International Law – Its origins beyond bilateralism

Introduction:

International Law, in essence, is often viewed as the bare minimum structure that governs and determines the myriad rights and obligations which each state owes to another. The substance of International law is largely built on bilateral and state-centric concepts, delimiting the realms of sovereign powers, rights and obligations of each state with regard to another. This involves their powers concerning, territory, their people and jurisdictional matters[1]. However, modern international law has seen a shift away from the bilateral, state-centric views of international law and has seen a development of a global consciousness towards certain ideas, with more non-state agents and a plethora of other entities becoming involved with the development of the substance of international law through the exercise of public power[2]. This development is evidence of concepts like bilateralism and state sovereignty becoming less important in the scheme of the objective of international law in the achievement of certain collective interests[3]. This essay will go on to explain the role that bilateralism and state consent still play in the international legal framework and the degree to which it impacts the collective interest. This will be done through an analysis of the concepts of bilateralism and state consent and the impacts they have on the sources of international law and the degree to which they are bound by international legal principles. The essay will, in particular, discuss the development of treaties and the functioning of reservations within that structure, while also discussing matters of jurisdiction of international courts. It will be argued that while the basis of international legal relations is still largely based on bilateral concepts, and is largely deferential to state consent, it does not fail to effectively protect collective interests. In doing so, concepts like fragmentation will also be addressed and the ways in which it plays a role in the protection of collective interests.

Collective Interests:

The idea of collective interest or community interest is that the formulation of certain fundamental values for the international community would not be left to the disposition of individual states or to be decided among them, but that these values would be determined by international law for all states[4]. With the growth of the international discourse and the enjoining of more actors to the international community, such ideas of collective interest have begun to permeate international law and is slowly helping to overcome the deficiencies of bilateralism. While a collective consciousness is now developing thanks to the efforts of the community, the achievement of global respect for human rights and environmental law and other collective interests cannot be realised by means derived from traditional bilateralism[5]. Hence, with the coming to prominence of these matters, the quest to realise these interests have led to a stronger institutionalisation and organisation of the international society. Evidenced by the involvement of large-scale international organisations that have made significant contributions to the forum. One of the best examples of this form of development is that of the growth of International Human Rights Law.

The Universal Declaration of Human Rights emerged out of the United Nations General assembly in 1948 and was largely built on bilateralist principles of inter-state relationships with regard to the treatment of aliens and the delimiting of territorial and personal jurisdictions among states. Progression on the front has now led to a development of the principles on the treatment of all people, in that they are to now enjoy protection from any transgression from any public authority[6]. Traditional bilateralist conceptualization of international law only allowed states to concern themselves with the treatment of their own nationals abroad, while the government relationships with their own nationals were largely a matter of domestic jurisdiction, thus, barring any foreign state from intervening. However, these are now equally matters concerning collective interest, going beyond the structures of bilateralism and involving the global community through human rights discourse on public forum. This ranges from international conferences developing human rights to judgments by International Courts and sanctions against persistent violators of such collective interests[7]. While most states remain the developers of International Human Rights Law, they also often are, are breakers of such law. This dichotomy is evidence of two things; first that the universalization of International law does indeed pose a threat to holders of political power, hence making it against their incentive to want universalization; second, this lack of incentive is perhaps the biggest threat to universalization of international law itself[8].

Schools of Thought and the Development of International Law:

A vast majority of concrete international law is governed by the development of ‘treaties’, which effectively determine the way in which different states (and other international legal persons) interact with one another[9]. In effect, while these treaties and conventions go on to determine how states function with one another, it is important to recognize that this happens in largely two major forms, developed by two different political views of international law. Heightened political states have given rise to two schools of thought; universalists who aspire to form one interconnected international legal order, and unilateralists who prefer flexibility and freedom of action for individual states. For universalists, the harnessing of stakeholders, participants and influences into modern legal processes is paramount to international law. While unilateralists maintain that the ‘universalization’ of international law threatens sovereignty. These two camps evidently display a particular preference to one of two forms of treaty-making law; with universalists preferring multi-lateral treaties (MLT) and International Organizations (IO), while propagators of ‘state sovereignty’ show preference to bilateral treaties (BLT)[10]. Universalists, in this regard believe in the democratic legitimacy of larger participation of the international community to promote and formulate an idea of a collective interest and in doing so, they hope to create an idea of an international rule of law, serving as the building blocks of an international constitution[11]. On the contrasting end, unilateralists are often skeptical of such line of thought, arguing that this limits autonomy and that multilateralism is only useful to form alliances revolving around traditional national interests, fearing any transfer of decision-making power to international governance[12]. In effect, bilateralism is more akin to ensuring interests of individual states with relation to one another, in the propagation of their own interests; whereas, multilateralism purports to promote the achievement of the collective interest. The existence of both schools of thought is evidence of the fact that International Law goes beyond merely centring around bilateral inter-state rights and obligations. At the moment, the United Nations Treaty Series (UNTS) lists up to 3500 multi-lateral treaties, governing the functioning of all states and up to 50000 bilateral treaties[13]. While there is a disproportion in how the numbers are divided, it is evident, that multilateral treaties and conventions are slowly gaining footing.

Sources and Functionality of International Law:

International law is varied in its sources. However, Article 38 of the International Court of Justice Statute[14] goes on to prescribe the traditional sources of International law. Drawing an analysis between different sources of international law allows for an understanding of the deference to bilateralism and state consent in international law.

Most treaties are entered into by states (and non-state actors) voluntarily. The 1969 Vienna Convention on the Law of Treaties (VCLT) defines a ‘treaty’ as an international agreement concluded between States in written form and governed by international law. Regardless of whether it is a single document or what it is called[15]. The United Nations plays an important role in international law-making as initiators of treaties and as a source of expertise[16]. In essence, this form of international law is binding only on the parties that create it and is entirely based on the principle of consent[17]. However, when treaties reflect or come to reflect customary international law, states that are not party to the treaty may be bound by them[18].

As discussed above, treaties can take the form of either bilateral or multilateral agreements. However, it is important to recognise that for any state to be bound by a treaty, certain principles apply. Enshrined in Article 26 of the VCLT[19] is the principle of pacta sunt servanda, which suggests that parties that conclude a treaty are bound by it. This traditional bilateral structure is defeated to some extent with the recognition of the fact that nothing in the VCLT prevents a rule in a treaty from becoming customary international law and hence binding a third party[20]. On the other end, another aspect of treaty law that propagates bilateralism is the practice of reservations. The modern approach to this is mostly governed by the 1951 Advisory Opinion of the IC] in the Reservation to the Convention on Genocide case[21]. Once a state proposes a reservation, their relationship to the treaty can take one of three forms: it can have no relations to the treaty with respect to a state that has ardently objected and has declined treaty relations; or, it can have normal treaty relations but for the concerned provision with respect to the objecting state that has not declined treaty relations; or, treaty relations are amended by the reservation with respect to any state that has accepted (explicitly or tacitly) the reservation.[22] The existence of the principle of reservations clearly dictates inter-state relations and even within multi-lateral treaties, evidently, creates elements of a bilateral nature with regards to the specific provisions. However, it may be argued that reservations are a useful tool to encourage the greatest number of states to sign on to a treaty in order to at least enjoin in the overall purpose and object of the treaty, hence further propagating the collective interest[23]. While it can also be argued that the existence of the provision of reservations may steal from the universalisation of collective interests, it is important to recognise that reservations to a treaty and their objections are still largely subject to the original object and purpose of the treaty. Hence, such reservations are still within the realm of furthering the collective interest. Additionally, in the Reservations case, the ICJ noted that there are other mechanisms within formal international law that exist to further such collective interest[24]; the regime of customary international law being an example, along with principle of peremptory norms and regimes like UN resolutions.

Alternatively known as Customary International laws are a result of habit. Unless a state objects to a Custom, regardless of the fact that they may have come into existence after the Custom was formed, Customs bind all states (barring exceptions of local Customs and States that objected to the formation of the concerned Custom) within the international community. The idea is based on a form of ‘tacit consent’[25]. Generally, Customs are seen to possess two elements; State Practice and Opinio Juris[26]. State Practice generally refers to how state organs function in relation to their counterparts with other states. In order to assess this, it would be difficult to employ any mechanised process and so the matter is often left to a very individualistic approach[27]. Due to its binding nature, it is argued that as long as the Custom is relatively consistent, representative and widespread it suffices to satisfy the element[28]. Opinio Juris is the suggestion for something to become a custom, states have to believe and assert the idea that such a practice is legally sound[29].

The sources of international law discussed thus far, are largely dependent on the relationship between states and their consent in the formation of either customary law or a codified agreement between them. Beyond this, International Organisations go on to play a significant role as well, further damaging traditional bilateral, state-centric views of international law. Article 25 of the UN Charter[30] allows members of the United Nations Security Council to pronounce decisions which are binding on all members of the UN and prevail over all other international obligation[31]. Article 10[32] of the UN Charter empowers the UN General Assembly[33] to engage in discourse over a myriad of matter, with regard to which they may pass recommendations to the members of the UN or to the Security Council. Such resolutions may have binding effect, however that is based on the UN Charter itself. These resolutions function as a source of International law for many cases, often expanding or allowing for ratification of treaties[34]. Certain resolutions are also seen as Custom[35]. This is evidence of a largely multilateral view of International Law, shifting away from traditional bilateralism. Basing largely on the idea of the collective international community determining structures of International Law as opposed to leaving it up to states to determine such principles on the basis of their individual relationships. If anything, this is further institutionalisation of the international community[36].

Another example of a derogation from bilateralism is the development of peremptory norms. Per Article 53 of the VCLT[37] a Jus Cogen is a peremptory norm of general international which cannot be derogated from or modified by any member of the international community. These norms are typically recognised and assented to by all members and can only be replaced by another norm of general law having the same characters. It serves as a generally binding form of international law for important moral issues[38]. However, it can be argued that such principles can often be asserted without the consent of States[39]. Often deemed to create obligations erga omnes (owed to the international community as a whole), Jus Cogen are based on principles of normative importance to the international community[40] and usually operate at a certain level of abstraction where their consequences are not always agreed upon.

The Dynamics of State Consent

With increasing interactions among myriad of actors, we find state consent to derive its ideals from the following set of facts: States organize themselves in a manner where they are responsible for their own affairs and for the caring of their people and territory. Assuming all states are deemed equal before the law, States cannot claim from another state a rule or law which it would not conform to, itself. Additionally, this means that this principle not only binds states concerned over a certain question, but can bind all states within the system, engaging in international relations.[41]. As a result of such organization, it is found that a vast majority of international law is usually not enforced, but is largely obeyed[42]. Hence, while this improves the structures of institutionalization of the international legal process, it is still largely dependent on the idea of state engagement. This is evidence that international law has indeed moved beyond bilateralism, but is still somewhat deferential to state consent, although such consent is now more readily given, with the global community being incentivized to ensure that each actor behaves in a way that is determinable on the principles of respecting sovereignty, while attempting to further certain abstract notions of collective interests[43].

Fragmentation:

The impact of furthering collective interest while maintaining the general principles of sovereignty and inter-state discourse has led to the fragmentation of international law. Through development of multiple institutions responding to different principles of international legal matters, fragmentation is a phenomenon of international law that allows for effective responses to a myriad of problems[44]. Fragmentation stands somewhat in the middle of the discussion of this essay, in that it purports to promote collective interests by inducing more states to engage in international law and be bound by its principles through different (often regional) institution, while also creating a network of inter-state rights and obligations to that extent[45]. However, while this may be the case, it is important to recognise that it would be ultimately unfair to merely judge fragmentation as a failed tool to protect collective interest simply by virtue of its creation of diverse opinions[46]. It is far more important, in my opinion, to recognise that through institutionalisation and development of legal networks, it is easier to promote certain universal ideas through development of political mandates, as this allows for more individuals, through their governments, to be involved with the creation and development of international legal systems. Hence, moving beyond state-centric bilateralism and into more of multilateral universalisation of International Law.

Conclusion:

The arguments above point to the phenomenon that international law has now moved on from traditional bilateral views. Though it is still largely state-centric, the addition of more actors in the global political forum, International law is able to move beyond its traditional limitations and engage in a wider discourse in an attempt to further collective interests. The inability to define concrete ideas coupled with the natural impetus of each actor to further their vision, makes the operation of international law difficult. However, with more actors and the move towards multilateralism, it is now becoming clearer that certain principles within international law are being adapted. Hence, international law is not entirely consistent of bilateral inter-state rights and obligations; it now hosts more forms of rights and obligations owed and exchanged amongst its actors. Furthermore, while there is an element of respect to state consent and sovereignty, it is largely recognized that this is a feature, that is usually not a threat to the furthering of the collective interest in an institutionalized structure.

Bibliography:

1. 1969, Vienna Convention on the Law of Treaties
2. B. Simma, “International Human Rights and General International Law : A Comparative Analysis”, Collected Courses of the Academy of European Law, Vol. IV, Book 2 (1995), pp. 153
3. Barcelona Traction, Light and Power Company, Limited Second Phase, Judgment, ICJ Reports 2012, p 422
4. Cecil J. B. Hurst, The Nature of International Law and the Reason Why It Is Binding on States, Transactions of the Grotius Society, Vol. 30, Problems of Peace and War, Transactions for the Year 1944 (1944), pp. 119-127, CUP
5. Charter of the United Nations
6. Gabriella Blum, Bilateralism, Multilateralism, and the Architecture of International Law, 49 Harv. Int’l L.J. 323 (2008
7. Guzman, A. (2011). The Consent Problem in International Law. UC Berkeley: Berkeley Program in Law and Economics. Retrieved from https://escholarship.org/uc/item/04x8x174
8. Hafner, ‘Pros and Cons Ensuing from Fragmentation of International Law’ (2003-2004) 25 Michigan Journal of International Law 849–863
9. HANS J MORGENTHAU, POLITICS AMONG NATIONS: THE STRUGGLE FOR POWER AND PEACE 249-52 (2d ed. 1954)
10. I Brownlie, Principles of Public International Law (2007), 7th edn, Oxford University Press, p 510-12
11. J. Donnelly, “International Human rights: A Regime Analysis”, International Organization, 40 (1986), pp. 599
12. John R. Bolton, Should We Take Global Governance Seriously?, 1 CHI. J. INT’L L. 205, 213–14 (2000). http://www.info.dfat.gov.au/Info/Treaties/Treaties.nsf/WebView?OpenForm&Seq=12
13. M Fitzmaurice, The Practical Working of the Law of Treaties, in Malcom D. Evans (eds), International Law, 5th edition, OUP,
14. Margaret A. Young, Fragmentation, 2014, OUP, (Introduction)
15. Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America), Merits, Judgment, ICJ Reports 1984, p 392 and 424
16. MN Shaw, International Law (2017)., Cambridge University Press, p 86
17. North Sea Continental Shelf, Judgment, ICJ Reports 1969, p3 para 77
18. P Weil, Toward Relative Normativity in International Law? (1983), 77 AJIL 413
19. P. Allott, Eunomia. New Order for a New World, Oxford, New York, Oxford University Press, 1990
20. P. C. Jessup, A Modern Law of Nations, New York, Macmillan, 1949, p. 2
21. PHILIP ALLOTT, TOWARDS THE INTERNATIONAL RULE OF LAW: ESSAYS IN INTEGRATED CONSTITUTIONAL THEORY 453–63
    1. Randelzhofer, “Der normative Gehalt des Friedensbegri
22. Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, ICJ Reports 1951, p 15 at p 29.
23. Roberts A. and Sivakumaran S., ‘The Theory and Reality of the Source of International Law’ in Malcom D. Evans (eds), International Law, 5th edition, OUP, p 92-93
24. Simma, ‘Fragmentation in a Positive Light’ (2003-2004) 25 Michigan Journal of International Law 845–847
25. Simma, ‘From Bilateralism to Community Interest in International Law’ (1997) 250 Hague Recueil des cours 217
26. STATUTE OF THE INTERNATIONAL COURT OF JUSTICE
27. Swaine, ‘Treaty Reservations’ in Hollis (ed), The Oxford Guide to Treaties (OUP 2012) 277– 301

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[1] P. Allott, Eunomia. New Order for a New World, Oxford, New York, Oxford University Press, 1990

[2] Ibid

[3] Simma, ‘From Bilateralism to Community Interest in International Law’ (1997) 250 Hague Recueil des cours 217

[4] P. C. Jessup, A Modern Law of Nations, New York, Macmillan, 1949, p. 2

[5] Simma, ‘From Bilateralism to Community Interest in International Law’ (1997) 250 Hague Recueil des cours 217

[6] B. Simma, “International Human Rights and General International Law : A Comparative Analysis”, Collected Courses of the Academy of European Law, Vol. IV, Book 2 (1995), pp. 153

[7] Simma, ‘From Bilateralism to Community Interest in International Law’ (1997) 250 Hague Recueil des cours 217

[8] J. Donnelly, “International Human rights: A Regime Analysis”, International Organization, 40 (1986), pp. 599

[9] M Fitzmaurice, The Practical Working of the Law of Treaties, in Malcom D. Evans (eds), International Law, 5^th edition, OUP, p 173

[10] Gabriella Blum, Bilateralism, Multilateralism, and the Architecture

of International Law, 49 Harv. Int’l L.J. 323 (2008

[11] PHILIP ALLOTT, TOWARDS THE INTERNATIONAL RULE OF LAW: ESSAYS IN INTEGRATED

CONSTITUTIONAL THEORY 453–63

[12]  John R. Bolton, Should We Take Global Governance Seriously?, 1 CHI. J. INT’L L. 205, 213–14

(2000).

[13] http://www.info.dfat.gov.au/Info/Treaties/Treaties.nsf/WebView?OpenForm&Seq=12

[14] Article 38, STATUTE OF THE INTERNATIONAL COURT OF JUSTICE (Henceforth known as Article 38 of ICJ) provides: “1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; international custom, as evidence of a general practice accepted as law; the general principles of law recognized by civilized nations; subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.”

[15] 1969, Vienna Convention on the Law of Treaties, Article 2(1)(a)

[16] M Fitzmaurice, The Practical Working of the Law of Treaties, in Malcom D. Evans (eds), International Law, 5^th edition, OUP, p 144

[17] 1969, Vienna Convention on the Law of Treaties, Article 34

[18] Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States of America), Merits, Judgment, ICJ Reports 1984, p 392 and 424

[19] 1969, Vienna Convention on the Law of Treaties, Article 26, ‘[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith’

[20] 1969, Vienna Convention on the Law of Treaties, Article 37

[21] Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, ICJ Reports 1951, p 15 at p 29.

[22] Swaine, ‘Treaty Reservations’ in Hollis (ed), The Oxford Guide to Treaties (OUP 2012) 277– 301

[23] Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (Advisory Opinion) 1951, ICJ, Rep 15 (Reservations Case)

[24] Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (Advisory Opinion) 1951, ICJ, Rep 15 (Reservations Case)

[25] Roberts A. and Sivakumaran S., ‘The Theory and Reality of the Source of International Law’ in Malcom D. Evans (eds), International Law, 5th edition, OUP, p 92-93

[26] North Sea Continental Shelf, Judgment, ICJ Reports 1969, p3 para 77

[27] Ibid, Dissenting Opinion of Judge Tanaka, 175.

[28] Roberts A. and Sivakumaran S., ‘The Theory and Reality of the Source of International Law’ in Malcom D. Evans (eds), International Law, 5th edition, OUP, p 95

[29] North Sea Continental Shelf, Judgment, ICJ Reports 1969, p3 para 77

[30] Article 25, Charter of the United Nations

[31] Article 103, Charter of the United Nations

[32] Article 10, Charter of the United Nations

[33] Henceforth known as the UNGA

[34] MN Shaw, International Law (2017)., Cambridge University Press, p 86

[35] Supra, note 25, p226, 254

[36] A. Randelzhofer, “Der normative Gehalt des Friedensbegri

[37] Article 53, 1969 Vienna Convention on the Laws of Treaties

[38] I Brownlie, Principles of Public International Law (2007), 7^th edn, Oxford University Press, p 510-12

[39] P Weil, Toward Relative Normativity in International Law? (1983), 77 AJIL 413

[40] Barcelona Traction, Light and Power Company, Limited Second Phase, Judgment, ICJ Reports 2012, p 422

[41] Cecil J. B. Hurst, The Nature of International Law and the Reason Why It Is Binding on States, Transactions of the Grotius Society, Vol. 30, Problems of Peace and War, Transactions for the Year 1944 (1944), pp. 119-127, CUP

[42] HANS J

MORGENTHAU, POLITICS AMONG NATIONS: THE STRUGGLE FOR POWER AND PEACE 249-52 (2d ed. 1954)

[43] Guzman, A. (2011). The Consent Problem in International Law. UC Berkeley: Berkeley Program in Law and Economics. Retrieved from https://escholarship.org/uc/item/04x8x174

[44] Margaret A. Young, Fragmentation, 2014, OUP, (Introduction)

[45] Simma, ‘Fragmentation in a Positive Light’ (2003-2004) 25 Michigan Journal of International Law 845–847

[46] Hafner, ‘Pros and Cons Ensuing from Fragmentation of International Law’ (2003-2004) 25 Michigan Journal of International Law 849–863

ABOUT THE AUTHOR

Ahmed Shafquat Hassan is currently working at the Centre for Peace and Justice as a Research Assistant. His primary focus is on constitutional law and human rights protection. He was called to the bar of England and Wales in 2018 by the Honourable Society of the Inner Temple and has spent a year as a pupil barrister, working with Probir Neogi and Associates. He is an accredited Civil and Commercial Mediator with ADR-ODR International.