That’s the question underlying my new essay, The Rise of International Criminal Law: Intended and Unintended Consequences, in the European Journal of International Law (Vol. 20, No. 2, June 2009). And I’m curious as to whether anyone else shares my general feeling that the very success (on some metrics, anyway) of international criminal law is tending to swallow, as it were, the rest of public international law.
It's a very broad-ranging essay, and my thanks to EJIL editor and old friend Joe Weiler for running it, even though it is not exactly a conventional EJIL piece. Here is the table of contents to the essay (which is, however, pretty short as law review essays go, at around 10,000 words).
Regimes of mutual benefit and regimes of altruism
Alternative to intervention?
Earning the moral right to administer universal justice
Reprisal and reciprocity in the laws of armed conflict
The rise of the machines
Individual liability and the loss of the laws of war as rules for the social organization of war between groups
Does anyone ‘own’ the rules of war anymore?
An end-run around the P-5?
Neglecting the UN?
Robot soldiers, ATS jurisprudence, the P-5, this piece has it all, in under 10,000 words ... It moves pretty quickly, for a law review article.
Is there some International Sovereign or King I didn't know about?
Has the UN Assembly become an International Legislature when I wasn't looking?
Because, last I checked a "law" had to be made or passed by a king or a legislature in order to actually exist.
Now, I know we no longer have God to appeal to. You can't argue that something is "against God's will or law" anymore. So, we have to make up some other overriding supreme authority to make our emotional appeals to. I guess that fiction has become "International Law"
Oh, by "International Law" you really meant "International Custom" or "International custom enforced in various and different ways via various and inconsistent National Laws". Well, those are entirely different things.
See, when you start with the faulty assumption that there is a black and white "Law" you can appeal to, you get incorrect and faulty conclusions. What you get is some fiction that can be molded and bent in order to fulfill the speaker's political addenda. The entire premise of “International Law” is intellectually dishonest.
The phrase “International Law” should be regarded by lawyers with the same distain historians/archeologists reserve for “The Chariots of the Gods” or psychologists have for the idea that you can tell if someone is a criminal by examining bumps on their skull.
that's why here in Freelandia our wise and benevolent leader never passed the Law of Gravity so we are not bound by it. Freelandia is strongly opposed to the creation of an international sovereign which would have the power to impose international so-called "law". We would be destroyed if our floating cities were to plunge to earth due to imposition of the Law of Gravity by some international sovereign.
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the preceding was intended as snark and not to be taken as true. there is no Freelandia. the law of gravity does not have to passed before it can smack you on the posterior.
So, I guess that, according to your opinion, Roman Law is no law and until the birth of the State (sixteenth-seventeenth century) there was no law at all. Of course, judge-made law isn't law either, or?
Borris' opinion about law (but curiously not about public international law) is quite popular among law scholars in continental Europe. I'm a Law student from Spain and I've heard phrases like his several times. I thought that these kind of silly things were less common in the USA.
There is an argument there, but Borris doesn't present it, stemming from the nature of sovereignty and whether or not sovereigns solely have the power to make laws. I'm not going to present the argument because 1) I don't accept it (I don't reject it either) and could not do justice to it unless I accepted it, and 2) if you are interested in sovereignty you already know the argument and if you are not interested then it would be a waste of both out time.
No, Roman Law would be laws passed by the Senate or Tribunes of the Roman Republic, and later the Roman Emperors.
During the Middle Ages you'd have laws passed by the King or Caliphate of Spain/Al Andalus.
Prior to that you'd have laws passed by the Pharaoh or other Kingly sovereign or the Assembly/legislative body of the respective city-state/kingdom.
I don't require a modern state to make laws, I just require a font or prime mover with legislative authority in your particular form of government.
My point is that there is no international government and hence no international prime mover with legislative authority. Therefore, there cannot be "international" laws, only local national laws, as national legislative authorities exist.
A local national law may be based upon a treaty or other agreement to make laws, but this don't make it an international law merely, an instantiation or embodiment of an international agreement. This distinction is important because we all know that national legislatures often enact laws that don't match-up completely with the treaty/agreement.
Calling an "agreement" a "law" intentionally muddies the waters and leads to incorrect conclusions based on the incorrect assumption that an black-and-white authoritative law exists. There are no statutes of international law that you can look up, merely non-binding customs of behaviour.
Ultimately, every country acts unilaterally. Every country implements their own version of treaties. Every country decides whether or not to cede a little bit of sovereignty to an international arbitration board (e.g., WTO, ICC, etc.).
Have you heard about "ius non scriptum"? Until the princeps monopolized the creation of law (circa 200 b.C.) customs were at the level of "ius scriptum". In fact, parties in a trial invoked famous jurists and trials were solved according to those opinions. It should be noted that emperors Theodosius II and Valentinian III (centuries later) drafted a law which allowed to invoke only some jurists.
"During the Middle Ages you'd have laws passed by the King or Caliphate of Spain/Al Andalus. "
Have you heard about "lex mercatoria"?
Both abstractions are termed "Law", because in both cases they give a proscription by which an observed body reacts in a specified situation. However, the Laws of Nature are upheld by the much stronger verb "is" rather than the weak and oft-broken Kantian imperatives of the Laws of Man's "should".
The problem is the Laws of Man can be violated in a thousand, non-trivial ways, and many enlightened people agree with the idea that societies of man should be allowed to fundamentally differ from each other at even their most core precepts. Unlike we finicky mortals, Nature abhors such tedious accomodations.
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