Topics:
1. What is international law? 2. Subjects of international law
3. Differences between international law and municipal law 4. How is international law enforced? 5. Is international law real law or morality?
Reading Materials:
1. What is international law?
International law (国际法), also called public international law (国际公法) or law of nations (万国法), is the body of legal principles, rules, and norms that apply between sovereign states and other entities. The term was coined by the English philosopher Jeremy Bentham (边沁，1748–1832).
International law is distinct from international comity (国际礼让), which comprises legally non-binding practices adopted by states for reasons of courtesy (礼貌) (e.g., the saluting of foreign warships at sea or reciprocal waiver of passport or visa requirement for short-term visits by nationals of another country).
The study of international law, or public international law, is distinguished from the field of conflict of laws (冲突法), or private international law (国际私法), which is concerned with the rules of municipal law (国内法) of different countries where foreign elements are involved. See Ogden v. Ogden [1908] (Parental consent or its lack is a matter of form governed by the lex loci celebrationis.2)
Ogden v. Ogden [1908]
A domiciled (有住所的) Frenchman, who was 19, married a domiciled English woman in England without first obtaining the consent of his surviving parent（未亡之父或未亡之母）, which he was required to do by Article 148 of the French Civil Code (法国民法典). The husband obtained an annulment (宣告婚姻无效) of the marriage in a French court on the ground of want of consent.
The wife then went through a ceremony of marriage in England with a domiciled Englishman. The second ‗husband‘ petitioned for (请求) a decree of nullity on the ground that at the time of the 1
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\"When one warship passes another in harbour they exchange salutes. The nature of the salute depends upon the nationality of the ships, and upon the relative ranks or seniorities of their respective Flag Officers (海军将官) or Captains or any important personages in them; it may be made by parading guards and bands, sounding the \"Alert\" on the bugle (军号), or piping the \"Still\" [the order for personnel to stand in silence]. Warships do not usually exchange salutes at sea. When a merchant ship passes close to a warship, either at sea or in harbour, she dips her ensign (舰旗) as an act of courtesy and recognition, and the warship acknowledges it also by dipping her ensign.\" [Quoted from Admiralty Manual of Seamanship]. 2
婚姻举行地法，law of the place where the marriage is celebrated.
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ceremony his ‗wife‘ was still married to the Frenchman. The court had to decide whether the first marriage was valid.
The English court had to decide whether the French law, the purpose of which was to protect French minors (未成年人) from marrying without parental permission, applied to a marriage in England. If the French rule was characterised as within matters of essential validity (实质效力) it would apply to marriages wherever they were celebrated and the marriage in England would accordingly be void (无效). The second marriage would then, of course, be valid. If, on the other hand, it was characterised as a matter of formal validity (形式效力), it would be governed by the lex loci celebrationis (English law) and the first marriage would be valid (English law rules that a marriage of a minor without parental consent is valid). The English court would therefore come to a different conclusion from the French court. It would, of course, enable the second husband to extricate (摆脱) himself from his marriage (which would as a result be bigamous [重婚的]).
The Court of Appeal (上诉法院) concluded that the French rule was formal. It suggested that every rule requiring parental consent to a marriage must be characterised as formal. The result was that Mrs Ogden was in the eyes of English law not Mrs Ogden but the wife of a Frenchman.
2．Subjects (主体) of international law
In any legal system, certain entities, whether they be individuals/companies or states, will be regarded as possessing rights and duties enforceable at law. Thus an individual may prosecute (控告) or be prosecuted for assault (斗殴). The individual is able to do this because the law recognizes him/her as a subject, also called legal person (法律人格者), possessing the capacity to have and maintain certain rights, and being subject to perform specific duties. Just which persons will be entitled to what rights in what circumstances will depend upon the scope and character of the law. Subjects of international law, also called international legal person, therefore, are those entities entitled to international legal rights and duties and capable of employing international legal process.
Historically, states were the only subjects of international law. According to Bentham's classic definition, international law is a collection of rules governing relations between states. It is a mark (标志) of how far international law has evolved that this original definition omits individuals and international organizations—two of the most dynamic and vital elements of modern international law. In regard to individuals, during the 20th century, a growing body of international law was devoted to defining the rights and responsibilities of individuals. The rights of individuals under international law are detailed in various human rights instruments and agreements. International law also has endowed (赋予) them with responsibilities. In particular, following the Nuremberg and Tokyo Trials (纽伦堡和东京审判), individuals have been subject to international criminal responsibility and have been directly liable for breaches of international law.
[Question one: what is the difference between states as subjects of international law and individuals/international organizations as subjects of international law?]
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3. Differences between international law and municipal law
International law is an independent system of law existing outside the legal orders of particular states. It differs from domestic legal systems in a number of respects.
First, although the United Nations (联合国, hereinafter referred to as ―the UN‖) General Assembly (大会), which consists of representatives of 192 countries, has the outward appearances of a legislature, it has no power to issue binding laws. Rather, its resolutions serve only as recommendations (建议)—except in specific cases and for certain purposes within the UN system, such as determining the UN budget (预算), admitting new members of the UN, and, with the involvement of the Security Council (安理会), electing new judges to the International Court of Justice (国际法院，hereinafter referred to as ―the ICJ‖).
[Question two: who makes international law and how?]
Second, there is no system of courts with comprehensive jurisdiction in international law. In general, the international judiciary is without compulsory jurisdiction (强制性管辖权). States may voluntarily accept the jurisdiction of the ICJ.
Third, there is no international police force or comprehensive system of law enforcement, and there also is no supreme executive authority. The UN Security Council may authorize the use of force to compel (强迫、迫使) states to comply with its decisions, but only in specific and limited circumstances; essentially, there must be a prior act of aggression (侵略) or the threat of such an act. Moreover, any such enforcement action (执行行动) can be vetoed (否决) by any of the council's five permanent members (China, France, Russia, the United Kingdom, and the United States). Because there is no standing (常备) UN military, the forces involved must be assembled from member states on an ad hoc (临时) basis.
4. How is international law enforced?
Nearly always, the first question asked about international law is, how can it be law if it cannot be enforced? To experienced international lawyers it is an old and rather tiresome (令人厌烦的) question, not only because it is asked so often, but also because of the assumption (假设) it contains: that is, international law cannot be enforced.
The assumption seems to be based on the absence of a standing body of international law enforcement officers, nor is there strong political support for creating such a body. How then can international law be enforced, if at all?
In addition to UN Security Council‘s enforcement action (执行行动), there are basically three ways: state self-restraint, self-help, and alliance.
The enforcement tools of international law are thus imperfect. Not only are they applied unevenly (不平衡的) in some cases, but they frequently work slowly. The bodies that apply them are not
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necessarily fully representative of the international community.
Despite all this, there are international enforcement mechanisms that do work in ways that may not always be obvious. In particular, the international community, no less than domestic society within any nation-state, conducts much of its daily business on the basis of self-enforcing norms (规范) that never make the headlines (头条新闻). Although considerable attention is invariably (总是) focused on violations of international law, states generally are careful to ensure that their actions conform to (符合) the rules and principles of international law, because acting otherwise would be regarded negatively by the international community. The rules of international law are rarely enforced by military means or even by the use of economic sanctions (制裁). Instead, the system is sustained by reciprocity (互惠) or a sense of rational or enlightened self-interest (理性或开明自利). States that breach international rules suffer a decline in credibility (信任度) that may prejudice them in future relations with other states. Thus, a violation of a treaty by one state to its advantage may induce (引诱) other states to breach other treaties and thereby cause harm to the original violator.
5. Is international law real law or morality?
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Excerpts from George F. Will, The Perils of “Legality”(国际法是法的危害)
Newsweek (新闻周刊), Sept. 10, 1990
. . . . International law – so reverently (恭敬地，虔诚地) invoked, so rarely defined – is like God. The threshold question (先决问题) is: Does it exist? Some spheres of international behavior (e.g., maritime (海洋) matters, the rights of diplomats [外交官]) are governed by law-like regimes (制度): there are enduring and widely-adhered-to conventions, and institutions for arbitrating disputes. . . . Some disparagement (贬低) of international law derives from a visceral reflex (内脏反射) for independence, for freedom from fetters (桎梏). That reflex is not foolish, but neither is it an argument.
Intellectually (在理智上) serious skepticism (怀疑论) about international law derives from concern about damage that idea does to the concept of law and to the practice of prudent statecraft (治国之道). Before congeries (聚集) of customs, habits, norms and arrangements can properly be called law, questions need answers. If international law is really law, who enacts (制定), construes (解释), adjudicates (裁判) and enforces it? The phrase ―international law‖ often is virtually an oxymoron (矛盾修饰词). Law without a sword is mere words: lacking an enforcement mechanism (机制), soi-disant (所谓) ―law‖ is merely admonition (训诫) or aspiration (渴望).
Law must be backed by coercion (强制) and legitimized by a political process. The ―international community‖ has no such process. Indeed, the phrase ―international community‖ is metaphoric (隐喻) and misleading. A true community exists only when there is consensus about certain matters – the meaning of freedom, the nature of rights and duties, sources of legitimacy (合法性). Thus the phrase ―international community‖ denotes (表明) no reality. Rhapsodizing about (狂热地谈论) the UN as the ―international community‖ incarnate (化身) obscures this fact: the UN is composed 3
The author is a well-known columnist for the Washington Post. – Editor‘s note.
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of representatives of regimes most of which rule in ways repellant (令人反感的) to the UN‘s democratic minority.
If ―international law‖ is defined as what the ―international community‖ actually does, the problem deepens. Regarding force, history is clear: nations do what they think necessary and feasible. And even today, while ―experts‖ on international law spin (编制) theories making everything everybody‘s business, nations whose interests are not implicated (牵连) in a particular eruption of force do next to nothing. . . .
Eager seizure of the label ―legal‖ encourages the fallacy (谬误) that international law is explicit and exhaustive – that anything not clearly ―legal‖ is ―illegal.‖ And it puts policy at the mercy of (由…支配) a vague and volatile (变化无常的) consensus of an ―international community‖ most members of which are unsuited to serve as ethicists (伦理学家) or judges. There will be times when the United States, in defense of its interests, will need to act irrespective of any international consensus. Then the chimera of international law may hold America hostage (人质).
chimera (客迈拉) 在希腊语中是―母山羊‖的意思，指古希腊神话中一种前身像狮子、中部像山羊、后身像蟒蛇的有数个头的喷火怪兽。无论它在何处出现，客迈拉都会摧毁那个地方，它既吞噬其他动物，也吃掉人类。今天，―客迈拉‖这个词可以指任何杂交动物。也可以指―不可能的想法‖、―不切实际的梦‖或者任何我们能够想像但却无法实现的事。
[Question Three: Mr. Will denies that there is an international community or a society of states and that international law is law. Do you agree or disagree with Mr. Will and why?]
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