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PaRT II

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CHaPTeR vI

PeRSOnaLITY anD PaRTICIPaTIOn

“It is the world of words that creates the world
of things.”

Jacques Lacan, The Function and Field
of Speech and Language

in Psychoanalysis (1966) 386.

A. A Relational Process between Participants

218. In Part I we explored various difficulties with the idea of
international law, focusing on the identification of particular rules of
law — how legal rules could exist in a decentralized society of
sovereigns, how new international law rules could be made by cus-
tom and treaty and whether international law rules are sufficiently
determinate to provide guidance in particular cases.
219. next we will examine a number of questions concerned

with the premise, or assumption, that international law is a system
and not just a set of rules. after all, for all the difficulties relating
to their identification and application, no one in their right mind
would deny that there are rules of international law. For example
the rule of diplomatic precedence articulated at the Congress of
vienna in 1815 387 and now incorporated in article 14 of the vienna
Convention on Diplomatic Relations 388 is a legal rule. But interna-
tional law might only be an assortment of such rules — just like the

137

386. In J. Lacan, Ecrits : A Selection (London, Routledge Classics, 2001),
p. 72.
387. See Final act of the Congress of vienna, vienna, 19 March 1815,

annex XvII, Regulation concerning the Relative Ranks of Diplomatic agents,
extracted in “Diplomatic Intercourse and Immunities Memorandum” prepared
by the Secretariat, un doc. a/Cn.4/98, 21 February 1956, ILC Ybk 1956/II,
p. 133, p. 129.
388. vienna Convention on Diplomatic Relations, vienna, 18 april 1961 (in

force, 24 april 1964), 500 UNTS 95.

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inhabitants of a village might have a rule that you can pasture cows
on the village green in summer, and that you must wear a suit on
Sunday. Is international law only an assortment or set of rules that
happen to be generally accepted as such, but which have no other
link ? The rules I have mentioned have nothing in common except
that they are accepted in the village. Is international law like this
village ?
220. This first chapter of Part II is divided into two parts. In the

first part we investigate further the assumption that international law
is a system and not merely a miscellany of primary rules. The dis-
tinction has implications also for how legal rules may be applied.
For example, reasoning by analogy is employed in legal systems,
premised on an assumption of commonality or coherence. we must
ask to what degree such commonality or coherence exists, or can
exist, at the international level.
221. The challenge to international law’s systemic character is

that, with the rise of positivism, the making of international law is
represented as a wholly amorphous process, unconstrained by the
accepted set of natural law beliefs that the founding writers such as
Grotius and Pufendorf held and which we no longer hold in com-
mon. But I will suggest that international law is a legal system
because it is a function of a social process between States and other
persons — a key aspect of the structuring of human relations beyond
the State 389. In these and other ways, it is more than just discon-
nected rules.
222. If international law is to be assumed a system, however,

there are five difficulties that need to be addressed, and will be
addressed in the five chapters in Part II. First is the issue of partici-
pation, encapsulated in the problem of personality ; second, the dual-
ity of international law and national law, expressed in the well-
known but problematic formula of the [email protected]=6>6?E� [email protected]?4E:@??6=
(how, paid by one system, can judges loyally serve another ?) ; third,
the impossibility of multilateralism when multilateral bonds can
apparently always be reduced to disconnected bilateral relations ;
fourth, the connected concepts of proliferation, fragmentation and
purportedly self-contained regimes ; and fifth, the extent to which

138����������������������������������������������[email protected]

389. J. Crawford, “International Law as an Open System”, in J. Crawford,
�?E6C?2E:@?2=�!2H�2D�2?�$A6?�(JDE6>���(6=64E65��DD2JD (London, Cameron May,
2002), preface, p. 13.

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of the Genocide Convention implied “that it was the intention of the
General assembly and of the States which adopted it that as many
States as possible should participate” and that the complete exclu-
sion of some States “would detract from the authority of the moral
and humanitarian principles which are its basis” 632. Despite this, it is
clear that, in the Court’s view, at a certain point it was a question for
objective determination whether a particular reservation could be
made — whether it was consistent with the object and purpose of the
treaty — and what consequences that would have for the reserving
State. The rule illustrates how multilateral concepts and regimes
have been overlaid on the bilateral foundations of traditional interna-
tional law.
324. against the majority view permitting reservations, it could

be argued — as the EC2G2FI� [email protected]:C6D� indicated — that the
Genocide Convention dealt “with the preservation of an element of
international order” and therefore that reservations of a general
scope, at least, had no place in it 633. Judge alvarez, in dissent,
described such treaties, “reflecting the new orientation of the legal
conscience of the nations”, as “almost real international laws” to
which reservations could not be made 634. Considerations such
as these influenced countervailing attempts to introduce special
categories of multilateral norms into international law.

��� (A64:2=��[email protected]:6D�@7�"F=E:=2E6C2=�#@C>D

325. These attempts have challenged the traditional view that
there can be only contingent multilateral obligations. One of them,
the notion of international crimes of State, was considered but ulti-
mately not adopted in the articles on the Responsibility of States for
Internationally wrongful acts 635. But two other categories are
now firmly established : first, obligations owed to the international
community as a whole (also called obligations 6C82�@>?6D or com-

194����������������������������������������������[email protected]

632. ����’[email protected]� �
, p. 24.
633. Draft Convention on the Crime of Genocide, 26 June 1947, cited in

’6D6CG2E:@?D�[email protected]�E96��@?G6?E:@?�@?�E96�%C6G6?E:@?�2?5�%F?:D9>6?E�@7�E96��C:>6
@7��[email protected]:56, @A��4:E�, p. 40 (Judges Guerrero, Sir arnold Mcnair, Read and Hsu
Mo, joint diss. op.).
634. ’6D6CG2E:@?D�[email protected]�E96��@?G6?E:@?�@?�E96�%C6G6?E:@?�2?5�%F?:D9>6?E�@7�E96

�C:>6�@7��[email protected]:56, @A��4:E�, p. 51.
635. See J. Crawford, (E2E6� ’[email protected]?D:3:=:EJ��� )96� �6?6C2=� %2CE� (Cambridge,

CuP, 2013), excursus to Chap. 11.

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munitarian norms) ; and secondly, peremptory (or ;FD�[email protected]?D) norms.
Some have criticized these categories for producing an ill-digested
mass of “relative normativity” 636. Certainly, they remain poorly
articulated, and the differences and relationships between communi-
tarian and peremptory norms are unclear. But if these categories
mean anything at all, they involve the introduction of decidedly
multilateral elements that are not restrained by such contingencies
as requiring States to become parties to integral multilateral treaties.
They appear to operate hierarchically, or “vertically”, in contrast to
the apparent flatness of traditional sources of international law,
which seem to create only “horizontal” and bilateral relationships
between States.
326. The differentiation of these new categories occurred later

than the emergence of multilateral treaties and the recognition of the
objective personality of international organizations. unlike those
other developments, it occurred largely outside the realm of State
practice — through actions and reactions by the International Court
and the ILC and, to a lesser extent, scholars.
327. at the time the ILC was finalizing the text of the vCLT, in

the mid-1960s, there was a great struggle in the Court over the pro-
ceedings brought by ethiopia and Liberia claiming breaches of
South africa’s League of nations mandate for South west africa
(now namibia). In 1962, the Court upheld jurisdiction 8 to 7, but in
1966 it effectively reversed itself on the casting vote of the then
President, Sir Percy Spender 637. It held that the principle of “sacred
trust” had no residual juridical content that could give rise to legal
rights and obligations “outside the system as a whole” concerning a
particular mandate :

“Once the expression to be given to an idea has been
accepted in the form of a particular régime or system, its legal
incidents are those of the régime or system. It is not permis-
sible to import new ones by a process of appeal to the originat-

��������������������6?6C2=��@FCD6�@?�%F3=:4��?E6C?2E:@?2=�!2H 195

636. P. weil, “Towards Relative normativity in International Law ?” (1983)
77 ���! 413-442.
637. (@FE9�,6DE� �7C:42� �!:36C:2� v. (@FE9� �7C:42��� �E9:@A:2� v. (@FE9� �7C:42��

([email protected]?5�%92D6�� �F58>6?E�� ����’[email protected]� ���. For discussion of the controversy
that followed see, e.g., S. Bastid, “L’affaire du Sud-Ouest africain devant
la Cour internationale de Justice” (1967) 3 �@FC?2=� 5F� [email protected]:E� :?E6C?2E:@?2= ;
J. Dugard (ed.), )96�(@FE9�,6DE��7C:42�#2>:3:2��:DAFE6�(Berkeley, university of
California Press, 1973).

Page 115

have a different character to reservations in general international
law, where objections, among other things, can render purported
reservations inoperable against the objecting State 881.
438. One advantage of the International Court in promoting uni-

versality is that in its contentious jurisdiction it is required to work
from the particular to the general. It approaches claims between
neighbouring States against the background of such “universal” prin-
ciples as sovereignty, territoriality and consent. at least in cases
commenced by special agreement, it also has the advantage that the
decision to refer the matter to it usually entails that the outcome is to
be determinative.
439. These advantages are not shared by other institutions that

shape international law, such as the ILC in its “pre-legislative” acti-
vity. nonetheless, the ILC’s texts are likely to be acceptable to States
only if they can be presented in as general terms as possible. This
can be seen from its past successes and failures. The vienna
Convention on Succession of States in Respect of State Property,
archives and Debts of 1983, for example, has been ratified by only
a handful of States 882. This is partly the result of its focus on the
category of “newly independent states” — former colonies, a group
that is now largely a matter of history — and the controversial diver-
gences between its treatment of States within that category and other
categories of successor States, which are not generally accepted as
custom 883. More successful was the ILC’s codification of treaty
rules, which culminated in the vienna Convention on the Law of

��������������������6?6C2=��@FCD6�@?�%F3=:4��?E6C?2E:@?2=�!2H 251

Rights Committee Comm. no. 845/1999. See Human Rights Committee,
�6?6C2=��@>>6?E�#@��
����’6D6CG2E:@?D� [email protected]� E96��?E6C?2E:@?2=��@G6?2?E�@?��:G:=
2?5� %@=:E:42=� ’:89ED, un doc. CCPR/C/21/Rev.1/add.6, 4 november 1994,
para. 11. For criticism see ILC Special Rapporteur (a. Pellet), Second Report on
Reservations to Treaties, un doc. a/Cn.4/477 & add.1, 10 May and 13 June
1996, pp. 71-87. See generally R. Goodman, “Human Rights Treaties, Invalid
Reservations and State Consent” (2002) 96 ���! 531-560.
881. vCLT, @A��4:E�, art. 21 (3). For analysis of current perspectives see ILC,

Report of the International Law Commission Sixty-third Session (26 april-
3 June and 4 July-12 august 2011), Guide to Practice on Reservations to
Treaties with Commentaries, un doc. a/66/10/add.1.
882. vienna, 8 april 1983, un doc. a/COnF.117/14. Only seven States have

ratified the treaty : Croatia, estonia, Georgia, Liberia, Slovenia, Macedonia and
ukraine.
883. See, e.g., I. Sinclair, )96� �?E6C?2E:@?2=� !2H� �@>>:DD:@? (Cambridge,

Grotius, 1987), p. 79 ; M. Shaw, �?E6C?2E:@?2=� !2H (Cambridge, CuP, 6th ed.,
2008), p. 986 ; J. Crawford, “The Contribution of Professor D. P. O’Connell to
the Discipline of International Law” (1980) 50 �.�! ; cf. J. Crawford, “State
Succession and Relations with Federal States : Remarks” (1992) 86 �(�!
%[email protected]:?8D 15.

Page 116

Treaties. although it has a reasonably high level of membership,
with 113 States parties, particular aspects of the Convention are
widely held to represent custom, even by non-parties, and have been
applied by them and the International Court as such. Similarly, one
of the best-known moves made by the ILC, masterminded by special
rapporteur Robert ago, was the elevation of its work on State
responsibility to a higher level of generality — from “primary” to
“secondary” rules 884. This contributed both to the successful conclu-
sion of the project and to the widespread acceptance of the result, the
articles on the Responsibility of States for Internationally wrongful
acts of 2001 885.
440. So we are left with a sense that the key institutions that

shape international law, including the ILC, other organs of the
united nations and the International Court, continue to nudge inter-
national law in the direction of universality. However, it is because
of the process of international law that it offers us not “infinite
variety” 886, but flexibility, even if within established parameters, to
employ regional instruments and mechanisms where necessary but
in due course to express or accommodate these in general terms.
These are steps in what seems to be an enduring movement towards
universality.

252����������������������������������������������[email protected]

884. See ILC .3< 1973/II, pp. 169-170 ; ILC .3< 1974/I, p. 5.
885. ILC .3<� 2001/II (2), p. 26. See further J. Crawford, a. Pellet and

S. Olleson (eds.), )96�!2H�@7��?E6C?2E:@?2=�’[email protected]?D:3:=:EJ (Oxford, OuP, 2010) ;
J. Crawford, (E2E6�’[email protected]?D:3:=:EJ���)96��6?6C2=�%2CE�(Cambridge, CuP, 2013).
886. R. R. Baxter, “International Law in ‘Her Infinite variety’ ” (1980) 29

��!& 549.

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