Law Among Nations

An Introduction to Public International Law

James Larry Taulbee, Gerhard von Glahn

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781315534114
• Edition: 11
• Topic: Diritto
• Subtopic: Teoria e pratica del diritto

Offering a more accessible alternative to casebooks and historical commentaries, Law Among Nations explains issues of international law by tracing the field's development and stressing key principles, processes, and landmark cases.

This comprehensive text eliminates the need for multiple books by combining discussions of theory and state practice with excerpts from landmark cases. The book has been updated in light of the continuing revolution in communication technology, the dense web of linkages between countries that involve individuals and bodies both formal and informal; and covers important and controversial areas such as human rights, the environment, and issues associated with the use of force.

Renowned for its rigorous approach and clear explanations, Law Among Nations remains the gold standard for undergraduate introductions to international law.

New to theEleventhEdition

• Added or expanded coverage of timely issues in international law:

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  • Drones and their use in the air and in space

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  • Immigration

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  • Islamic views of international law

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  • Inviolability and the difference between diplomatic immunity and sovereignty, in light of the Benghazi attack

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• Thoroughly rewritten chapters in areas of great change:

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  • International criminal law

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  • Just war and war crime law

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• New cases, statutes, and treaties on many subjects

PART I

The Law of Nations

CHAPTER 1

The Nature of International Law

Evidence of international law as a vital concern in the everyday relations between states appears regularly in the headlines of the world’s newspapers. Consider the following, culled from reports on events during a recent two-week period.

Pirate Sentenced

The stiff prison sentence given a Somali pirate in U.S. federal court is meant to be a deterrent to armed attackers who would board and hold for ransom unarmed commercial ships.¹

Book Review Has International Implications

A French court will hear a criminal libel case involving a review, written in English by a German law professor, of a book published by a Dutch company, written in English by a French citizen who lives in Israel. The review appeared on a website based in the United States and moderated by an American professor of law.²

Extradition for Mongolian Spy

A British judge has ruled that Mongolian spy chief Bat Khurts, who claims he was lured to the UK so that he could be arrested and jailed under a European arrest warrant, can be extradited to Germany.³

Cyprus Parliament Ratifies Agreement With Israel on Delimitation of EEZ

The agreement, signed in December last year, is set to consolidate Cyprus’s EEZ in that it complements similar agreements Cyprus has signed with Egypt and Lebanon. The delimitation of the EEZ is based on the Law of the Sea Convention.⁴

Piracy, jurisdiction over an international dispute involving free speech, cooperation with respect to criminal prosecution, and delimiting maritime borders between adjacent states all constitute matters that fall squarely into the realm of international law. In an era of increasing “globalization,” international law forms a critical part of the framework that promotes sustained cooperation among states. While skeptics may continue to question the scope and impact of international law as real law, simple observation should quickly provide strong evidence that states do regard international law as an important factor in their everyday relations with one another.

THE NATURE OF THE LAW

To begin, we need to establish some points of reference. Why do we need an “international” law, distinct from the laws of individual states, that seeks to establish principles and procedures to govern relations with other states? If international law does exist, what distinguishes international law from domestic law? The answer to the first question should be obvious. With nearly 200 states in the world today, consider the confusion and problems of dealing with potentially 200 different sets of procedures and standards on such simple matters as necessary travel documents, mailing a letter to a foreign county, or establishing and maintaining diplomatic relations. Many areas of contemporary international life require common practices to facilitate necessary international contacts and cooperation. International law provides that common referent. Answering the second question requires a more extended discussion focused upon the nature and function of law in society.

We need to emphasize here that this book focuses upon public international law—the law among nations. As we shall see, public international law also includes an emerging area of international law, international criminal law, that deals with the actions of individuals including issues of how governments (individuals in responsible positions) treat their citizens. Private international law, also characterized as conflict of laws, deals with the private (nongovernmental) transactions and disputes between parties (companies, individuals, nongovernmental organizations [NGOs]) from differing nations. Generally, courts and others use this body of law to determine which law to apply when there is a conflict between the domestic laws of the parties in a dispute. So private international law would come into play when Siemens AG (Germany) has a dispute with Sony Corporation (Japan) over a joint manufacturing agreement that involves component suppliers in China and an assembly plant in Indonesia.

Some Definitions

Traditionally, writers have defined international law as that body of principles, customs, and rules recognized as effectively binding obligations by sovereign states and such other entities that have been granted international personality. In contemporary international politics, states are not the only actors subject to international law. The United Nations (UN), the Organization of American States (OAS), and many other intergovernmental organizations (IGOs) are examples of entities other than states that have international legal personality (Chapter 7). The International Committee of the Red Cross (an NGO) also has limited international legal “personality” with respect to certain functions related to the Geneva Conventions. This definition pulls together the essential elements suggested by most contemporary writers on international law. It does not represent, by any means, the only acceptable definition. Professor Philip Jessup has counseled, “One should always have in the background of one’s mind a multiplicity of definitions covering the subject at hand in order to prevent oneself from accepting the most obvious.”⁵ This applies especially to international law because controversy does surround the subject matter. Therefore, in the spirit of Professor Jessup’s advice, we offer the following additional definitions. Professor James Brierly, in his classic text, asserts:

The Law of Nations, or International Law, may be defined as the body of rules and principles of action which are binding upon civilized states in their relations with one another.⁶

A more contemporary definition from the American Law Institute extends this definition somewhat:

“International law,” as used in this Restatement consists of rules and principles of general application dealing with the conduct of states and of international organizations and with their relations inter se, as well as with some of their relationships with persons, whether natural or juridical.⁷

Note one important difference between these last two definitions. Professor Brierly’s definition rests upon the traditional assumption that only states can be the subjects of international law in the sense of having legal rights and obligations. Traditional definitions of international law assume a “hard-shell” definition of sovereignty, meaning that international law has nothing to say about how rulers treat their subjects or how governments treat their citizens. Hence, international law applies between and among states but has no power or authority to intrude into the affairs of the domestic community. The more modern definition from the Restatement acknowledges that, increasingly, international law in the form of evolving human rights norms also applies to the relationship between individuals and their states and may specify rights and duties for individuals in certain circumstances (Chapter 15).

The difference between the Brierly and the Restatement definitions also highlights an important point for the reader. All law embodies a dynamic process. Law must change to reflect changing circumstances. States make the law in response to their interests and concerns. Circumstances and interests change. One hundred years ago, states could resort to war to settle their disputes without violating any law. Seventy-five years ago, the idea of genocide as an international crime against humanity did not exist. Twenty-five years ago, the question of establishing controls over the Internet had little salience to governments because the Internet did not exist in its current form. Ten years ago, while cell phones were becoming ubiquitous, the possibility of texting and “tweeting” lay in the future.

Law and Politics at the International Level

“International law is to law as professional wrestling is to wrestling.”⁸ The skepticism of this quip reflects the belief of many that international law has no real substance. Critics believe that at best international law may provide window dressing for states to justify their actions, but, to use contemporary jargon, it does not exert any definitive compliance pull in the sense that a government will obey if an obligation requires that it act in a way that would result in a short-term loss vis-à-vis an important interest. Skeptics believe that governments comply with international law only if convenient to do so and feel free to ignore it otherwise. These criticisms come from eminent philosophers, statesmen, and men of letters. Montesquieu wrote:

International Law is better known in Europe than in Asia, yet it can be said that royal passions, the submissiveness of their subjects and sycophantic writers have corrupted all its principles. In its present state, this branch of law is a science which explains to kings how far they can violate justice without damaging their own interests.⁹

Abba Eban, then the Israeli ambassador to the United States, noted, “International law is the law which the wicked do not obey and the righteous do not enforce.”¹⁰ In Tiger at the Gates, Jean Giradoux provides a pointed critique of both the character of international lawyers and what he saw as the infinitely flexible nature of international law, characterizing the field as “[t]he training ground for the imagination.”¹¹ During the debate over whether NATO should take action against Serbia, when British Foreign Secretary Robin Cook told U.S. Secretary of State Madeleine Albright that he had “problems with our lawyers” over using force against Yugoslavia without UN Security Council approval, Secretary Albright reportedly responded, “Get new lawyers.”¹² Indeed, many critics have disparaged the justifications for NATO’s use of force against Serbia and the U.S. invasion of Iraq as “lawfare.”¹³

The structure of the international political system encourages skepticism about law. An examination of the international political systems will find none of the institutions and features normally associated with “the law” as a factor in modern domestic societies. Most international relations textbooks begin by telling us that anarchy best describes the international milieu. While anarchy simply means the absence of central political rule (not necessarily chaos or disorder), in talking about a system that does not have a legislature to enact authoritative prescriptions, a central executive authority with an effective police power, or a court system with compulsory jurisdiction over state activities, how can we speak seriously of law as a reality that affects the behavior of states? The answer to this question has provided many generations of legal scholars and political theorists with a puzzle they have yet to solve to everyone’s satisfaction. Indeed, because of the close association of law with the hierarchic authority structure of government, Nicholas Onuf has described international law as the vanishing point of jurisprudence.¹⁴

The absence of formal institutions and especially the lack of any effective international enforcement mechanisms give some credence to those who question the efficacy of international law. Skeptics, looking at the few examples given at the beginning of this chapter, still might say, “So what?” Pointing to a few instances where advocates assert that intern...