INTERNATIONAL LAW AND NATIONAL LAW

Every nation is expected to obey international law. Some nations make international law automatically part of the law of their land. The U.S. Constitution designates ratified treaties, along with the Constitution itself and federal statutes, the supreme law of the land (Article VI) and empowers Congress “to define and punish … Offences against the Law of Nations” (Article I, Section 8). Customary international law is automatically incorporated into the U.S. legal system as federal common or unwritten law.

In cases involving international law, U.S. state and federal courts presume that U.S. law conforms to international law; such an attitude has been urged consistently by the Supreme Court of the United States. In some countries, such as the United Kingdom, treaties do not become effective in national law until they are enacted by Parliament. In other countries, a treaty or customary international law is given constitutional status superior to national legislation. How a sovereign state adopts and applies international law is generally left to its discretion, so long as it conforms to the law in the end.

Whatever the constitution or legal system of a nation, it cannot use its domestic law as an excuse to breach an international agreement or violate an international rule. This was made clear during the war crimes trials held in Nürnberg, Germany, following World War II. The Nürnberg tribunals rejected the defense that certain acts, such as the killing of prisoners of war, were permitted under the domestic laws of Nazi Germany. The tribunals held that such laws were null and void because they contravened the generally valid rules of warfare. It also held that the individuals responsible for issuing and executing such laws were criminally responsible for grave breaches of international law. Today, international human rights courts often declare national laws incompatible with international rules and may award compensation to those whose rights have been violated.

Origins of International Law

The need for rules of conduct between independent political entities developed along with government in ancient times. Early civilizations established rules governing the conduct of hostilities, the making and observance of treaties, and the treatment of foreign traders, travelers, and diplomats. These rules were often based on ritual and custom. The oldest known treaty, preserved in an inscription on a stone monument, is a peace treaty between two city-states of Sumer, dating from about 2500 bc. The empires of the ancient Middle East concluded a considerable number of treaties between 2000 and 1000 bc concerning topics still debated today, such as the extradition of fugitives and the creation of military alliances.

Later civilizations further developed tenets of international law. Jewish law as set forth in the Old Testament in the Book of Deuteronomy contains prescriptions for the mitigation of warfare, notably prohibitions against the killing of women and children. The Greek city-states had an elaborate treaty system governing many aspects of their mutual relations. In Asia the political units of ancient India and China, during certain periods, also developed and applied international law.

Beginning with the era of the Roman Republic (509 to 27 bc), the Romans made significant contributions to the evolution of international law. They developed the idea of a jus gentium, a body of laws designed to govern the treatment of aliens (noncitizens) subject to Roman rule and the relations between Roman citizens and aliens. They recognized in principle the duty of a nation to refrain from engaging in warfare without a just cause and originated the idea of a just war.

Modern international law began to develop with the rise of national states in Europe after the 15th century, when the basic ideas of national territory and jurisdiction were established. In 1625, building on the work of previous legal writers, the Dutch jurist Hugo Grotius published his celebrated treatise De Jure Belli ac Pacis (On the Law of War and Peace). Grotius argued that existing customs governing the relations between nations had the force of law and were binding unless contrary to natural justice or the law of nature (natural law), an immutable higher law governing all human conduct. Grotius’s influence on international affairs and the settlement of wars was great, and he is sometimes called the father of modern international law. His ideas became the cornerstone of the international system as established by the Peace of Westphalia (1648), a treaty that ended the Thirty Years’ War.

Other scholars and statesmen further described and developed the basic rules of international law, among them the Dutch jurist Cornelis van Bynkershoek and the Swiss diplomat Emmerich de Vattel. Vattel’s book, Le droit des gens (1758; Law of Nations), greatly influenced the framers of the Constitution of the United States with its ideas of natural law governing the behavior of states. Over time scholars gave increasing emphasis to the idea of state sovereignty, so that by the end of the 19th century the theoretical foundation of international law had shifted from natural law to a strictly consensual approach known as positivism. Positivism claims that each nation is bound only by the international rules that it freely accepts to limit its otherwise unlimited freedom of action. The clash between positivists and adherents of natural law continues today. Conflict is most pronounced over the issue of whether there are fundamental “higher norms” of international law, a principle called jus cogens, that sovereign states are obliged to respect.

Introduction of International Law

International Law, principles, rules, and standards that govern nations and other participants in international affairs in their relations with one another. International law is the law of the international community. Most international law consists of long-standing customs, provisions agreed to in treaties, and generally accepted principles of law recognized by nations. Some international law is also created by the rulings of international courts and organizations.

The purposes of international law include resolution of problems of a regional or global scope (such as environmental pollution or global warming), regulation of areas outside the control of any one nation (such as outer space or the high seas), and adoption of common rules for multinational activities (such as air transport or postal service). International law also aims to maintain peaceful international relations when possible and resolve international tensions peacefully when they develop, to prevent needless suffering during wars, and to improve the human condition during peacetime.

Enforcement of international law is often difficult because nations are sovereign (independent) powers that may put their own interests ahead of those of the international community. In addition, the mechanisms of enforcement are young and not well developed. Enforcement may be effectively achieved, however, through the actions of individual nations, agencies of international organizations such as the United Nations (UN), and international courts. The United Nations Security Council can authorize economic sanctions, diplomatic sanctions, or military force to maintain or restore international peace and security.

International law began as a system governing the relations among sovereign states, and states have always been the primary legal entities affected by international law. As the global system has become more complex, however, international law has come to recognize and regulate international organizations, businesses, nonprofit entities, and individuals. The emergence of international human rights law and, more recently, international criminal law reflects the fact that individuals today are direct subjects of international law in certain respects.

Other Modern Developments

In France, the development of the judicial system after the breakup of the Carolingian Empire was similar to that in England: Both involved the vesting of central legal authority in the Crown after a protracted struggle with feudal manorial courts. The essential features of the judicial system now in effect in France were established after the French Revolution of 1789 by the Code Napoléon. This system includes lower courts of wide jurisdiction, intermediate courts of appeal, a court to resolve jurisdictional conflicts among courts, and a supreme appellate tribunal called the Court of Cassation. Many European and Latin American judicial systems are modeled on that of France.

In the Islamic world, the Qur'an (Koran) is the source of law; justice traditionally has been dispensed by specially trained priests in conjuction with the king, or sultan. In the 20th century, this system still prevails in such Islamic countries as Yemen and Saudi Arabia. In Turkey, however, executive, legislative, and judicial functions have been separated, and a judicial system similar to those of Western countries has evolved.

In other Middle Eastern and Asian countries that have attained independence since World War II, notably Sri Lanka, India, and Israel, the courts also operate similarly to those of the West, that is, as relatively independent institutions within a parliamentary framework.

In Communist countries, the judicial system was usually patterned after that of the USSR, which included a hierarchy of courts culminating in a supreme court. In the former Yugoslavia, however, all judges, even those of the highest tribunals, were elected, not appointed.

LATER DEVELOPMENTS IN THE BRITISH SYSTEM

Administrative and structural changes in important but secondary features, such as those wrought by the Judicature Act of 1873, have been made. This act, which went into effect in 1875, preserved the role of the House of Lords as the chief appellate tribunal of England and Wales and consolidated all the superior civil courts into a Supreme Court of Judicature with two principal branches: the Court of Appeal, the highest appellate court below the House of Lords, and the High Court of Justice. The latter tribunal comprises three divisions: Chancery Division; King's, or Queen's, Bench Division; and Probate, Divorce and Admiralty Division. Enactment of the Criminal Appeal Act of 1907 established the Court of Criminal Appeal as the highest appellate tribunal after the House of Lords in criminal cases. Besides the superior courts, the judicial system of England and Wales includes many lower courts organized into circuits. The highest civil court of Scotland is the Court of Session, and the highest criminal court is the High Court of Justiciary. Appeals may be taken from these courts to the House of Lords.

Western European Tribunals

Medieval courts were an outgrowth of the tribal courts of the Germanic peoples, among whom the highest judicial authority was that of the popular assemblies that met regularly throughout the year. The tribal judges supervised the proceedings and executed the judgments rendered by the assemblies. During the development of the Germanic tribal organization into territorial states, the primitive tribal courts underwent a corresponding evolution, increasing in number and becoming differentiated. Among the new features of this Teutonic system were a royal court, presided over by the king and modeled on the Roman system of courts; special lower courts under the control of royal officials who were called Grafen, which handled minor matters; and, later, a corps of permanent lay judges, with power to render judgments.

In the 8th century, when the Germanic territorial states were part of the realm of Charlemagne, the Teutonic judicial system experienced a further significant development: the practice, initiated by Charlemagne, of dispatching royal commissioners to examine the functioning of local courts and, when necessary, to supplement the justice they dispensed. In this innovation were the seeds of three later important legal developments: assize courts, circuit courts, and a central legal authority. This innovation was adopted by other feudal monarchs in their struggles with the landed nobility, who controlled the manorial, or seignorial, courts.

When the Normans conquered England in 1066, they imposed the Carolingian judicial system on the Anglo-Saxons. In the long struggle between king and landed nobility that ensued, one of the principal weapons of the Crown was the Curia Regis (king's court), which was held wherever the royal household was situated. The principal judicial strongholds of the nobility were the manorial courts, chiefly the courts baron and courts leet. Judicial supremacy eventually was won by the Crown, and, since the reign of King Edward I, in the 13th century, English courts have been organized on a centralized basis.

Before this victory of the Crown, however, King John had been compelled in 1215 to sign the Magna Carta, which initiated the gradual separation of judicial from executive and legislative governmental powers. The terms of this charter of liberty established the Court of Common Pleas as a court of a fixed location to try cases initiated by commoners against other commoners. The process of separation continued during the reign of Edward I with the establishment of the Court of Exchequer as a tribunal having exclusive jurisdiction over revenue cases arising out of unpaid debts to the Crown and the establishment of the Court of King's Bench, or the Court of Queen's Bench, as the supreme appellate tribunal of the realm, presided over by the monarch. The Court of King's, or Queen's, Bench also was invested with original jurisdiction over both civil and criminal cases and thus encroached on the jurisdiction of the Court of Common Pleas. In fact, the jurisdictions of all three courts overlapped and were not entirely differentiiated until much later. These courts later became bulwarks in the defense of civil and political liberties against the Crown.

Another momentous innovation during the reign of Edward I was provision for doing justice in situations in which the common law failed to afford a remedy to aggrieved litigants. This supplemental system of justice was administered by the Crown through the lord chancellor and was called chancery, or equity, jurisprudence.

In the centuries after the signing of the Magna Carta, Parliament acquired appellate jurisdiction over both civil and criminal cases. This function was subsequently confined to the House of Lords and has survived to the present day. In 1701, Parliament enacted legislation establishing tenure of office for judges and made their removal from office conditional on the assent of Parliament, thus completing the separation of judicial from executive and legislative governmental powers. Like many other features of the English judicial system, this separation of powers was incorporated into the courts of the New World.

Early Courts

The recognized existence of even primitive courts implies a relatively high degree of social organization and the need for systematic adjudication of disputes on the basis of established customs and consciously formulated rules of social conduct. Archaeologists and anthropologists have established the existence of courts in simple societies over wide areas of Asia, Africa, and Europe; courts were not as widespread among the Native Americans of North and South America. Primitive courts formed part of a complex social structure in which administrative, judicial, and religious functions were intermingled. These courts were held in the open or in religious temples. More often than not, the judges were priests. Those who attended were considered part of the court, whether or not they had an immediate interest in the proceedings or in the judgments rendered. The proceedings consisted in large part of rituals designed to secure the redress of grievances presented by individuals against other individuals.

In the highly developed civilizations of antiquity, notably those of Assyria and Egypt, judicial and executive functions were undifferentiated and were centralized in the monarch as head of state. Insight into the structure and functions of Babylonian courts of the 18th century bc was obtained when the ancient legal document known as the Code of Hammurabi was discovered early in the 20th century. A highly developed judicial system existed also among the ancient Hebrews.

In the judicial system of ancient Athens, a unique feature, introduced by the lawgiver Solon in the 6th century bc, was the right of aggrieved litigants to appeal the decisions of magistrates to the people of Athens, assembled as a hēliaia (“public assembly”). In later years, these assemblies, referred to as heliastic courts, became courts of first resort presided over by magistrates who prepared cases for trial. The heliastic courts subsequently became unwieldy, and they were divided into sections called dicasteries.

The evolution of courts in ancient Rome was marked by the development of a complex structure in which criminal, civil, and other jurisdictions were differentiated and were exercised by separate courts and officials. Violations of criminal law were prosecuted by the state; higher and lower courts were organized; the right of appeal was juridically guaranteed; and a corps of professional jurists was established for the first time in the history of Mediterranean civilization. After Christianity became the state religion of Rome, the ecclesiastical courts, previously established by Christians who had refused to have recourse to pagan courts, became a part of the Roman legal system. As the Roman Empire disintegrated, the ecclesiastical courts survived and assumed jurisdiction over secular affairs.