furthermore that,in certain circumstances,individuals have rights and obligations under international law that are not derivative in the traditional sense.See infra ch.6. Ill.INTERNATIONAL AND NATIONAL APPLICATION $1-5.Applications distinguished.The fact that international law governs inter-state relations does not mean that it is irrelevant on the national legal plane or that itis applied there.The which internation pplied on the national and on the internation plane differs,however,even though the substantiv rules as such may be the same.When studying international law,it is useful therefore,to be aware of the differences between the national and the international application of international law. 61-6.International applicatior On the int national plane international law is invoked applied on a daily basis by states s and nter-governmenta organizations.With minor exceptions,it is the only law that applies to the conduct of states and international organizations in their relations with one another.Here international law is a distinct legal system,comparable in its scope and function to a national legal system. $1-7.Na onal application. On the national plane,international law is not a legal system.When we say in the United States,for example,that international law is "the law of the land, we are in fact saying that it is a part or branch of our legal system,in very much the same way that the law of torts or contracts is part of our legal system.We refer to the law of torts in a case or situation involving issues that can be cha d as be ng ove rned by principles of tort law.In much the sa way,we refer to inte national law when the facts of f the case or situation demand i Here international law is invoked in national litigation and other contexts by individuals,private and public entities,and government agencies whenever resort to it appears to be relevant in this context.The question of whether the individual h national plane(that is, hether he /she is a subject of international law is for the most part irrelevant.The relevant question here is whether this that rule of international law is.as a matter of u.s.law.appropriate to the resolution of the controversy before the court.Viewed from this national perspective,the individual is the subject of rights and obligations which have their ce in inte ational law to content that the individual is the subject of international legal rights and obligations. 51-8.Some examples. Let us assume that international law requires states in peacetime to grant foreign merchant ships innocent passage through their territorial waters.Let us assume further that a merchant ship flying the flag of State x oast guard of state waters in violation of the above mentioned internatio al la On the international plane,the resulting dispute would be between State X and State Y.This would be so because the right to innocent passage by merchant ships,and the obligation to permit the exercise of that right,are rights and obligations appertaining 2
2 furthermore that, in certain circumstances, individuals have rights and obligations under international law that are not derivative in the traditional sense. See infra ch.6. III. INTERNATIONAL AND NATIONAL APPLICATION §1-5. Applications distinguished. The fact that international law governs inter-state relations does not mean that it is irrelevant on the national legal plane or that it is not applied there. The manner in which international law is applied on the national and on the international plane differs, however, even though the substantive rules as such may be the same. When studying international law, it is useful, therefore, to be aware of the differences between the national and the international application of international law. §1-6. International application. On the international plane, international law is invoked and applied on a daily basis by states and by inter-governmental organizations. With minor exceptions, it is the only law that applies to the conduct of states and international organizations in their relations with one another. Here international law is a distinct legal system, comparable in its scope and function to a national legal system. §1-7. National application. On the national plane, international law is not a legal system. When we say in the United States, for example, that international law is “the law of the land,” we are in fact saying that it is a part or branch of our legal system, in very much the same way that the law of torts or contracts is part of our legal system. We refer to the law of torts in a case or situation involving issues that can be characterized as being governed by principles of tort law. In much the same way, we refer to international law when the facts of the case or situation demand it. Here international law is invoked in national litigation and other contexts by individuals, private and public entities, and government agencies whenever resort to it appears to be relevant in this context. The question of whether the individual invoking international law in a U.S. court, for example, has rights or obligations under international law on the international plane ( that is, whether he / she is a subject of international law ) is for the most part irrelevant. The relevant question here is whether this that rule of international law is, as a matter of U.S. law, appropriate to the resolution of the controversy before the court. Viewed from this national perspective, the individual is the subject of rights and obligations which have their source in international law to the same content that the individual is the subject of international legal rights and obligations. §1-8. Some examples. Let us assume that international law requires states in peacetime to grant foreign merchant ships innocent passage through their territorial waters. Let us assume further that a merchant ship flying the flag of State X and belonging to Mr. Barco, a national of State X, is seized by the coast guard of State Y in its territorial waters in violation of the above mentioned international law rule. On the international plane, the resulting dispute would be between State X and State Y. This would be so because the right to innocent passage by merchant ships, and the obligation to permit the exercise of that right, are rights and obligations appertaining
only to the subiects of international law-the states.The seizure of Mr.Barco's deemed to be a breach of an obligation owed by state Y to State X. e of ship's nationality.That nationality entitles State X to assert a cla against State Y.Under general international law,an injury to a state's national is deemed to be an injury to the state.See Mavrommatis Concessions Gr.v.U.K.) 1924PC.11.(ser.A)No.2(Aug.30. Now let us sume that instead of pro ne indicated above,Mr. arco files a suit in the courts of State Y, release of his ship and damages.If international law is the law of the land in State Y-which it is in different guises in most,if not all,states comprising the community of nations-Mr.Barco would have the right to invoke the relevant rule of international law to assert the illegality of the seizure of his ship.Here he would claim the violati ion of a right enjoyed by him under nter national law in much th same way that he would rely on a rule of the national law of torts or property if someone had deprived him of the use of his property in a business transaction in State y whether the case concerns the law of torts or property or international law its outcome in state y will depend upon the legal and factual soundness of the claim unde r the ant natio subst anti nd proc edural,of State Y. internatio nal plane,the context for the application of the international law rule relating to innocent passage of ships through territorial waters in peacetime is the international legal system.That is to say,here all issues bearing on the case,for example.whether the rule takes precedence or not over other rules.etc.,would be determined by inte onal law.On the national plane,the context for the app on of the rule is the n donal I. nd nal f k.And while it is true,as a general proposition,that a national court would seek to determine the content of a rule of international law in much the same way as an international court,the same controversy might well be resolved differently by each of them because in one case the judicial context is the national legal system with its etin of substantive law and in the other it is the international legal system.That is why it is so important when dealing with international law questions and materials,to inquire whether the context is the national or international plane,or both. 51-9.Supremacy of international law.The rights and obligations which a state has under international law are on the interr onal pla superior to any rights s or duties it may have unde its national law.Thu for example,if a state is party to a treaty that is valid and binding under international law,its non-performance cannot be excused as a matter of international law on the ground that the treaty was declared unconstitutional by the state's supreme court.With minor exceptions not here relevant,the unconstitutionality of the treaty is a purely national the lau ties,May 1g6 arts.27&46,1155 U.N.TS.331,8 1.LM.67.Although it might prevent the statd from giving effect to the treaty,its failure to perform would nevertheless constitute a breach of international law.See,e.g.,LaGrand Case Ger.v.U.S.)2001 1.C.J.June 27),reprinted in 40 1.L.M.1069 (2001 )In practice,this type of problem tends to be
3 only to the subjects of international law-the states. The seizure of Mr. Barco′s ship would be deemed to be a breach of an obligation owed by state Y to State X, the state of the ship′s nationality. That nationality entitles State X to assert a claim against State Y. Under general international law, an injury to a state′s national is deemed to be an injury to the state. See Mavrommatis Concessions ( Gr. v. U.K. ), 1924 P.C.I.J. ( ser. A ) No. 2 ( Aug. 30 ). Now let us assume that instead of proceeding through State X in the manner indicated above, Mr. Barco files a suit in the courts of State Y, seeking both the release of his ship and damages. If international law is the law of the land in State Y-which it is in different guises in most, if not all, states comprising the community of nations-Mr. Barco would have the right to invoke the relevant rule of international law to assert the illegality of the seizure of his ship. Here he would claim the violation of a right enjoyed by him under international law in much the same way that he would rely on a rule of the national law of torts or property if someone had deprived him of the use of his property in a business transaction in State Y. Whether the case concerns the law of torts or property or international law, its outcome in State Y will depend upon the legal and factual soundness of the claim under the relevant national law, both substantive and procedural, of State Y. On the international plane, the context for the application of the international law rule relating to innocent passage of ships through territorial waters in peacetime is the international legal system. That is to say, here all issues bearing on the case, for example, whether the rule takes precedence or not over other rules, etc., would be determined by international law. On the national plane, the context for the application of the rule is the national legal system and constitutional framework. And while it is true, as a general proposition, that a national court would seek to determine the content of a rule of international law in much the same way as an international court, the same controversy might well be resolved differently by each of them because in one case the judicial context is the national legal system with its specialized rules of procedure and possibly competing principles of substantive law, and in the other it is the international legal system. That is why it is so important, when dealing with international law questions and materials, to inquire whether the context is the national or international plane, or both. §1-9. Supremacy of international law. The rights and obligations which a state has under international law are, on the international plane, superior to any rights or duties it may have under its national law. Thus, for example, if a state is a party to a treaty that is valid and binding under international law, its non-performance cannot be excused as a matter of international law on the ground that the treaty was declared unconstitutional by the state′s supreme court. With minor exceptions not here relevant, the unconstitutionality of the treaty is a purely national law issue. See Vienna Convention on the Law of the treaties, May 23, 1969, arts. 27 ＆ 46, 1155 U.N.T.S. 331, 8 I.L.M. 679. Although it might prevent the state from giving effect to the treaty, its failure to perform would nevertheless constitute a breach of international law. See, e.g., LaGrand Case ( Ger. v. U.S. ), 2001 I.C.J. ( June 27 ), reprinted in 40 I.L.M. 1069 ( 2001 ). In practice, this type of problem tends to be
resolved by renegotiation of the treaty or,in rare instances,by the payment of compensation. Conceptually,the inability of a state for national constitutional reasons to perform a treaty obligation valid under international law resembles nationa situations in which one party to a contract is unable or unwilling to comply with its contractual obligations and is liable for the consequences of its breach.Moreover, whether the decision of a state not to comply with a treaty is compelled by its court a decision of its preside or example,is equally irrele er international law.Nation I law does not on the international plane supersede international law,even though it may take precedence over international law on the national plane,which is the case in most states. IV.RELEVANCE AND FUNCTION OF INTERNATIONAL LAW 1-10.Uses of intemational law.International law is routinely applied by international tribunals as well as by national courts.But international law is not relevant solely injudicial proceedings.States rely on it in their diplomatic relations,in their negotiations,and in their policymaking.States defend their actions and policies both to othe states and to thei n national constituents )by ref international law and challenge the conduct of other states in reliance on it.To the extent that international law is perceived as"law"by the international community,it imposes restraints on the behavior of states and affects their decision-making process.Although there may be considerable disagreement in a particular case about the nature.sco p nal law,states rarely admit to violating international law and hardly ever assert the right to do so. $1-11.International law as law.The conduct of states is conditioned by many factors;international law is only one of them.Sometimes it is determinative,many times it is not.Yet whoever seeks to understand or predict how states will act in a given situation,or whoever has to counsel states on how they should act consistent with their na ional self-interest needs to take account appli icable principlesof international law.A state may be prepared to violate international law in order to achieve a given political obiective.But in calculating the short-and long-term political costs of such action,the state's policymakers will have to address questions relating to the nature and function of that law,as well as the legal and political ces of be g lab beled a law-breaker The dramatic violations of international law,principally those involving the threat or use of force,which attract worldwide attention,should not blind us to the fact that the vast body of international law which regulates international commerce, communication,transportation,and day-to-day diplomatic and consular relations,to mention but a few s,is applied and obse as routinely as is national law.For lawyers working in these fields,whether as legal advisers to governments,to international organizations or to corporations,or as judges,legislators,policymakers, or arbitrators,international law is law in a very real,practical sense.They have to know how to find and analyze it,in what context to apply it,and where and how to
4 resolved by renegotiation of the treaty or, in rare instances, by the payment of compensation. Conceptually, the inability of a state for national constitutional reasons to perform a treaty obligation valid under international law resembles national situations in which one party to a contract is unable or unwilling to comply with its contractual obligations and is liable for the consequences of its breach. Moreover, whether the decision of a state not to comply with a treaty is compelled by its supreme court or by a decision of its president, for example, is equally irrelevant under international law. National constitutional law does not on the international plane supersede international law, even though it may take precedence over international law on the national plane, which is the case in most states. IV. RELEVANCE AND FUNCTION OF INTERNATIONAL LAW §1-10. Uses of international law. International law is routinely applied by international tribunals as well as by national courts. But international law is not relevant solely in judicial proceedings. States rely on it in their diplomatic relations, in their negotiations, and in their policymaking. States defend their actions and policies ( both to other states and to their own national constituents ) by reference to international law and challenge the conduct of other states in reliance on it. To the extent that international law is perceived as "law" by the international community, it imposes restraints on the behavior of states and affects their decision-making process. Although there may be considerable disagreement in a particular case about the nature, scope or applicability of a given rule of international law, states rarely admit to violating international law and hardly ever assert the right to do so. §1-11. International law as law. The conduct of states is conditioned by many factors; international law is only one of them. Sometimes it is determinative, many times it is not. Yet whoever seeks to understand or predict how states will act in a given situation, or whoever has to counsel states on how they should act consistent with their national self-interest, needs to take into account applicable principles of international law. A state may be prepared to violate international law in order to achieve a given political objective. But in calculating the short-and long-term political costs of such action, the state's policymakers will have to address questions relating to the nature and function of that law, as well as the legal and political consequences of being labeled a law-breaker. The dramatic violations of international law, principally those involving the threat or use of force, which attract worldwide attention, should not blind us to the fact that the vast body of international law which regulates international commerce, communication, transportation, and day-to-day diplomatic and consular relations, to mention but a few areas, is applied and observed as routinely as is national law. For lawyers working in these fields, whether as legal advisers to governments, to international organizations or to corporations, or as judges, legislators, policymakers, or arbitrators, international law is law in a very real, practical sense. They have to know how to find and analyze it, in what context to apply it, and where and how to
enforce it. $1-12.Application and enforcement.Questions about enforcement arise the moment international law is mentioned. In addressing these questions, it i important to ask whether we are talking about enforcement on the national or on the international plane.On the national plane,international law tends to be enforced by courts and administrative agendes in much the same manner as any other national law.The ans swer is more complex when we turn to the international plane As a rule nternational courts do not have compuls ory or automati jurisdictio to deal with all international legal disputes that might be ripe for adjudication.The authority of these courts to hear a given dispute depends upon the acceptance of their jurisdiction by the parties to the dispute.See infra ch.4.There are,as a consequence,many international legal disputes that cannot be adjudicated because oneor the other of the parties to the dispute refuses to accept the jurisdiction of a cour But courts are not the only institutions for the resolution of disputes between states.Many international disputes that cannot be submitted to formal international adiudication.can and have been settled by other methods.such as negotiation office: arbitr which all involve the v.See infra ch.4. Herei ntern tional law performs a fu nction similar to that which national law performs in the settlement of disputes that do not reach the courts. Furthermore,numerous methods and organizations exist today.whether of a political,quasi-judicial,or diplomatic chara acterthe United Nations,regionl organizatior conferences. ultilateral commissi international law plays a role,together with other factors,in resolving conflicts and in fashioning solutions to societal problems of all types. Law plays a comparable role on the national plane.Here too,as on the international plane,its impact outside the formal judicial setting may,at different times and in different contexts,be of marginal significance, quite i t or dete minative in shaping political compromis dealing with the problems confronting a given society. $1-13.Enforcement and compliance.The mechanisms available on the international plane for the enforcement of a judgment rendered by international courts differ from those that may be available on the national plane.see infro ch.4 International tribunals that adjudicate disp tes betwee states do not have or police force who can b e ordered to enforce a judgment.But even on the ational plane,judgments are enforced or executed differently depending upon whether the judgment was rendered against a private party or against the government.While the property of private parties may be attached to execute judgments against them.such a remedy is usually not available against gov vernmental entities.Moreover.the enforcement pow rs of na urts are more symbolic than real wher confrontation is between them and the government.Governments comply with national court decisions not because the courts have the actual police or military power to force compliance.The extent of compliance tends,rather,to be a function of the political legitimacy and moral credibility that sustain the entire fabric of
5 enforce it. §1-12. Application and enforcement. Questions about enforcement arise the moment international law is mentioned. In addressing these questions, it is important to ask whether we are talking about enforcement on the national or on the international plane. On the national plane, international law tends to be enforced by courts and administrative agencies in much the same manner as any other national law. The answer is more complex when we turn to the international plane. As a rule, international courts do not have compulsory or automatic jurisdiction to deal with all international legal disputes that might be ripe for adjudication. The authority of these courts to hear a given dispute depends upon the acceptance of their jurisdiction by the parties to the dispute. See infra ch. 4. There are, as a consequence, many international legal disputes that cannot be adjudicated because one or the other of the parties to the dispute refuses to accept the jurisdiction of a court. But courts are not the only institutions for the resolution of disputes between states. Many international disputes that cannot be submitted to formal international adjudication, can and have been settled by other methods, such as negotiation, mediation, good offices or arbitration, which all involve the application of international law. See infra ch. 4. Here international law performs a function similar to that which national law performs in the settlement of disputes that do not reach the courts. Furthermore, numerous methods and organizations exist today, whether of a political, quasi-judicial, or diplomatic character-the United Nations, regional organizations, diplomatic conferences, multilateral commissions, etc.-where international law plays a role, together with other factors, in resolving conflicts and in fashioning solutions to societal problems of all types. Law plays a comparable role on the national plane. Here too, as on the international plane, its impact outside the formal judicial setting may, at different times and in different contexts, be of marginal significance, quite important or determinative in shaping political compromises or dealing with the problems confronting a given society. §1-13. Enforcement and compliance. The mechanisms available on the international plane for the enforcement of a judgment rendered by international courts differ from those that may be available on the national plane. See infra ch.4. International tribunals that adjudicate disputes between states do not have a sheriff or police force who can be ordered to enforce a judgment. But even on the national plane, judgments are enforced or executed differently depending upon whether the judgment was rendered against a private party or against the government. While the property of private parties may be attached to execute judgments against them, such a remedy is usually not available against governmental entities. Moreover, the enforcement powers of national courts are more symbolic than real when the confrontation is between them and the government. Governments comply with national court decisions not because the courts have the actual police or military power to force compliance. The extent of compliance tends, rather, to be a function of the political legitimacy and moral credibility that sustain the entire fabric of
governmental authority and produce the expectation that law will be obeyed. tion is not all that different on the international plane. neverthele that the abs sence of a fo alized lawma coupl with the debilitating jurisdictional defects of international courts,weaken the expectation of compliance in comparison with the situation that exists on the national plane.These considerations need to be balanced against the risk that non-complying governments open themselves up to costly retaliatory measures by other gov The likelihood of such retaliation whethe it b politica 29 onomic,is ent that has an important impact on compiance by states wit their international obligations.Moreover,even the strongest states have long-term and short-term political and economic interests in an international order in which conflicts are resolved in accordance with generally accepted rules.in a manner that is reasonably predictable,and that reduces the likelihood of resort to force V.HISTORICAL OVERVIEW $1-14.Origins of the modern system.International law or the law of nations,as it used to be called,came into its own as a separate legal system or discipline with the emergence of the modern natio n-state in the 16th and 17th c ries.Of ourse practices such as the exchange of diplomatic emissaries,the conclusion of peac treaties,etc.,and some of the rules applicable to them can be traced back far into antiquity.See D.Bederman,International Law in Antiquity(2001).But it was not until modern times that the rules governing relations between states came to be seen as a distinct body of law Many rules were de ved either from Roman Canon law,which drew heavily on principles of natural law.These two sources of law also formed the basis of much of the national law of the nation-states that came into being in Europe as the Medieval period drew to a close with the dawn of the Renaissance.Roman law and Canon law exerted great influence on the European statesmen and legal schoars of the period who reated and ystematized what became modern inte rnat al law.See generally A.Nus baum, History of the Law of Nations(rev.ed.1962). 5 1-15.Maior early writers and theories.Hugo Grotius (1583-1645).a Dutch scholar and diplomat,is known as the "father"of modern international law.His maior work.De jure Belli Ac Pocis (1625).is one of the earliest attempts to provide a system atic o iew of the int law of wa and peac Grotius'other is Mareberm()forceful brie behalf of of freedom of the seas,which in due course came to be accepted as a basic principle of international law. Grotius was preceded by a number of writers whose important contributions to the developm ent of inter nal law should be noted.Leadin ng these are the talian Alberico Gentili(1552-1608),a professor of Roman law at ford University who wrote De Jure Belli (1598),and the Spanish theologian;Francisco de Vitoria (1480-1546),who,in his lectures on the Spanish conquests in the New World,was among the first to assert the universal character and applicability of international 6
6 governmental authority and produce the expectation that law will be obeyed. The situation is not all that different on the international plane. It is true, nevertheless, that the absence of a formal centralized lawmaking authority, coupled with the debilitating jurisdictional defects of international courts, weaken the expectation of compliance in comparison with the situation that exists on the national plane. These considerations need to be balanced against the risk that non-complying governments open themselves up to costly retaliatory measures by other governments. The likelihood of such retaliation, whether it be political or economic, is an element that has an important impact on compliance by states with their international obligations. Moreover, even the strongest states have long-term and short-term political and economic interests in an international order in which conflicts are resolved in accordance with generally accepted rules, in a manner that is reasonably predictable, and that reduces the likelihood of resort to force. V. HISTORICAL OVERVIEW § 1-14. Origins of the modern system. International law or the law of nations, as it used to be called, came into its own as a separate legal system or discipline with the emergence of the modern nation-state in the 16th and 17th centuries. Of course, practices such as the exchange of diplomatic emissaries, the conclusion of peace treaties, etc., and some of the rules applicable to them can be traced back far into antiquity. See D. Bederman, International Law in Antiquity (2001). But it was not until modern times that the rules governing relations between states came to be seen as a distinct body of law. Many of these rules were derived either from Roman law or Canon law, which drew heavily on principles of natural law. These two sources of law also formed the basis of much of the national law of the nation-states that came into being in Europe as the Medieval period drew to a close with the dawn of the Renaissance. Roman law and Canon law exerted great influence on the European statesmen and legal scholars of the period who created and systematized what became modern international law. See generally A. Nussbaum, A Concise History of the Law of Nations (rev. ed. 1962). § 1-15. Major early writers and theories. Hugo Grotius (1583-1645), a Dutch scholar and diplomat, is known as the "father" of modern international law. His major work, De Jure Belli Ac Pacis (1625), is one of the earliest attempts to provide a systematic overview of the international law of war and peace. Among Grotius' other important works is Mare Liberum (1609), a forceful brief on behalf of the doctrine of freedom of the seas, which in due course came to be accepted as a basic principle of international law. Grotius was preceded by a number of writers whose important contributions to the development of international law should be noted. Leading among these are the Italian Alberico Gentili ( 1552-1608), a professor of Roman law at Oxford University, who wrote De Jure Belli (1598), and the Spanish theologian; Francisco de Vitoria (1480-1546), who, in his lectures on the Spanish conquests in the New World, was among the first to assert the universal character and applicability of international