Pau Duman’s Notes
II. Overview of the Process of
International Law
Policy Science and Contemporary
International Law
Classical Theories: Natural Law and Positivism
"Classical" theories of international law
generally fall into one of two categories. The
first, which is Natural Law, is based on the
premise that there are certain normative
principles or postulates that are true or "self-
evident" and which exist independently of their
codification or enforcement by human beings.
Natural law theories build upon the Aristotelian
scholasticism espoused by medieval and
renaissance Roman Catholic legal scholars.
The other major category is Positivism, which
holds that norms are valid only insofar as they
have been created according to a definite and
discernible rule. All norms can be traced back
to an "ultimate rule", "...according to which the
norms of this order are established and
annulled, receive or lose their validity."
Positivists arrange all norms hierarchically in
their relation to the "ultimate rule." For
positivists, law is independent of morality. Its
principle proponents have derived their
inspiration from influential Protestant
philosophers of the enlightenment, including
Vattel, Kant and Hegel, and during the 20th
century, legal scholars such as Kelsen,
Dworkin, and Hart.
Positivism has had a major impact on the
development of the current state-centric
system of international law and its supporting
legal structures. In particular, positivism has
promoted the dominant view that international
law consists only of "subjects" (nation-states)
and "objects" (everything else), and that
objects can be subjects of international law
only pursuant to some enabling rule. The
dichotomy between nation states and
everything else, which will be discussed further
below, has constrained the ability of
international law and law making processes to
accommodate input from a wider group of
participants. It has likewise circumscribed the
responsivity of existing legal structures to a
diversity of interests that often arise and
operate independently of nation-states and the
governments that regulate and serve them.
Policy Science
An alternative perspective for understanding
the nature of law and the processes by which
norms and laws are created and amended has
developed out of the writings of Lasswell,
McDougal, Reisman and others during the past
40 years at Yale University. This approach,
known as "policy science," perceives law as a
"process of making decisions in conformity with
the expectations of appropriateness of those
who are politically relevant, more concisely, a
process of authoritative decision."
Policy scientists aspire to make law and
jurisprudence more relevant to contemporary
politico- economic realities. Unlike Natural Law
or Positivism, policy science does not rely upon
theological or other abstract sources such as
an "ultimate rule" for its validity. Instead, it
criticizes Positivism's "disastrous neglect of
how rules are made, as well as of other
important aspects of the comprehensive
process of authoritative decision." Likewise, it
finds Natural Law theories deficient in failing to
relate decisions to the events "...in social
process to which they are a response and, in
turn effect."
In stark contrast with Natural Law and Positivist
legal theories, Policy Science discovers
authority in the "perspectives of living
community members- their demands for
values, their identifications with others , and
their expectations about the requirements of
decision for securing their demanded values in
all their communities..." This understanding of
"law as a process" for decision-making has
influenced the writings of leading legal scholars
including Judge Rosalyn Higgins of the
International Court of Justice ("ICJ"). Leading
policy scientists, such McDougal and Lasswell,
and Higgins, also assert that there are no neat
distinctions between international law and
national law (known too as "domestic" or
"municipal" law).
In seeking to understand law as a product of a
normative system reflecting social values in an
ongoing process of decision-making, policy
science provides a methodological basis for
identifying and appraising existing and
emerging standards, including those related to
the environment, human rights and economic
development. Policy Science is particularly
useful for identifying and evaluating new
trends in international law such as the
appearance of guidelines, recommendations
and other "non-enforceable" texts. This so-
called "soft law" often plays a significant role in
the development of contemporary international
law and in strategic efforts to amend it. For
example, policy science assists in identifying
and analyzing non-state actors and their
increasing impacts on the development and
implementation of international legal norms
and instruments.
"Objects and Subjects" or "Participants"
International law and the institutions created to
administer it are largely the products of
classical statist theories. Contemporary
international society, however, is not
comprised exclusively of nation states. A wide
range of non-state actors or non-state
personalities are increasingly important and
effective participants in the international
system. These non-state international actors
include not only international organizations,
some of which have now been accorded many
of the rights and privileges of states under
international law, but also individuals, non-
governmental organizations, indigenous
peoples and other local communities, research
institutions, technology experts, natural and
social scientists, transnational business
enterprises, and other groups interested in
and/or advocating on behalf of various issues
and constituencies. This reality was
acknowledged in Agenda 21, which recognized
that the achievement of sustainable
development requires the participation of a
spectrum of players. That text identified nine
major categories of non-state actors as
fundamental for this process.
The Classical Statist Approach
The "classical" view of international law, a view
wherein states are the only recognized
subjects, arguably still predominates. It is
reflected in the writings of important publicists
such as Brownlie and Bowett. One of the early
proponents of this view was the 18th century
Swiss legal theorist Vattel who in his The Law
of Nations espoused the idea of a separate
body of law concerned exclusively with nation-
states. Accordingly, states are the legitimate
subjects of international law. Out of this
approach developed the notion that everything
else is considered an "object" of international
law. Because states are the only players in this
paradigm, only states can create and employ
international law. Individuals and or other non-
state actors which suffer harm from another
state or the citizens of the other state must
rely upon their own state to employ
international law on their behalf.
The classical view is deeply embedded among
the dominant political and economic attitudes
of those who head nation-states, and in the
international legal structures and institutions
which they have created and maintained. It is
premised on ideas regarding the "sovereign
equality of states," a duty of non-intervention
on the part of states in the internal affairs of
other states, and state consent to international
obligations. It effectively excludes the direct
and official participation of other types of
actors with expertise and concerns that can
help make the international system more
broad- based, democratic, fair, and responsive
to concerns arising outside of the official
purview of nation states and national
governments. For example, the classical view
would deny indigenous and other tribal
societies an official forum for seeking redress
even when their respective national
governments refuse to recognize their legal
rights to natural resources such as tropical
forests which they may have occupied for
many generations and continue to utilize for
their survival. The rationale for this denial is
that these communities do not qualify under
the law of nations as "states."
It is increasingly obvious that global society is
not the exclusive domain of nation states.
Since the end of the Second World War,
international organizations namely, the organs
of the United Nations system, as well as
regional political and economic entities such as
the Organization of American States ("OAS"),
the European Communities (now "European
Union") and military/security bodies such as
NATO ("North Atlantic Treaty Organization")
have emerged as supra-national personalities
on the international plane.
International organizations, in particular the
multilateral financial development institutions,
as well as transnational commercial
enterprises, religious movements, and non-
governmental organizations ("NGOs") also play
a major role in shaping international society
and the attitudes and behaviors of states. For
example, much global economic activity, and
many resulting environmental and human
rights controversies involve transnational
commercial enterprises, both legal and illegal,
which have a major impact on global stability
and security. Additionally, as stressed in
Agenda 21, other non- state personalities are
increasingly acknowledged as having an
important role to play in facilitating
international legal and political objectives.
Still, the classical "state-centric" view endures
and continues to predominate. The only parties
which are recognized for purposes of bringing
an action before the International Court of
Justice are nation states. Also, all members of
the United Nations Organization must be nation
states. Furthermore, according to the classical
view, although a state may owe a duty to its
own citizens and those of neighboring states
which may be harmed by its activities,
arguably it does not yet formally owe any duty
to international society as a whole. Such a
viewpoint imposes serious handicaps on efforts
to create legal incentives for promoting the
sustainable management of natural resources.
Challenges to the "Classical" Approach
Prevailing notions of international law also
appear ill-suited to finding adequate solutions
for the myriad problems that are transnational
in scope. Among these are global warming,
ozone depletion, over-fishing, deforestation,
marine pollution, narcotics and contraband
armaments traffic, illegal trade in endangered
species of flora and fauna, and unregulated
financial transfers. These phenomena exceed
the capacities of any individual state or even
any bloc of states to control effectively. The
current seemingly futile attempts by the United
States and the European Union to control
cross-border drugs-trafficking provide telling
examples. The Chernobyl nuclear power plant
accident in 1986 is an example in which no
states brought legal actions against the Soviet
Union or a successor state for damages
wrought by nuclear contamination. Counsel P.
Sands lamented that states have failed to
exercise any supposed "right of guardianship"
which they may claim over the global
environment.
There are alternative viewpoints to the
perspective that only nation states are subjects
in international law. Thomas Aquinas and the
influential 16th century Dominican theologian
de Vitoria acknowledged that non-state entities
such as indigenous peoples were not mere
objects, but possessed rights independent of
European monarchies. For reasons of economic
and political expediency, however, this view
was not acceptable to the majority of state
governments interested in acquiring colonial
territories or to legal writers who recognized
only foreign entities with the characteristics of
European states as legitimate participants in
international law and the international system.
Instead much of the world, including areas
inhabited by peoples not "permanently united
for political action [from a European-western
perspective]..." were considered to be
territorium nullius. This view was partially
eroded in international jurisprudence in the
1975 Western Sahara Case where the ICJ noted
that at the time of its occupation by Spain in
the 19th century, the region now known as the
Western Sahara was inhabited by peoples who,
although "...nomadic, were socially and
politically organized in tribes and under chiefs
competent to represent them..."
In the light of Western Sahara, W.M. Reisman
has called attention to serious limitations on
the aptitude of the ICJ to come to terms with
the deeper implications of views held by
indigenous and other non-western, non-statist
approaches to self-determination and legal
legitimacy. According to Reisman
"[Judges of the International Court of
Justice]...have often said some of the politically
correct things, but the Court has carefully
avoided giving any meaningful effect to
territorial claims based on indigenous theories
of law..."
Increased demands -- and increased success --
by indigenous peoples advocating for rights to
self- determination, including the right to be
recognized as distinct autonomous actors in
international law, are reflected in international
instruments such as the Convention on
Biological Diversity, and Agenda 21 as well as
in documents expressly concerning their
interests, namely the 1994 Draft United
Nations Declaration on the Rights of Indigenous
Peoples, and the Inter-American Commission
on Human Rights draft Declaration on the
Rights of Indigenous Peoples. The struggle of
indigenous peoples and other minorities for
recognition of their rights and interests,
includes acknowledgement of their right to
self-determination. These documents reflect an
awareness by human rights advocates that
securing the rights of indigenous communities
includes protection of their cultural values and
knowledge, and in particular local knowledge
related to biodiversity conservation and
sustainable use. For example, the 1994 U.N.
Draft Declaration on Indigenous Peoples states
that
"Indigenous peoples have the right...to their
traditional medicines and health practices,
including the right to the protection of vital
medicinal plants, animals and minerals [Art.
24]...[and] ... to special measures to control,
develop and protect their sciences,
technologies and cultural manifestations,
including human and other genetic resources,
seeds, medicines, knowledge of the properties
of fauna and flora, oral traditions, literature,
designs and visual and performing arts [Art
29].
The emergence of international institutions,
including the United Nations Organization and
its political organs such as the FAO, UNESCO,
UNDP, UNEP, ILO, and UNICEF, and the
multilateral development institutions of the
Bretton Woods system, constitute another
major inroad into the classical approach to
international law, including still prevailing
notions about subjects and objects. The
political organs of the United Nations, for
example, have recognized international legal
personalities, i.e, are deemed to be subjects,
and the laws which govern their operations are
part of the corpus of international law.
Organizations such as UNEP and the ILO have
also played a major role in developing treaties
and other international legal instruments.
Through its Regional Seas Programme, UNEP
has facilitated the creation of several important
environmental protection conventions for
protecting marine bodies of water. The ILO is
responsible for the drafting of two major
international conventions concerning the rights
and interests of indigenous and tribal peoples.
See 328 UNTS 247.
NGOs too are playing an increasingly
significant role in the development of
international law. International NGOs have
been characterized as "actual international
actors" based on their transnational focus and
membership. Some NGOs, such as IUCN and
WWF, have participated in drafting recent
international conventions, including the
Convention on Biological Diversity. IUCN also
has drafted a proposed International Covenant
on Environment and Development, which is
intended to be "a major effort at the
progressive development of international
environmental law." This IUCN draft document
incorporates a diverse body of international
norms concerning environmental protection,
human rights, and economic development for
facilitating sustainable development. It thereby
is contributing to the establishment of
equitable and locally appropriate legal
incentives for realizing sustainable
development. The position of the majority of G-
77 countries in the Request for an Advisory
Opinion from the ICJ in 1995 on the legality of
the use of nuclear weapons, was prepared and
guided largely by the "World Court Project", an
NGO umbrella organization. In that opinion,
NGOs substantially influenced the arguments
and subject matter before the Court, even
though the ICJ's Statute does not recognize
their existence as parties to cases.
Higgins and others have even gone so far as to
argue that individuals are international actors
as well, and that existing international legal
structures must be reevaluated in order to
accommodate this reality. In Higgins' opinion
"...[I]nternational law is not only ‘rules';
moreover, its norms are not fixed indefinitely
and are thus wholly responsive to the needs of
the system...[T]he notion of ‘subjects' and
‘objects' has no credible reality and ...no
functional purpose...It is more helpful, and
closer to perceived reality , to return to the
view of international law as a particular
decision-making process. Within that process
(which is a dynamic and not a static one) there
are a variety of participants, making claims
across state lines, with the object of
maximizing various values...[I]n this model,
there are no ‘subjects' and ‘objects', but only
participants. Individuals are participants, along
with states, international
organizations...multinational corporations, and
indeed non-governmental groups."
Higgins' theoretical and practical justifications
are especially relevant in the context of
international adjudication. As previously noted,
states are the only entities recognized to
appear as Parties before the ICJ. The
arguments of recognized state parties to a
controversy, however, may not reflect the "full
range of issues" arising from a dispute. This
may particularly be the case where a
controversy involves the rights and interests of
minority and/or marginalized constituencies
that maintain positions at variance with those
of the nation states where they are located.
Non-state actors often also have important
additional information that should be
considered when disputes are being addressed,
yet they are not authorized to intervene in
proceedings. Their exclusion can inhibit
realistic and effective resolution of complex
controversies such as those where
environmental, economic and human rights
interests clash.
The Emerging Order
An alternative perspective is emerging that
reflects contemporary international realities
more accurately. It calls for recognition of non-
state entities as legitimate participants in
international law and policy making. This new
perspective on international law as a process
requiring the input of a variety of participants
is particularly useful for the ECO, which will be
called upon to address the disputes of a broad
range of actors, both governmental and non-
governmental. Nevertheless, non- state actors
still suffer under a "procedural disability" in
protecting their rights and interests and in
contributing to the development of the
international legal order. Allott contends that
current structures are impediments to the
progressive development of an international
legal system, what he refers to as the
"international public realm."
Hard Law vs. Soft Law
Positivist approaches to law generally define a
norm as a law if its breach is followed by some
sanction or other means of enforcement. The
generally accepted categories of international
law are treaties, "general principles of law",
and customary international law. Article 38 (1)
of the Statute of the International Court of
Justice identifies the above three categories as
sources of international law and also adds
"...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."
Treaties and other conventions are obligatory
upon the states signing them. By their nature,
they are intended to be agreements governing
the legal relations between the signatories, and
in theory Parties can enforce their non-
compliance through arbitration, an action
before the International Court of Justice or
other institutionalized dispute resolution
mechanisms.
During the last 40 years, a new range of
international commitments has developed and
has been confirmed by a range of instruments
that do not fall into the traditional categories of
"treaty" or "custom" or "general principles."
The legal status of these instruments, which
are often referred to as "soft law," has been a
major subject of discussion among legal
scholars. Dupuy has fittingly described soft law
as "...either not yet or not only law." The
instruments include declarations, codes of
conduct, guidelines and other promulgations of
the political organs of the United Nations
system, operational directives of the
multilateral development institutions, and
resolutions and other statements by non-
governmental organizations. Although they do
not possess the strict characteristic of
recognized enforceability as commonly
understood for law, depending on the
circumstances, they may possess significant
normative weight.
Additionally, there has appeared a host of non-
judicial dispute resolution mechanisms outside
the scope of institutionalized court structures.
Examples of this include the GATT panel
dispute resolution procedure which has
developed a body of its own case law, and the
recently formed World Bank Inspection Panel.
Many "soft law" instruments are the product of
international meetings organized under the
auspices of international organizations, such as
the United Nations Conference on Environment
and Development, Rio de Janeiro ("UNCED") in
1992, the World Conference on Human Rights
in Vienna in 1993, the World Summit for Social
Development in Copenhagen in 1995, and the
Fourth World Conference on Women in Beijing
in 1995. These meetings typically conclude
with the issuance of instruments entitled
"declaration", "programme of action", or
"platform for action." The instruments are the
product of long and often contentious
negotiations, and are perhaps the most
important work products of conferences
attended by representatives of almost all
nations of the world. They are not drafted in
the form of legally enforceable instruments,
however, and can best be understood as
political pronouncements; that at least to some
degree represent official decisions of the states
which drafted and signed them.
They also may record the content of existing
customary international law on particular
matters, such as the international legal
principle articulated in Principle 21 of the
Stockholm Declaration. As such, although they
are not "hard law," they evince official
governmental positions on particular issues,
may articulate the substance of existing legal
norms and/or create expectations for the future
development of international law in the areas
being addressed. Often they are at the
beginning of a continuum emphasizing
increasingly higher degrees of normative
specificity that eventually may culminate in
conventional binding treaty obligations.
"Soft law" documents, including some U.N.
General Assembly resolutions, also provide
evidence of the legal practice of nation states.
Soft law documents espousing sustainable
development include the Rio Declaration, and
the UNCED Statement of Forest Principles. At
present, much international treaty law is the
result of a process that leads to the
development of standards of behavior for
nation states and which generates
expectations regarding future behavior. This
process, which covers a wide spectrum of
norms from aspirational statements to rules
and principles contained in draft conventions,
constitutes "soft law". Kratochwil provides a
useful definition of the normative materials
encompassed by "soft law."
"[I]t... represents a weak institutionalization of
the norm-creation process by prodding the
parties to seek more specific law-solutions
within the space laid out in the declarations of
intent...[B]y legitimizing conduct which might
diverge from the existing practices, soft law
provides an alternative which can become
legally relevant crystallization for newly
emerging customs or more explicit norms."
In contemporary international environmental
law as well as human rights law, there appears
to be a blurring between "soft" law and formal
"hard" law legal sources. This may be a
characteristic of international law regarding
environmental and human rights issues or a
general trend emerging in international law.
Current state practice manifests this tendency
in the context of issues concerning
environmental protection. For example, in its
pleadings before the ICJ in Nuclear Tests 1995,
the Government of New Zealand referred in its
argument on customary international law,
without drawing distinctions regarding the
enforceability or normative status of any of the
instruments, to the Rio Declaration, a World
Bank Operational Directive of 1989, UNEP draft
principles of conduct, as well as formal binding
treaties such as the Convention on Biological
Diversity and the Noumea Convention.
Although an individual declaration or resolution
may not be sufficient to constitute state
practice, in the light of the above discussion, it
should be clear that the normative expressions
contained in soft law materials establish
international norms and provide persuasive
evidence of state practice. Additionally, "soft
law" statements such as the Forest
Stewardship Council Principles and Criteria for
Natural Forest Management, the Baguio
Declaration, and the Charter of the Indigenous-
Tribal Peoples of the Tropical Forests, are
normative statements that express the beliefs,
aspirations and commitments of constituencies
directly dependent on important environmental
resources and their allies. Although these
documents are not "law" at present, they
testify to the increased presence of non-state
participants in the international arena, and to
the success of non-state actors in promoting
new legal standards which represent their
views and values.
Distinctions Between Rules, Principles
and Rights
The above discussion has sought to describe
the current parameters of international law and
law- making processes. It is expected that the
ECO will rely upon both "hard" and "soft" law
materials in making its determinations. It is
furthermore presumed that the ECO will utilize
other normative standards which may not
constitute "law", but which nevertheless will
guide the ECO's investigatory and decision-
making activities. This section briefly outlines
aspects of the normative order that merit
consideration. It relies on the policy science
perspective, but also employs useful views
from other perspectives.
A dictionary definition of a "norm" is "a
standard model or pattern regarded as
typical". Kratochwil characterizes norms as
"guidance devices" and means which allow
actors to "pursue goals, share meanings,
communicate, criticize assertions and justify
actions." Kratochwil's paradigm further
conceptualizes norms as devices for finding
solutions to problems by regulating both
conflict and cooperation. The normative order
according to Kratochwil suggests a spectrum
extending from morality to traditional "hard"
law. Within this scheme are values, principles
and rights.
To achieve its ordering function, a normative
order must be accepted as binding. Not all
elements of the normative order, however, are
necessarily binding; only the core element --
the rules of law -- is normally considered as
binding. Non-binding elements are made up of
political rules, rules of morality, usage or some
other kind of rules of conduct. Values are
normative components that "inform the
attitudes of actors" and in this sense, from a
policy science perspective, values impact
significantly on the shaping of law and policy.
Values have a major role in influencing the
development of principles and in the
recognition of rights, but they too may not
necessarily be binding.
Rights have been defined as interests that are
recognized by law and judicially protected. This
definition, however, does not give due
recognition to rights whose origin is not law.
Philosophers in both common law and civil law
traditions distinguish between moral and legal
rights. Positivists hold that legal rights, by
definition, derive from the legal system, that is,
the Constitution, legislative enactments, case
law, executive orders and other legal texts. The
legal rules derived from these sources
constitute standards by which to judge official
practice.
Rights are always associated with a duty or
obligation. If a person has a right, he/she has
an interest that is sufficient grounds for holding
another subject to a duty. Rights also suppose
a correlative obligation on the part of some
person or other legal entity. It is a basic legal
maxim that each right is accompanied by a
corresponding duty, although typically the right
and the duty are held by different persons or
entities.
This does not mean that a right being claimed
does not exist unless the holder of the duty is
clearly defined; rather it merely highlights the
importance of ensuring that there is an
effective remedy for preventing any violation
of the right and for ensuring recognition of it.
Inadequacies in the legal arrangements for
providing remedies do not remove the right
itself, as the presence or other possibility of
recourse to third party judicial procedures is
not the test of whether the right exists or not.
In international law, if not in municipal law, the
existence of a legal right is tested by reference
to the sources of law, rather than by the
presence of efficacious judicial remedies.
Indeed, in the international legal arena,
enforcement of rights is often problematic.
Human rights are an example of rights whose
origin and existence are not perceived as
contingent on explicit recognition in a positivist
legal system. Human rights are considered as
rights held simply by virtue of being a human
being. They are part and parcel of the integrity
and dignity of the individual. They are thus
rights that cannot be given or withdrawn at will
by any legal system. And although they are
most effectively implemented through a legal
system, the system is not the source of the
right.
The concept of rights, meanwhile, differs from
the concept of principles, although both are
useful for problem solving. The rights discussed
above, the human rights such as the right to
development, can be properly seen as
"entitlements" or "claims" imposing obligations
on others. Principles, however, possess
different normative characteristics and serve a
different function. As suggested by Dworkin in
Taking Rights Seriously, principles are
standards that are adhered to, on the basis of
justice, fairness or other moral dimension. They
do not demand a particular outcome, but are
important factors to be taken into
consideration when decision-making occurs.
Using Dworkin's definition, legal principles are
distinguishable from legal rules in that they do
not mandate a specific decision. A principle,
however, must be taken into consideration
whenever it is relevant. Rules, by contrast,
which Dworkin equated with law, must be
observed. The failure to observe a rule can
result automatically in legal consequences,
including sanctions. "Rules" may form the core
of legal rights but they are supported,
elaborated and backed up by the whole
normative order going beyond rules to include
policies, principles and goals.
Rules, principles, and rights all are normative
in nature and serve a social ordering function.
Where rules (law) differ from the other
normative elements is in the methods invoked
to fulfil its function. Non-compliance with rules
can result in sanctions that will help ensure
future compliance in given situations. Most of
the time rules formalizes other aspects of the
normative order, like policy, and make them
binding.
For positivists, the non-law elements of the
normative order are "soft law." But even most
positivits acknowledge that soft law can have
substantial legal effects, particularly in
practice. Indeed, in international law, soft law
sometimes plays a more prominent role than in
municipal (state) legal systems, and its role is
likely to continue to grow in the future.