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Instead of providing quotations or references from the present, I will begin with the past. This is not because I prefer a cyclical approach to history, but rather, I would like to remind us that humanity has lived through extreme periods without learning from past mistakes, fallacies, great expectations or even grand strategies that aspired to create a new or a better world. Put it in the legal/political jargon, although there has been always a quest for change, for a shift of the paradigm, or the establishment of a new world order, this was hardly a peaceful option; wars, revolutions and best intentions that finally paved the road to dehumanized destinations.
In the opening lines of his famous novel, ‘A Tale of Two Cities’, Charles Dickens portrays the situation in the year 1775. As you very probably understand, I intend to start discussing our times and contemporary issues of international law using Dickens’ famous words:
“It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us, we were all going direct to Heaven, we were all going direct the other way—in short, the period was so far like the present period, that some of its noisiest authorities insisted on its being received, for good or for evil, in the superlative degree of comparison only”.
Dickens provided us his account on the French Revolution, a major shift of paradigm, telling the parallel but contrasting stories of two cities: the stories of London and Paris during turbulent times. Τhe novel’s plot swings like a pendulum between two cities touching upon the issues that were trending at that time, but were common elsewhere, not only on both sides of the Channel; political unrest, social disparities, the demand for justice.
Probably, this binary approach to narrate either facts or fiction, is the most common pattern to provide for explanatory frameworks of the acts and omissions of people both on the local or the global scale, ever since the Original Sin. The Tale of Two Cities was published in 1859 and provided an account of the turbulent times of the French Revolution several decades ago. The year that Dickens published his novel, was the year that saw the Battle of Solferino in northern Italy between the armies of the Kingdom of Sardinia and France, and the army of Austria. Obviously, it was “the worst of times” when Henri Dunant witnessed the cruelty and human suffering of the military encounter and three years after, he published his ‘Memory of Solferino’. The year after (1863) “was the best of times” as he contributed to the foundation of the International Committee of the Red Cross (ICRC) in Geneva and another year later (1864) the Swiss government invited the governments of all European countries, the United States, Brazil, and Mexico, to attend a conference which ended in signing the first Geneva Convention for the “Amelioration of the Condition of the Wounded in Armies in the Field”. At the same time (1863), during the American Civil War, Abraham Lincoln issued the General Orders No. 100, which was a set of instructions that codified the customary laws of war, aiming at the protection of combatants and non-combatants. These instructions are widely known as the Lieber Code, after the name of the author, jurist Franz Lieber from Berlin, who first published his ‘Instructions to the Government of the Armies of the United States’, and lost one son in a war, where all his three sons participated by fighting with different sides. Of course, it seems pessimistic, the fact that ‘the best of times’ comes with the first systematic efforts to use international law in order to regulate the conduct of war, that is “the worst of times”.
There is an interplay between fear and faith, darkness and light, as people struggle to evade or at least mitigate aggression and the consequences of war. It is striking that Dickens writes about the best and worst of times during an era that was captured and dominated by fear, the fear of war. The famous historian A.J.P. Taylor wisely pointed out the significance of the Crimean War that ended a couple of years before Dickens’ tale was published:
In some sense the Crimean War was predestined and had deep-seated causes. Neither Nicholas I nor Napoleon III nor the British government could retreat from the conflict for prestige once it was launched. Nicholas needed a subservient Turkey for the sake of Russian security; Napoleon needed success for the sake of his domestic position; the British government needed an independent Turkey for the security of the Eastern Mediterranean [...] Mutual fear, not mutual aggression, caused the Crimean War.
It is this fear that is masqueraded into politically well-known and academically accepted terms, such as balance of power, power politics, realpolitik, national interest et.c. But this vocabulary of fear management is nothing but euphemism; it allows leaders and common people to cope with fear as an acceptable perspective until they finally must deal with fear on the battlefields. After the destruction and devastation of war, the best of times is designed through an optimistic or sometimes an apologetic account. In Dickens’ tale closing lines, Carton stands in front of his death, optimistic, convinced about the resurrection of Paris:
“I see a beautiful city and a brilliant people rising from this abyss, and, in their struggles to be truly free, in their triumphs and defeats, through long years to come, I see the evil of this time and of the previous time of which this is the natural birth, gradually making expiation for itself and wearing out”.
Contrasting Dickens’ optimism, Erich Maria Remarque’s ‘All Quiet on The Western Front’ stands as an apology to the utopia of the best of times:
“We are not youth any longer. We don’t want to take the world by storm. We are fleeing. We fly from ourselves. From our life. We were eighteen and had begun to love life and the world; and we had to shoot it to pieces.”
The above closing lines of this brave anti-war novel that was published ten years after the Armistice of the Great War, describe the atmosphere of the Interwar period, the so-called twenty-year crisis that repeated the mistakes and fallacies of the past, leading to another greater war, WW II. What differentiates the Interwar period from the post 1945 era, is par excellence the faith to an international society of states based on international law. Twenty years after the Stockholm Conference, the Charter of the United Nations set the world scene to save people from the scourge of war, establishing an unprecedented world legal order and institutional framework. Therefore, from the outset the United Nations championed the ideal of peace and security for all through international law.
The question ‘what is international law’ has no simple and concise answer. This is because there are always individual questions that arise that are all-encompassing and form a complex and constantly evolving legal reality. The questions that have been raised for years around the archaic question ‘what is international law’ are therefore relevant to (a) the very nature of international law, (b) its scope, (c) the field of its application, (d) the subjects it regulates, (e) the authors of its application, and (f) the reasons for compliance with it.
International law is the subject of daily reference and interpretation by a wide variety of users. There are users who invoke it either simplistically for the purpose of information (e.g. mass media), or more elaborately in order to serve or justify their interests (e.g. states when making decisions on their foreign policy). In any case, both scholarly and popular references to international law very often share common concerns and quests. They record the existence or non-existence, sufficiency or insufficiency, compliance or disobedience, sanction or impunity attributed to a set of rules and principles that create rights and obligations assumed in the international environment.
Furthermore, mobilising and engaging different actors to address major issues such as maintaining and restoring international peace and security, consolidating the international rule of law and democratisation, tackling pandemics and climate change, combating piracy and international terrorism, and managing migration flows, et.c., require principles and rules that harmonise initiatives, homogenise behaviour, create a code of shared values and ensure compliance. International law is the normative framework within which those issues are regulated and resolved, because these issues cannot, will not or should not be addressed under the exclusive competence of states.
By way of introduction, we could define international law as a separate branch of law, which includes a system of rules and principles that regulate the relations between international actors, and indeed, according to the prevailing view, are superior to domestic/national legal orders. This brief definition shows that there are heterogeneous international actors, i.e. mainly states and other non-state entities such as international organisations, international non-governmental organisations (NGOs), national liberation movements, recognised revolutionaries, churches with international legal personality, multinational corporations and individuals who derive rights or assume obligations from international law. At the same time, all these different bodies of rights and obligations take for granted, or at least expect, that they will all comply with the rules and principles of international law. Hopefully, this increases the predictability of their behaviour and ensures normality and regularity in the international environment.
Moreover, in addition to listing the multiple users of international law, reference should also be made to its individual branches, in order to better understand the scope and quality of the rights and obligations that emerge through international law. Thus, in addition to the issues that relate purely to the doctrinal analysis and elaboration of international law, such as its sources, its subjects, its relations with individual domestic/national orders and the exercise of competence and jurisdiction of States in the international arena, there is a particularly extensive list of more specific subject areas where international law has experienced more or less, faster or slower growth and development. Indicatively, the individual branches of international law include International Human Rights Law, International Humanitarian Law, International Criminal Law, Law of State Responsibility, Law of the Sea, Space Law, International Economic Law, International Environmental Law, and the Law of International Organizations.
International law must be distinguished from ethics, which, while reasonably fueling into the value content of international law, is a branch of philosophy. And of course, international law should not be confused with international politics, since the latter is considered in the interdisciplinary field of International Relations.
It must be stressed that the universal orientation of international law does not necessarily imply the achievement of uniformity. International law as a system of law supports its coherent character and includes specific legal traditions, which acquire meaning and validity thanks to its universal and unifying character. Regional or special international law is therefore part of the system of international law and derives its force from it.
In contrast to the way political societies are organised, international law is neither created nor systematised in a hierarchical environment where institutions, bodies and rules shape levels of cooperation and relations of supremacy and subordination. International law has by its very nature a universal dimension, as it is not limited by national borders but exists precisely as an interstate superstructure. Thus, international law is called upon to regulate a space that is evolving horizontally and decentralised, as states assert their sovereign equality and prevent the emergence of an effective central power with legislative and coercive powers. Even the United Nations does not make up for the lack of central authority; however, some scholarship and politicians may envision the UN at the heart of global governance. Still, the UN General Assembly is not a global legislative body and the resolutions it adopts are not binding, but only have political and moral weight. The International Court of Justice (ICJ) hears disputes between states only when they consent to bring their dispute before it, but this does not preclude problems in the enforcement of its decisions. Finally, the ability of the UN Security Council to order coercion against a state or other entity in the event of an act of aggression, threat, or disturbance of international peace and security is subject to legal and political limitations, such as Chapter 7 of the UN Charter and, in particular, the veto power available to the five permanent member states to safeguard their political choices and balance their interests.
Another particular feature of international law is the creation of equivalent rules and the absence of a system of hierarchy, as applied to domestic/national law, with rules that are derived from the Constitution of each State. Thus, Article 38 § 1 of the Statute of the ICJ lists three different and equal sources of international law that produce rules with the same typical force. International treaties, customary international law, and the general principles of law to which States consent are the main sources of international law and know no hierarchical distinction between them. In addition to the above sources, however, it is necessary to emphasise the influence on international law of the acts of international organisations, the unilateral legal acts of states, and soft law.
But even if there are rules that are superior, most of them bend to the invocation of state sovereignty. This happens for two main reasons: a) because states are the subjects of the rules of international law (and to a lesser extent international intergovernmental organisations such as the UN and the EU) and so they make exceptions and derogations to their application, rendering it easier for them to achieve their interests, and b) because, thanks to the absence of centralised power, they have in any case the possibility of not complying with the rules or not enforcing them.
Further, the fact that the state establishes the rules of international law and at the same time decides on their application to regulate its own relations with other actors in the international environment constitutes a legal paradox for any domestic/national legal order and highlights the primary and special role of the state in the international arena. It clearly follows, therefore, that states act simultaneously as shapers and guardians of international legitimacy, without their respective judgments and choices being placed under the control of a central authority or even under judicial control, unless they give their consent. The other non-state international actors, with perhaps the sole exception of the UN and the EU, fall short of the real and legal capacity and capability of states to formulate and invoke rules and principles in the international arena.
Moreover, the universal scale on which international law is developed and applied also presents significant quantitative differences in relation to the level of domestic/national law. The hierarchical way in which a domestic/national legal order is built and operates facilitates the establishment of the rule of law and allows individuals and legal entities to bring claims with a natural consequence of the thousands of decisions issued by national courts and independent authorities every year. Conversely, the smaller number of international tribunals and quasi-judicial bodies, and their often limited capacity to adjudicate due to the reluctance of states to accept the submission of their disputes to them, is also reflected in the comparatively limited production of judgments.
Thus, every year four to five cases are filed before the ICJ. This demonstrates the choice of states to avoid bilateral and judicial crises over their foreign policy choices. Of course, the ICJ is not the only international judicial body. But it is obviously the court with the greatest influence on international jurisprudence and the shaping of the rules and principles of international law. Overall, judicial and arbitration dispute resolution usually remains an optional option. States choose whether they want to submit to the jurisdiction of the ICJ, whereas in advanced regional legal orders such as the EU they are obliged to do so. The individual’s relationship with international courts is different. For example, there is the possibility for the individual to be subject to international criminal courts, while in courts such as the ECHR and its inter-American counterpart the individual can bring his or her claims against the state that violated his or her rights. As can be seen, the judicial function in the area of international law is characterized by a variable geometry that causes deficiencies in its application and thus in the international rule of law, thus highlighting more and less favoured regional jurisdictions.
On the contrary, states prefer diplomatic/political resolution of their disputes and often resort to options that have elements of coercion. Diplomatic dispute resolution includes some basic methods used in the practice of states but does not exclude the use of new or varied techniques. Negotiation is the main method for the peaceful settlement of disputes between States, while mediation, good offices, investigation and conciliation complete the indicative list.
Diplomatic resolution is a particular form of dispute resolution in the international environment, which cannot be assigned to national legal orders. On the contrary, vigilante justice and acts of retaliation are usually prohibited and are the exception in national legal orders, since judicial resolution and peaceful settlement prevail. At the international level they constitute self-evident behaviour when, for example, the target State refuses to pay compensation, or to make appropriate reparation, or to resort to an international judicial or other arbitral body. This behaviour whereby a State effectively “takes the law into its own hands” can take different forms.
A large category is retaliation, by which a state reacts to an illegal act or omission by another state. Such retaliatory acts include expulsion of diplomats, withdrawal of accredited diplomatic missions, and economic blockade. Retaliatory operations are selected and evaluated according to the priorities and sensitivities of the times and the level of cohesion of the international society/community. In any case, it is stressed that retaliatory actions are not armed and that they are options that have a political cost in the face of unfriendly actions by the target state.
A special case of retaliation is the imposition of countermeasures in case of a state’s wrongful act. These are usually economic sanctions aimed at exerting political pressure. Similar retaliatory measures can also be taken at the collective and institutional level when international peace and security is threatened. Thus, under Chapter 7 of the United Nations Charter, the Security Council has the discretionary power to order against a State the imposition of an economic and/or trade embargo, a ban on the sale of arms and military equipment, the interruption of diplomatic relations and a blockade on communications and international sporting and artistic events. Indeed, these sanctions, which are not of a military nature, create an obligation of compliance for all international actors without exception (even for non-UN Member States). Finally, in the first decade of the 21st century, the so-called ‘smart sanctions’ have also begun to be imposed, which usually involve the freezing of bank accounts and assets of natural and legal persons associated with international terrorism.
The most genuine and serious form of vigilante justice at the international level is reprisals. Reprisals are forms of armed coercion used by a state to compel another state that has violated a rule of international law to refrain from the illegal act or omission, and to restore international legality. The legitimacy of retaliation in our time is far from given, since it is a form of armed force, an act that is prohibited by Article 2 § 4 of the UN Charter.
In the 20th century the use of armed force by states was brought under the regulatory framework of Article 2 § 4 of the UN Charter, thus allowing two ‘exceptions’. The right to legitimate defence when preceded by an armed attack and the authorization of the use of armed force by the Security Council when it diagnoses a threat to international peace, a breach of peace or an act of aggression. Despite these exceptions, states both unilaterally and collectively engage in the use of armed force for more reasons. Armed reprisals, intervention to protect nationals abroad, humanitarian intervention, intervention in defence of democracy and self-determination, are all reasons why states mobilise their military power and engage in conflict. Almost all of these reasons depart from legality, putting international law under pressure. Similarly, the debate around pre-emptive strikes and preventive self-defence fragments the general prohibition on the use of armed force and highlights the problems of compliance with international law when states choose to use force to resolve their disputes.
The question of compliance with the rules and principles of international law is a classic area of criticism. This is where the absence of a central authority equipped with effective coercive powers, as is the case in domestic legal orders, becomes more pronounced. Similarly, the decisive and enduring role of states becomes apparent, especially when they choose to ignore international law. After all, the lack of compliance with the rules and principles of international law is not a phenomenon that is found only in the foreign policy of powerful states.
Despite cases of disobedience and indifference, compliance by international actors, and particularly by states, with the rules and principles of international law is not the exception. On the contrary, it is the normality that characterizes international society/community and strengthens symbiotic institutions and rules, so that we can now envision an international law of solidarity and not just cooperation. In a particularly salient way, Henkin observed that ‘almost all nations observe almost all the principles of international law and almost all their obligations almost all the time’. However, the following question reasonably arises: if the international environment is anarchic and decentralized, and lacks hierarchical structures or a central authority to ensure the implementation of international law, why do states and other non-state actors prefer to comply with it?
Miltiadis Sarigiannidis, Associate Professor of International Law
Law Faculty, Aristotle University of Thessaloniki
