Kapok Tree Diplomacy

(C) Kapok Tree Diplomacy. 2011. All rights reserved. Jeff Dwiggins. FREE CONTENT

In answering this question, I must first appeal to the American Law Institute’s “Restatement of the Law, Third, Foreign Relations Law of the United States.” In Section 101 it defines international law as follows: “international law consists of rules and principles of general application dealing with the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical.”

Section 102 of this document refers to the sources as “customary law,” “international agreement,” and “derivation from general principles common to the major legal systems of the world.” Section 103 refers to the evidence of international law being “judgments and opinions of international judicial and arbitral tribunals;” “judgments and opinions of national judicial tribunals;” “the writings of scholars;” and “pronouncements by states that undertake to state a rule of international law, when such pronouncements are not seriously challenged by other states.”

Thus, to answer the question of whether international law is law, one must look at its rules and principles inherent in its definition, its sources, and its evidence to make a determination as to its strength, validity, coherence and legitimacy. I would submit that the whole point of law is to bring about justice as a vehicle for truth and liberty. Does international law result in justice? Do its sources and evidences comport with truth and equality?

Heinrich Rommen writes, “[Justice] finds expression in the natural law and in the positive law. The latter originates in the will of the lawmaker or in an act of an assembly; the natural law has its source in the essence of the just, in nature. That which is naturally right is therefore unalterable … Statute or positive law varies with every people and at different times … The natural law has to be realized in the positive law since the latter is the application of the universal idea of justice to the motley manifold of life” (“Chapter One”). Thus, Rommen illustrates that we all live under immutable natural law not formulated by men. But we also need positive laws that facilitate justice. Does international law reflect that reality?

Rommen continues, “For this reason the natural law, however imperfect may be its realization in the positive law, always retains its binding force. Natural law, i.e., the idea and purpose of law as such, has to be realized in every legal system. The natural law is thus the meaning of the positive law, its purpose and its ethically grounded norm” (“Chapter One”). Therefore, as long as international law presents an accurate derivation or determination of natural law, then it does in fact represent true and just law.

The rules and principles of international law, however, depend heavily upon consent of the nations affected. These rules and principles may change over time, as custom and practice often does. As to the judgements and opinions of tribunals, scholars and pronouncements by states, these may result in conflicting and confusing conclusions as evidenced by the many different methods for applying international law.

Secondly, as Bolton points out, the promulgation of international law lacks a constitutional framework, central authority and democratically sovereign apparatus for compliance, creation, enforcement or interpretation of law (D’Amato & Abbassi 24). There cannot possibly be a uniform, coherent framework and foundation that legally and politically binds “global citizens” in unanimous consent. This evidenced by the hundreds, if not thousands, of reservations filed by states to various international treaties and agreements even on things like human rights that would seem to have universal appeal, and which subsequently water down the original intent of the treaty and the international law underpinning it. International law should not trample upon individual or state liberty.

Without inherently democratic and sovereign control over the lawmaking apparatus and a coherent, structural framework embodied in legitimate constitutional authority, international law deconstructs into moral and political obligations and agreements that do not always have a relevant, firm and legitimate legal component to them. The rulings of international law can sometimes be useful, resolve disputes, help interpret treatives, and help nations cooperate on issues pertaining to globalization, technology, the environment, humanitarian issues, deregulation and health issues. But these rules and principles may often reflect arbitrary decision-making, inconsistency, a lack of legitimate authority, and violations of natural law rooted in truth and justice. When they do so, these rulings should not carry the same weight as national laws and not be considered as legally binding.