Jus Gentium

Jus Gentium:
The Law of Nations

By
B.E.N.

April 21, 2005


In the Beginning…
For centuries, states have known and observed an obscure and vastly unstructured element of civil guidance. With no single developer, enforcer or mediator, this guidance has wandered through history slowly coalescing into what we know today as international law. Its development includes the contributions of treaty, doctrine- both religious and political, as well as learned theory and opinion. Courts at almost every level of society, though some more than others, have had opportunities to impact its progression through the ages. International law, once the only restriction existing for the nation-state, is quickly becoming an element that is affecting the lives of everyday people; individuals throughout the world are now forced to contend with the rules of the international society.

But what is international law and how is this different from what we observe everyday in our local communities? And how effective is international law? This essay intends to look at what makes up international law, explaining its difference with the domestic codes we are all familiar with, as well as look at it’s effectiveness in the international community.

Jus Gentium…
Jus gentium or the law of nations has been around since the Roman Empire and was considered "common to all men," and was used by Roman authorities for application to foreigners when Roman law was inappropriate. This is an example of how two thousand years ago there existed the premise that a universal law provided guidance to society, above and beyond what the local governments regulated.

Jus gentium was further expanded by the notion of jus gentium publicum and jus gentium privatum, or public and private law. Public international law revolves around the "political interactions of states", and it is the guidance for how they operate and conduct high politics (diplomacy, national security, etc). Private international law on the other hand relates to legal elements of the global economy as well as the interaction of national legal systems.

So what is the difference between domestic, or municipal, law and international law? Two immediately come to mind- the jurisdiction of the law and the source of the law. Obviously the jurisdiction for municipal law is within the confines of the state, while international jurisdiction is just that, international. All states are obligated to govern themselves within the limits of international law, to include their internal legislation. Therefore, municipal law falls within the jurisdiction of international law and must comply accordingly.

The second difference is the source for the law. In the case of municipal law, it has a central source, typically the law making body. For example, in the US it is Congress, which is guided by the US Constitution. International law, however, is derived from several sources to include the various bilateral and multilateral treaties, customary practice, natural law and general principles thereof.

The Source of Law…
Treaty is by far the most direct of the international law sources. The Vienna Convention defines treaty as, "an international agreement concluded between States in written form and governed by international law." Further more, it is what is within the document or agreement specifically that matters and is applicable to those who have signed the treaty, thus signaling their obligation and support for the provisions therein. An example of treaty, and its supremacy over municipal law, is evident in Asakura v. City of Seattle.

In this case, Asakura- a Japanese citizen living in Seattle, was a pawnbroker. The city of Seattle passed a law in 1921 saying that pawnbrokers had to have a license, which would only be issued to US citizens. Asakura claimed that this violated a previous treaty signed in 1911 between the US and Japan covering trade and the US Supreme Court agreed. The Court stated that, "The ordinance violates the treaty. The question in the present case relates solely to Japanese subjects who have been admitted to this country."

What we see here is how municipal law has been trumped by international law through the form of treaty, but we also see that the Seattle law was not found void. International law created an exception to the ordinance, applicable only to Japanese citizens. So the effectiveness of the treaty is quite clear, but in a general sense covering a broader spectrum, it is not nearly as successful. Therefore we learn the first key lesson of international law, different sources provide various levels of clarity as well as various levels of applicability, inherently affecting the effectiveness of the law.

Customary law, while not as direct as treaty, is another source of international law. It is comprised of, in the words of Supreme Court Justice Story, "the works of jurists, writing professedly on public law; or by the general usage and practice of nations; or by judicial decisions recognising and enforcing the law." So with customary international law, no single element provides all of the answers, rather its generally a collection of the above showing a commonality in international practice. Amerada Hess v. Argentine Republic is an excellent example of such.

Amerada [Hess Shipping Corp.] leased the oil tanker HERCULES to transport oil from Alaska to the US Virgin Islands for refining. It was in transit from the Virgin Islands back to Alaska and was traveling around South America, invariably taking it near the conflict between the United Kingdom and Argentina [the Falklands War]. The US Maritime Administration transmitted a list naming the HERCULES as well as all US flagged vessels, which were neutral to the situation, that would be traveling near the conflict but in international waters and out of the exclusion zones declared by both parties. However, the HERCULES was attacked without warning by Argentine aircraft suffering extensive damage but managed to make it to port in Rio de Janeiro, Brazil. Upon inspection, it was found that an unexploded bomb was in one of the fuel tanks and that the risk was too great to remove it, therefore the ship was taken out to sea and scuttled.

The US Second Circuit Court found that, "customary rule of international law underscores the longstanding nature of this aspect of freedom of the high seas. Where the attacker [Argentina] has refused to compensate the neutral [Amerada], such action is analogous to piracy, one of the earliest recognized violations of international law." The court listed a variety of international accords, judicial decisions as well as US federal law in citing its decision.

While no direct international document existed to cover this specific situation, a host of applicable sources were used to show a common assumption of all states towards to treatment of neutral vessels. This brings us to the second key lesson of international law, that while no single source may deal with the situation specifically, an understanding of common practice exists and is binding on all states. This greatly expands the effectiveness of international law as well as its applicability to such.

Jus cogens or higher law, is an example of natural law, and is yet another source of international law. As Mark Janis explains jus cogens is, "by its nature and utility, a rule so fundamental to the international community of states as a whole that the rule constitutes a basis for the community’s legal system." Examples of topics covered by jus cogens would be genocide, slavery, or in the opinion of the International Court of Justice, force. The court found that, "the law of the Charter [United Nations Charter] concerning the prohibition of the use of force in itself constitutes a conspicuous example of a rule in international law having the character of jus cogens."

Judge Fletcher of the US Ninth Circuit Court describes jus cogens in this way, "Whereas customary international law derives solely from the consent of states, the fundamental and universal norms constituting jus cogens transcend such consent," which leads us to the third key lesson in international law. There exists certain elemental norms within international law that cannot not be absolved or restricted by other societal inventions. Simply put, states cannot legalize things like murder and still be within the confines of international law, which again strengthens the effectiveness of international adjudication.

Another important source of international law is the element of general principle. As Janis points out, it is, "the basic notion…that a general principle of law is some proposition of law so fundamental that it will be found in virtually every legal system." This becomes an important tool when dealing with situations where no treaty or agreement exists and no customary law can be established. When this occurs, the establishment of a general principle of universal legal acceptance garners immediate importance. General principles can be seen especially in the rules of war, for example, with the principle of proportionality of force. An example of a case relying on general principle is AM&S Europe LTD v Commission [Commission of the European Economic Community].

The AM&S case dealt with the concept of privileged communications. The Commission on the European Economic Community was seeking certain documents from AM&S Europe Ltd. who felt that the documents were protected under lawyer-client privilege. Since the concept of privilege was not covered under the Common Market Treaty the European Court of Justice decided to take, "into account the principles and concepts common to the laws of those States concerning the observance of confidentiality, in particular, as regards certain communications between lawyer and client."

The importance of the general principle concept, and the fourth key lesson in international law, is that it can establish legal norms common to foreign jurisdictions within the international community. An added benefit or aspect of general principles is that they can be valuable in establishing customary international law.

The Tie that Binds…
As shown here, international law is literally a melting pot of legal opinions, decisions, legislation and agreements. The effectiveness of international law lies with the willingness of the international community to accept it. With the growing interdependence of the world and a continued push towards supranational organizations to fill the role of global manager, the effectiveness and participation of the global community is assured.

Granted, by the very nature of international law, there will continue to be examples of how international law has failed or was irrelevant. Filartiga is a prime example of this, but the vast acceptance of international decisions as law will continue to bind states and regulate the world community according to the tools and sources mentioned above. The point of no return has been reached, and it is up to the global community to accept and nurture international law into what the world society wants and expects accordingly.