Law of Nations

The Law of Nations - Vattel (1519)

The Law of Nations and International Law

The "Law of Nations," also known as International Law, is a fundamental concept in legal philosophy, particularly concerning the conduct and affairs of states and sovereigns. It represents a body of rules and principles that govern relations between nations, aiming to promote international cooperation, peace, and security.

Here is an elaboration on the Law of Nations:

1. Definitions and Core Concepts

Science of Rights and Obligations: Emmerich de Vattel, a key figure in the post-Westphalian concept of the law of nations, defined it as "the science of the rights which exist between Nations or States, and of the obligations corresponding to these rights". This definition emphasizes that the law of nations teaches how states should regulate their actions and determines their rights and duties towards themselves and other nations.

Regulating Relations: It is broadly understood as the collection of principles recognized by civilized and independent nations to regulate their relations and resolve conflicts between different laws and customs. It prescribes rules for independent commonwealths in times of peace and sets limits to hostilities in war.

Agreement Among Equals: The Law of Nations is seen as an agreement among equals where their mutual intercourse is governed by principles of justice. The "true legislature of international law" is considered to be the "whole human race".

Moral Person: A nation or state is considered a "moral person" in the Law of Nations, capable of understanding, will, obligations, and rights, analogous to an individual person.

2. Relationship with Natural LawThe Law of Nations is deeply rooted in Natural Law.

Application of Natural Law: Vattel argued that the Law of Nations is "originally no other than the law of Nature applied to Nations". However, he emphasized that this application is not a simple substitution of "Nations for individuals," as states are "very different subject[s] from an individual person" and therefore have "very different obligations and rights". The art of applying natural law conformably to nations, "with a precision founded upon right reason, constitutes the Law of Nations as a distinct science".

Immutable Basis: The necessary law of nations is immutable because it is founded on the unchangeable law of nature, which itself is based on the nature of things and man. Nations cannot change or dispense with the obligations arising from this necessary law.

Grotius's View: Grotius understood the Law of Nations as a system established by the common consent of nations, distinguishing it from the law of nature. However, Vattel noted that Grotius also acknowledged a natural law of nations, which he called the "internal law of nations".

Puffendorf's View: Puffendorf, influenced by Hobbes, blended the Law of Nations with the law of nature, not treating it separately.

3. Components/Categories of the Law of Nations Vattel divided the Law of Nations into several categories:

Necessary Law of Nations: This consists of the application of the law of nature to nations, which they are "absolutely bound to observe". It is obligatory on nations "in point of conscience". This law is immutable.

Voluntary Law of Nations: This category arises from the "natural liberty of nations" and the need for "common safety" and "general welfare" in their interactions. It is a rule that nations are "obliged to admit in their transactions with each other". While the necessary law is the internal rule for a sovereign's conduct, the voluntary law is consulted when examining what can be demanded of other states.

Conventional Law of Nations (Law of Treaties): This type of law originates from "express engagements, by compacts and treaties" between states. It is a "particular law," binding only the contracting parties. The obligation to fulfill these engagements ultimately derives from the maxim of natural law.

Customary Law of Nations: This consists of "certain maxims and customs consecrated by long use, and observed by nations in their mutual intercourse". It is founded on "tacit consent" or "tacit convention" and is binding only on nations that have adopted it.

Positive Law of Nations: This encompasses the voluntary, conventional, and customary laws, as they all "proceed from the will of nations".

4. Relationship with International Law The terms "Law of Nations" and "International Law" are often used interchangeably.

Evolution of Terminology: "Law of Nations" was formerly the common term, coined by Jeremy Bentham in 1789, but "International Law" is now widely used.

Distinction by some Jurists: Some jurists have contended for a distinction, though the sources also note instances where Roman lawyers, for example, used "law of nations" to signify natural law or rules common to all mankind. However, the modern consensus, as reflected in the sources, largely treats them as synonymous in contemporary usage.

5. Sources of the Law of Nations The sources from which information on the Law of Nations can be gathered include:

Practice of Nations: The "long and ordinary PRACTICE of nations" provides evidence of general custom tacitly agreed upon.

Recitals in Treaties: "RECITALS of what is acknowledged to have been the law or practice of nations" are frequently found in modern treaties.

Writings of Eminent Authors: The "WRITINGS of eminent authors" who have declared the existing international jurisprudence by "concurrence of testimony and opinion" are a crucial source. These include figures like Grotius, Puffendorf, Wolff, and Vattel himself.

Judicial Decisions: The valuable decisions of courts, such as those of Sir W. Scott, have significantly contributed to the understanding and authority of the Law of Nations.

6. Key Principles and Characteristics

Equality of Nations: Nations, like individuals, are naturally equal and possess the same obligations and rights. Power or weakness does not alter this equality. This doctrine of equality of states asserts that all states are equal in International Law despite factual inequalities in size, population, wealth, or strength.

Sovereignty and Independence: Every nation that governs itself without dependence on any foreign power is a Sovereign State, and its rights are naturally the same as any other state. This external sovereignty is recognized when a nation is acknowledged as such.

Non-Interference: No nation has a right to interfere in the internal or external government of another state. Foreign nations are not to judge between parties in civil conflicts within an independent state.

Observance of Justice: Justice is considered the "basis of all society" and "the sure bond of all intercourse between nations". All nations are obligated to cultivate and observe justice.

Right to Security, Resistance, and Reparation: The right to security implies the right of resistance, the right to obtain reparation, and the right to punish.

Good Faith (Pacta Sunt Servanda): Principles of "free consent and of good faith and the pacta sunt servanda rule are universally recognized" in international law, especially concerning treaties. States have a duty to fulfill their obligations under international law in good faith.

7. Application and Enforcement

Domestic Law: International law, including human rights law, is primarily applicable to states, and becomes a source of domestic legal obligation for a state's officials and rights for its citizens only through its incorporation into the state's internal law.

Treaty Supremacy: Treaties, being part of the Law of Nations, are recognized and enforced by international law. In the U.S. context, treaties are declared the "Supreme Law of the Land".

Judicial Role: Courts play a role in applying international law, as it is considered part of municipal law. For instance, courts take judicial notice of the existence and principles of International Law.

Enforcement Mechanisms: States enforce international law through international organizations or regional groups like the United Nations, which can adopt measures to compel compliance or vindicate wrongs. The UN Charter obliges member states to act in accordance with its principles for the maintenance of international peace and security.

State Responsibility: States incur international responsibility for internationally wrongful acts, regardless of the character or provenance of the obligation breached. A state cannot escape responsibility by invoking its municipal law.

8. Historical Context The concept of the Law of Nations has evolved over centuries.

Post-Westphalian Era: Vattel's work in the 18th century marked a significant development, elaborating on a body of law exclusively concerned with states against the backdrop of European state-societies claiming autonomy.

Classical Theorists: Classical theorists of international law from the 1500s through the early 1700s contributed to its development.

Medieval Period: Political society in the Middle Ages was characterized by "overlapping groups and conflicting loyalties and bodies of rules," prior to the full expression of the Law of Nations focused on discrete states.

Modern Discourse: Contemporary international law is increasingly responsive to a transnational discourse on peace and human rights, reflecting a re-emergence of classical naturalism. This discourse expands international law's competency into spheres previously reserved for state sovereignty, by directly addressing the concerns of human beings.

The Law of Nations provides the framework for order and justice in a world of independent sovereign entities, balancing their individual rights with the collective needs of the international community.

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[Inter]National Law(s)

Is the government of the United States of America bound to treaty?

Yes, the government of the United States of America is bound to treaties.

Here's a detailed explanation:

1. Treaties as Supreme Law of the LandUnder the Supremacy Clause of the U.S. Constitution (Article VI, Section 2), all treaties made under the authority of the United States "shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding". This means that once ratified, a treaty theoretically overrides any conflicting state laws or even state constitutional provisions. The adoption of a treaty whose stipulations are inconsistent with a state law is considered "equivalent to the repeal of such law".

2. Obligation to Observe Treaties (Pacta Sunt Servanda)International law dictates that "Every treaty in force is binding upon the parties to it and must be performed by them in good faith". This principle, known as pacta sunt servanda, means that a treaty engagement is not merely a moral obligation but creates a legally binding obligation on the parties. A state that has contracted a valid international obligation is bound to make necessary modifications in its legislation to ensure the fulfillment of those obligations. A party "may not invoke the provisions of its internal law as justification for its failure to perform a treaty".

3. Treaty-Making Authority and ProcessThe President has the power to make treaties "by and with the advice and consent of the Senate, provided two thirds of the senators present concur". This power of negotiating and contracting public treaties between nations is inherent to sovereignty. The United States, as a sovereign, has this power. The consent of a State to be bound by a treaty is expressed through ratification, approval, or acceptance; merely signing a treaty is generally not enough to bind the State.

4. Judicial Enforcement and InterpretationU.S. courts, both state and federal, are obligated to judicially notice all treaties of the United States and inform themselves of their provisions, including historical data necessary for their interpretation and enforcement. When a treaty affects the rights of parties litigating in court, the treaty binds those rights and is regarded by the Supreme Court as much as an act of Congress. Whenever a right grows out of or is protected by a treaty, "it prevails against all laws, or decisions of the courts of the States, and whoever may have the right under the treaty, is protected".

5. Limitations and Specific Considerations

Congressional Power: The ability of an Indian tribe to make a treaty with the United States does not exempt that tribe from the legislative power of Congress. Congress can extend its legislative control over tribes, even if treaties guarantee political independence, with such breaches of faith being a matter for the conscience of legislators, not judicial cognizance.

Governmental Immunity: While governments are generally immune from suit, the United States consents to be sued in certain circumstances. The "Clearfield Doctrine" asserts that governments "descend to the level of a mere private corporation" when dealing with "private corporate commercial paper" (like Federal Reserve Notes) and lose their sovereign immunity for purposes of suit. In such instances, they are viewed as entities separate from government.

Territorial Acquisition: The power of the United States to acquire territory by treaty and legislation is affirmed, and such annexed territory may be incorporated into the U.S. or held as a dependency outside the direct application of some constitutional prohibitions, depending on the political departments' decision.

Unconstitutional Treaties: While there are no express limitations on the U.S. treaty power beyond general constitutional prohibitions (e.g., against taxing exports or taking property without compensation), it would not extend to authorizing what the Constitution forbids, changing the character of the government or a state, or ceding state territory without consent. A treaty that conflicts with a peremptory norm of general international law (jus cogens) is void.

In summary, the United States government is indeed bound by treaties, which hold a supreme legal status within its domestic legal system and create binding obligations under international law, subject to specific constitutional limitations and international legal principles.

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