Chapter 1 - Introduction To International Legal Regulation PDF

CHAPTER 1 INTRODUCTION TO INTERNATIONAL LEGAL REGULATION Introduction International law is many things. First and foremost, it is a body of law that regulates the behavior of states—and perhaps other entities as well. International law is therefore a “normative” system akin to domestic l...

CHAPTER 1 INTRODUCTION TO INTERNATIONAL LEGAL REGULATION Introduction International law is many things. First and foremost, it is a body of law that regulates the behavior of states—and perhaps other entities as well. International law is therefore a “normative” system akin to domestic law insofar as it announces how its subjects should behave. Just as domestic law tells individuals, corporations, and government actors how to behave, so too international law tells its subjects—usually nation-states but not always—how to behave. Dig a little deeper and international law looks little like domestic law. It is sui generis. First, its sources of law are different. While domestic lawyers make their arguments with statutes, federal and state regulations, and judicial precedent, international lawyers focus on treaties, customary law, and general principles of international law. Second, international law’s normative architecture is different from domestic law because the problems it seeks to solve are quite different. Third, methods of enforcement in international law share some commonalities with domestic law but also many differences. That being said, there are many similarities between domestic and international law. Doctrines in one appear in the other. Judicial decision-making is important in both fields. Many of the basic principles of international law gain that status because they are principles shared in a majority of domestic legal systems. International and domestic law are therefore deeply intertwined with each other. The goal of this course is certainly to master the formal doctrines of international law. No education of international law would be complete without a basic understanding of the ways that international law regulates and constrains state behavior. But along the way, the student of international law must understand the process of international law—how it is conducted, with what type of arguments, in which venues, and how success and failure is defined. Before turning to the key doctrines outlined in the chapters that follow, this chapter starts with background principles that structure the entire enterprise of international law. Section A focuses on the role that natural law played in the development of international law and asks 2 what role, if any, natural law still plays in international legal discourse today. Section B deals with the background assumption that states are permitted to do anything unless international law specifically prohibits it. Finally, Section C takes an outsider’s perspective and looks at international law as a particular system in the hopes of identifying the key characteristics of the system. The rest of the materials in the casebook will frequently circle back to these core themes. The full import of these background principles will become more apparent as you grapple with the rest of the doctrines—and doctrinal controversies—covered in this course. A. FROM THE LAW OF NATURE TO THE LAW OF NATIONS For centuries, the concept of international law was dominated by natural law. In philosophy, “natural law” means that the content of moral philosophy flows from universal characteristics of human nature, which can be ascertained by human beings through the faculty of reason. For example, one element of natural law entails that all human beings are entitled to individual rights, simply by virtue of certain morally relevant characteristics shared by all human beings. In the natural law era, philosophers built entire intellectual systems that explained the content of ethics and moral philosophy using this methodology. Because these systems were based on common characteristics of humanity, the philosophical rules were supposedly universal, in the sense that they applied to all human beings, regardless of where they lived. Practice did not always live up to this philosophical ideal. In the 17th Century, the content of international law was articulated through the lens of natural law. For example, the Dutch jurist Hugo Grotius (1583–1645) articulated basic principles of the international legal system by looking to natural law. So, while Grotius articulated some rules and norms that flowed from sources of law that today’s lawyer might recognize—for example, international agreements between nation-states—many of the principles of international law articulated by Grotius stemmed from first-order principles about the nature of humanity, the nature of societies, and the nature of the international community. These principles of international law were then gathered together in highly influential treatises that read like a mixture of law and philosophy. For example, Grotius’ most famous work was De Jure Belli ac Pacis (On the Law of War and Peace), which explored the rules regarding both the initiation of war and its conduct. In keeping with the methodology in vogue at the time, the rules referred to the conduct of states in prior armed conflicts but also basic principles that flowed from natural law. International lawyers consulted these and other treatises as authoritative statements regarding the requirements of international 3 law, and they played a large role in determining the direction of state behavior in international relations. Grotius was one of the most influential of the natural law theorists but certainly not the only one. Influential jurists such as Christian Wolff (1679–1754), Alberico Gentili (1552– 1608), and Francisco Suárez (1548–1617) also wrote treatises based on a similar methodology. Taken together, the natural law method generated a series of transcendental and universal norms that provided the foundation for international law.  Over time, the natural law era of international law waned. In its place came legal positivism—an articulation of international legal rules based on more specific sources of law, such as treaties, judicial decisions, and international custom (the behavior of states). These “sources” of international law are how international law is “made” today. Today, international lawyers generally make arguments about the content of international law by referring to these sources, rather than referring to transcendental arguments about the nature of humanity or the nature of the international system. The modern lawyer would be more likely to refer to these natural law arguments as “philosophy” rather than law. A core tenet of positivism—or at least some versions of it—is that legal norms should be divorced from moral norms. Put this way, one can see why the natural law approach was eventually rejected, since natural law involved explicit recourse to moral principles that were found in nature. Put another way, international lawyers once looked to nature to find the natural law, whereas in today’s world, it is assumed that international law is made by human beings when they engage in law-making behavior such as negotiating and signing a treaty. One question is whether the era of legal positivism has completely eradicated all traces of natural law from our system of international law. Are appeals to the nature of humanity completely irrelevant? Consider the following case from the U.S. Supreme Court. In 1825, a slave ship called “The Antelope” was captured off the coast of Florida (at the time a territory of Spain) and brought to port in the United States. The ship was carrying 280 slaves. Ostensibly, the Antelope was supposed to be transporting slaves from Africa to Cuba, but there was some suggestion that the Antelope was bringing the slaves to the United States. At the time, the importation of foreign slaves to the U.S. was prohibited by federal law. Moreover, northern states in the U.S. had long since abolished slavery by law, though it was still permitted in southern states. The Supreme Court was tasked with deciding the fate of the slaves on the ship, which hinged in part on whether the ship was violating international law (the law of nations) when it was captured and whether it could be considered a prize of war. As you read the case, pay particular attention to how the court determined the content of international law. 4 Did the international slave trade violate the law of nations? What role did natural law play in the court’s analysis? The Antelope Supreme Court of the United States 23 U.S. 66 (1825) MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court, and, after stating the case, proceeded as follows: In prosecuting this appeal, the United States assert no property in themselves. They appear in the character of guardians, or next friends, of these Africans, who are brought, without any act of their own, into the bosom of our country, insist on their right to freedom, and submit their claim to the laws of the land, and to the tribunals of the nation. The Consuls of Spain and Portugal, respectively, demand these Africans as slaves, who have, in the regular course of legitimate commerce, been acquired as property by the subjects of their respective sovereigns, and claim their restitution under the laws of the United States. In examining claims of this momentous importance; claims in which the sacred rights of liberty and of property come in conflict with each other; which have drawn from the bar a degree of talent and of eloquence, worthy of the questions that have been discussed; this Court must not yield to feelings which might seduce it from the path of duty, and must obey the mandate of the law. That the course of opinion on the slave trade should be unsettled, ought to excite no surprise. The Christian and civilized nations of the world with whom we have most intercourse, have all been engaged in it. However abhorrent this traffic may be to a mind whose original feelings are not blunted by familiarity with the practice, it has been sanctioned in modern times by the laws of all nations who possess distant colonies, each of whom has engaged in it as a common commercial business which no other could rightfully interrupt. It has claimed all the sanction which could be derived from long usage, and general acquiescence. That trade could not be considered as contrary to the law of nations which was authorized and protected by the laws of all commercial nations; the right to carry on which was claimed by each, and allowed by each. The course of unexamined opinion, which was founded on this inveterate usage, received its first check in America; and, as soon as these States acquired the right of self-government, the traffic was forbidden by most of them. In the beginning of this century, several humane and enlightened individuals of Great Britain devoted themselves to the cause of the Africans; and, by frequent appeals to the nation, in which the enormity of this commerce was unveiled, and exposed to the public eye, 5 the general sentiment was at length roused against it, and the feelings of justice and humanity, regaining their long lost ascendency, prevailed so far in the British parliament as to obtain an act for its abolition. The utmost efforts of the British government, as well as of that of the United States, have since been assiduously employed in its suppression. It has been denounced by both in terms of great severity, and those concerned in it are subjected to the heaviest penalties which law can inflict. In addition to these measures operating on their own people, they have used all their influence to bring other nations into the same system, and to interdict this trade by the consent of all. Public sentiment has, in both countries, kept pace with the measures of government; and the opinion is extensively, if not universally entertained, that this unnatural traffic ought to be suppressed. While its illegality is asserted by some governments, but not admitted by all; while the detestation in which it is held is growing daily, and even those nations who tolerate it in fact, almost disavow their own conduct, and rather connive at, than legalize, the acts of their subjects; it is not wonderful that public feeling should march somewhat in advance of strict law, and that opposite opinions should be entertained on the precise cases in which our own laws may control and limit the practice of others. Indeed, we ought not to be surprised, if, on this novel series of cases, even Courts of justice should, in some instances, have carried the principle of suppression farther than a more deliberate consideration of the subject would justify. The Amedie, (1 Action’s Rep. 240.) which was an American vessel employed in the African trade, was captured by a British cruiser, and condemned in the Vice Admiralty Court of Tortola. An appeal was prayed; and Sir William Grant, in delivering the opinion of the Court, said, that the trade being then declared unjust and unlawful by Great Britain a claimant could have no right, upon principles of universal law, to claim restitution in a prize Court, of human beings carried as his slaves. He must show some right that has been violated by the capture, some property of which he has been dispossessed, and to which he ought to be restored. In this case, the laws of the claimant’s country allow of no right of property such as he claims. There can, therefore, be no right of restitution. The consequence is, that the judgment must be affirmed. The Fortuna was condemned on the authority of the Amedie, and the same principle was again affirmed. The Diana was a Swedish vessel, captured with a cargo of slaves, by a British cruiser, and condemned in the Court of Vice Admiralty at Sierra Leone. This sentence was reversed on appeal, and Sir William Scott, in 6 pronouncing the sentence of reversal, said, “the condemnation also took place on a principle which this Court cannot in any manner recognise, inasmuch as the sentence affirms, ‘that the slave trade, from motives of humanity, hath been abolished by most civilized nations, and is not, at the present time, legally authorized by any.’ This appears to me to be an assertion by no means sustainable.” The ship and cargo were restored, on the principle that the trade was allowed by the laws of Sweden. The principle common to these cases is, that the legality of the capture of a vessel engaged in the slave trade, depends on the law of the country to which the vessel belongs. If that law gives its sanction to the trade, restitution will be decreed; if that law prohibits it, the vessel and cargo will be condemned as good prize. This whole subject came on afterwards to be considered in the Louis. The opinion of Sir William Scott, in that case, demonstrates the attention he had bestowed upon it, and gives full assurance that it may be considered as settling the law in the British Courts of Admiralty as far as it goes. The Louis was a French vessel, captured on a slaving voyage, before she had purchased any slaves, brought into Sierra Leone, and condemned by the Vice Admiralty Court at that place. On an appeal to the Court of Admiralty in England, the sentence was reversed. In the very full and elaborate opinion given on this case, Sir William Scott, in explicit terms, lays down the broad principle, that the right of search is confined to a state of war. It is a right strictly belligerent in its character, which can never be exercised by a nation at peace, except against professed pirates, who are the enemies of the human race. The act of trading in slaves, however detestable, was not, he said, “the act of freebooters, enemies of the human race, renouncing every country, and ravaging every country, in its coasts and vessels, indiscriminately.” It was not piracy. He also said, that this trade could not be pronounced contrary to the law of nations. A Court, in the administration of law, cannot attribute criminality to an act where the law imputes none. It must look to the legal standard of morality; and, upon a question of this nature, that standard must be found in the law of nations, as fixed and evidenced by general, and ancient, and admitted practice, by treaties, and by the general tenor of the laws and ordinances, and the formal transactions of civilized states; and, looking to those authorities, he found a difficulty in maintaining that the transaction was legally criminal. The right of visitation and search being strictly a belligerent right, and the slave trade being neither piratical, nor contrary to the law of 7 nations, the principle is asserted and maintained with great strength of reasoning, that it cannot be exercised on the vessels of a foreign power, unless permitted by treaty. France had refused to assent to the insertion of such an article in her treaty with Great Britain, and, consequently, the right could not be exercised on the high seas by a British cruiser on a French vessel. “It is pressed as a difficulty,” says the Judge, “what is to be done, if a French ship, laden with slaves, is brought in?” I answer, without hesitation, restore the possession which has been unlawfully devested; rescind the illegal act done by your own subject, and leave the foreigner to the justice of his own country. This reasoning goes far in support of the proposition, that, in the British Courts of admiralty, the vessel even of a nation which had forbidden the slave trade, but had not conceded the right of search, must, if wrongfully brought in, be restored to the original owner. But the Judge goes farther, and shows, that no evidence existed to prove that France had, by law, forbidden that trade. Consequently, for this reason, as well as for that previously assigned, the sentence of condemnation was reversed, and restitution awarded. In the United States, different opinions have been entertained in the different Circuits and Districts; and the subject is now, for the first time, before this Court. The question, whether the slave trade is prohibited by the law of nations has been seriously propounded, and both the affirmative and negative of the proposition have been maintained with equal earnestness. That it is contrary to the law of nature will scarcely be denied. That every man has a natural right to the fruits of his own labour, is generally admitted; and that no other person can rightfully deprive him of those fruits, and appropriate them against his will, seems to be the necessary result of this admission. But from the earliest times war has existed, and war confers rights in which all have acquiesced. Among the most enlightened nations of antiquity, one of these was, that the victor might enslave the vanquished. This, which was the usage of all, could not be pronounced repugnant to the law of nations, which is certainly to be tried by the test of neral usage. That which has received the assent of all, must be the law of all. Slavery, then, has its origin in force; but as the world has agreed that it is a legitimate result of force, the state of things which is thus produced by general consent, cannot be pronounced unlawful. Throughout Christendom, this harsh rule has been exploded, and war is no longer considered as giving a right to enslave captives. But this triumph of humanity has not been universal. The parties to the modern 8 law of nations do not propagate their principles by force; and Africa has not yet adopted them. Throughout the whole extent of that immense continent, so far as we know its history, it is still the law of nations that prisoners are slaves. Can those who have themselves renounced this law, be permitted to participate in its effects by purchasing the beings who are its victims? Whatever might be the answer of a moralist to this question, a jurist must search for its legal solution, in those principles of action which are sanctioned by the usages, the national acts, and the general assent, of that portion of the world of which he considers himself as a part, and to whose law the appeal is made. If we resort to this standard as the test of international law, the question, as has already been observed, is decided in favour of the legality of the trade. Both Europe and America embarked in it; and for nearly two centuries, it was carried on without opposition, and without censure. A jurist could not say, that a practice thus supported was illegal, and that those engaged in it might be punished, either personally, or by deprivation of property.  In this commerce, thus sanctioned by universal assent, every nation had an equal right to engage. How is this right to be lost? Each may renounce it for its own people; but can this renunciation affect others? No principle of general law is more universally acknowledged, than the perfect equality of nations. Russia and Geneva have equal rights. It results from this equality, that no one can rightfully impose a rule on another. Each legislates for itself, but its legislation can operate on itself alone. A right, then, which is vested in all by the consent of all, can be devested only by consent; and this trade, in which all have participated, must remain lawful to those who cannot be induced to relinquish it. As no nation can prescribe a rule for others, none can make a law of nations; and this traffic remains lawful to those whose governments have not forbidden it. If it is consistent with the law of nations, it cannot in itself be piracy. It can be made so only by statute; and the obligation of the statute cannot transcend the legislative power of the state which may enact it. If it be neither repugnant to the law of nations, nor piracy, it is almost superfluous to say in this Court, that the right of bringing in for adjudication in time of peace, even where the vessel belongs to a nation which has prohibited the trade cannot exist. The Courts of no country execute the penal laws of another; and the course of the American government on the subject of visitation and search, would decide any case in which that right had been exercised by an American cruiser, on the vessel of a foreign nation, not violating our municipal laws, against the captors. 9 It follows, that a foreign vessel engaged in the African slave trade, captured on the high- seas in time of peace, by an American cruiser, and brought in for adjudication, would be restored... We think, then, that all the Africans, now in possession of the Marshal for the District of Georgia, and under the control of the Circuit Court of the United States for that District, which were brought in with the Antelope, otherwise called the General Ramirez, except those which may be designated as the property of the Spanish claimants, ought to be delivered up to the United States, to be disposed of according to law. So much of the sentence of the Circuit Court as is contrary to this opinion, is to be reversed, and the residue affirmed. DECREE... On consideration whereof, this Court is of opinion, that there is error in so much of the sentence and decree of the said Circuit Court, as directs the restitution to the Spanish claimant of the Africans in the proceedings mentioned, in the ratio which one hundred and sixty-six bears to the whole number of those which remained alive at the time of pronouncing the said decree; and also in so much thereof, as directs restitution to the Portuguese claimant; and that so much of the said decree ought to be reversed, and it is hereby reversed and annulled. And this Court, proceeding to give such decree as the said Circuit Court ought to have given, doth DIRECT and ORDER, that the restitution to be made to the Spanish claimant, shall be according to the ratio which ninety-three (instead of one hundred and sixty-six) bears to the whole number, comprehending as well those originally on board the Antelope, as those which were put on board that vessel by the Captain of the Arraganta. After making the apportionment according to this ratio, and deducting from the number the rateable loss which must fall on the slaves to which the Spanish claimants were originally entitled, the residue of the said ninety-three are to be delivered to the Spanish claimant, on the terms in the said decree mentioned; and all the remaining Africans are to be delivered to the United States, to be disposed of according to law; and the said decree of the said Circuit Court is, in all things not contrary to this decree, affirmed. NOTES & QUESTIONS 1.The Slave Trade and the Birth of Human Rights. What conclusion did the court reach regarding the fate of the slave trade under international law? Ultimately, the Supreme Court concluded that although an abolitionist spirit had prompted Britain and the United States to ban the international slave trade, plenty of other states were either continuing with the slave trade (such as Spain and Portugal) or had recently engaged in it. For this reason, the Supreme Court concluded that the slave trade did not violate the law of nations. However, other courts of that era were more willing to free slaves rescued from captured ships. In her book The Slave Trade and the Origins of 10 International Human Rights Law (2012), Jenny S. Martinez notes that after Britain passed the Act for the Abolition of the Slave Trade in 1807, the British Navy began enforcing the act by seizing ships that were engaged in illegal slave trading. The ships and the slaves they transported were then taken before special “courts of mixed commission” to adjudicate their fate, which often resulted in the slaves being freed. These courts, located in foreign cities, were created pursuant to bilateral treaties between Britain and the host nation where the court was located. Martinez argues that these courts were the forerunners to modern international human rights law—an application of international legal norms enforced for the purpose of protecting individual human beings. For a debate over this historical conclusion, see Philip Alston, Does the Past Matter? On the Origins of Human Rights, 126 Harv. L. Rev. 2043 (2013). 2.Natural Law Versus Positivism. What role did natural law play in the court’s analysis in The Antelope? The Supreme Court conceded that slavery was abhorrent and violated natural law. Nonetheless, the Court concluded that the law of nations was not constituted by natural law. In many ways, The Antelope was decided during a transitional period when international law was pivoting away from its natural law origins and towards a more positivist conception. The word “positivism” in this context refers to positive sources of law, such as treaties, judicial decisions, or even customary international law, which is the general practice of states and their views on what international law requires of them. Which of these positive sources of law most influenced the court’s decision in the Antelope? 3.The Fate of Natural Law Today. What role does natural law play today? Most international lawyers would argue none at all. Legal arguments are almost always won and lost by referring to positive sources of law, such as treaties, custom, or decisions from international courts or tribunals. But this conclusion may be slightly hasty. Even fully positivist international lawyers sometimes argue that some legal norms—called jus cogens—are universally required and cannot be derogated from (such as the prohibition against genocide or torture). The role of jus cogens will be explored in greater depth in Chapter 2. However, for the moment, just consider whether jus cogens is a covert reference to natural law, i.e., a positivistic gloss on a phenomenon that prior generations of lawyers would have simply referred to as natural law. Has natural law prevailed, in some small way, in the small real estate of international law that is non-derogable (universally mandatory)? For a discussion of modern international law arguments that rely on natural law, see Evan J. Criddle, Three Grotian Theories of Humanitarian Intervention, 16 Theoretical Inquiries in Law 473 (2015). B. THE LOTUS PRESUMPTION In 1926, the SS Lotus collided with the SS Bozkurt in water not far from Greece. The Lotus was a French ship and the Bozkurt was a Turkish vessel. The result of the collision was the destruction of the Bozkurt and 11 the deaths of the eight Turkish sailors on board. Turkey prosecuted one of the French sailors on the Lotus and held him responsible for the accident and the deaths. France objected to Turkey’s exercise of jurisdiction and sued Turkey before the Permanent Court of Justice, a forerunner of today’s International Court of Justice in The Hague. On one level, the Lotus case is about a complex jurisdictional dispute arising on the high seas. But on another level, the Lotus case is about something far deeper: the background assumptions against which international law operates. Are states required to articulate a legal rule before acting? Or is state action presumptively valid unless a rule of international law prohibits it? Is the default rule in international law that everything is permitted unless specifically prohibited? Or is the default rule the opposite: everything is prohibited unless specifically permitted? As you read the case, look for the court’s answer to this foundational question. The SS Lotus (France v. Turkey) Permanent Court of Justice Sept. 7, 1927 The Facts 13.According to the statements submitted to the Court by the Parties’ Agents in their Cases and in their oral pleadings, the facts in which the affair originated are agreed to be as follows: 14.On August 2nd, 1926, just before midnight, a collision occurred between the French mail steamer Lotus, proceeding to Constantinople, and the Turkish collier Boz-Kourt, between five and six nautical miles to the north of Cape Sigri (Mitylene). The Boz-Kourt, which was cut in two, sank, and eight Turkish nationals who were on board perished. After having done everything possible to succour the shipwrecked persons, of whom ten were able to be saved, the Lotus continued on its course to Constantinople, where it arrived on August 3rd. 15.At the time of the collision, the officer of the watch on board the Lotus was Monsieur Demons, a French citizen, lieutenant in the merchant service and first officer of the ship, whilst the movements of the Boz-Kourt were directed by its captain, Hassan Bey, who was one of those saved from the wreck. 16.As early as August 3rd the Turkish police proceeded to hold an enquiry into the collision on board the Lotus; and on the following day, August 4th, the captain of the Lotus handed in his master’s report at the French Consulate-General, transmitting a copy to the harbour master. 12 17.On August 5th, Lieutenant Demons was requested by the Turkish authorities to go ashore to give evidence. The examination, the length of which incidentally resulted in delaying the departure of the Lotus, led to the placing under arrest of Lieutenant Demons without previous notice being given to the French Consul-General—and Hassan Bey, amongst others. This arrest, which has been characterized by the Turkish Agent as arrest pending trial (arrestation preventive), was effected in order to ensure that the criminal prosecution instituted against the two officers, on a charge of manslaughter, by the Public Prosecutor of Stamboul, on the complaint of the families of the victims of the collision, should follow its normal course. 18.The case was first heard by the Criminal Court of Stamboul on August 28th. On that occasion, Lieutenant Demons submitted that the Turkish Courts had no jurisdiction; the Court, however, overruled his objection. When the proceedings were resumed on September 11th, Lieutenant Demons demanded his release on bail: this request was complied with on September 13th, the bail being fixed at 6,000 Turkish pounds. 19.On September 15th, the Criminal Court delivered its judgment, the terms of which have not been communicated to the Court by the Parties. It is, however, common ground, that it sentenced Lieutenant Demons to eighty days’ imprisonment and a fine of twenty-two pounds, Hassan Bey being sentenced to a slightly more severe penalty. 20.It is also common ground between the Parties that the Public Prosecutor of the Turkish Republic entered an appeal against this decision, which had the effect of suspending its execution until a decision upon the appeal had been given; that such decision has not yet been given; but that the special agreement of October 12th, 1926, did not have the effect of suspending “the criminal proceedings.... now in progress in Turkey.” 21.The action of the Turkish judicial authorities with regard to Lieutenant Demons at once gave rise to many diplomatic representations and other steps on the part of the French Government or its representatives in Turkey, either protesting against the arrest of Lieutenant Demons or demanding his release, or with a view to obtaining the transfer of the case from the Turkish Courts to the French Courts. 22.As a result of these representations, the Government of the Turkish Republic declared on September 2nd, 1926, that “it would have no objection to the reference of the conflict of jurisdiction to the Court at The Hague.” 23.The French Government having, on the 6th of the same month, given “its full consent to the proposed solution,” the two Governments appointed their plenipotentiaries with a view to the drawing up of the 13 special agreement to be submitted to the Court; this special agreement was signed at Geneva on October 12th, 1926, as stated above, and the ratifications were deposited on December 27th, 1926. The Law 24.Before approaching the consideration of the principles of international law contrary to which Turkey is alleged to have acted thereby infringing the terms of Article 15 of the Convention of Lausanne of July 24th, 1923, respecting conditions of residence and business and, jurisdiction, it is necessary to define, in the light of the written and oral proceedings, the position resulting from the special agreement. For, the Court having obtained cognizance of the present case by notification of a special agreement concluded between the Parties in the case, it is rather to the terms of this agreement than to the submissions of the Parties that the Court must have recourse in establishing the precise points which it has to decide. In this respect the following observations should be made: 25.The collision which occurred on August 2nd, 1926, between the S. S. Lotus, flying the French flag, and the S. S. Boz-Kourt, flying the Turkish flag, took place on the high seas: the territorial jurisdiction of any State other than France and Turkey therefore does not enter into account. 26.The violation, if any, of the principles of international law would have consisted in the taking of criminal proceedings against Lieutenant Demons. It is not therefore a question relating to any particular step in these proceedings—such as his being put to trial, his arrest, his detention pending trial or the judgment given by the Criminal Court of Stamboul—but of the very fact of the Turkish Courts exercising criminal jurisdiction. That is why the arguments put forward by the Parties in both phases of the proceedings relate exclusively to the question whether Turkey has or has not, according to the principles of international law, jurisdiction to prosecute in this case. 27.The Parties agree that the Court has not to consider whether the prosecution was in conformity with Turkish law; it need not therefore consider whether, apart from the actual question of jurisdiction, the provisions of Turkish law cited by Turkish authorities were really applicable in this case, or whether the manner in which the proceedings against Lieutenant Demons were conducted might constitute a denial of justice, and accordingly, a violation of international law. The discussions have borne exclusively upon the question whether criminal jurisdiction does or does not exist in this case. 28.The prosecution was instituted because the loss of the Boz-Kourt involved the death of eight Turkish sailors and passengers. It is clear, in the first place, that this result of the collision constitutes a factor essential for the institution of the criminal proceedings in question; 14 secondly, it follows from the statements of the two Parties that no criminal intention has been imputed to either of the officers responsible for navigating the two vessels; it is therefore a case of prosecution for involuntary manslaughter. The French Government maintains that breaches of navigation regulations fall exclusively within the jurisdiction of the State under whose flag the vessel sails; but it does not argue that a collision between two vessels cannot also bring into operation the sanctions which apply to criminal law in cases of manslaughter. The precedents cited by it and relating to collision cases all assume the possibility of criminal proceedings with a view to the infliction of such sanctions, the dispute being confined to the question of jurisdiction concurrent or exclusive—which another State might claim in this respect. As has already been observed, the Court has not to consider the lawfulness of the prosecution under Turkish law; questions of criminal law relating to the justification of the prosecution and consequently to the existence of a nexus causalis between the actions of Lieutenant Demons and the loss of eight Turkish nationals are not relevant to the issue so far as the Court is concerned. Moreover, the exact conditions in which these persons perished do not appear from the documents submitted to the Court; nevertheless, there is no doubt that their death may be regarded as the direct outcome of the collision, and the French Government has not contended that this relation of cause and effect cannot exist. 29.Lieutenant Demons and the captain of the Turkish steamship were prosecuted jointly and simultaneously. In regard to the conception of “connexity” of offences (connexite), the Turkish Agent in the submissions of his Counter-Case has referred to the Turkish Code of criminal procedure for trial, the provisions of which are said to have been taken from the corresponding French Code. Now in French law, amongst other factors, coincidence of time and place may give rise to “connexity” (connexite). In this case, therefore, the Court interprets this conception as meaning that the proceedings against the captain of the Turkish vessel in regard to which the jurisdiction of the Turkish Courts is not disputed, and the proceedings against Lieutenant Demons, have been regarded by the Turkish authorities, from the point of view of the investigation of the case, as one and the same prosecution, since the collision of the two steamers constitutes a complex of acts the consideration of which should, from the standpoint of Turkish criminal law, be entrusted to the same court. 30.The prosecution was instituted in pursuance of Turkish legislation. The special agreement does not indicate what clause or clauses of that legislation apply. No document has been submitted to the Court indicating on what article of the Turkish Penal Code the prosecution was based; the French Government however declares that 15 the Criminal Court claimed jurisdiction under Article 6 of the Turkish Penal Code, and far from denying this statement, Turkey, in the submissions of her Counter-Case, contends that that article is in conformity with the principles of international law. It does not appear from the proceedings whether the prosecution was instituted solely on the basis of that article. 31.Article 6 of the Turkish Penal Code, Law No. 765 of March 1st, 1926 (Official Gazette No. 320 of March 13th, 1926), runs as follows: Any foreigner who, apart from the cases contemplated by Article 4, commits an offence abroad to the prejudice of Turkey or of a Turkish subject, for which offence Turkish law prescribes a penalty involving loss of freedom for a minimum period of not less than one year, shall be punished in accordance with the Turkish Penal Code provided that he is arrested in Turkey. The penalty shall however be reduced by one third and instead of the death penalty, twenty years of penal servitude shall be awarded. Nevertheless, in such cases, the prosecution will only be instituted at the request of the Minister of Justice or on the complaint of the injured Party. If the offence committed injures another foreigner, the guilty person shall be punished at the request of the Minister of Justice, in accordance with the provisions set out in the first paragraph of this article, provided however that: (1)the article in question is one for which Turkish law prescribes a penalty involving loss of freedom for a minimum period of three years; (2)there is no extradition treaty or that extradition has not been accepted either by the government of the locality where the guilty person has committed the offence or by the government of his own country. 32.Even if the Court must hold that the Turkish authorities had seen fit to base the prosecution of Lieutenant Demons upon the above-mentioned Article 6, the question submitted to the Court is not whether that article is compatible with the principles of international law; it is more general. The Court is asked to state whether or not the principles of international law prevent Turkey from instituting criminal proceedings against Lieutenant Demons under Turkish law. Neither the conformity of Article 6 in itself with the principles of international law nor the application of that article by the Turkish authorities constitutes the point at issue; it is the very fact of the institution of proceedings which is held by France to be contrary to those principles. Thus the French Government at once protested against his arrest, quite independently of the question as to what clause of her legislation was  16 relied upon by Turkey to justify it. The arguments put forward by the French Government in the course of the proceedings and based on the principles which, in its contention, should govern navigation on the high seas, show that it would dispute Turkey’s jurisdiction to prosecute Lieutenant Demons, even if that prosecution were based on a clause of the Turkish Penal Code other than Article 6, assuming for instance that the offence in question should be regarded, by reason of its consequences, to have been actually committed on Turkish territory. 33.Having determined the position resulting from the terms of the special agreement, the Court must now ascertain which were the principles of international law that the prosecution of Lieutenant Demons could conceivably be said to contravene. 34.It is Article 15 of the Convention of Lausanne of July 24th, 1923, respecting conditions of residence and business and jurisdiction, which refers the contracting Parties to the principles of international law as regards the delimitation of their respective jurisdiction. 35.This clause is as follows: “Subject to the provisions of Article 16, all questions of jurisdiction shall, as between Turkey and the other contracting Powers, be decided in accordance with the principles of international law.” 36.The French Government maintains that the meaning of the expression “principles of international law” in this article should be sought in the light of the evolution of the Convention. Thus it states that during the preparatory work, the Turkish Government, by means of an amendment to the relevant article of a draft for the Convention, sought to extend its jurisdiction to crimes committed in the territory of a third State, provided that, under Turkish law, such crimes were within the jurisdiction of Turkish Courts. This amendment, in regard to which the representatives of France and Italy made reservations, was definitely rejected by the British representative; and the question having been subsequently referred to the Drafting Committee, the latter confined itself in its version of the draft to a declaration to the effect that questions of jurisdiction should be decided in accordance with the principles of international law. The French Government deduces from these facts that the prosecution of Demons is contrary to the intention which guided the preparation of the Convention of Lausanne. 37.The Court must recall in this connection what it has said in some of its preceding judgments and opinions, namely, that there is no occasion to have regard to preparatory work if the text of a convention is sufficiently clear in itself. Now the Court considers that the words “principles of international law,” as ordinarily used, can only mean international law as it is applied between all nations belonging to the community of States. This interpretation is borne out by the context of 17 the article itself which says that the principles of international law are to determine questions of jurisdiction—not only criminal but also civil—between the contracting Parties, subject only to the exception provided for in Article 16. Again, the preamble of the Convention says that the High Contracting Parties are desirous of effecting a settlement in accordance “with modern international law,” and Article 28 of the Treaty of Peace of Lausanne, to which the Convention in question is annexed, decrees the complete abolition of the Capitulations “in every respect.” In these circumstances it is impossible—except in pursuance of a definite stipulation—to construe the expression “principles of international law” otherwise than as meaning the principles which are in force between all independent nations and which therefore apply equally to all the contracting Parties. 38.Moreover, the records of the preparation of the Convention respecting conditions of residence and business and jurisdiction would not furnish anything calculated to overrule the construction indicated by the actual terms of Article 15. It is true that the representatives of France, Great Britain and Italy rejected the Turkish amendment already mentioned. But only the British delegate—and this conformably to British municipal law which maintains the territorial principle in regard to criminal jurisdiction—stated the reasons for his opposition to the Turkish amendment; the reasons for the French and Italian reservations and for the omission from the draft prepared by the Drafting Committee of any definition of the scope of the criminal jurisdiction in respect of foreigners, are unknown and might have been unconnected with the arguments now advanced by France. 39.It should be added to these observations that the original draft of the relevant article, which limited Turkish jurisdiction to crimes committed in Turkey itself, was also discarded by the Drafting Committee; this circumstance might with equal justification give the impression that the intention of the framers of the Convention was not to limit this jurisdiction in any way. 40.The two opposing proposals designed to determine definitely the area of application of Turkish criminal law having thus been discarded, the wording ultimately adopted by common consent for Article 15 can only refer to the principles of general international law relating to jurisdiction. 41.The Court, having to consider whether there are any rules of international law which may have been violated by the prosecution in pursuance of Turkish law of Lieutenant Demons, is confronted in the first place by a question of principle which, in the written and oral arguments of the two Parties, has proved to be a fundamental one. The French Government contends that the Turkish Courts, in order to have jurisdiction, should be able to point to some title to jurisdiction 18 recognized by international law in favour of Turkey. On the other hand, the Turkish Government takes the view that Article 15 allows Turkey jurisdiction whenever such jurisdiction does not come into conflict with a principle of international law. 42.The latter view seems to be in conformity with the special agreement itself, No. I of which asks the Court to say whether Turkey has acted contrary to the principles of international law and, if so, what principles. According to the special agreement, therefore, it is not a question of stating principles which would permit Turkey to take criminal proceedings, but of formulating the principles, if any, which might have been violated by such proceedings. 43.This way of stating the question is also dictated by the very nature and existing conditions of international law. 44.International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed. 45.Now the first and foremost restriction imposed by international law upon a State is that—failing the existence of a permissive rule to the contrary—it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention. 46.It does not, however, follow that international law prohibits a State from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad, and in which it cannot rely on some permissive rule of international law. Such a view would only be tenable if international law contained a general prohibition to States to extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, and if, as an exception to this general prohibition, it allowed States to do so in certain specific cases. But this is certainly not the case under international law as it stands at present. Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion, which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable. 19 47.This discretion left to States by international law explains the great variety of rules which they have been able to adopt without objections or complaints on the part of other States; it is in order to remedy the difficulties resulting from such variety that efforts have been made for many years past, both in Europe and America, to prepare conventions the effect of which would be precisely to limit the discretion at present left to States in this respect by international law, thus making good the existing lacunæ in respect of jurisdiction or removing the conflicting jurisdictions arising from the diversity of the principles adopted by the various States.  In these circumstances all that can be required of a State is that it should not overstep the limits which international law places upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its sovereignty. 48.It follows from the foregoing that the contention of the French Government to the effect that Turkey must in each case be able to cite a rule of international law authorizing her to exercise jurisdiction, is opposed to the generally accepted international law to which Article 13 of the Convention of Lausanne refers. Having regard to the terms of Article 15 and to the construction which the Court has just placed upon it, this contention would apply in regard to civil as well as to criminal cases, and would be applicable on conditions of absolute reciprocity as between Turkey and the other contracting Parties; in practice, it would therefore in many cases result in paralysing the action of the courts, owing to the impossibility of citing a universally accepted rule on which to support the exercise of their jurisdiction... NOTES & QUESTIONS 1.Defending the Lotus Presumption. The court concluded that Turkey was not required to articulate a rule justifying its assertion of jurisdiction. Rather, France was required to articulate a rule that prohibited Turkey’s behavior. The basic assumption in Lotus is that states have a sovereign right to act in any way they wish unless a specific rule of international law prohibits that behavior. What type of presumption applies in normal domestic life? For example, what is the background presumption that applies in domestic criminal law or domestic tort law? Do these fields operate according to a Lotus presumption or according to a reverse-Lotus presumption? 2.Modern Examples of the Lotus Presumption. Once you look for them, examples of the Lotus presumption appear everywhere. Often, the presumption is not explicitly articulated. But in other situations, the presumption is explicitly cited. For example, the International Court of Justice (ICJ) issued an Advisory Opinion in 2010 addressing whether the territory of Kosovo (in Serbia) had a right to unilaterally declare 20 independence. The ICJ concluded that there was no rule of international law explicitly prohibiting Kosovo from making such a declaration. See Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, 2010 I.C.J. 404. This was clearly an application of the Lotus presumption. Writing in dissent, Judge Bruno Simma criticized the application of the Lotus presumption to the question of Kosovo’s unilateral declaration of independence: The underlying rationale of the Court’s approach reflects an old, tired view of international law, which takes the adage, famously expressed in the Lotus Judgment, according to which restrictions on the independence of States cannot be presumed because of the consensual nature of the international legal order. As the Permanent Court did in that case, the Court has concluded in the present Opinion that, in relation to a specific act, it is not necessary to demonstrate a permissive rule so long as there is no  prohibition. In this respect, in a contemporary international legal order which is strongly influenced by ideas of public law, the Court’s reasoning on this point is obsolete... The Court’s reading of the General Assembly’s question and its reasoning, leaping as it does straight from the lack of a prohibition to permissibility, is a straightforward application of the so-called Lotus principle. By reverting to it, the Court answers the question in a manner redolent of nineteenth-century positivism, with its excessively deferential approach to State consent. Under this approach, everything which is not expressly prohibited carries with it the same colour of legality; it ignores the possible degrees of non-prohibition, ranging from “tolerated” to “permissible” to “desirable.” What did Simma mean when he referred to positivism? What is the connection between the Lotus presumption and positivism? Do you see the Lotus presumption at work in the Antelope decision discussed above? Did the Supreme Court assume that the slave trade was legal under the law of nations unless a litigant could point to a rule of international law forbidding it? Finally, does the Lotus presumption represent an “excessively deferential approach” to state interests, as Simma suggests? C. INTERNATIONAL LAW AS A LEGAL SYSTEM International law is more than a body of law. It is also a legal system, with a distinctive ecology populated by actors—international lawyers—who use international law in a different way than domestic lawyers. In the following excerpt, Professor Anthony D’Amato takes a step back and rather than acting as an international lawyer within the system, he looks at international law as a discipline from the perspective of a social scientist. What does he see? 21 Groundwork for International Law Anthony D’Amato 108 Am. J. Int’l L. 650 (2014) International law is a system; its environment is the field of international relations. Although the word system is often used generically, it has a formal meaning in “general systems theory,” an interdisciplinary methodology that grew out of cybernetics research in the 1970s. Since then, general systems theory has proved to be a significant heuristic in hundreds of disparate research areas. In describing international law from the viewpoint of an autopoietic system (to be defined shortly), this article intends not just to reexamine the foundations of international law but also to help litigators and negotiators make their international-law arguments sounder and more persuasive. A general system is an entity that is separated from its environment by a skin, a membrane, or even just a description of its boundaries. The elements inside the system interact with each other. An open system interacts with its environment; a closed system (for example, a bacteria culture inside a sealed test tube) interacts only with itself. International law is an open system because it gets its information from diplomacy, and its rules, in turn, affect diplomatic strategy. The rules themselves are interconnected, as shown by the fact that any rule may be used as a sanction in cases of noncompliance with international law. Adding to the interconnectedness of rules is the fact that the states that cite or violate them form a nonscalar communications network of radio, television, the Internet, cell phones (the most ubiquitous product in history, with an increasing impact on human rights), trade, and cross-boundary movement of persons. In brief, international rules, norms, principles, privileges, duties, and entitlements (even when translations of these terms can be fuzzy) form an identifiable and coherent set within the system. Autopoietic systems were discovered in 1973 by Chilean biologists Humberto Maurana and Francisco Varela. Their theory defines living systems as self-producing units that maintain their essential form, perpetuating themselves according to their internal organization. Not only do we now know that a living animal can be described by the autopoietic system, but we have the contrary claim—enormously successful as a heuristic in scientific research—that entities with an autopoietic organization can parsimoniously be studied as if they were alive. The international legal system is a living system because it is made up of jurists and practitioners (the invisible college, to be described below), and because these persons have invested their careers in the hope and reasonable expectation that the system will perpetuate itself into the 22 foreseeable future. The system therefore “wants” to persist through time; indeed, it has survived since the fall of the Roman Empire. The internal coherence of the international legal system is evidenced by the fact that it can be viewed anthropomorphically. This coherence is sometimes hard to see from the phenomenological perspectives of one’s home state. General systems theory provides a top- down vantage point that helps, first, in providing an efficient descriptive model of the international system incorporating minimalist empirical assumptions of state behavior; second, in providing explanatory theories of causation for its set of norms; and third, in predicting generally the system’s acceptance or rejection of new putative norms of customary international law. All living systems want to survive over time. As a general matter, the international legal system’s best tools in the Darwinian struggle to survive are, first, adhering to a set of noncontradictory rules and principles of public international law; second, applying these principles to all states equally; and third, recognizing a bias in the rules themselves (and in their formation) in favor of peaceful resolution of disputes, thus raising the odds of the system’s survival. The same factors work in reinforcing and replenishing the perceived value of the system, thus increasing the prestige of its practitioners and experts. The systemic rules I will be analyzing are rules about rules—rules of the general system of international law, or more simply, metarules. They can be taken as constitutive of present international law—“constitutive” meaning both epistemological and ontological. Thus, each of the systemic propositions... of this article can be challenged by the reader as empirically unfounded, ontologically invalid, or both. This potential double challenge has acted as a strong constraint upon my formulation of the propositions in this article. I have tried to formulate them as simply as possible (following Occam’s razor) and to likewise limit their number, taking into account the great diversity of international law. The general template will, I hope, survive any errors within it, thus making it useful to others if they choose to substitute or add new propositions. What make the present project feasible are two nonsubjective factors. First is the coherence of the international legal system itself. Its rules are well honed and well tested. It resembles a biological system that has evolved over time. The system strives to preserve itself by providing a normative peace-tilting check upon contested issues of international relations and diplomacy. Mutant conflict-stimulating rules that led to warfare have been replaced—in the Darwinian struggle to survive over the centuries—by cooperation-enabling rules. The second factor is the nature of law itself. Law is inherently conservative; its rules of decision emphasize adhering to precedents from the past. A peaceful past is a 23 presumptive guide to a peaceful future. Stability can be seen as a function of rule preservation. Thus, the struggle for survival of the international legal system through time is coterminous with maintaining the integrity of the majority of its rules, norms, and principles. For transparency of exposition, the theory presented here is broken down into its components: axioms, propositions, and corollaries. Four axioms describe basic requirements of the international legal system. Eleven propositions illustrate the sorting process that the system imposes on all potential legal rules that strive to become part of the system. Twelve corollaries present examples of the propositions and, in a few cases, examine related theories. By applying its three components, one applies the theory itself; there is nothing left over. Taken together, the axioms, propositions, and corollaries herein offer a structured, internally consistent explanation of why the present rules of international law, instead of other imaginable or counterfactual rules, have turned out to be the fittest in the international legal system’s Darwinian struggle to survive. Of course, mutant rules may arise at any time to replace one or more of the existing rules. However, a testable consequence of the groundwork offered here is that the probability of a potential rule replacing a current rule is a function of the former’s having a tighter fit into the axiomatic scheme. Thus, the proffered axiomatic scheme has “bite”: it is a filter for testing, accepting, or rejecting new rules. Four Foundational Axioms AXIOM 1. The primary purpose of the international legal system is not to regulate international relations but to preserve itself.  The general-systems point of view focuses primarily upon the system and only secondarily upon the system’s goal or purpose. James Crawford’s book International Law as an Open System takes the latter viewpoint: international law’s purpose is to regulate international relations. By contrast, the general-systems viewpoint here takes an essentialist position in claiming that the rules and processes of international law can be best explained if we start with the self-protective nature of all aggregative, interconnected entities known as general systems. International law is not a stack of rules on a library shelf. It is a professional industry, made up of national officials, diplomats and statespersons, international practitioners and scholars, law professors and students, UN officials, judges of international courts and their clerks, professional arbitrators, judges and clerks of bilateral claims commissions, and advocate-members of NGOs, among others—all of whom were well described by the late Oscar Schachter as an invisible college of international lawyers dedicated to a common intellectual 24 enterprise. Because of the time that these persons have devoted to studying and learning international law, they have invested significant human capital in the system’s continued utility and preservation. To be sure, they will often disagree as to whether an alleged rule belongs to the set of accepted rules of international law (especially if it is their job to come out the way that their employers or their governments demand), but even then they have a personal stake in preserving and maintaining the system of international rules. Governments turn to them for advice as to the international legality of a given policy that the government plans to implement—at the very least in order to help predict the reactions of the legally informed international community. These advisers, both official and unofficial, infuse the international legal system with a dynamic sense of purpose and persistence. Thus, to the tens of thousands of persons making up the invisible college around the world, international rules can sometimes seem incorrect but never irrelevant. The greatest threat to the viability of the international-law system is anarchy. With total anarchy, international law would perish and might be replaced, if peace is restored, by something entirely different (such as a world dictatorship). Thus, when any controversy arises among nations and the relevant rules are in dispute, the international legal system’s bias for self-preservation will tilt toward the rule that offers the greater probability of a peaceful resolution of the controversy and will bend away from the rule that prolongs or escalates it. That is not to say that justice is irrelevant to conflict resolution. But justice does not function in the abstract; rather, it is perceived justice that counts. And most of the time the perceived justice is symbiotic with the resolution that augurs future peace. Arguably, a justly perceived decision, both in domestic and international law, promotes stability. After the temper of a losing side cools down, the just decision may gradually be accepted as the right decision. AXIOM 2. The international legal system, as it strives to persist through time, tends to evolve norms that reduce friction and controversies among states and to foster  systemic equilibrium by prescribing how controversies may be avoided, mitigated, or resolved. Indefinite persistence through time is the foremost objective of any biological or behavioral system. Since war is the most dangerous predator of the international legal system, we can expect that for its own preservation the system will have generated rules or norms over time that serve both to reduce the temptation to resort to war (jus ad bellum) and to ameliorate the destructiveness of war should it break out (jus in bello). Thus, the ancient rule of diplomatic immunity was obviously intended to reduce international misunderstandings before they 25 escalated into an unwanted war but also to provide a mechanism for facilitating peace negotiations at any time during a war that began when diplomacy failed. How many rules are in the set of international rules? General systems theory provides some help. Theoretically, if a system has only one or two rules, it can quickly disequilibriate. The violation of one rule might invite a retaliatory response consisting of the violation of the other rule, leaving no remaining rules to help stabilize the impending rush toward anarchy. The propensity of systems toward homeostasis—to maintain a tolerable level of equilibrium— appears to require a larger number of rules in order to reduce the likelihood the rules will not be disregarded and then violated either all at once or, over time, through a process of escalating retaliation. The international legal system may be characterized as having a “rugged fitness landscape,’’ to use Stuart Kauffman’s concept derived from evolutionary biology. If the landscape were conceptually characterized by two tall mountains (two rules) with flat valleys between them, the system would include little room for “play”; states would have no place of refuge. But if the system consisted of many mountains, hills, and valleys, then a state’s violation of a given rule could be met by migrations and adjustments in the other landscape configurations. Another concept from Kauffman is that the evolutionary viability of the survival of the fittest on earth favors progressive occupation of environmental niches in a rugged fitness landscape. By analogy, the varied topological landscape of the international legal system provides enough variety to allow thousands of applications of rules (consider the earth’s jagged coastlines and island formations) without upsetting the rules themselves. As rules of international law increase in density and coverage, and as the more fit among them survive, they seek out niches for their own safety and stability. For example, in the Anglo-Norwegian Fisheries case, plaintiff Great Britain conceded in advance of litigation Norway’s jurisdiction and control over numerous small-island configurations and drying rocks—which in our terminology were historical niches pragmatically belonging to Norway even though they were located beyond Norway’s three-mile limit. In addition, police rules (akin to antibodies in biological systems) will likely emerge to protect the substantive rules (humanitarian intervention might be an example). As a general matter, the more fine-meshed the web of protective rules is in peacetime, the farther away is the specter of war.  AXIOM 3. The general-systems viewpoint has practical payoffs. A skeptical reader at this point might wonder whether the general-systems viewpoint is just an overblown metaphor. Of what use is it to a practitioner or scholar in the everyday world of litigating and practicing international law? The answer offered here is that when controversies 26 arise among states, the international legal system immanently tilts in favor of the side whose position seems to auger greater peace and stability. The party having the advantage is the one who can argue that a legal resolution of the controversy in its favor will foster stabilization in international relations, whereas its opponent’s position—irrespective of short- run considerations that might seem to justify it—will spawn further controversies over time. Such an argument finds its footing in general systems theory as set forth in the present essay. Axiom 2 contended that the international legal system “tends to evolve norms that reduce friction and controversies among states.” It is just a short step to add that international courts and tribunals will tend to be more receptive to a party’s arguments if the norms it cites and the principles it relies upon are those that are likely to increase international stability and reduce future friction and controversies. Litigators who are unaware of these dynamics may find themselves at an argumentative disadvantage—whether or not they use the jargon of general systems theory. Prior to the Hague Conventions of 1899 and 1907, courts were not involved in questioning jus in bellum—the laws of war. Yet it was slowly realized, starting at the time of the Lieber Code of the American Civil War, expanded by the Hague Conventions of 1899 and 1907, and codified and restated in the Geneva Conventions of 1929 and 1949, that there was no need to kill prisoners of war or to kill unarmed civilians. Neither side would be militarily advantaged during a war if both sides regarded prisoners of war and civilians as hors de combat. However, this new practice—called “the humanitarian laws of war”—needs a theoretical explanation that coheres with the systemic bias in favor of future peace and stability. To some students upon their first encounter with international law, the humanitarian laws of war seem proof of the “unreality” of the subject: after all, isn’t war the ultimate all-out, winner-take-all, zero-sum activity? Rules of law, by definition, cannot restrain the conduct of warfare: norms do not stop bullets. To these students the very existence and specific development over the years of the laws of humanitarian warfare seem rooted in paradox. Either the paradox can be resolved by the simplistic conclusion that rules of law are pious norms (“positive morality” in John Austin’s phrase), or else the paradox reveals the deep structure of the system: its tendency, above everything, to achieve homeostasis. The following brief argument is offered in support of the latter theory.  Is there a homeostatic reason for the international system to care enough about the degree of cruelty in the waging of war as to risk its norms in order to mitigate that cruelty? There is no doubt that its norms—and not just the norms concerning humanitarian warfare— 27 would be at risk: by putting the latter norms on the line, the international system takes the chance of their being ignored by military commanders on either side who want to win at all costs. The disobedience of the norms might then spread to all other norms of the international system, putting the entire legal structure at risk of collapse. Why would the international system take such a risk? Even more broadly, why should that system attempt to circumscribe military activity at all? Wouldn’t unrestrained warfare bring war to a quicker termination? Reducing cruelty per se is not the reason. The homeostatic, forward-looking reason for the international system to create humanitarian laws of warfare was suggested by Quincy Wright: “to prevent the war from providing the seeds for a new war.” The international system has opted to protect its future equilibrium by outlawing certain defined kinds of cruel behavior during a period of disequilibrium. The norms against barbaric behavior (those for which legal prohibitions predated the war: bombing nonmilitary targets such as civilians, museums, churches, and synagogues; chemical warfare and the use of poisonous gas; shooting prisoners of war) remain robust even during total war. Violating those norms can lead to withdrawal of support during the war from neutrals or even allies, as well as to prosecution for war crimes after the war. In rare cases a new weapon can be so barbaric that a new prohibitory norm coalesces more or less immediately. In domestic legal systems one can see something analogous to international law’s favoring the side that argues that awarding it the judgment will reduce future conflicts. It is the famous “floodgates” argument: the defendant argues that allowing subject-matter jurisdiction in the present case will open the floodgates of future litigation on that issue. When a court is convinced by this argument, it will probably accept the defendant’s motion to dismiss. AXIOM 4. The actual practice of states constitutes, for the most part, practice that the system normatizes. Louis Henkin has often been quoted for his observation: “Almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.” But sometimes a minor rewording of a statement like Henkin’s can yield a deeper truth: “Most nations cannot disobey most of the rules most of the time.” If they did, then the rules could hardly be called rules. More rigorously, the reason that most states are law-abiding is a logical consequence of the proposition that the law that governs their behavior must in large part conform to that same behavior. In order for law violations to be punishable in any social organization, they must be relatively infrequent, minority phenomena. Hence, we may conclude that the rules of international law that survive over time are precisely those rules that describe majority behavior—whether or not we like that behavior. To be  28 sure, the gap between law and behavior must be kept narrow lest the law itself precipitate a war. Thus, in order to have an international “legal” system, majority behavior must be articulated and normatized. The system’s principles for ensuring its own survival must then be internationalized. In short, it follows from the above variation of Henkin’s observation that the system’s articulation, selection, adoption, and normatization of its own principles is another way of describing the process of generating customary international law. Custom includes events, incidents, and conflict resolutions. But as Quincy Wright cautioned, “events can hardly be described without a theory determining what is important and what should be looked for. Deduction and induction supplement one another.” Since not all state practices amount to custom in the sense of customary international law, the system must also attempt to exclude the practices that lead to war. Those practices, if normatized, would give rise to dysfunctional rules of customary international law. For example, prior to the twentieth century, a king or a head of state could start an aggressive war against another state or states without violating any rule of international law. Yet the evidence indicates that there is even more state practice of abstaining from starting an aggressive war. An informal but intuitively correct compilation of available empirical evidence for the last seven centuries indicates that states have avoided war 97 percent of their lifetimes. Instead, they have sought to maximize their own welfare by engaging in peaceful activities such as international commerce, trade, and investment. States in the aggregate have desired an international system conducive to the maximization of their welfare, and hence over the centuries they have desired peace under law. The Ricardian doctrine of comparative advantage, which Ludwig von Mises pointed out is actually just an international extension of the economic principle of division of labor, allows individuals to increase their economic well-being and lifestyle when the interstate system allows free trade—a game that both sides win. In war, by contrast, there are always sunk costs—the total number of lives lost and the total worth of property destroyed on both sides. In a sense, war and free trade are jural opposites: on average, war is a lose-lose, and trade is a win-win, proposition. The preceding example of many more states avoiding war than instigating it does not amount to a practice. Accordingly, it is hard to explain or contest international law’s permissiveness in starting a war of aggression prior to the twentieth century. It took a series of multilateral treaties to outlaw recourse to war: the Hague Conventions of 1899 and 1907, the Covenant of the League of Nations, and the Kellogg-Briand Pact of 1928. A commitment by states not to resort to aggressive war is itself an anticipatory practice that is equivalent to custom. 29  In the short run, of course, some states find it to be politically or economically advantageous to take action in violation of a rule of international law. The system of rules, if sufficiently fine-meshed, can tolerate occasional and relatively isolated illegalities. However, every violation is a threat to the stability of the entire legal system, as we shall see below. Every violation that causes a rupture of the system must therefore be repaired by the system. Proportionate rules of sanction have evolved for the purpose of repair and deterrence. Short-run deviations arise, for example, when a free-rider state wants the benefit of the treaties that it likes and the right to denounce all other treaties, or when a warrior state sees a “limited” war as serving its self-interest so long as other states refrain from intervening. But the system cannot afford to allow individual states to pick and choose from among the treaties it has ratified or to insulate a war from the intervention of third-party states. To reassemble the argument of Axiom 1, international law at any given time consists of rules that foster the persistence of the international system itself. Individual members of a system cannot tell the system what to do. It therefore devolves upon each state to calculate the cost of international- law compliance that constricts its freedom of action and to compare that cost to the overall benefit it derives from the existence of those rules. To be sure, the state’s cost/benefit analysis cannot be reduced to an exact figure because, in a world of 193 states, other states at any time may increase the sanctions if those that are first applied do not deter the state in question. This conclusion reflects Henkin’s aphorism—namely, that most states find it in their self-interest to obey most of the rules of international law most of the time.... NOTES & QUESTIONS 1.The Majority Always Wins. Why does D’Amato argue that international law “normatizes” most state conduct? The basis for this conclusion is that states are the ones to create international law through the treaties they sign and through the customary law that is created by their own state conduct. So, is it any surprise that international law licenses most state conduct? Are there shades of this phenomenon in the Antelope case? The Supreme Court concluded that the slave trade is consistent with international law because most (or many) states engaged in it. Setting aside for the moment whether this conclusion was correct, the structure of the argument embodies D’Amato’s point: international law is not likely to yield a legal rule that almost every state is violating. Does the Lotus presumption feed this dynamic? The Finnish legal scholar Martti Koskenniemi famously argued that international law is often caught between the extremes of utopia and apology. International law is utopian because it posits an ideal world with unrealistic norms or unrealistic levels of compliance. At the same time, international law often justifies or licenses existing behavior—for the very 30 reasons D’Amato articulates above—making international law an apologist for today’s sorry state of affairs. See Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (1989).  2.The Invisible College of International Lawyers. D’Amato refers to the “invisible college” of international lawyers. What does he mean by this reference? More than forty years ago, Professor Schachter referred to the invisible college of international lawyers as a “professional community, though dispersed throughout the world and engaged in diverse occupations, [which] constitutes a kind of invisible college dedicated to a common intellectual enterprise.” See Oscar Schachter, The Invisible College of International Lawyers, 72 Nw. U.L. Rev. 217 (1977). Simply put, although international lawyers often disagree with each other through an adversarial process, they are, in a deeper sense, cooperating with each other in a common enterprise—the enterprise of shaping something called international law. As you read through the materials for this course, consider the role played by this invisible college—a group you will one day join. Schachter asks whether the invisible college forms la conscience juridique—a judicial conscience for the international community that helps to define basic principles of “natural justice.” According to Schachter, “Vague as that conception may seem, it has had a considerable influence in doctrine and in decisions as a basis for legal concepts of significant practical effect. Some examples that come to mind are reciprocity, good faith, abuse of rights, nonretroactivity, prescription, res judicata, proportionality and estoppel.... Whatever their justification, they have been applied by international lawyers in formulating general principles of law and in proposing standards for treaties and institutional arrangements.” Is there a connection here with our prior discussion of natural law? Conclusion & Summary The rest of this course will focus on the substantive norms of international law. But as you learn and digest these norms, and understand how to apply them to concrete international controversies, do not forget that international law is a process, a practice, and a system. Recall the following points of process explored in this chapter: 1.International law was once intertwined with, and inseparable from, natural law. However, the natural law-era of international law has long since ended, replaced by a positivist conception of law based on man-made sources of law such as treaties and custom. One might ask why the natural law conception of international law proved untenable. One might also ask whether natural law can be 100 percent eradicated from the discipline of international law and whether it survives in isolated cracks of the doctrine. This question should be central in your mind as you confront the material in each chapter. Would slavery be 31 OK if the positive sources of international law brought it back? How does one answer this question without reference to some conception of natural law? 2.It is generally presumed that states are entitled to act as they wish unless the action violates a rule of international law. This Lotus presumption is so central that many consider it the grounding principle of international law. One can think of the presumption as intimately tied to the concept of state  sovereignty, i.e., that states have discretion over their internal affairs. Judge Simma of the ICJ referred to the Lotus presumption as being excessively deferential to state sovereignty. However, despite Simma’s concerns, most international lawyers approach legal controversies with the assumption that a state is entitled to act as it wishes unless it violates a rule of international law. In other words, all is permitted unless it is prohibited. Throughout the rest of this casebook, look for examples where this binary opposition might not hold. 3.International law is a field of law that regulates the behavior of nation-states. But it is also a legal system with its own actors, processes, and norms of behavior. As a student of international law, you are already inside that system, adopting and participating in its collective project. However, it is useful, occasionally, to step back and take an outside perspective on the enterprise and question what role international lawyers are playing in the process. In every legal debate, the opposing viewpoints often share deeper principles that structure the conversation. It is helpful to identify and render explicit these deeper principles and to understand the role that lawyers—and other actors—play in the dissemination of these norms. The invisible college need not be invisible.