Author: Donia Joevion Fuller, Research Associate
In recent times, many have questioned whether the status of international law as a genuine body of law. The reasons are tumultuous and stem from what is perceived as a worldwide disregard for several international instruments and principles. For instance, as Darfur continues to be embroiled in bitter conflict, Sudanese children are constantly forced to become “soldiers” for rebel factions.
However, this argument it is submitted is manifestly flawed. A brief comparison between International Law also called, the law of the nations ((J.L. Brierly, Law of Nations: An Introduction to the International Law of Peace, 6th ed; James H. Wolfe, Modern International Law: An Introduction to the Law of Nations))and laws that govern a state’s internal affairs will suffice to dispense with this critique. In several countries in the Commonwealth Caribbean, laws designed to regulate the use and protection of the environment are oft-disregarded. Yet, no one would challenge the legitimacy of the legal system on a whole. Simply put, the fact that individuals fail to adhere to laws and attendant regulations does not mean that there is-no law. That international law as first understood has experienced an evolved is not in dispute. This article aims to critically comment on this progression with a view to commenting on the recent debates on the legality of the use of unmanned vehicles in combat.
Defining International Law
Often described as the “father of the law”, Jeremy Bentham ((The Collected Works of Jeremy Bentham, ed. J. H. Burns (1961-79), J. R. Dinwiddy (1977-83), F. Rosen (1983-94), F. Rosen and P. Schofield (1995-2003), P. Schofield (2003-), London and Oxford))is cited as using the “International Law” 1780. Since that time, the term has been used as a collective reference for the body of rules and principles which regulate the relations among the members of international community. The relevant members of the international community being understood as not only including state actors, but also non-state elements such as the United Nations and the various bodies that operate under its mandate, quasi-judicial bodies, humanitarian institutions and NGO’s ((M.N.Shaw, International Law, 4th ed. (Cambridge: Grotius Publication, 1997).)).
Writing in 1905, Oppenheim ((L. Oppenheim, Oppenheim’s International Law (Robert Jennings & Arthur Watts, eds.), 9th ed.))defined international law as “the body of customary and conventional rules which are considered legally binding by civilized States in their intercourse with each other.” The limitations of this definition are obvious. The International Court of Justice in its Advisory Opinion on Reparation for Injuries Suffered in the Service of the United Nations affirmed that obligations and rights under International Law are not within the sole remit of states ((Peter Malanczuk, Akehurst’s Modern Introduction to International Law, 7th rev. ed.)).
The Court had to answer two main questions which sought to resolve firstly, whether in the event of an agent of the United Nations in the performance of his duties suffering injury in circumstances involving the responsibility of a State, the United Nations, as an Organization, the capacity to bring an international claim against the responsible de jure or de facto government with a view to obtaining the reparation due in respect of the damage caused (a) to the United Nations, (b) to the victim or to persons entitled through him? Secondly, in the event of an affirmative reply on point I (b), how is action by the United Nations to be reconciled with such rights as may be possessed by the State of which the victim is a national?
In relation to the first issue, the Court unanimously reached the conclusion that the Organization has the capacity to bring an international claim against a State (whether a Member or non-member) for damage resulting from a breach by that State of its obligations towards the Organization. The Court noted out that it is not called upon to determine the precise extent of the reparation which the Organization would be entitled to recover. On the contrary, the measure of the reparation should depend upon a number of factors which the Court gives as examples.
On question I (b) the Court’s opinion was divided but the majority held that the Organization has the capacity to bring an international claim whether or not the responsible State is a Member of the United Nations. Finally, the second issue, the majority of their Excellencies opined that when the United Nations as an organization is bringing a claim for reparation for damage caused to its agent, it can only do so by basing its claim upon a breach of obligations due to itself; respect for this rule ‘will usually prevent a conflict between the action of the United Nations and such rights as the agent’s national State may possess; moreover, this reconciliation must depend up considerations applicable to each particular case, and upon agreements to be made between the Organization and individual States.
The Statute of the ICJ provides what is considered as a comprehensive list of what may be considered sources of international law. Article 38(1) in the following terms identifies not only customary rules and conventions but also general principles.
The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
- International conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
- international custom, as evidence of a general practice accepted as law;
- the general principles of law recognized by civilized nations;
- subject to the provisions of Article 59, [.e. that only the parties bound by the decision in any particular case,] judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
Clearly, general principles, judicial decisions and teaching of highly qualified publicists play a role in what can be coined international law.
Understandably a more appropriate and indeed current definition may be that of J.G. Strake where he stated that
“International Law may be defined as that body of law which is composed for its greater part of the principles and rules of conduct which States feel themselves bound to observe, and, therefore, do commonly observe on their relations with each other, and include also—
(a) The rules of law relating to the functioning of international institutions or organizations, their relations with each other, and their relations with States and individuals; and
(b) Certain rules of law relating to individuals and non-State entities so far as the rights or duties of such individuals and non-State entities as far as the rights or duties of such individuals are the concern of the international community.”
Definition of International Law and the Law of Unmanned Weapons
This definition of Strake takes into account the changing character of International Law. On the issue of the legality of unmanned vehicles in combat such a definition is useful. To date, there is no treaty that delineates states’ obligations on this matter. Whilst the utility of such mechanisms are clearly recognized as if used properly they should reduce the death toll of national soldiers. However, taking the human element of discretion has potentially disastrous consequences. Whilst such systems are designed to recognize enemy combatants, the very real risk exists that in the event of situation where combatants are very near to civilians an unmanned weapon could cause civilian deaths being unable to distinguish between the two groups.
Established authorities on the use of force may not be very helpful should such a situation arise. The International Court of Justice advisory opinion on the Legality of the Threat or Use of Nuclear Weapons outlines conditions of self-defence that has been clearly outstripped by technology. Moreover, a state which uses such weapons may not necessarily be able to avail itself of the tenuous doctrine of anticipatory self defence, which itself has not received a strong foothold on legitimacy in International Law. Should the issue arise; general principles of international law particular in relation to humanitarian law as well as customary international law will have to be employed in determining the duties of a state to civilians in such situations. The inadequacy of Oppenheim’s definition perhaps becomes more blatant.
It may be most appropriate to define International Law as a corpus of general principles and specific rules evidenced by conventions and customary rules which are binding upon the members of international community in their mutual relations. In light of the rapid development of technology which changes the character of how states relate to each other it is necessary that any definition of international law recognizes any source that may be useful in resolving the issue.