Sunday, August 21, 2005

International Law: What it is.

Ask a question, get an answer.

Two days ago, I quoted Joseph S. Nye's Understanding International Conflicts: An Introduction to Theory and History to answer my question of what international law is:

Public international law . . . consists of treaties, which are agreements among states, and customs, which are the generally accepted practices of states. (163)

Then, I remembered Wikipedia. Here's what it says on the sources of International Law:

International law has three primary sources: international treaties, custom, and general principles of law.

This statement lists one source more than Nye does: general principles of law. But what are "general principles of law"?

General principles of law are those commonly recognized by the major legal systems of the world. Certain norms of international law achieve the binding force of peremptory norms (jus cogens) as to include all states with no permissible derogations. Legal principles common to major legal systems may also be invoked to supplement international law when necessary.

The word "derogate" means "to take away a part so as to impair" and is probably being used here in its strictly etymological sense:

from Late Latin derogatus, past participle of derogare, from Latin, to annul (a law), detract, from de- + rogare to ask, propose (a law)

But what would be examples of such peremptory norms, standards of such overriding authority as to preclude annulment? Again, Wikipedia provides the answer. Peremptory norms, having the status of a jus cogens (compelling law), include such things as:

. . . prohibitions on waging aggressive war, piracy, genocide, slavery, and torture.

From my admittedly hazy understanding of the history of legal thought, these peremptory norms stem from the Western legal tradition, so I wonder if a competing legal system would consider them peremptory.

The various Muslim systems of law known as shariah, for instance, might not consider all -- or even any -- of these prohibitions to express valid norms. Islamist legal thinking certainly appears to have no compunction about violating them.

I therefore see serious, fundamental problems ahead for international law if the force of Islamism continues to grow.


At 3:47 PM, Blogger Horace Jeffery Hodges said...

Setting aside the possibility of Natural Law as the true international law, I'd agree that very strictly speaking, there's no law without a legitimate legislative body to craft the laws, a legitimate judicial body to adjudicate the laws, and a legitimate executive body to enforce the laws -- all with the proper checks and balances.

That can't happen until the whole world becomes democratic and has a roughly similar system of values. Otherwise, international law would lack legitimacy.


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