State Interest and the Sources of International Law

Doctrine, Morality, and Non-Treaty Law

Markus P. Beham

• Publisher: Routledge
• Year: 2018
• eBook ISBN: 9781351579957
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

This book addresses the disparity between positive non-treaty law and its scholarly assessment in the area of moral concepts, understood as altruistic as opposed to reciprocal legal obligations. It shows how scholars are generously willing to assert the existence of a rule of international law, thereby moving further away from actual state practice, not taking into account the factors of legal rhetoric and the core survival interests of the state in the formation of custom and general principles of law. The main argument is that such moral concepts can simply not manifest themselves as non-treaty sources of international law from a dogmatic perspective. The reason is the inherent connection between the formation of the non-treaty sources of international law and state interest that makes it difficult, if not impossible, to assess state practice or opinio juris in the case of altruistic obligations. The book further demonstrates this finding by looking at two cases in point: Human rights and humanitarian exceptions to

the prohibition of force. As opposed to the majority of existing works on the subject, State Interest and the Sources of International Law takes a bigger-picture approach to a number of distinct problems in international law scholarship by looking at the building blocks of international relations on the one hand, and merging this with sources doctrine on the other. It will be of interest to researchers, academics, and students in the fields of international law, human rights, international relations, political science, legal philosophy, and legal theory.

1 Introduction

A Do You Believe in International Law?

International law has a credibility issue.¹ And it is grounded in its very foundations, the use of its “non-treaty” sources, customary international law, and general principles of law,² as rhetorical gap fillers to push the progressive development of international law. A simple comparison between scholarly articles, commentaries, and textbooks with the realities of international relations reveals a disparity that cannot simply be brushed aside.

This fact, in essence, drives the main question of this book: Are these manifestations of international law the optimal vehicle for the pursuit of normative projects; or is their content an unredacted reflection of international relations and domestic legislation? Is international law as it is taught and written illustrative of Plato’s allegory of the cave? Is there custom and “custom”? Are there principles and “principles”?

Two case studies, human rights and exceptions to the prohibition of the use of force, have been chosen to illustrate the phenomenon and to argue that there is an inherent connection between state interest and the formation of customary international law respective the identification of general principles of law. This, in turn, might disfavor moral concepts from becoming non-treaty law altogether.

The idea is to reassess “mainstream” views on the topic and to reconstruct a credible foundation for normative change, rested in positive law. A sound assessment of substantive law equally requires a sound assessment of its manifestations. Thereby, this book makes an argument that spans across a broad stretch of international legal and international relations theory, passing a number of doctrinal roadworks along the way.

1 The Quest for the Status Quo

What the international legal landscape requires is pragmatic “law reform”, not just in the sense of tunnel-visioned, forward-moving development, but by taking a step back to reassess and discard norms and ideas that have not managed to acquire any footing in the real world of international relations; what has, in effect, become “out-moded law”.³

Instead, by putting the cart before the horse, sources doctrine has been gradually redrawn to match the blueprint of whichever agenda requires a legal determination. The discourse takes place both at the level of legal argument and international relations theory; two questions that are inextricably linked, if one must answer to the effectivity of what has been drawn up as a supposed system of rules.

Of course, international law will always have – and should have – a normative component. Without it, there would be stagnation. Yet, any such “utopian”⁴ notions must be grounded on a dogmatically⁵ sound assessment of the legal status quo. Even a policy- or process-oriented approach to international law must first acknowledge the true mechanisms within which a given scenario will take place.⁶

As Lassa Oppenheim already observed in 1912, the task of legal scholars should be, “in the first place, to ascertain and to give precision to the rules which have grown up in custom, and in the second place to formulate the enacted rules in their full content and in their full bearing” in order to bring “to light that there are many gaps not yet regulated by law”.⁷ Thereby, it may be legitimate “to make proposals de lege ferenda of a politico-juridical character”, not, however, to “fill up the gaps”.⁸

Once the point of departure has been agreed upon, normative efforts may be pursued, so long as they are grounded in the body of positive law. The post-medieval world cannot rely on the Aquinian unity of morality and law.⁹ What is right and proper, what is good, must be transposed into law.¹⁰ This basic exercise is a fundamental necessity, for the sake of Vertrauensschutz and an overarching rule of law.¹¹

It might be helpful as a starting point of this discussion to recall a truism formulated by Emerson Tiller and Frank Cross in their article on legal doctrine, that “[p]olitical researchers have too often focused on outcomes and ignored doctrine”, whereas “[l]egal researchers have studied doctrine as pure legal reasoning, without recognizing its political component”.¹² While this latter element plays a role in the formation of international law, it should not guide those seeking to identify the body of positive law.

At the same time, norms and ideas that have not managed to acquire any footing in the real world of international relations – not in the theory of international relations – must be recognized as “out-moded law”,¹³ activists distinguished from academics.

2 Methodology as Added Value

This is not to say that obsessing over methodology¹⁴ should become a self-purpose, as Anthony D’Amato suggests that “excessive preoccupation with the tools (the law-words) of the legal system distorts, in some students’ minds perhaps irrevocably, what law is all about and what it is for”.¹⁵ He goes on to state that this “elevates tools over goals, form over substance, manipulations over justice”.¹⁶

However, the exact opposite should be the case: Normative goals must be achieved through a dogmatically sound assessment of the legal status quo – it is simply a form of quality assurance as to the use of certain principles and standards within the legal argument.¹⁷ Without this, “substance” and “justice” can only be a form of agenda or policy, not law. However, the purpose of the present argument is not analytic clarity alone.

3 Pending Added Value

The added value of this exercise should be the reconstruction of a credible foundation for normative change, both for the sake of satisfying legitimate expectations of its subjects¹⁸ and the rule of law. At the same time, it is a call to channel the rhetorical and scholarly energies towards goals that are achievable under an existent system, the legal status quo, as opposed to creating what W. Michael Reisman has referred to as “lex simulata”.¹⁹

One suggestion concerning the rule of law might be that states are to be encouraged to ratify²⁰ and withdraw reservations to treaties, if they should be bound, as opposed to reliance on the proposition that there are customary obligations or general principles of law in place that make non-committal attitudes to treaty efforts acceptable. Equally, treaty rules alone should be sufficient without the need to find that they are “strengthened” by additional non-treaty law.²¹

Of course, the immediate rebuke would be that uncertainties would only transition from the use of non-treaty sources to the question of subsequent practice or treaty interpretation.²² Yet unless one engages in dynamic teleological interpretation, which is, in any case, usually aimed at normative expansion of the application of a treaty provision, a textual or systematic reading will not leave the door wide open, where a rule is sufficiently clear.²³

If the International Court of Justice rules that torture²⁴ and the prohibition of genocide²⁵ constitute ius cogens²⁶ in an obiter dictum,²⁷ this could lead to the belief that international law has a capacity to protect individuals from such acts. As opposed to treaty bodies and regimes, there is no institution at the international level where individuals can bring up violations of customary international law or ius cogens. An international legal system that seeks to place the rule of law at its centre and honors the legitimate expectations of both its subjects and its observers²⁸ – and manages not to disappoint – is an effective international legal system.

One need not be a cynic to realize that a farmer in North Korea, a sub-Saharan refugee on the Sinai Peninsula, or a Yazidi girl in Iraq will doubt the capacity of international law to alleviate their suffering. The findings of international courts, tribunals, and scholars may constitute the “legal status quo” for an academic elite, but not for those that hope to rely on it. Irrespective of the moral gravity of a certain rule, the assessment of a rule as ius cogens or as non-treaty law in light of contrary practice might blind scholars and practitioners from deficiencies in the level of protection that need to be addressed.

4 Immediate Goals

Normative efforts in international law must be grounded on a dogmatically sound assessment of the legal status quo. This book is not the manifest of a heretic on a “crusade against the growing impact of international law on our lives”,²⁹ but the attempt of an apologetic of international law to convince one’s peers of the need for scholarly restraint in determining the positive law³⁰ – as difficult as this may seem in light of the phenomenon that Bruno Simma once called “Normenhunger”.³¹ Norms need some form of social validation.³²

The analysis is motivated by the powerful force that positive law could have as a stabilizer of international relations as well as the harm it has been done by the mushrooming of agenda and opinion over sound academic analysis.³³ Agenda and opinion must be detracted from the scholarship of international law. Purely normative and progressive assessments of an assumed “legal status quo” come at the cost of formal determinacy of positive law. Loss of determinacy comes at the cost of credibility. Loss of credibility comes at the cost of relevance. E contrario, analytical clarity of a subject may, in effect, pave the way towards higher compliance.

While some of the following propositions may seem “conservative” and “out-dated” at a first glance – as “positivist” or “realist” ideas often do³⁴ – they are not grounded in a revisionist mind-set. Much rather, they seek to assist the debate to focus on what is really – and realistically – necessary to give international law a credible normative component. The analysis is no less than a proposal to rethink the building blocks of international law³⁵ through an unfiltered lens, unburdened by “mainstream” doctrine³⁶ and, thereby, reconstruct a credible foundation for normative change. Karl Zemanek has called for “mehr Realismus und Wahrheit”, “more realism and truth”, in the scholarship of international law.³⁷ This is the immediate goal and, in itself, an added value. Depending on whether these considerations will be accepted, lofty goals await.

5 The Factual

a Irrelevance of Words

While “rethinking the building blocks of international law” might seem a rather pompous proposition, it requires little more than looking past the words of international law textbooks, judgments, and decisions of human rights bodies as well as the voices of state representatives in the...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• List of Treaties
• List of Cases
• List of Documents
• Foreword
• Preface
• Abbreviations
• 1. Introduction
• 2. Non-Treaty Sources
• 3. Morality and State Interest
• 4. Doctrine and Indeterminacy
• 5. Conclusion
• Bibliography
• Index