The decay of international law

A reappraisal of the limits of legal imagination in international affairs. With a new introduction.

Anthony Carty

• Publisher: Manchester University Press
• Year: 2019
• ISBN:
  9781526127921
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This is a penetrating critique of the methodology of international law as it had come to be understood and accepted by the generality of international lawyers.

1

Introduction: a crisis of method in international law

Legal method simply means the way jurists argue a point. International law has, in the past, been plagued by disputes between ‘positivists’ and ‘natural lawyers’ about the basis and scope of international law. There are plenty of indications that the disputes are regarded as a dead issue. Hardly anyone argues that international law is or can be based on anything other than the practice of States, however much difficulty there may be in determining how best it might be found. Even the doctrine of jus cogens in Article 53 of the Vienna Convention on the Law of Treaties is given a purely positivist formulation. That is fundamental which is agreed to be fundamental. Indeed argument about the binding nature of international law and, in particular, the binding nature of treaties, enjoys none of the vogue of the inter-war years. It is readily agreed that the international legal system satisfies (the perhaps not very clearly defined) requirements for acceptance as a positive system of law, whatever may be the institutional deficiencies compared with any municipal system of law.

Yet the question remains whether international law really satisfies minimum requirements of legal positivism. Are there agreed criteria for identifying the existence of rules of law? Where principles and rules are supposed to have legal character, are they given sufficiently precise formulation to have unambiguous application in a particular crisis? The argument of this study will be that international law is not, never has been, and cannot be simply and exclusively a positivist system of law. The reason is nothing more or less than the fact that States, generally agreed to be the principal subjects of the system, exist in a state of nature – the fundamental thesis of the ‘law of nature’ variant of the natural law school. The state of nature signifies more than the absence of the marks of a world State, legislature, executive and judiciary. It means that there is no legal system which defines comprehensively the rights and duties of States towards one another. Even their coming into existence is not governed by a legal system. A regime of Civil Law (in the language of Locke and Hobbes) means that individuals are guaranteed in their property and their contracts (above all) by a legal sovereign. Since no one disputes that there is not an international sovereign, the fundamental question has to be in what sense States can be said not to be guaranteed in their ‘property’ and ‘contracts’ by the international legal system, whose positive character is so little contested.

One possible approach to the question is to study the reaction of legal doctrinal writers to the rise of nationalism and the status of the principle of self-determination. The issue has been hotly debated since the 1960s, but what is not so fully appreciated is that nationalism has been a dominant force in European political thinking and public life since the beginning of the nineteenth century. International lawyers have had to consider it when they examined questions of title to territory and treaty obligations in the course of the nineteenth century. So a study of the issues of nationalism and self-determination in, primarily European, international relations should reveal the extent to which legal doctrine, at least, is aware of the ‘state of nature’ issue which is at the core of disputes about method in international law. For instance, in what sense were States thought to have a right to ‘their’ territory and to what extent were they held to be legally bound by their treaty commitments? The issue of nationalism was always central, although of course never the exclusive consideration. This study will attempt to demonstrate how positivist legal method failed to grapple with the major international issues and reacted by excluding them from legal analysis – precisely a concealed and implicit version of the ‘state of nature’ phenomenon.

One of the least appreciated influences of nationalism and self-determination has been in the area of the sources of international law. Nationalism revolutionised the esteem or significance attached to diplomatic history and the practice of States. After the French Revolution the ‘Machiavellian’ expediency of Princes gave way to a clash of ideas in European international relations. For the whole of the nineteenth century historical and dynastic legitimacy had to contend with the principles of nationality and representative government. This sea change in perspective on inter-State relations came at the same time as an intellectual revolution in methods of investigation into history and, in particular, into the diplomatic practice of States. It was in such a context that jurists proposed the concept of general customary law as the main source and in fact the very foundation of international law.

This development, perhaps more than any other, has concealed the ‘state of nature’ concept in international legal thought. In my view it explains the otherwise rather strange willingness to take the practice of States with complete seriousness in the search for an opinio juris, the ‘subjective’ element in general custom. Time and again both jurisprudence and doctrine search through the conflicting interplay of interest and power among States, only to conclude that a particular pattern of conduct was motivated by expediency or contradicted by another pattern supporting a different powerconstellation or series of interests. The argument of this study is that the German historicist perspective on the nature and development of the State provides the clearest explanation for the supposition that States have an objective, perhaps ‘living’ and organic personality which can somehow be conscious of having a legal obligation. This perspective is first formulated clearly in the S.S. Lotus case when the World Court considered whether a State could prosecute the crew of a ship flying the flag of another State, where they were thought to have damaged on the high seas a ship flying its own flag. One question was how to interpret the absence of such a practice in collision cases. The Court said:

Even if the rarity of the juridical decisions to be found among the reported cases were sufficient to prove in point of fact the circumstance alleged by the Agent for the French Government, it would merely show that States had often, in practice, abstained from instituting criminal proceedings, and not that they recognized themselves as being obliged to do so; for only if such abstention were based on their being conscious of having a duty to abstain would it be possible to speak of an international custom.¹

Once the suppositions of the historicist approach to diplomatic history are abandoned, one is left with a ‘legal scientific’ or empirical investigation into the legal facts of State practice, in which the absence of personal or subjective evaluation is supposed to be an ideal. In my view this task is as impossible in legal as it is in historical research, even though it may appear to be required by Article 38 of the Statute of the International Court of Justice. For instance, in the Nottebohm case the World Court was willing to infer, in contrast to the decision in the S.S. Lotus case, that practice of certain States refraining from exercising diplomatic protection of ‘nationals’ where there was no ‘genuine connection’ with the respective State manifested the view of States that to invoke diplomatic protection there must be a factual connection.² The World Court supported its view with reference to a bilateral treaty practice of States and the Hague Conference of 1930.³ Brownlie makes detailed criticism of the World Court’s treatment of the ‘evidence’, e.g. that treaties restricting the right of a State to protect returning naturalised persons may indicate lack of confidence in, rather than confirmation of, the existence of a rule of customary law.⁴ This is a criticism which can be made of any treaty practice which is supposed to be evidence of general customary law. However, of greater theoretical interest is Brownlie’s criticism of the style of reasoning in the World Court’s judgment. He says:

the somewhat varied collection of propositions and references to previous practice reads not as a survey but rather as an attempt at further and better particulars as to the logical necessity of the general principle for which the Court was contending. The relevant section of the judgment commences well before the ‘survey of the materials’, and the logical burden of the section as a whole is that, to settle issues on the plane of international law, principles have to be applied apart from the rules of national laws. The major point is made on the basis of a ‘general principle of international law’ and not on the basis of a rule which could be classified as a customary rule of the usual sort.⁵

Brownlie’s criticism may be accurate, but it is, at the same time, too demanding. A court, imprisoned by such a theory of legal positivism, can only continue to choose eclectically from among precedents or incidents, bilateral and multilateral treaty practice in accordance with some preconceived value-judgment. Hence this is a frequently repeated criticism of its jurisprudence.⁶ The reason is that the State practice is legally irrelevant or, better, meaningless in the absence of a subjective criterion of relevance applied by the court itself. This is the only alternative left open to a court which cannot suppose that the history of State practice has some ‘inner’ meaning. The solution to this crisis of method, if one is to be had, is not simply to attack the historical school of law, but to appreciate that the detailed elaboration of a satisfactory framework for the legal analysis of State practice has to start from the numerous traces of the historical school of law which are still to be found in the modern doctrine.

The argument is not so easy to present once one enters the ‘heartland’ of nationalism and self-determination, the so-called law of territory and international treaties. The crucial question, once again, is the viability of the method used by international lawyers to tackle questions concerning territory or treaties. The argument is that international lawyers responded to the growing power of nationalism in the nineteenth century by resorting to purely formalist concepts of the law, State, property and contract. Territory and treaties were very much an integral subject to the nineteenth century statesman and diplomat. European boundaries were set out in a system of treaties ultimately denominated the ‘Public Law of Europe’. Nationalist disputes, whether or not they supported dynastic ambitions, involved the status of treaties. In particular, the doctrine of rebus sic stantibus in relation to treaties was intimately connected with the issue of nationalism and, inevitably, concerned the European system as a whole. Yet lawyers separated the issues of territory and treaties just as they would distinguish property and contract. Legal doctrine readily equated the ‘law of territory’ with the application of Roman law of property analogies to disputes in ‘overseas’ territory, by its nature politically marginal, except for a short period before 1914. Lawyers did not assume that they had exhausted the issue of territory in international relations, but they were very inclined to believe that they had nothing more useful to say about it. Indeed the right of a nation-State (already in existence) to self-determination over its territory and population was a nonsense to nineteenth-century public and property lawyers, since how legal subjects chose to exercise their absolute discretion over their property was of no interest to the law. A parallel pattern of thought delimited the scope of the ‘law of treaties’. The precise difficulty is the nature of the obligation which treaties create. Their place as a complex of diplomatic instruments within an international political system was hardly susceptible of legal analysis. In the absence of a proper system of law and adjudication for treaties, lawyers have stood firmly by the view that a treaty is absolutely binding in so far as this was the intention of the parties. Any other stance would be simply unjuridical.

The tendency to exclude from law the ‘irrelevant’ dimensions of politics, economics and history has been the result of the all-embracing and decisive power attributed to the State as an order of competences (i.e. delineating them, to characterise an event or an act as juridical). Yet a main argument of this study, particularly in the chapters on territory and treaties (Chapters 4 and 5), is that individual States cannot fulfil collectively the role which a world State could be expected to play. So the vital minimum conditions for such a State-based legal method do not exist. Law does not govern either the coming into existence or the disappearance of States. That is to say States have their own political, historical and other reasons for ensuring their existence, in the absence of a system of law which guarantees their well-being and security. So they have to exercise their own judgment as to the wisdom of maintaining international agreements as the contours of their international relations change.

International legal theory has ta...