law remained rooted in judicial remedies (actions), and thus in the decisions of the jurisconsults and the praetor. Modern law is conceived, in the dominant view, as a body of very powerful rules. It flows from the general laws of the State, and its main aim is to limit power (as well as to allow private interaction). The law is thus itself considered to be a master, a sort of power on its own: only a power could limit another power. Seeking to limit political power, the law enters into a series of problematic relationships with the former. We could witness instances of this state of affairs in many contexts, for example the fate of the US anti-terrorist legislation after 9/11, and all its shifting fortunes in the US Supreme Court.² Secondly, public law consolidates at the time of the Enlightenment.³ The phenomenon of law is thus now considerably enlarged. But the law is thereby irremediably centered on the State, being its ‘unique’ true depositary. The conception spreads according to which there is no law outside the State with its legislator, its policeman and its judge.

International law is affected by both the developments mentioned in the preceding paragraph. The first issue raises the question of how a general law could be achieved in international society absent a legislator in the customary sense of the word. The only possible substitute for a law would seem to be a contract, which in international law is called a treaty. The positivistic current attached to that vision laid considerable stress on the principle pacta sunt servanda,⁴ and devoted profound attention to the sources of the law. The second issue plunges international law into an ever-deeper crisis. How could a non-State-centered law exist? As different law? But would it then also be a primitive, defective or sick law, or a law in an embryonic state, in statu nascendi as it were, still in its infancy but called on to develop and strengthen itself in the wake of the progressive organic strengthening of international society itself? Such questions spark lively debate.

The time has come to reflect on the specificities of international law as a legal system. Can it display, at least to an acceptable degree, the objectivity and effectiveness we require from a legal system? What are the peculiarities engrafted upon it by the particular environment in which it has to function—that of international society? What are its weaknesses, and also its strengths? Before analysing the gravitational forces of international politics on international law, we should give some shape to the distinctive concept of law prevailing in international society.

I.Historical and Conceptual Aspects

A.The ‘Two Histories’ of Public International Law

1.General Aspects

The history of international law can be analysed in two different ways. First, we can try to reveal the roots of the public international law in force today, by rolling back events into the past. Secondly, we can try to bring together all the legal phenomena that have taken place among relatively independent peoples organised territorially and entering into relationships of minimum intensity, for all times and all places. The first perspective is limited: it is the history of one public international law, that is, of the public international law in force. The second perspective is universal: it examines the history of all public international laws in existence at any given time. Thus, the first perspective relates to European public law, which has extended throughout the world via colonialism and has become the positive law of today.⁵ The second perspective ushers in an analysis of the law among powers (jus inter potestates).⁶ The interest in the latter is mainly to see if and how certain institutions and norms, being necessary to relationships between public collectivities, have crystallised in entirely different places at different times; and to see how these institutions correspond to or differ from those found in our positive international law. This also allows us to assess the role of contingency and necessity in the content of our international law, and thus to sharpen our understanding of the normative system. Such common norms are to be found, for example, in transactions (treaties), diplomacy, war, cooperation, etc. To the history of the victorious international law of today can thus be added the history of the defeated international laws, which ceased to exist at a certain moment in time. In sum, in historical perspective there is one single public international law valid today, with its own single history (jus publicum Europeaum); but there is also a plurality of international laws in most different regions of the world, and international laws that disappeared when the civilisations that dev...

Table of contents

• Cover
• Title Page
• Acknowledgements
• Contents
• List of Abbreviations
• Table of Cases and Practice
• Table of Legislation
• Table of International Instruments
• Introduction
• Part One: The Main Pillars of the Legal System
• Part Two: International Law and Politics
• Part Three: International Law and Certain Fundamental Legal-Political Notions
• General Conclusion
• Selected Reading
• Index
• Copyright Page