1 Classical definition
Traditionally, Public International Law has been conceived of as the law that regulates relations among sovereign states. This definition focuses almost exclusively upon subjects; its main characteristic is sovereignty.403 It leaves little space for interests and concerns that go beyond the individuality of that political body defined as a state.
Classical definitions of international law refer to it as the Law of Nations (Droit de gens, Völkerrecht). In line with this, the "Law of Nations is the name for the body of customary and treaty rules which are considered legally binding by States in their intercourse with each other".404 The Permanent Court of International Justice stated in the Lotus Case, that:405
"International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these Co-existing independent communities or with a view to the achievement of common aims.
Restrictions upon the independence of States cannot therefore be presumed."
Kelsen's definition of international law is one good example of the limited scope of the regulation of the law of nations. According to him, "International Law or the Law of Nations is the name of a body of rules—which according to the usual definition—
regulate the conduct of the states in their intercourse with one another."406 Verifiable empirical facts from modern history, and in particular from the history of the last hundred years, have shown that this definition is not at all satisfactory. Global, regional, and national events, together with the consolidation of collective interstate interests and universal individual values, call for an updating of the laws that regulate such individual and collective intercourse of human matters, rather than keeping only an exclusive law that regulates individual state performance.
403 Patrick Daillier; Mathias Forteau; Nguyen Quoc Dinh; Alain Pellet. “Droit International Public”, 2009 (8th edition), p. 465 "Ne mériteront la qualification d'État que les collectivités présentant le caractère unique d'être souveraines” See also, Juliane Kokott; Karl Doehring; Thomas Buergenthal “Grundzüge des Völkerrechts” 2003 (3rd edition), p. 1 “According to Public International Law, a sovereign state has three main features, a territory, a population and government able to undertake diplomatic and foreign relations and observe the rules of Public International Law.”
404 Hersch Lauterpacht, “Oppenheim’s International Law", 1967 (8th edition), p. 4.
405 The SS Lotus Case, above note 401, p. 18.
406 Hans Kelsen, “Principles of International Law” Revised and Edited by Robert W. Tucker. 1966 (2nd edition), p. 3.
2 Modern definition
A modern definition of Public International Law still gives its consideration primarily to the law among states.407 However, the new modern definition does not exclusively refer to states as the only subjects of international law, but rather widens its scope to other participants in the international arena, the most readily accepted among these being the international organizations. It also gives some weight to the role played by the individual.408 The American Restatement of the Law (Third) is an excellent example.409 Paragraph 101 (international law defined) of the restatement reads as follows:
"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 relations with persons, whether natural or juridical."
Accordingly, international law is still defined primarily as a law for the external relations of states, and not of their citizens. The restatement's definition of international law is still mainly a state-centric definition. But it also recognizes that international subjectivity has been enhanced to include intergovernmental international organizations, if to a lesser extent, individuals, who can also be regarded as the subject of rights and obligations under international law.410 It is in the particular case of individual rights that the strongest and most convincing developments in human rights and international criminal law are currently taking place. Contemporary international criminal law contains provisions for the punishment of individuals responsible for offences against the peace and security of mankind.411 With respect to human rights, the UDHR makes it clear that international law is not only about vertical concerns between the state and those individuals under its jurisdiction; it is also about the concerns of all human beings.412
407 Thomas Buergenthal and Sean D Murphy “Public International Law in a Nutshell.” 2006 (4th edition), p. 2.
408 Kokott et al., above 403, note p. 2.
409 Restatement of Law (Third) Foreign Relations Law of the United States 1987 Vol. 1 In spite of the definition given in §101, the Restatement refers in many of its comments to the international law as the law that governs relations between states
410 Buergenthal & Murphy, ibid., p. 2.
411 Sir Robert Jennings and Sir Arthur Watts, Oppenheim's International Law 1992 (9th edition) (3rd impression) 1993, p. 17.
412 Allan Rosas, “The Death of International Law?” Finnish Yearbook of International Law 2009 Vol. 20, p. 218
International law as the law between states is but the core of international law. In spite of the modern admission of other participants, beyond sovereign states, as the subjects of international law, modernity does not really involve any genuine renovated idea of international law, for international law still focuses on subjects and international personality413, particularly those of states. As a result of this focus on subjectivity, the state still enjoys primacy in international law, on the one hand while, on the other, there are emerging concerns about the realization of community interests, and individual universal values; for these reasons, some authors prefer to speak about the prominence of the state as a central characteristic of international law, but not necessarily to define international law purely in terms of laws between states.414
3 Contemporary notions
The Hersch Lauterpacht definition, includes several elements such as subjects and sources. New ways of thinking about and defining international law began to appear a few decades after the establishment of a renewed international political order made up of the UN, the UN Charter, and the International Bill of Rights (UDHR, ICCPR, ICESCR), new definitions of international law appeared. Hersch Lauterpacht wrote of this phenomenon in the following terms:415
"International Law is the body of rules of conduct, enforceable by external sanction, which confer rights and impose obligations primarily, though not exclusively, upon sovereign States and which owe their validity both to the consent of States as expressed in custom and treaties and to the fact of the existence of an international community of States and individuals. In that sense international law may be defined, more briefly (though perhaps less usefully), as the law of the international community."
As Professor Lauterpacht himself acknowledges, this definition contains a number of controversial elements. Here we want simply to call the reader's attention to the fact that the author not only refers to the subjects of international law but also to the sources of validity of international law, namely the consent of states, and the fact of the existence of an international community of States and individuals. Professor Lauterpacht sees
413 Jennings & Watts (Oppenheim), above note 411, p. 16 See also Antonio Remiro Brotóns,; Rosa Riquelme Cortado; Javier Díez-Hochleiner; Esperanza Orihuela Calatayud; Luis Pérez-Prat Durban,
“Derecho Internacional”, 2007, p. 45 Defines International Law as "conjunto de normas jurídicas que, en un momento dado, regulan las relaciones (derechos y obligaciones) de los miembros de la sociedad internacional a los que se les recoonce subjetividad en este orden”. Emphasis added.
414 Vaughn Lowe, “International Law", 2007, p. 5.
415 Hersch Lauterpacht, “International Law: The General Works”, 1970 Vol. 1, p. 9.
international law as the law that reflects the interests of the international community of states and the individual. His definition cannot be state-centric; indeed, his definition is concentric to the state, the international community of states and the individual. The validity of the law is legitimized by the interest of states, the interests of the community, and the interests of the individual.
Contemporary ideas of international law do not refer to subjects but to aims. These contemporary ideas concerning the function of the law in the international community reflect the new concerns and direction of international law. New definitions, although sometimes expressed in somewhat abstract terms, do at least move away from positivist attempts to deprive the law of its extra-positive aims and motivations. In fact, many new definitions of international law define it in terms of "process" and "policy."416 One current proposition is to see international law as a normative system that influences, directs, and guides the aspiration towards and achievement of universal values, those values common to all, regardless of race or nationality (the prohibition of discrimination).417 This idea is at the core of a wider definition of international law, which asks not only to whom international law applies—the question of the subjects of international law—but also, quite simply, the question of what is international law?
Definitions referring only to the subjects of international law are viewed now as anachronistic. But this does not mean that the issue of who are the subjects of international law becomes less important; to the contrary, it means only that, together with the question of its subjects, other questions concerning a valid definition of international law must also be posed.
Contemporary definitions of international law pursue the aims of human survival and human flourishing. An understanding of international law that goes beyond that of the classical Law of Nations (Droit de gens or Völkerrecht) has developed so far as to be defined as the "self-constituting of all-humanity through law."418 From another perspective, international law is the means by which a universal society realizes the common interests of its participants. Accordingly, international law can be understood as reconciling the common interests of all subordinate societies with the common
416 See particularly the New Heaven School.
417 Rosalyn Higgins, “Problems and Process. International Law how to use it”, 1994 (2007 reprinted), p.
1.
418 Philip Allot, “The Concept of International Law” European Journal of International Law 1999 Vol. 10 No. 1, p. 17.
interests of all human beings for the purposes both of human survival and human flourishing.419 Thus, international law is more than a separate branch of law regulating state behaviour; it is a distinct international legal system including an international constitutional law, an international public law, and a law of nations420, that governs international society. However, such a progressive understanding of international law is far from being universally shared, even if the existence of new international structures and mechanisms proves that some of its features already exist within the international legal system, examples of the constitutional kind being ius cogens norms, erga omnes obligations, and the principle of general international law establishing respect for human rights. These aspects show two things: first, the emergence of vertical structures;
second, the consolidation of universality. Indeed, a contemporary picture of international law shows that the new tendency is to understand it as having a hierarchy, an idea of a constitutional order, and carries within it both the egoistic and also the collective interests of both individuals and groups. These tendencies correspond to the idea of the social function of law, and the search for international social justice.
Some very abstract definitions of international law, like that of Dupuy, even when referring not to a particular subject, but to society in general, do not suffice to affirm that the law in question, in this case international law, must or does make reference to an end or telos. According to Dupuy:421
"Le droit international est constitué par l’ensemble des norms et des institutions destinées à régir la société international”
This is a reflexion of Professor Lauterpacht's definition. However, contrary to Lauterpacht, such a general definition, even if it does not refer directly to the subjects of international law, still puts forward the idea of an international order. The problem with the word "international", however, is that its meaning is clear only insofar as it refers to something among (inter) nations. It may, of course, be helpful to reflect further on such questions as avoidance or ignorance. In a best case scenario, the relegation to a
419 Ibid., p. 37.
420 Ibid. pp. 37 et seq. Succinctly, the author refers to (1) international constitutional law as containing the structural legal relations among subordinate societies; (2) International public law as the law of the inter-government of international society and (3) the laws of nations as the legal transactions of subjects of international law outside the sphere of international constitutional authority i.e Private international law.
These levels of international law constitute a hierarchy from 1 to 3 in this order.
421 Pierre-Marie Dupuy, “Droit International Public”, 2004 (7th edition), p. 1 "International law is constituted by the set of norms and institutions that governs the international society."
secondary level of two otherwise essential aspects of the global reality may result, namely the global common and universal individual value and, in particular, the universality of the individual and his subjection to a legal order that takes account of his needs. In his famous book, "The Changing Structure of International Law", Wolfgang Freedman cited a passage of Jenk's "The Common Law of Mankind" in order to illustrate the on-going transformations of international law, which in some ways resembles Lauterpacht's suggestion that the validity of international law is owed, inter alia, to the existence of an international community of States and individuals. The famous Jenk's passage in Freedman's book reads as follows:422
"[T]he emphasis of the law in increasingly shifting from the formal structure of the relationships between states and the delimitation of their jurisdiction to the development of substantive rules on matters of common concern vital to the growth of an international community and to the individual well-being of the citizens of its Member States."
a The universal system
International law—or the transnational or universal law—should refer to the interest of states, the community of states, and the individual. The above indicates that, in its attempt to define a universal regulatory framework for the international community or society, even international law nomenclature is counterproductive unless it is clearly admitted that this international society does indeed include every one of its members.423 But how from a legal perspective should such a universal system be viewed? A legal system expressed in universal terms may be understood in a number of ways. Professor Simma gives a useful account of some of these different ways of understanding a universal legal system. According to him, universality may be understood in a classical spatial sense, namely laws of global scope, belonging to all. In a second but closely related sense, universality refers to the coherence and unity of the law. Thirdly, it means
"that it is possible, desirable, indeed urgently necessary (and for many a process already under way), to establish a public order on a global scale, a common legal order for mankind as a whole."424 That notwithstanding, let us admit for the purpose of this reflection on the relationship between morality, international trade law, and human rights, that international law has a dimension that trespasses the international, or even
422 Wolfgang Friedmann, "The Changing Structure of International Law”, 1964, p. 65.
423 See below Part II Chapter 4 Internaional Community.
424 Bruno Simma, “Universality of International Law from a Perspective of a Practitioner” The European Journal of International Law 2009 Vol. 20 No. 2, p. 265.
the transnational425, and that refers to the universal. International law as currently understood, that is, as law that regulates social life universally, or in international society, is made up of a multiplicity of laws that potentially cover all aspects of life.
Such an ambition calls for a common legal order for all humanity that is quite distinct from a common legal order of nations or states. The first step towards achieving this goal is to work out a constitutional framework that is valid for all humanity. Does such an international constitutional framework already exist? What are its essential rules?
Does this framework have any moral basis? International constitutional law, understood as an instrument to direct and control social reality, can operate in a way similar to that of municipal law, in the sense that it can take into account the moral imperatives of law and justice that take place at an international level and that consequently must also be solved at an international level; that is, moral imperatives that are not only determined by the egoistical interests of the state, but which, rather, are nurtured by the fact of the state's co-existence—in the sense of concentric existence—with other states, and an international community as an independent body comprising universally equal individuals. The idea that the state is the ultimate legitimate authority in international law is now largely being substituted by the idea that international law and politics refer to a "new social group called international community (or society) to which everybody belongs."Thus, the new international law, insofar as it refers to its subjects, must at least reflect, in its norms, the autonomy or self-determination of the individual.426