STUDENT I.

D QUESTION

: :

809100395 NO. 1

Law will never play a really effective part in international relations until it can annex to its own sphere some of the matters which at present lie within the domestic jurisdictions of the several states. Discuss. The debate about the relationship between international law and domestic law has persisted in the midst of evolving discourses on international law. It has also influenced the debates about the effectiveness and importance of international law that have endured since the writings of Grotius1. However, the international landscape of the 21st century has deviated from the environment that produced J.L Brierlys The Law of Nations2 in which he made the pronouncement that informs this essay. Therefore, a historical overview of the tensions that have defined the relationship between international law and domestic law is important in order to establish the context of Brierlys concerns. It is also crucial to examine the history of the modern state and to elucidate the matters that have traditionally been confined to the domestic jurisdictions of states. Furthermore, an exploration of the theoretical frameworks that have informed academic debates is pertinent to an examination of the conflict between international and domestic law. Ultimately, it is necessary to assess the current role of domestic jurisdiction; recognising that international law has penetrated the once exclusive zone of domestic affairs, but remaining cognisant of the fact that international law still recognises a demarcation between domestic and international politics (Slaughter and Burke-White 327). The culmination of this discussion will comment on whether the international law system is still impeded by actions taken by states to guard their domestic jurisdictions and will delineate prospects for the future effectiveness of international law within the parameters of recent developments in the field.
Hugo Grotius was a 17th century Dutch scholar who is recognised as a founder of modern international law. Grotius viewed law as a moral imperative through which a prudent ruler exercised a commitment to the progress and welfare of all humanity. He articulated a systematic body of law to regulate the relationship between nations that would later be termed international law.
1

In 1928, James Leslie Brierly, an English professor of law, argued that the imperative character of international law is not as strongly felt as the imperative character of domestic law and, hence, was ineffective as a system of law. For further discussion see J.L Brierly. The Law of Nations: An Introduction to the International Law of Peace. Oxford: Clarendon Press (1928).
2

The tensions that encircle domestic and international law are rooted in the historical contentions between the naturalists and the positivists on the issue of the legality of international law. The Roman doctrine of jus naturale provided the basis for natural law which encompassed a system of rules and principles for the guidance of human conduct (Ibegbu 27). These rules and principles are inherent to human nature and require only to be discovered (28). Proceeding from this was the concept of jus gentium which was regarded as comprising universal customs of purely human creation (Neff 6). The English jurist, John Austin, writing in the 18 th century denied the utility of the concept of jus gentium and posited the theory of positive law3. He failed to recognise international law as belonging to the category of positive law and, instead, confined it within the concept of positive morality. This separation perpetuated the conflict between domestic law and international law that proceeded from the growth of the modern state system, the notion of sovereignty and the protection of domestic jurisdictions and further weakened the status of international law. The severely limited potential of international law that positivism postulates is reflected in Brierlys claim that it is a natural consequence of the absence of authoritative lawdeclaring machinery that many of the principles of international law...are uncertain (40). This uncertainty, he argued, derives from the restricted range of international law (39) which the preservation of domestic jurisdiction ensures. Jurisdiction is intertwined with the principle of state sovereignty and denotes independence in regard to a portion of the globe (and) the right to exercise therein, to the exclusion of any other State, the functions of a State 4 (qtd. in Scott 22). The growth and development of the modern state system led to the entrenchment of the unassailability of domestic jurisdiction5. Domestic jurisdiction matters encompassed restrictive immigration legislation, the manner in which a state
John Austin in his book Lectures on Jurisprudence or Philosophy of Law (Michigan: Scholarly Press, 1977) described a theory of positive law which was based upon the notion of a sovereign issuing a command that was backed by a sanction or punishment. Since the framework of international law seemed to be in opposition to this notion, he designated international law as positive morality that was enforced by the opinion of an uncertain group of men.
3

This definition was contained in a statement made by Max Huber in the Island of Palmas case. In this case the United States submitted to arbitration its claim that the island of Palmas, although flying a Dutch flag, was part of the territory ceded to it by the Treaty of Paris 1898. The final decision gave the Netherlands title of sovereignty, acquired by its continuous and peaceful display of State authority for a long period of time.
4

The 1648 Peace of Westphalia that signalled the end of the Thirty Years War is regarded as a reference point for the modern state system and its focus on the exclusivity of state sovereignty which regarded domestic institutions of law as the sole arbiters of legitimate behaviour.
5

chooses to treat its own subjects, its choice of a form of government, its naturalisation laws and the economic policy that guides its international economic relations (Brierly 40). The 1945 Charter of the United Nations (subsequently referred to as the Charter) also protected the domestic jurisdiction of states through the provision of Article 2(7) which declares that nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter. In 1925 Brierly had criticised a similar provision in the Covenant of the League of Nations. However, it is important to note that the course of international law and international relations in the period after 1945 has been defined by conflicts arising from Article 2(7) that have led to the evolution of the preliminary concerns espoused by Brierly. This evolution has occurred within a legal environment in which the relationship between international law and domestic law is analysed with reference to the divergent theories of monism and dualism6. In response to the controversy between monism and dualism, Shaw concludes that international law does not need to extend its influence into domain of national law; it simply says...that certain things are not valid according to international law, and that if a State in the application of its domestic law acts contrary to international law in these respects, it will commit a breach of its international obligations (68). The Alabama Claims Case (1872) is instructive in its explanation of the position of municipal law within the international sphere (Harris 69). This case expounded on the principle that a state which has broken a stipulation of international law cannot justify its circumvention by referring to its domestic legal situation. Although this may prevent states from attempting to violate international law obligations to which they have consented, Brierly criticised the fact that international law lacks the capacity to restrain the actions of states in certain domestic matters; a position that is supported by the dualist tradition. Presently, any discussion about the effectiveness of international law would be incomplete without recognition of its progression in the post-1945 period into a system of law that no longer detaches itself absolutely from the domestic jurisdiction of states. This has been facilitated by an expansion of the range of things that are not deemed valid according to international law.
Monists adhere to the view that domestic and international law constitute a single system of law in which international law prevails in any instance of conflict. Conversely, dualism posits that international law and national law operate within different spheres and it is the role of the national legislature to transform international rights and obligations into a rule of national law.
6

The formation of the United Nations in 1945 was a defining moment in the development of international law and in the restriction of the inviolable authority of the state. By outlawing the threat or use of force the Charter curtailed the previous freedom of a state to instigate warfare and refuted the argument that international law has no alternative but to accept war 7. Additionally, the initiation of the development of international human rights law is attributed to the Universal Declaration of Human Rights 1948 which reflected the prevailing concern for human dignity that lingered after the Second World War. The case of Guerrero v Columbia (1982) illustrates the diminished impunity of the State through its imposition of strict standards for the taking of life by the state (Harris 686)8. The conclusion of this case illuminated the principle that the fact that an action is lawful under national law is not such to prevent it from being arbitrary (686). This unparalleled attention to human rights has also paved the way for the growth of international criminal law in which, according to Arthur Watts Q.C. in his Hague Lecture 1994, the idea that individuals who commit international crimes are internationally accountable for them has become an accepted part of international law (qtd. in Shaw 338). The establishment of peremptory norms that conform to the concept of jus cogens9 was made possible by the diminished status of domestic jurisdiction and the fact that States making up the international society recognise (international law) as binding upon them and...as a system that ipso facto binds them as members of a society, irrespective of their individual wills (Shaw 11). The post-1945 period has also recorded a proliferation in the treaties governing the international economic relations between states and has engendered an international economic law revolution by facilitating the revision of core Westphalian concepts such as sovereignty, sovereign equality and territorial jurisdiction

This was asserted by W.E Hall in his Treatise on International Law (1880)

In this case, the Columbian police shot seven persons, suspected of being kidnappers, without warning. The government attempted to justify this action by invoking Legislative Decree No. 0070 which stated that so long as the national territory is in a state of siege, the police had a defence to any criminal charge arising out of acts committed in the course of operations planned with the object of preventing and curbing kidnapping. The Human Rights Committee found that the action was disproportionate to the requirements of law enforcement in the circumstances of the case and reflected a violation of Article 6(1) of the Universal Declaration of Human Rights.
8

The concept of jus cogens refers to the highest status that can be attained by any principles or norms in international law. In accordance with Article 53 of the Vienna Convention on the Law of Treaties, this status is given only to the most fundamental rules of international law which are recognised and accepted by the international community as rules from which no exceptions can be made. Crimes which have attained the status of jus cogens include genocide, slavery and torture.
9

(Trachtman 9)10. Furthermore, in the 1970s, the Bretton Woods regime transformed its role in international trade and finance (Peet 79)11. Despite these changes to the operation of international law there remains international contention over the much challenged Article 2(7) in the Charter that prevents intervention in the domestic affairs of other states. The 1999 intervention by North Atlantic Treaty Organisation (NATO) forces in Kosovo brought to the forefront of international law the doctrine of humanitarian intervention which attempts to justify state intervention. The subsequent lack of international response to the 1994 genocide in Rwanda impelled international leaders and academics to clarify the concept. In 2001, the International Commission on Intervention and State Sovereignty (ICISS) released The Responsibility to Protect report which reflected an emerging norm of international law and behaviour regarding the protection of persons against gross human rights atrocities (Zifcak 512). The current coalition intervention in Libya seems to concur with Aaron Schwabach in his view that although it cannot yet be said with certainty that humanitarian intervention is legal, it can no longer be said with certainty that international law prohibits humanitarian intervention in the domestic affairs of a state (12). Since Brierlys apt articulation of the inhibitions that the strict conservation of domestic jurisdictions place on the effective operation of international law it is obvious that the concept of domestic jurisdiction has been altered and that state sovereignty can no longer act as a shield behind which political leaders can act without restraint. In Ex Parte Pinochet (2000) the decision of the Court enforced the principle expressed in Demanjuk v Petrovsky which recognised perpetrators of international crimes as common enemies of all mankind12. However, debates and criticisms about the effectiveness of international law

These include the 1947 General Agreement on Tariffs and Trade (this laid the foundation for the formation of the World Trade Organisation in 1995), 1965 Convention on Transit Trade of Land-locked States, 1980 UN Convention on Contracts for the International Sale of Goods, 2001 UN Convention of the Assignment of Receivables in International Trade, 2005 UN Convention on the Use of Electronic Communications in International Contracts.
10

Although the original conception of the Bretton Woods system (this included primarily the International Monetary Fund and the International Bank for Reconstruction and Development, later known as the World Bank) collapsed in the early 1970s, the IMF re-emerged as an international lending organisation that wields significant influence in the domestic sphere of states through its Structural Adjustment Programmes. Together with the liberalisation agenda of the World Bank, it fuels suspicion, especially among developing states, towards attempts by international law to regulate domestic affairs.
11

In April 1999, the United Kingdom decided to allow extradition proceedings in order for General Pinochet, a former dictator of Chile, to face trial for crimes committed during his rule.
12

have not abated and Chambers suggests that this can be attributed to the essentially contested nature of the concept (Legal Effectiveness of International Environmental Treaties). Despite the fact that certain matters identified by Brierly are no longer confined to the domestic sphere, there is a lack of unanimous agreement on the extension of international law into this sphere. This discord has prompted a focus on more fundamental deficiencies of international law. Louis Henkins assertion in 1968 that almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time highlights the fact that compliance is one of the most central questions in international law (Guzman 1826). Increasing recognition of this fact has encouraged legal experts to examine and improve the credibility of Henkins statement and has led to the emergence of new literature in the burgeoning fields of compliance theory and enforcement models. Abram Chayes and Antonia Handler Chayes argue that compliance problems often do not reflect a deliberate decision to violate an international undertaking on the basis of a calculation of interests (400). These academics propose that a coherent theory of compliance can improve the functioning of the international legal system and aid the effectiveness of international law. It is a progressive field of research that has recognised that the annexation of domestic matters to the international sphere has not greatly improved the reputation of international law and ensuring international obligation remains problematic. At present, the perceived ineffectiveness of international law in international relations is due to the failure of states to achieve international consensus on international concerns propagated by the phenomenon of globalisation, a changing global order and the growing influence of developing states in the international arena. These new pressures on the international legal environment have led to the resurgence in arguments for a coercive mechanism to ensure that international obligations are upheld. In recent times, developing states have voiced concerns over the ability of the more industrialised countries to use their economic status in order to manipulate the international law system. This problem can be viewed as a product of the positivist school which failed to develop an adequate appreciation of the social and political difficulties of making international legal rules into effective behavioural norms (Falk 84). In the Nicaragua Case (Merits) (1986) the dispute between the United States and Nicaragua highlights the role of political goals in the contravention of international law 13. In the midst of the Cold War the overriding political aim of the United States was to hinder the spread of
The Court rejected the justification of collective self-defence maintained by the United States in connection with the military and para-military activities in and against Nicaragua.
13

communist sentiments. The importance of this aim to the political existence of the United States was exhibited in its willingness to justify the use of armed force and state intervention in Nicaragua. National goals continue to inhibit the role of international law. Lack of consensus on issues relating to terrorism, the environment and trade liberalisation limits the ability of international law to regulate state behaviour and to ensure international peace and security. The unparalleled growth in global exchanges and the internationalisation of formerly domestic matters such as crime, health and financial systems that has been promulgated by globalisation presents new challenges for the future effectiveness of international law since globalisation does not recognise domestic jurisdiction. Brierlys criticisms were both progressive and veritable but his contribution to the maturity of international law has been overtaken by the need to focus attention on modern concerns and the role of national institutions and decision makers in upholding and developing international law since an effective response to new challenges requires that the international legal system must be able to influence the domestic policies of states and harness national institutions in pursuit of global objectives (by) direct engagement with domestic institutions (Slaughter and Burke-White 328). Ultimately, constructive criticisms of international law are not intended to denote the failure of the international law system. However, intentions can be misconstrued by not enough examination of the vast array of evidence of the actual role of international law (Brownlie 146). The rarity of such an examination often depicts international law as a meaningless system. However, international law has established its value as a neutral vehicle for taking on the worlds problems (OConnell 14). OConnell advocates using critique as a tool of improvement (since) the rational and moral choice today is to understand how international law actually works and how it can be made to work better. Debates about the effectiveness of international law can be expected to continue evolving because whether in a given situation the law is ultimately effective is a question of taste...a matter of political and moral evaluation (and) when the law is seen to be ineffective, the cause is not the law but the absence of organisation, political will, sufficient personnel or funding (Brownlie 146). In order to avert the risk of sliding into irrelevance the objectives of international law and the very stability of the international system depend critically on domestic choices previously left to the determination of national political processes (Slaughter and Burke-White 328). The future efficacy of international law is dependent on international efforts to ensure that the system of law corresponds to the realities of the
7

international community. The current reality dictates that states must relinquish their claim as the sole regulators of domestic matters that contain the roots of international problems. However, the invocation of state sovereignty continues to debilitate the ability of international law to promote peace and security. (2493 words)

WORKS CITED Brierly, J.L. The Law of Nations: An Introduction to the International Law of Peace. Oxford: Clarendon Press. 1928. Print. Brownlie, Ian. The Reality and Efficacy of International Law. Global Law. Ed. John J. Kirton with Jelena Madunic. England: Ashgate Publishing Ltd, 2009. 139-146. Print.

Chambers W. Bradnee. Towards an Improved Understanding of Legal Effectiveness of International Environmental Treaties. Georgetown International Environmental Law Review. Spring 2004. FindArticles.com. Web. 23 Mar. 2011. Chayes, Abram and Antonia Handler Chayes. On Compliance. Global Law. Ed. John J. Kirton with Jelena Madunic. England: Ashgate Publishing Ltd, 2009. 399- . Print. Falk, Richard A. New Approaches to the Study of International Law. Global Law. Ed. John J. Kirton with Jelena Madunic. England: Ashgate Publishing Ltd, 2009. 83-101. Print. Guzman, Andrew T. A Compliance-Based Theory of International Law. California Law Review. 90.6 (2002) : 1823-1887. JSTOR. Web. 04 Apr. 2011. Harris, D.J. Cases and Materials on International Law. 6th ed. London: Sweet and Maxwell Ltd. 2004. Print. Ibegbu, Jude. Fundamentals of International Law. New York: Edwin Mellen Press. 1999. Print. Neff, Stephen C. A Short History of International Law. International Law. Ed. Malcolm D. Evans. New York: Oxford University Press, 2010. 3-31. Print. OConnell, Mary Ellen. The Power and Purpose of International Law: Insights from the Theory and Practice of Enforcement. New York: Oxford University Press. 2008. Print. Peet, Richard. Unholy Trinity: The IMF, World Bank and WTO. 2nd ed. London: Zed Books Ltd. 2009. Print. Scott, Shirley. International Law in World Politics: An Introduction. United States of America: Lynne Rienner Publishers. 2004. Print. Shaw, Malcolm N. International Law. Cambridge: Grotius Publications Ltd. 1991. Print. Slaughter, Ann-Marie and William Burke-White. The Future of International Law is Domestic (0r, The European Way of Law). Harvard International Law Journal. 47.2 (2006) : 327-352. Web. 04 Apr. 2011. Schwabach, Aaron. Kosovo: Virtual War and International Law. Law and Literature. 15.1 (2003) : 1-21. JSTOR. Web. 23 Mar. 2011. Trachtman, Joel P. The International Economic Law Revolution. University of Pennsylvania Journal of International Economic Law. 33.17 (2006) : 1-22. Web. 31 Mar. 2011. Zifcak, Spencer. The Responsibility to Protect. International Law. Ed. Malcolm D. Evans. New York: Oxford University Press, 2010. 504-527. Print.

10