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A. V. Lowe on general rules of international law

Published online by Cambridge University Press:  26 October 2009

Extract

In his recent Review article, ‘Do general rules of international law exist?’, Lowe states that there are at least two interpretations of the nature of customary international law.1 In the following, I shall attempt to clarify what these two interpretations are, examine the implications which Lowe attaches to the interpretation which he favours, and discuss his assertions about truly general rules of international law.

Type
Discussion
Copyright
Copyright © British International Studies Association 1984

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References

1. Lowe, A. V., ‘Do general rules of international law exist?’, Review of International Studies, ix (1983), pp. 207–3, at pp. 208–9.CrossRefGoogle Scholar

2. Ibid., p. 209.

3. Ibid.

4. West Rand Central Gold Mining Co. Ltd. v. The King (1905) 2 K.B. 391, at p. 406.

5. Lowe, op. cit., p. 209.

6. I owe this example to Dr Lowe. Unless otherwise stated, my discussion is based on his article itself. I ought to add that I am solely responsible for my interpretation and criticisms of Lowe's views.

7. Lowe, op. cit., p. 209 and pp. 210–11.

8. Ibid., p. 210.

9. Ibid.

10. See Hart, H. L. A., The Concept of Law (Oxford, 1961), pp. 245246.Google Scholar

11. Lowe, op. cit., p. 211.

12. Ibid., p. 211 and p. 213 n. 8.

13. Fitzmaurice, Sir Gerald, ‘Some Problems Regarding the Formal Sources of International Law’, Symbolae Verzijl (The Hague, 1958), pp. 153–76, at pp. 161–8.Google Scholar

14. Ibid., p. 165. So thorough a positivist as Kelsen also acknowledges that there are certain rules which are presupposed by juristic thinking, which necessarily treats law as a meaningful system of norms. See his General Theory of Law and State tr. by Wedberg, A. (New York, 1945) pp. 401404.Google Scholar

15. I owe this point to Dr Lowe. According to Josef Kunz, treaties can be concluded ‘not only in writing, by telegram, by telephone, by wireless, but also orally and even by symbols’. See his ‘The Meaning and Range of the Norm “Pacta Sunt Servanda”’ in his The Changing Law of Nations (Ohio, 1968), pp. 347–74, at p. 352.Google Scholar See also Kelsen, Hans, Principles of International Law, 2nd edn. by R. W. Tucker (London, 1967) p. 465.Google Scholar

16. Lowe, op. cit., p. 211.

17. On this point, Dr Lowe has supplied me with the following example.

The president of state X, intending to assist X's export efforts, decrees that export cartels shall be formed by all companies incorporated and based in X. The cartels are formed, and push up the price of exports from X to state Y. Y's law makes the instigation of, and participation in, cartels a criminal offence; and that law applies to all conduct, at home and abroad, which has an effect upon Y's trade or commerce. The president of X arrives in Y on a state visit.

In Lowe's view, ‘it is clear that the authorities of Y cannot imprison the president for instigating the cartel by adopting the decree’. He adds: ‘Whether this is argued on the basis of sovereign immunity, act of state or extraterritorial jurisdiction matters little. However it is explained, I cannot see that a legal system based on the existence of independent, co-equal, sovereign states could allow the legality of such imprisonment. We may argue over the scope of such implicit rules … but I find it difficult to accept that no such rules exist.’

This seems to be a forceful argument. However, I am still not fully convinced that the rule not to apply Y's criminal law on X's president is logically integral to the concept of sovereignty understood as legal independence. There seems to me no logical contradiction involved in the concept of a system of sovereign states governed by international law whereby Y, in Lowe's example, has a legal freedom to refuse entry to X's president, and whereby, should the president force his way into Y, Y would be free to treat him (or her) as a criminal. The equality of X and Y would remain intact if X were entitled to the same legal freedom. I fully accept that this is an extremely inconvenient, and savage, system, but doubt that it is a system which is logically self–contradictory and, in that sense, impossible (as a ‘square circle’ would be).

18. Lowe, op. cit., p. 211.

19. Ibid.

20. Ibid., p. 212.

21. See Akehurst, M., ‘The Hierarchy of the Sources of International Law’, The British Year Book of International Law 1974–1915, xlvii (1977), pp. 273–85, at pp. 281–5.Google Scholar

22. Lowe, op. cit., p. 212.

23. Ibid., p. 211.

24. See, for example, Akehurst, , ‘Custom as a Source of International Law’, The British Year Book of International Law 1974–1975, xlvii, pp. 1–53, at p. 27.Google Scholar

25. Lowe, op. cit., p. 210.

26. The first type of international law is ‘general’ (i.e., binding on all states) not by logical or moral necessity, but because there happen to be no persistent objectors. It therefore does not satisfy Lowe's criterion of ‘truly general laws’, i.e., laws binding on all states including persistent objectors.