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ВЕСТНИК ПЕРМСКОГО УНИВЕРСИТЕТА
2014 Юридические науки Выпуск 1(23)
УДК 341.01
SEEKING FOR THEORETICAL BASES FOR IMPLEMENTATION
OF INTERNA TIONAL LA W
Mohsen Matour
Ph.D. Candidate of International Law
Department of International Law
The Peoples' Friendship University of Russia
Room №821, №21/2, Miklukh-Maklaya st., Moscow, Russia, 117198
E-mail: [email protected]
Аннотация: The Analyze of the following key questions dealing with theoretical bases for implementation of international law in this article is the main aim, such as: effect of acceptance or non-acceptance of priority of international law over national laws; realm of international law; difference between global society and domestic society; imperative character of the international law; imperative basis of international law; existence of international supervising system; independent legal personality of international community.
Ключевые слова: International law; International society; Global Society; Domestic Society;
Philosophy of International Law; Implementation of International Law
A few centuries ago, science of international law emerged for the first time. It was evident that general international law summarized in European international law of the time is only based on customary law. At the time, even an international treaty did not exist embracing all European countries and or intended for something and treaties just made particular international regulations. Vattel writes about it that: "That it is made clear that a treaty is just required for parties, it is concluded that treaty international law is not general and global but particular and limited". [29, P. 5] The theory is still dominant, and it has an essential consequence that international treaties have particular rules per se. General international law is just customary law and rules and regulations resulted from a treaty need the consensus of all respective countries to have the credit of international regulations even if all countries of the world be a member of it. On the other hand, regulations of a treaty must be transformed into customary rules to be recognized among the regulations of general international law. The theory is accepted more by scholars of international law. For example, "Baxster" - in his speech at Hague Academy as "Treaties and
© Matour Mohsen, 2014
Custom" - does not use the expression "General International Law" [10, P. 39]. "Brown-lie"[2, PP. 1-35] also talks about "Customary (or public) International Law", from which the non-unification of treaty and public international law. Unfortunately, as expected, ICJ has also played a role in establishment of the theory. The ICJ has stated as follow in its historical judgment in Nicaragua concern: "The agreement between two countries regarding the citation of a special rule in a treaty is enough for the obligation of the parties per se; but regarding customary international law, common idea of the parties about the content or items of what is accepted as a rule is not enough and the ICJ must ensure whether the existence of the rule as a legal rule dominated over countries is also accepted or not."[7] Other similar ideas can also be found in other orders of the ICJ [8]. Indeed, dominant theory in the regard leads to the result that there are two separate and really independent branches or sets of customary international law: one, the issue was fully examined by the international law committee and as a result the commission approved the following article: "The treaty may change as a result of next performance of its members regarding the execution of it as a result of their agreement for changing the articles of the treaty." Existence
of two useful points encouraged me to support the above draft: firstly, any type of trend cannot change a treaty, and secondly only the next performance accepted by the parties can change its rules; and on the other hand there must be integration between the trends of member countries. Perhaps, it can be said that by such a general and intensive the commission proceeded so much as to terrify the conference [24, P. 1921]. And, as a result, the draft was not approved in the conference related to treaties law, namely, the suspension of the issue in Vienna convention is definitely a shame [18]. As mentioned before, cases of changes in the rules of a treaty through next trend of the members which is the same change by custom are not rare and no one considers it to be illegal. On the other hand, existence of an international law rule based on the permission of any license for changing the rules of a treaty or goodness and desirability of such an infinite rule is doubtful [4, P. 35]. At the same time, we must not ignore the aspect that treaty rules are clearer and more accurate than customary ones which is their very privilege.
1. Effect of acceptance or non-acceptance of priority of international law over national laws: Many jurists consider international law over national laws as a certain and evident principle. Also, some treaties and conventions provide evidences of this, some of which are noted here. Currently, international law over national laws is not only recognized by most scholars and jurists of different countries, but also international case law and modus operandi of states in enforcement of regulations of international law makes such priority evident. International court of justice stated in its 1930 advisory opinion that, "this principle is generally accepted by states that "in relations between states signatories of a treaties, regulations of national law may not be prior to regulations of international law." This court also stated in case of dispute between France and Swiss over free zones that, "French government may not rely on its national laws in order to limit is international obligations." In the plan prepared by American jurists' convention in Rio De Janeiro in 1927, necessity of observance and respecting of international law by national authorities of American countries is accepted, and further, it is stated that national
laws should not be contrary to international law. Article 2 of the said plan provides that, "regulations of international law constitute an agreement which is part of national laws of every state, and national authorities should modify them according to their constitutions when enforcing them." Regulations under article 3 supplement article 2 as follows:" regulations of national law should be contrary and inconsistent with conventional international law." In some treaties recently concluded between nations, principle of priority of international law over national law is explicitly accepted by states; as it is stated in treaty between France and Swiss dated June 1955 that, the two states acknowledge that international agreements and treaties are prior to national law. From their experience they have gained through several centuries of cooperation, and especially, considering important problems arisen in international relations in different periods, different countries in the world have gradually notices necessity of strengthening of bases of international law and acceptance of its priority over national law [3, P. 8-16]. That is why they not only principle of priority of international law, but also some of them have formally recognized principle of priority of international law to national law, and have introduced it into their regulations explicitly[16, P. 9]. Some of them include North America, United States, in 1787 constitution; Italy in 1948 constitution, federal republic of Germany, in 1949 constitution; France, in 1958. In his book, "international law in practice", Dr. Dominic Carr explains in detail and provides evidence priority of international law in four paragraphs: superiority of international law over constitutions; national laws, administrative extensions and national judicial extensions (George Montigo 1875) including Alabama case, 1875, Mon Ti Joe (on arbitration treatment, high silzy case (George Pinson) Poland (25 may 1936) on superiority over national law, Wimbledon case, etc.).
2. Realm of International Law; The Difference between Global Society and Domestic society: Most of the times, the global society is distinct from the domestic one. There, international law rules cannot be imposed to governments without their permission. Governments - as independent factors - are
turned into an imperative matter on their own will, and they accept it because it is for their goods. The existence of a supra-governmental organization is against their national dominance and international system whose main character is to maintain the governments' dominance will prevent from the creation of such organization [12, P. 7-11]. The absence of legislative force triangle with public authorities for enacting legal rules - a judicature with imperative qualification for settling the conflicts and an executive for implementing the decisions - has turned the global society into a dispersed and non-focused society with no ruler. The lack of formation among the members of international society is resulted from a set of factors such as cultural, geographical, managerial differences, and economic, scientific and military advances which have endowed it a special quality and showed it as non-unified. The result of not having organized organs has given the international law an immature structure that is not in accordance with the evolutions of international society and its demands [13, P. 3]. Reversely, in domestic law, the legislator aims to formulating rules, protecting public interests against wrongdoings since society is figured and focused. Individuals' obligation to comply with rules has endowed national law system an obedient nature and essence and given it an imperative aspect. Hence, the basis of domestic society is on the obedience of the individuals to government as the protector of public order. Unlike domestic law which has an obedient and peremptory nature and in which the government relationship as the supreme power with people sis based on the compliance of people. In international law, since there is no power superior to the government's power, these are the governments themselves considered to be followers as well as legislators and supervisors of international law. The nature of international law is the obligation of governments to cooperate with each other. Otherwise, it is not possible to obligate the governments legally to the rules they have not accepted willingly [14, P. 22-29]. Then, the content of the governments is of international law bases. The inconsistency and disintegration of global society in legislation and formulation of international regulations are of the consequences of power in international relationships.
However, international law is executed in different ways; but usually volunteer compliance of the governments is regarded to be its execution tool. As a result, techniques and methods of execution have gaps and defects in international law that are far from regular method of domestic law [17, P. 18]. Behavioral rules in global society are determined by the content of independent units (i.e. governments). Relative dominance doctrine indicates that it is not possible to force the governments to compliance with international law rules despite their dissatisfaction. In global society, policy logic is over law logic and competition logic is over integration logic. So, Guarantee of international regulation must be sought in the content and good faith and cooperation spirit of the members of international society. In international system and in the legal claims to ICJ, governments have the qualification to refer to the ICJ, but it is contingent to their content and judicial system with imperative competence (except the judicature office of EU) is not seen. Lack of clarity and complexity of international slaw rules (comparing to national law system) mostly creates an obstacle on the way to execute the rules. It is because governments try to maintain their territory and limit their commitments using vague and inaccurate concepts deliberately. Despite these weaknesses, it is not possible to question the being of international law. Governments recognize international law as a proof law; for instance, the introduction of nations' society convention puts it that: to distribute international cooperation and provide international peace and security, it is required to fully comply with international law regulations as the practical rules of how governments treat each other. Article 38, International court of Justice constitution also acknowledges that "the International court of Justice is responsible to settle the conflicts referred to him based on international law." Based on Article 13 of UN charter, general assembly provides the possibilities for doing the reviews for creating suitable grounds for gradual development of international law and its formulation. Moreover, recognizing international law in the constitutions of many countries and the participation of governments in international organizations and formation of international courts responsible for the execution of international law approve
the evidence-baseness of this law branch. Explaining their wills, governments give most of their international law rules an imperative quality and get committed [9, P. 11]. Governments are the creators of international society system and employ the rules in the relationships with others by establishing the rules dominant over them. The question posed here is that on which hierarchy the international system structure is based? While in domestic societies, the legal structure is hierarchical where vertical power is dominated. International system structure is based on horizontal categorization of the governments with dominance which deeply depends on their dominance in traversal form as well. In such an international society which lacks the hierarchy, action and reaction between the independent units is based on mutual action and gives a legislative structure to the international system and increasing global integration and provision of common interests. Countries comply to some extent with international law principles and rules which are not in conflict with their special interests and prudence. Prioritizing national interest by the governments (instead of the global society's interests) leads to the weakness of respecting and executing international law regulations. Thus, sharing the interests which is a must for infinite cooperation of countries and the most important factor is the integration between them will be sacrificed for national expediency [19, P. 21]. There are rules in domestic law of countries with supreme status and the individual will is null (in case of opposition) and their execution is guaranteed by domestic authorities. The measure and criterion for the rules are either public order or good morality which give them the imperative quality and limit the principle of conventional freedom. The regulations are known as Jus Cogens and courts are to monitor their administration and guarantee the execution of the rules. Also, in international law, there are Jus Cogens with higher legal validity than the other international law rules. For instance, Article 53, Vienna Convention 1969 on treaty law implies them. Based on respective article, if a treaty is against international law Jus Cogens at the time of being signed, it is void, then. Thus, there is no one internationally formal authority and place to detect the violation of Jus Cogens and the implementation of
its rules so as to obligate the governments to comply with them. The immaturity and lack of evolution in international law has not given the legal structure of hierarchical one (like domestic law) so as to guarantee international society's interests against independent governments. Lack of an accurate rule in identifying the estate of transforming a principle to Jus Cognes and the absence of an international court to permanently monitor the execution of international treaties articles and lack of determining the contents and essence and their executive realm have seriously challenged the Guarantee of Jus Cognes. No doubt, Jus Cognes (as one of the manifestations of integration and public will of the international society) is the fighting chance and novel evolution which gradually and by being clarified via international judicial trend and governments' performance, it is possible to provide the opportunities for creating fair rules dominating over the governments' relationships[25, P. 19].
3. Imperative Character of the International Law: Imperative Basis of International Law; The first question posed is," how do the principles and rules basically forming international law get the imperative power in an international society composed of independent governments? "Proponents of natural law school including John Austin - British jurist -consider the basis of international law to be natural law and natural law as a par with moral order. Giving such status to natural law and tendency toward retrieving Jus Cognes in Article 53, Vienna Convention 1969 regarding the treaty law having criterion rules is related to morality and the entrance of concepts such as fairness in suit, determination of marine borderlines (continental shell) between governments and international economy novel system can be considered as continuance of natural law naturalism. The establishment of Nuremburg court, after World War II, and the trial of war criminals accused of crime against peace and humanity and citation of court to the matter that criminals should have avoided killing humans by the order of nature and human nature is another example of natural law concept manifestation. Today, other principles ascribed to natural law are: legitimate defense natural right, principle of governments equality which is a par with equality principle in interpersonal
relationships, fairness principle in settling conflicts, good faith principle, keeping the primrose principle and compensating for damage principle. Advocates of volitional school consider the basis of international law to be resulted from the governments' will and believe that governments give the behavioral criteria imperative power by accepting the principles and rule of international law [27, P. 35-40]. What is inferred from governments' content is a sort of satisfaction declared ahead by the government regarding the compliance with international law rules. Nevertheless, since international law is taken to be the law between governments and emanated from their will; it emerges based on limiting themselves and mutual threats in execution of dominance confining their qualification in relationship with themselves. In legal terms, perhaps content theory can be taken as the simplest description of the obligatory basis of international law and the reason for obligating the commitments by international society members. On the other hand, governments at the same time of being independent can agree upon implementing dominance in complying with some certain behavioral rules called international law. In 1927, international judicature permanent International court of Justice in Lutus case (France claim against Turkey) put it that: "international law is over the relationship between independent countries. So, the rules and regimes dominant over the relationships enacted aiming to organize the terms of such coexistent societies and hoping to achieve common goals are resulted from their will which are demonstrated in international and conventional treaties which explain legal principles accepted with consensus. Then, the governments have no obligation to execute the rules they are not willing to. By the establishment of dominance and autonomy of countries, international content theory provides the necessity of the governments' content to the selection of rules to which the governments want to be committed rather than being included. Common or collective will of governments - belonging to German Trieppel - intends to justify the imperativeness of international rules in terms of legal rules based on common will of the governments resulted from a shared source. By creating a common will, the governments try to get committed to the execution
of rules even individually. The basis makes international law susceptible because the governments can change what they have intended and content theory (as the basis for obligation) is subjected to destabilization. Proponents of law sociological school consider the basis for obligation in international law as resulted from social necessities independent from the governments' will because the imperativeness property of law is emanated from the necessities of living in the international society [28, P. 40-68]. Thus, if a rule is considered by international society as imperative, governments are required to comply with it whether with content or with discontent. Social integration requires the protection of this society's basis against the violation of the legal rules and the obligation of governments to cooperate with each other and their compliance with current international system. Different theories are mentioned regarding the imperative basis of international law each of which has its own value and status. However, the role of volitional school can be evaluated as significant and effective. On the other hand, international law is based on being volitional rather than the other bases [4, P. 37].
Existence of International Supervising System; After World War I, gradually and to supervise the execution of international regulations and compliance with international law and review of the accordance with member countries and recognize the matter that to what extent the governments comply with the commitments; a mechanism of international control was developed. First, it was in the nations' society convention with nations' society keeping system (Article 22 of the convention) and the creation of international organization of work and development of international support for minorities were anticipated. By the development of international organizations in the second half of 20th century and especially after the formation of UN, the organization's activities were guided toward creating systems to force the governments to comply with international rules. The result of implementing the rule was the further clarification of the governments' performance, complying with rules, disciplines and commitments specified in the treaties and leading the governments toward better behavior. Obviously, international control systems
are considered to be an effective tool for the governments' compliance with their international commitments besides limiting the national dominance of the countries [6, P. 18-20]. Control systems performance ends in some moral and political forces on countries to prevent from violating measure rules of the conventions and respect international law. To understand and clearly evaluate the main methods of international control, we can divide them into four following groups: 1. Reviewing the member governments' periodical reports submitted in certain intervals by countries. For example, Article 22 of international Political and Civil rights convention (1966) anticipated a 18-member human rights International Law Commission to supervise the accurate execution of the convention by the governments and the governments are also committed (based on article 40) to present a report on the strategies devised and development made. Also, Article 22 of international work organization charter regarding the execution of international protocols from the part of member countries puts it that each of the members shall present an annual report to the head of international work ICJ regarding the actions taken. Some new researches remember that new international human rights treaties do not include a new executive imperative mechanism. For instance, the governments do not take the report presentation seriously. Over %70 countries have late reports [5, P. 33]. At least 110 governments have 5 or so late reports. About %25 governments do not have convention delay and do not give a description of violating human rights in the country. The recommendations of the supervising International Law Commission do not also have imperative power. Although about 1bilion and 400m people have the formal right to complain against their countries based on the treaties, only 60 formal complaints are recorded annually. 2. International Inspection. Based on Article 12(6) of the charter of international atomic energy "the agency assigns inspectors and dispatches them to the realm of the stakeholder government/s. respective inspectors always can get access to everywhere and every person who must be controlled based on his working requirements and technical materials and equipments." ....obviously, this type of control (comparing to report review of coun-
tries) gives better inspection chance to international agent to pursue the violation of the agency's rules and make required decisions. Guarantee of the agency inspection is the declaration of violation to the head of agency who informs the rulers' council. If the violation keeps on, the other members are informed and it is discussed in Security Council and general assembly of UN [23, P. 17]. 3. The supervision implemented during the settlement suit. The supervision implemented during Tarfe'i suit in which the opposing countries or the countries under control mechanism, the inspecting agent reviews he conflict. For example, based on Article 26 of international work organization charter, each of the members can complain against the other member regarding the execution of a protocol enacted by both members which does not satisfactorily work. In case of not getting a persuasive answer in a plausible period; the council can form an investigation commission for examining and formulating report about it. The commission will formulate a report and recommendation letter after accurate review which then will be submitted to the countries in conflict. Each of the governments shall declare either acceptance or non-acceptance of the recommendations in the report in a three-month time. In case of non-acceptance, the conflict can be referred to the international court of Justice. The International court of Justice can approve reform or eliminate the final comments or probable recommendations of the investigation commission (Articles 28, 29 & 30).4. The enactment of inhibitory regulations to prevent from committing an international crime. For example, some mutual agreements like Agreement August 4, 1959 between Canada and Australia and some omnibus treaties like Euratom Treaty (Atom Energy European Union) in 1957 provided the delivery of atomic materials to inhibitory supervision which must be implemented by the selling country and regarding the risk probability of utilizing the materials in military consumptions and in the installations of the buyer. Such exceptional control has only been employed in peaceful application of atomic energy [15, P. 30-32].
Independent legal personality of international community; Development and exercise of rights depends on nature of social group to
which such rights apply, and it is clear from this relation that properties of international community are sharply different from properties of political community on state level. Whereas national political community composed of social groups is hierarchically organized and centralized, international community is essentially the community of independent and sovereign states [30, P. 33]. Despite very important innovation we noted in previous pages, and in particular, despite big changes international organizations have brought about in structure of international community, political power is still distributed among its individual members, and international law is still a highly decentralized and lowly institutionalized legal system. For this reason, states, under international law, both impose norm and are subject to norm. Similarly, because unlike national community, political power is not institutionalize in international community, international legal norms are enforced in a decentralized manner. As a result, evaluation of legal status of a state falls within the jurisdiction of another state [20, P. 34]. Based on the said characteristics, it is possible to provide a better answer to the question "does the international community have a legally independent entity? Does such community directly have international rights and duties in the same way that every rightful entity which is subject to and of law does?" International community is by no means in a position to be able to rise to realize international rights and duties, nor is it even able to exploit them effectively through international claiming, the claiming which is one of the criteria every international entity must meet. Also, it can hardly be answered how and who will punish the community in case it fails to fulfill its possible duties[1, P. 4-8]. This issue ceases to be a merely theoretical question when an international organization as the representative of international community fulfills duties which not only have normative aspects but are also operational. Although it seems we are faced with gradual, slow and precautious recognition of some kind of international community personality, "it appears that such community has to some extent ceased to be dispersed and disconnected, and has indeed become subject to international law, because it is no longer the community where few states seek
to further their interests. Today's international community having undergone changes identifies itself with values on which its entity relies. International court of justice has implicitly noted in Barcelona traction case to some aspects of this concept "existence of presumptive rule of international law also explains concept of international community in its today's evolved form" [26, P. 11-42]. Notwithstanding, the rights to be enjoyed by international community are still limited and can only be exercised by states or international organizations which are traditional rightful entities subject to international law. International community that has undeniable capacity of enjoyment has not the capacity to directly exercise its rights and duties yet, and can't use it directly. It is also noteworthy that it doesn't directly bear any legal responsibility [21, P. 584]. Although there have provisions to secure objective and practical representation of collection of states in one institutionalized structure (international authority for depth of seas), it is impossible to distinguish "international community" from the international organization acting on its behalf. In fact, it can be admitted that such community has a certain capacity to exercise such rights only when such community establishes its legal personality in the face of legal personality of the very organization that expresses the will of community. Under current condition of international law, international community is just a trivial rightful entity, first in terms of its broad enjoyment capacity, ad second because it has to borrow the false form of an international organization, and there remains the risk that assembly of member states of this organization retract the capacities of the community in question [22, P. 90].
Conclusion
Obviously, today no classical dualistic approach is dominant over the states. Reversely, even some believe that UN charter - a structural and fundamental value-based document of the states - is against the dualism and shows an international unity [11, P. 120-121]. And, now, UN play a structural role in forming the shared values which are not necessary in their sublime form in an international legal system; the values are seen in terms of resolutions or documents released by UN or during seminars, meetings, assemblies where considerable num-
ber of the international actors from the sates to international organizations and even sometimes non-governmental ones are a member of international society. So, even we can say that UN has a suitable structural framework for founding Kantian thoughts (values) in the international legal system. The framework which does not take the governments as its subjects in the line with the classical international law rather pays attention to the liberalistic movements, De Facto beings, partisan groups and individuals as the subject of the international law [26, P. 257]. No doubt, the scope of the topic and number of the subjects and declaration of the shared values acceptable for the domain is signs of a conceptual evolution of an "international legal system" toward a value-based "international legal society". Yet, the issue demands further reflection on the existing legal documents and the international trend. It should be noted that the individual approach of states may be different from what we have in UN charter. Moreover the role of policy in every dimension is the matter that might ignore aforementioned matters. Based on what is discussed above, it is concluded that although the dominant and prevalent theory under discussion is not still deeply rooted into the thoughts of international law scholars, the grounds and perfect reasons are seen regarding the review and revision of the subject related to public international law, conventional international law and treaty international law, The writer of this paper believes that international law scholars must accept the fact that customary international law is a complex in the formation of which both customary and treaty rules of international law have been effective.
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