International Law: Constitutive Elements and Historical Evolution

International Law Fundamentals

first exam: 18th of december

a concise introduction to international law by attila tanzi.

Important Databases for International Law

• Cambridge core
• Heinonline
• Kluwer law online
• maz planck encyckopedias of international law
• oxfors scholarly authorities
• peace place library
• westlaw
• ejil talk

I.

what is international law?

II. what are the constitutive elements of the international society of states?

III. its evolution through time

International law is a legal order shared by all members of the international society. But what is a legal order? It's a set of rules which presents all three functions of any legal order: norm-making (it creates norms and provides sources of law), norm-ascertainment (makes sure whether or not such rules are correctly applied) and norm-enforcement (ways through which these norms are enforced).

In a domestic legal system typically the government and the parliament create norms, judges and judicial system verify their correct application and the administration - including Police Forces - are entitled to enforce laws. We as -an international society- do not have a centralized system, a very interisting peculiarity, there are no world legislator, judicial system nor world police.

Distinguishing International Law

With that being said, it must be pointed out that IL is NOT:

• foreign law, because that would be laws based on specific States. Laws of foreign states are studied in Private/Public Comparative Law.
• about domestic rules on how to act internationally. Italian Constitution says that the President of the Republic ratifies international treaties. There is instead an international law according to which each country ratifies treaties according to its internal rules. (which is not the same thing, because in this case IL leaves space for domestic laws to decide how to stipulate those treaties)
• about the conflict of laws, which is instead International Private Law, IPL is the field that deals with deciding which rule (of which country) has to be respected.

Nature of International Law

Therefore we can say that IL:

• has Inter-State nature and it is the outcome of such relations among States.
• is a set of rules made by States which regulate their legal relationships.

Why do States want to have rules in their relations? There are plenty of reasons, to summarise them:

• they want them in order to obtain rights
• mutual cooperation is required when facing issues of common interest/concern

International Law has an intrisical inter-state nature:

• we see that in the diplomatic field, where agreements are negotiated
• in many of its rules on borders, seas, wars ecc ...
• because it regulates the external sovereignity of states.... Nevertheless, many international laws:
• can dictate behaviours of States concerning purely domestic situations. (their internal sovereignity) . Moreover, international laws are also mainly violated within domestic situations in either the exercise of the legislative, executive or judicial functions. If a State engages in a conduct which is contrary to international rules, it is responsible for it under IL

Constitutive Elements of International Society

The constitutive elements of International Society of States are:

• ubi societas, ibi ius -> "where there is a society, there is law" IL is a set of rules that regulates the relations among the actors of the international society. All societies provide themselves with rules of some legal nature in order to regulate the relations among the members of such society.
• ubi ius, ibi constitutio -> "where there is a law there is a constitution", if there is a set of laws there must also be some fundamental rules of some nature, obviously they are not always the same in every society, these kind of rules are identified by each society itself, through their own social and political process. The body of international law, expressed through binding treaties and customary practices, functions as the structural foundation of international relations and the regulation of global affairs.

We don't find any international Constitution, for example the 1945 UN charter of San Francisco (which established the United Nation) can not be considered a Constituion because it doesn't cover all relevant aspects of the life of the UN (= is not comprehensive), however there are fundamental constitutive principles of the international society which go all the way back to the 17th century.

Horizontal Structure of International Law

In the horizontal structure of IL:

• the lawmaking role is driven in participative and consensual ways:
  1. there is no international legislator/parliament, as well as there are no laws, rather there are customs and agreements and every rule is base on deals, consent and on the participation among those who are willing to be bound by that rule.
  2. pacta sunt servanda->which means "agreements must be respected" is one of the basic principles of IL
• The law ascertainment role is not driven by a pre-determined judge, States must give their mutual consent to bring their disputes before a third subject, chosen on a consensual basis, who is in charge to solve the dispute. More often than not, States self-assess the legality of another State's conduct
• Rules are enforced according to IL by self-implementation: if a State A thinks that another State B is violating an obligation and there is no agreement to solve the dispute whatsoever, State A can self-implement the rule by not applying other agreements with State B. How should an agreement be "enforced" when one of the parties wants to withdrawn from it? (given that there is no superior power to oblige them).

Sovereignty implies equality and the independence of a State from another, but also from any external authority (unless otherwise accepted by a State by its own free will). IL application of sovereignity implies and "enforces" these principles by also agreeing to the principle of non-interference in the domestic affairs of a State.

For example, if a State A, member of the UN, has to be sanctioned, and a State B, also member of the UN, doesn't want to apply such sanctions, State B is obliged to apply the sanctions, not because its sovereignity is about to be compromised, but because and just because State B chose to be part of such organization. State B has freely chosen to be part of these organizations and it exercises its sovereignity by accepting to be subjected to that given authority as there's no compulsory membership to an international organization.

Historical Evolution: Peace of Westfalia

In 1648 the Peace of Westfalia was established, in a clime of revolutionary attempts to undermine the principle of sovereing equality of States such as Napoleon, socialism or nazism. With this treay the world started engaging in a new horizontal structure based on formal equality between States and reciprocal independence, a concept that didn't existbefore: there were political units, empires and kingdoms, but for the first time it emerged the concept of unity of a State, becoming the structural unit of international society. This is why the Peace of Westfalia is still considered to be the starting point for what we call today "international law", because from that point on States started recognizing each other's sovereign equality, which is still today the underlying structure of the International Society. The paradox: International Law "aims" to limit State's sovereignity, both internally and externally, through the exercise of State's external sovereignity. This means that States are willing to bound themselves to rules/treaties which limit both the way they can govern their own society (internal sovereignity) and their inter-State conduct (external sovereignty) but not because they are under some sort of obligation to do so, rather because they think it's in their best interest to do so in order to protect their rights and to be able to participate in the international society.

Given that the Peace of Westfalia was stipulated among european countries, it's implied that the fundamental principles of IL find their roots in Europe's cultural and political environment, however these principles have shaped themselves through time around all States in the world.

Being that equality and sovereignity are the two main features of this new units, it's easily understandable why the International Legal Order lacks any centralized power or authority. If that would happen, it would imply someone's power to decide for the sovereignity of other's States, in disregard with the fundamental principles of IL.

Subjectivity Under International Law

IL is the legal order of the international society, which is made up by different subjects who participate in the life of this society. According to an ICJ report of 1949 an international legal subject is "any subject capable of having subjective rights and legal obligation under international law."

The subjects of the IS are States as well as International Organizations, insurrectional movements and so on. In the past States were the only entities perceived to be relevant under International Law, however things have changed and new actors have gained relevance.

Being an actor of the International Society means having legal personality, however not every participant's conduct is fully regulated under IL.

States and IOs have full legal personalities, while insurrectional movements, peoples and individuals are the addressees of some rights and duties, but they have just partial subjectivity under IL.

The Concept of "State"

What is a State according to IL?

1. Montevideo convention (1933) defines the state as a person of international law that should possess the following qualifications: permanent population, defined territory, government, capacity to enter into relations with other states (independence)
2. when jugoslavia dismemberment into several entities it was necessary to understand which of those could be defined as State, and the definition of the "Badinter Commission" stated that: the State is a community which consists of a territory and a population subjected to an organized political authority characterized by sovereignity
3. under IL a State is an entity or a community where government is exercised in a territorial community effectively and independently.

So the three constitutive elements are: government-territory-population. Moreover, in order for the given entity to be considered a State, the government must also be independent and effective.

1. territory -> by territory we mean the spatial dimension of the existence of a State. If an entity exercises authority over a community but there's not a territory, such entity can not be called a State. Its function is to define the reach of the entity's authority who governs the given community (delimitation of borders). Almost every world's territory is under some State's jurisdiction, however some parts of the globe are not, such as the