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12 de dezembro, 2022

Who Denied the Legal Character of International Law

Despite the absence of a primary authority to enforce these rules, international law is considered binding on them by States, and it is this fact that gives these rules the status of law. Thus, for example, if a State wishes to avoid a particular rule, it will not argue that international law does not exist, but only that States have not agreed that such a rule should bind them, or that the rule is not applicable to particular circumstances. Even if we were to accept this harsh response, a deeper challenge remains: why, when international law can help us achieve important goals – such as preventing war, preventing human rights violations, or mitigating climate change – provided that all states generally respect it, Should his authority over them depend on their consent? The issue is all the more acute when one recognizes that the governments of many States themselves do not enjoy the approval of their own subjects or even commit grave injustices against them. Such considerations have led many to conclude that, contrary to popular belief, effective consent is generally not a necessary condition for the legitimacy of international law, but at best an idea that plays an important but limited role in declaring the binding character of treaties. Nor has it been argued that effective consent is generally a sufficient condition for legitimacy, since state consent to treaties requiring human rights violations would not even likely be binding (Buchanan, 2010; Tasioulas 2010; Murphy, 2017). The problem with theories of absolute sovereignty is that, at best, they can support a narrow consensus idea of international law that, as the examination of the sources of international law in the previous section has shown, does not reflect the reality of how the rules of international law are created, interpreted and applied. Some classical international law thinkers writing in the natural law tradition, such as Alberico Gentili (Wagner 2017), have argued that it is possible to reconcile absolute sovereignty with a broader idea of international law by postulating that only voluntary (i.e. positive) but non-involuntary (i.e. natural law) rules imposed on states by international law interfere with the concept of absolute sovereignty. In other words, one can be absolutely sovereign while remaining subject to natural law. Moreover, these commentators treat law and violence more or less openly as synonyms. However, this is unacceptable and confused with the facts of the physical world with the concept of freedom.

The essence of the law cannot be understood by reference to the categories of the physical world, one of which is violence. The law has its own autonomous categories. It is true that the law is based on violence, without which it cannot achieve the desired degree of effectiveness. But it cannot simply be reduced to violence. In fact, force can be used both legitimately and illegitimately, in the service of the law and against the law. The words of St. Augustine are of great importance here: are states without justice more than large-scale thefts? Thus, if we reduce the law to violence, a pirate with armed strength equal to that of Alexander would be his peer.26 Olof Hoijer`s commentary on natural law can be applied analogous to all areas of law: “Violence can undoubtedly be used against natural law, but it cannot destroy it, Because it cannot do justice to what is unjust. and vice versa […] Natural law is therefore independent of violence and cannot be undermined by violence because it exists at a very different and higher level”.27 When one definitively identifies the right to violence, one abandons forever any idea of the progress of the international community towards a more just world. And you abandon any idea that the behavior could be stigmatized as not in accordance with the law. To say the least, it deprives someone of the motivational force, effort, sense of direction or norm that the norms of law and justice provide. Ancient Greece, which developed fundamental notions of governance and international relations, contributed to the formation of the international legal system; many of the earliest documented peace treaties were concluded between Greek city-states or with neighbouring states.

The Roman Empire created an early conceptual framework for international law, jus gentium (“law of nations”), which governed both the status of foreigners living in Rome and the relations between aliens and Roman citizens. The Romans adopted the Greek concept of natural law and considered ius gentiumas universal. Unlike modern international law, however, Roman international law applied to relations with and between foreign individuals rather than to political entities such as states. On this basis, it is clear that the “law of nations” cannot really be considered a law. According to Austin, his rules were not legal, nor laws in the strict sense, but positive moral laws. They do not emanate from predetermined individuals or assemblies, but from the more or less diffuse opinions of the international community. Nor did they have the binding character of real laws. In fact, they abided by the rules of honor, conduct and courtesy. But Austin insisted that these were positive moral laws because they applied in the world of facts.

In other words, they were not ideal rules that determined what had to happen to form ethics. Rather, they were rules that existed, in the sense that they were observable in the real world. In the light of this distinction, and to be quite precise, these rules should rather be classified as rules of politeness, since, as moral rules do, they did not involve the making of a value judgment and were simply translated into the reality of the behaviour of statesmen operating in an international context. Austin therefore asserted that international law was positive in nature, while denying that it was really legal. It has thus been reduced to a positive morality, namely to the realm of politeness.31 An important moral and political rubric for judging international law is the controversial idea of “legitimacy.” Sometimes “legitimacy” is used as a collective term that encompasses any type of legal assessment, but this use is too broad. A starting point for greater specificity is the distinction between de facto (or descriptive) and de jure (or normative) interpretations of legitimacy. Sometimes to speak of the “legitimacy” of international law is to describe the degree to which it is accepted or respected by its supposed subjects, mainly states. According to this de facto interpretation, an international legal norm will enjoy legitimacy to the extent that it exerts a high degree of “compliance attraction” among international actors. An in-depth study of de facto legitimacy examines the characteristics that tend to enhance support for and respect for international law (Franck 1995). There are many international treaty bodies that decide on the legal issues for which they may be competent.

The only one that claims universal jurisdiction is the United Nations Security Council. Others are: the United Nations International Court of Justice and the International Criminal Court (when national systems have completely failed and the Treaty of Rome is applicable) and the Court of Arbitration for Sport. The origins of international law date back to antiquity. Early examples include peace treaties between the Mesopotamian city-states of Lagash and Umma (circa 2100 BC) and an agreement between the Egyptian pharaoh Ramses II and the Hittite king Hattusilis III, concluded in 1258 BC. J.-C. Intergovernmental pacts and agreements of all kinds have also been negotiated and concluded by communities around the world, from the Eastern Mediterranean to East Asia. The two features of international law most often cited by those questioning its legal character are the absence of a centralized system of enforcement and the role of State consent in the development of the rules of international law. While recognizing that international law has certain characteristics of law, some legal philosophers dispute its status as an authentic and fully-fledged legal order (e.g., Hart 1961 [2012]).

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