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
be traced back, among others, to Hobbes. For Hobbes, peoples existed in a sort of state of nature where the law did not reach, where the law was absent. 427 For him, international law was a matter merely of the interaction of physical forces. However, we must not lose sight of the fact that Hobbes lived many centuries ago, in an altogether different reality. More recent jurists, such as John Austin, have admitted the obligatory force of the rules of the laws of nations, while at the same time rejecting its legal character. For him, these laws are merely a matter of positive moral rules, or positive morality. Austin's view is a good example of 19th century positivism. In another school of thought, international law was recognized for its legal character, but only as weak law.428 This school of thought sees international law in terms of the existence of a community of states which lack, among other features, a central legislative authority, and agencies for enforcing the law (a complete judiciary system). This is why it is sometimes said that international law is only a weak law, typical of a primitive society.
Thus understood, for them international law is fundamentally a law of co-ordination that remains based on the principle pacta sunt servanda 429 and state freedom of action reflecting a horizontal structure in the international community. In spite of the influence of classical dogmatism, an untrammelled freedom no longer applies. Unrestricted freedom has been strongly limited, particularly since 1945, as the world has developed vertical structures that give priority to the concerns that exist around a hierarchy of values and consequently also of rules.430 The legal character of international law is currently discussed not only in the context of legal scholarship but also within the arena of political science. In any case, international law is considered by many to be a law the rules of which are deprived of genuine legal character, or a law that effectively is reduced to the public law of the state when applied to its external relations.431 The modern assertion that accepts the legality of international law only to the extent that it recognizes no authority above that of the state, is only a disguised denial of the already existing vertical structures and human goals and objectives that transcend the state.
427 Hersch Lauterpacht, “The function of law in the international community", 1933, p. 400 citing Leviathan Part I chap. xiii. See also Dailler et al, above note 403, p. 97.
428, Lauterpacht, ibid., p. 406.
429 Ibid., p. 417 Citing Cavaglieri in “Lezione di Diritto Internazionale” Parte Generale (1925), pp 44 et seq.
430 Antonio Cassese, “International Law”, 2005 (2nd edition), p. 11.
431 Dailler et al, ibid., p. 97.
The classical position says that international law is not law because it is frequently violated. The most common objections to considering international law as a genuine legal system are derived from a general systematic conception of the law as a system of obligatory enforceable rules, such that a society governed by law must possess superior authorities of a legislative, judicial, and executive kind. This institutional framework exists within a state and fits well the idea of internal law. If international law were formulated in the same way, the existence of international law would be conditioned by a supranational organization of international society but, at least according to this argument, such a supranational organization is incompatible with the sovereign state432, still more so in that it does not reflect today's reality. During an extended period, states affirmed that they were legally and morally bound by international law. Nevertheless, violations of international law occurred with a certain frequency. When such a violation takes place states often attempt to justify their actions through an interpretation of international law that appears to lessen or excuse their wrongdoing; they attempt to justify themselves on the basis of freedom of action, a doctrine of unilateral action that, in the last analysis, adds up to little more than a naked manifestation of arbitrary power.
The result is that "violations of international law strain its legal force to a breaking point". Any affirmation about the binding nature of international law is therefore only cynical433, and its legal character remains de facto doubtful.
Fundamentally, international law is considered today to be a law of coordination. There are still many scholars who consider international law to be fundamentally a law of coordination. A law in this sense is characterized as being created and applied between actors who have brought it into existence horizontally, without proper hierarchy. For those who remain stuck at the idea that international law is characterized by an absence of superior sovereign power, international law is unequivocally distinguishable from internal law; this is the dualist view. This group of lawyers and scholars characterizes international law in the following terms: no obvious delineation among the different branches of power, and no clear distinction between political and judicial precedent.
Again, they see international law as lacking centralization and such key features as a hierarchical court system, as found in domestic legal systems, and an effective
432 Ibid., p. 98.
433 Lauterpacht (Oppenheim), above note 404, p. 15
enforcement mechanism434 Rather, international law is understood as a system that operates in an exclusively political environment, and that, in order to become universal, regards its function as being the accommodation of regional and sectorial concerns, as a matter of independent states, and not as a matter of conferring rights and duties upon individual persons, moral or physical435, or pursuing collective or individual interests beyond those of the state. Thus, in international law, consideration of social and humanitarian questions are still considered to belong to the political rather than to the legal arena.436 Therefore, we can affirm that, in spite of the many changes that have taken place in the world since 1945, the dogmas of international law still reflect the realities of the classical period. That is, the interstate society, and the pursuit of egoistical state interest. In addition, other problems in international law cause some scholars and practitioners to consider it a distinct branch of internal law, and thus speak in terms of a potential conflict of law (unity and coherence of the law) due to the multitude of law-makers at the international level, and the lack of a centralized legislator, executive, and court system, with general and compulsory jurisdiction.437 Nevertheless, there exists a willingness at least to recognize, if only formally, the existence of international law beyond the existence of the state: this is immediately clear when one reflects on the radical changes in international society post-1945. Besides, new concerns have arisen out of the objective developments within the process of globalization: claims for solutions, and changes to the dogmas of international law. In other words, there may currently be a need to restructure international law, based both on empirical data, i.e. economic warfare, and the gross violation of human rights, genocide, and such theoretical assumptions as an authoritative notion of justice. The traditional arguments clash with new realities and experience. Human dignity and universality are the new paradigms of international law. And it is not only national constitutions, particularly post-1945, that acknowledge the rules of international law as part of their own national law, but the praxis of states that shows the legal validity of
434 Shabtai Rosenne, "The perplexities of modern international law”, 2004 p. 15.
435 Ibid., p. 17.
436 Judes Fitzmaurice and Spender (joint dissenting opinion) South West Africa Cases (Ethiopia V. South Africa) Preliminary Objections, Judgement 21 December 1962, ICJ Reports 1962, p. 319, at 466 "We are not unmindful of, nor are we insensible to, the various considerations of a non-juridical character, social, humanitarian and other, which underlie this case, but these are matters for the political rather than for the legal arena. They cannot be allowed to deflect us from Our duty of reaching a conclusion strictly on the basis of what we believe to be the correct legal view”
437 Joost Pauweyln, “Conflicts of Norms in Public International Law: How WTO Law Relates to other Rules of International Law” 2003 (2006, 5th printing), pp. 13-17.
international law. It can no longer be argued that there are no formal procedures for creating laws. Indeed, there are now formal ways of authoritatively creating and developing the law; that is, a growing administrative international power through international bureaucracies, and an international judiciary with the power to interpret, apply, and to develop the law.
At present, the discussion on the nature of international law does not focus as much as it did in the past on the question of its existence, but rather on the question of its function.
That is, whether international law genuinely exists or not? What is international law?
What is its purpose? The functionalist view of international law (and law in general), is to allow the law and the legal practitioner the possibility of including concerns and interests that go beyond the dogmatism imposed by the doctrines of positive law, which in some extreme forms resemble the absolutism or immutability of the iusnaturalism of the European Enlightenment. For example, the view defended by Higgins is that the function of the law is to provide an operational system for securing the values that we all share. However, international law is not only about rules; the word law refers to many other things.438 According to Higgins, international law is best understood as a continuing process of authoritative decisions. The law, for her, is not simply about the impartial application of rules; it is an entire process of decision-making.439 This functionalist view of law relates substantially to the judicial branch of power. For Higgins, judicial decision-making is a legitimate form of law-making. This view breaks the dogma that there is a monopoly on decision making that is held by sovereign states.
Indeed, it is appropriate here to emphasize this understanding of law as a process, particularly as international law is currently undergoing a process of deep transformation. One author describes it in this way: "international law (...) is today overwhelmingly an agent of progress and evolution."440 To view international law in terms of its process means that the law itself cannot represent the consolidation of a status quo; rather, it is an essential and necessary factor in the evolution of a universal society.441
438 Higgins, above note 417, p. 2.
439 Ibid., p. 2.
440 Friedmann, above note 422, p. 58.
441 Ibid., p. 59.
Important current controversies in international law turn on the existence of multiple subjects and regulatory action on how to relate them to each other (unity and coherence of international law). In other words, international law is currently a very controversial discipline; it attempts to turn into law the movement of globalization, but using a classical dogmatism that does not necessarily do justice to the complex realities of globalization. In addition, the structure of international society is far from being clear.
This is especially true in relation to the following: new subjects, such as International Constitutional Law, International Commercial and Trade Law, International Human Rights Law, International Law of the Sea, International Environmental Law, and so on;
new interests, such as community interests, public interests, private interests, and the interests of the human person; new areas of concern, such as fair trade, and common but differentiated responsibility. In such a context, old concepts may be antagonistic to new realities. Classical dogmatism is counterproductive if we consider its principal aims, interests, and values; the moral neutralism of positivism is challenged by the new international or universal society; and the horizontal coexistence of states is being gradually substituted by vertical cooperative subordination.
1 Different schools of thought
The issue of the fundamental values of international law is relevant because to some extent it explains the obligatory character of this type of law. According to Dailler and others442, there are two main groups: namely, those who look for the obligatory character of international law within the law itself and, better still, within positive law;
and those who see the obligatory character of international law as being ideologically based outside of the law. The paramount importance of the question regarding the foundation values of international law lies precisely in the fact that all answers to this question shed light upon the process of law formation that involve many different ideologies. Therefore, the acceptance of a general idea of international law, from which rules may then be derived, logically requires a very high of degree of global acceptance.
However, insofar as consensus is not achieved, and given that human intercourse goes on, the social forces that act in opposition to each other, and that claim to realize different values, require a certain order if they are not to be utterly chaotic. That is, rules, and indeed, international rules, cannot always lead to consensus, given that there exist other legitimate forms for providing a stable legal basis to a universal community.
442 Dailler et al, above note 403 p. 110.
After all, the law represents a way to achieve both the maintenance of an already accepted behaviour, or status quo, and the promotion of a behaviour that is desirable, that is, the accomplishment of certain social control purposes to realize certain aims, such as a humanist moral aim (e.g., the realization of and respect for human dignity).
The kind of social control that is most desirable or true is one question that can be answered at best within the explanation of the concept of the law itself.
In conformity with contemporary authors443, there are three main schools of thought.
First, the iusnaturalists, who see the law as based fundamentally on transcendental values. Second, the positivists, who focus on the validity of the law, and ground it on the form or process of issuance, sanction, and power. Third, the sociologists, who emphasize the effectiveness of the law, justifying the norm according to the efficacy of the rule within the social body. This classification obviously focuses on the idea of law;
the international aspect is secondary. However, there are also doctrinal studies that identify other schools of thought, such as the policy science approach, the realist school, the soviet doctrine of international law, or the third world school of international law.444 a Positivism
The positivist school is dominated mainly by the voluntarists and the normativists. The voluntarists affirm that the rules of law are products of the human will. For them, the foundations of the law are linked to a definition of an institution. Its obligatory force does not depend upon the conformity of the norms with the content of some external or extra-legal claims. Between the formal and the material aspects of the law, the voluntarist retains solely the formal aspect. The issues of justice and injustice, morality and immorality, are considered only at an extra-juridical level. The positivist-voluntarist sees the starting point or the foundation of international law in the absolute sovereignty of the state, and the principle of pacta sunt servanda.445 For the normativist,
443 Robert Kolb, “Réflexions de philosophie du droit international: Problémes fondamentaux du droit international public: Théorie et philosophie du droit international” 2003, p. 39.
444 Henry J Steiner, “International Law, Doctrine and School of Thought in the Twentieth Century"
“Encyclopedia of Public International Law" Rudolf Bernhardt 1995 Vol. 2, pp. 1224-1227.
445 Dailler et al, above note 403, p. 112 Giving one example of positivist-voluntarism through the theory of the auto-limitation of the sates of JELLINEK. According to Dailler et al., Jellinek says that, at the international level, the state cannot be subordinate to any other authority. It is its sovereign will which enable them to create international law. thus, the faculty of autodetermination englobes the faculty of auto-limitation. See also Dionisio Anzilotti "Cours de Droit International” 1929 "Une catégorie spécial des normes, certainement la plus importante, est forme par celles qui s'établissent au moyen d'accords, tacites ou exprès, entre les Etats mêmes; accords par lesquels ces Etats conviennent réciproquement de se comporter d'une manière donnée, de telle sorte que, si certaines hypothèses se produisent, ils sont tenus
international law is a normative order in a monistic sense, namely a system of valid norms "considered as a supreme legal order which is not under any other legal order."446 The main criticism of the formalist positivist systems is that they do not take into account the social context in which international law is formed and applied. Positivism is severely criticized for being "non-behaviorist, ahistorical and formally apolitical"447, and perhaps also morally neutral.
b Natural Law
One of the most influential legal doctrines is that of natural law. Its evolution has seen it pass through several stages, from antiquity, through the middle ages, enlightenment, and modernity, until the present day. Natural law is one of the oldest formal conceptions of organized life. Several theories have emerged from within natural law doctrine; two of these have especially influenced their philosophy. For one school, the doctrines of natural law are considered spiritual or idealist; they see the law as grounded in such values as justice, the common good, and the ideal that the human being possesses certain fundamental moral and physical rights. For them, nature itself is an ethical concept. For a second school, the foundation of the law is nature viewed as hard fact, hard truth. It understands the dictates of the law in terms of instincts, the law of the fittest, the struggle for survival. For them, the law is an empirical concept. Nevertheless, the main idea behind iusnaturalism is that the juridical order turns around, and is grounded upon, justice, the supreme value of law448, and the moral basis of law.
Today, the neo-iusnaturalists adopt a position in which positive law plays an essential, an indispensable role. This version of natural law is assimilated to the Grotian dualist formulation of international law. For neo-iusnaturalists, law is a matter both of form and content. Positive law depends on the content found in natural law.449 This
de faire ou de ne pas faire telle ou telle chose et peuvent émettre des prétentions correspondent. Ces normes expriment une exigence de la conduit réciproque des groupes sociaux entre lesquels elles interviennent, affirment un devoir être dont la valeur est indépendant du fait que ce devoir être est ensuite réalise ou non. La force obligatoire de ces normes dérive du principe que les Etats doivent respecter les accords conclus entre eux: pacta sunt servanda. Ces principe, précisément parce qu'il est à la base des normes dont nous parlons, n'est pas susceptible d'une démonstration ultérieure du point de vue de ces normes elles-mêmes: il doit être pris comme la une valeur objective absolue ou, en d'autres termes, comme l'hypothèse première et indémontrable à laquelle se rattache d'une façon nécessaire cet ordre, comme tout ordre, de connaissances humaines. ” pp. 41 et seq.
446 Kelsen, above note 406, p. 177.
447 Steiner, above note 444, p. 1224.
448 Kolb, above note 443pp. 44-51.
449 Dailler et al, above note 403, p. 114 See also Anthony D'Amato "International Law sources: Collected Papers”, 2004 Vol. 3, pp. 3 et seq.