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terça-feira, 11 de novembro de 2008

On international law

1. Definition
The term international law was first used in 1789 by the English philosopher Jeremy Bentham, who used it as opposed to municipal law. It was Dutch philosopher Hugo Grotius, however, that laid the foundations of the discipline in two treatises called Mare liberum and De jure belli ac pacis (The Law of War and Peace), published respectively in 1609 and 1625. According to Janis & Noyes, “Grotius’ classic, The Law of War and Peace, is widely acknowledged, more than any other work, as founding the modern discipline of the law of nations” (Janis & Noyes: 1). Some authors still prefer the phrase Jus inter gentes, but this can be misleading since the original Roman Jus inter gentes referred to something different. The term voelkerrecht, first used by Richard Zouche in 1650, is also adopted in German speaking countries.

International law can be properly defined as a set of juridical norms that presides over the reciprocal relations between nations and, in a subsidiary manner, between nations, other international actors and individuals. It relates, therefore, to issues that are either not entirely covered by or transcend the jurisdiction of municipal law.

2. Historical Development
Janis & Noyes state that “the conclusion of treaties between nations is a natural feature of human society. For as long as there have been written records, there have been international compacts”. (Janis & Noyes: 29). In fact, there are records of treaties being celebrated as far back as 2100 B.C (Shaw: 23). In approximately 1275 B.C, a treaty was signed between Hatusil III, King of the Hittites, and Rameses II, Pharaoh of Egypt, ending an ongoing war on Syrian shores and establishing eternal peace and friendship. This event represents one of the earliest records of binding agreements signed between nations.

The treaty between the Jews and the Romans (circa 160 B.C.), found in the Bible, is another example Janis & Noyes quote. It is possible to uncover from these earlier records enduring features of treaty-making such as the principles of reciprocity and good faith. Later hallmarks of international law, such as the Vienna Convention on the Law of Treaties, incorporated those elements, thus transforming them into fundamental elements of modern international law.

Although records of treaties that were established as far back as 4000 years ago exist (Shaw: 14), modern international law was established by the treaties of Muenster and Osnabruck, which ended the bloody thirty-year war between Catholics and Protestants. The Peace of Westphalia (1648) is widely regarded, in fact, as a milestone in the development of international law. Janis & Noyes remark that “for many historians and lawyers, the Peace of Westphalia marks the beginning of the era of ‘modern international relations’ and hence of modern international law’” (Janis & Noyes: 34).

After a savage war that wreaked unprecedented havoc and destruction upon Europe and the Protestant Schism initiated by Martin Luther in Germany, the Habsburg dynasty, which represented the Catholic monarchies of the Holy Roman Empire, and the king of Sweden, who was allied to France and represented the followers of the Confession of Augsburg (Protestants), signed a peace agreement to end the bloodshed. The treaty established an “exact and reciprocal Equality amongst all the Electors, princes and States of both Religion” (quoted by Janis & Noyes: 33), thus recognizing the principles of sovereignty and equal rights among sovereign states. According to the Peace of Westphalia, “…in order to prevent for the future all differences in the Political State, all and every the Electors, Princes, and Sates of the Roman Empire shall be so establish’d and confirm’d in their ancient Rights, Prerogatives, Liberties, free Exercise of their Territorial Rights […] that they may not be molested at any time in any manner, under any pretext whatsoever” (ibid:34). According to renowned author Antonio Casese, therefore, the Treaty of Westphalia “recorded the birth of an international system based on a plurality of independent States, recognizing no superior authority over them” (Casese: 24).

Furthermore, two philosophers, Thomas Hobbes and Hugo Grotius, were crucial in defining modern concepts such as sovereign states and international law, which are dear to modern day international society. Hobbes published his Leviathan in 1651, arguing that all humankind required “a common Power, to keep them in awe, and to direct their actions to the Common Benefit” (Janis & Noyes: 35). Grotius “explained that no sovereign state was so powerful as not to need the advantages of laws based on natural law and positive consent” (ibid).

With the birth of international institutions such as the United Nations and its predecessor, the League of Nations in the 20th century, attempts were made to establish universally applicable concepts to international law. The League of Nations set up the Permanent Court of Justice, based in The Hague, in 1921. The International Court of Justice, founded in 1946, subsequently succeeded the Permanent Court of Justice.

The horrors of the genocide perpetrated by Germany during World War II represent another turning point. After the end of the war, the international community vowed to never let such atrocities happen again, and began a serious attempt to consolidate international law. In 1949, the UN designated a Commission on International Law to investigate the issue and later The Vienna Convention on the Law of Treaties was signed in 1969.

3. International Law in relation to Municipal Law
International law differs from municipal law insofar as it cannot count on a higher centralized authority to enforce its decisions. Nor can it presuppose the existence of a monopoly of violence, in the sense that Max Weber gives to the term, like municipal law can. Another difference is that international law does not evolve from a Grundnorm, or a fundamental social contract between nations, but rather from different and multiple sources. Since there is no international constitution, there can be no international law that is derived from it. That is not the case with municipal law, where there is a founding constitution. Although there are rules believed to be peremptory by virtually all members of the international community, there is no such thing as an international constitutional court. However, the International Court of Justice occasionally plays a similar role.

In this regard, the most important feature of modern international law is the consent of equally sovereign states. According to the Vienna Convention on The Law of Treaties, article 26, “every treaty in force is binding upon the parties to it and must be performed by them in good faith (Pacta Sunt Servanda)” (Janis & Noyes: 934). International law depends, therefore, on the consent of sovereign states and on municipal law for its enforcement.

In most countries, international agreements must be translated into municipal laws in order to become valid. Only after international law has been incorporated into municipal law does it become binding to citizens living under the jurisdiction of the contracting state. The Vienna Convention on The Law of Treaties stipulates, hence, that agreements must be ratified by contracting parties after having been incorporated into their respective national legal corpus. Under article 27 of the Convention, however, “a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty (Janis & Noyes: 93).

4. Effectiveness
International law certainly works, albeit not as perfectly as municipal law. Since it often depends on the consent of states, enforcement of international law can be troublesome in some cases (e.g. human rights). However, in most situations international law does work well. The law of the seas, codified in the Montego Bay convention of 1982, is a good example of how far-reaching and efficient international law can be. In fact, the most efficient feature of international law is probably its ability to constrain the behavior of states. Even when enforcement in particular areas is difficult, international law functions as a very powerful brake to states trying to act based solely on their own interpretations of Raison d’Etat, or power politics. The development of international law in the second half of the 20th century was accompanied by a significant decrease in the number of major armed international conflicts between large nations, which would have been disastrous in the thermonuclear age. In fact, several parts of the world (such as Europe, North and South America) experienced no major outbreaks of war in the second half of the last century, due in part to the consolidation of international law. It can be said, therefore, that international law is a powerful conflict deterrent.

Furthermore, international law has played a significant role in the gathering pace of globalization in that it provided a reliable international framework that enables business to expand across borders. In this sense, it can also be concluded that international law has greatly contributed to the achievement of prosperity, albeit unevenly (Hurrel: 58).

5. Bibliography:
1- Barnet, M. and Duvall, R. (2005), ‘Power in global governance’, in Barnet, M. and Duvall, R. Power in Global Governance (Cambridge: Cambridge University Press).
2- Casese, A. (2005), International Law (USA: Oxford University Press).
3- Hurrel, A. (2005), ‘Power, Institutions and the Production of Inequality’, in Barnet, M. and Duvall, R. Power in Global Governance (Cambridge: Cambridge University Press).
4- Janis, D. and Noyes, J. (2004), Understanding International Relations, The Value of Alternative Lenses (USA: Custom Publishing).
5- Shaw, M. (2003), International Law (England: Cambridge University Press).

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