Seeking for theoretical bases for implementation of international law

A few centuries ago, science of international law emerged for the first time. It was evident that general international law summarized in European international law of the time is only based on customary law. At the time, even an international treaty did not exist embracing all European countries and or intended for something and treaties just made particular international regulations. Vattel writes about it that: "That it is made clear that a treaty is just required for parties, it is concluded that treaty international law is not general and global but particular and limited". [29, P. 5] The theory is still dominant, and it has an essential consequence that international treaties have particular rules per se. General international law is just customary law and rules and regulations resulted from a treaty need the consensus of all respective countries to have the credit of international regulations even if all countries of the world be a member of it. On the other hand, regulations of a treaty must be transformed into customary rules to be recognized among the regulations of general international law. The theory is accepted more by scholars of international law. For example, "Baxster" – in his speech at Hague Academy as "Treaties and

Custom" – does not use the expression "General International Law" [10, P. 39]. "Brown-lie"[2, PP. 1–35] also talks about "Customary (or public) International Law", from which the non-unification of treaty and public international law. Unfortunately, as expected, ICJ has also played a role in establishment of the theory. The ICJ has stated as follow in its historical judgment in Nicaragua concern: "The agreement between two countries regarding the citation of a special rule in a treaty is enough for the obligation of the parties per se; but regarding customary international law, common idea of the parties about the content or items of what is accepted as a rule is not enough and the ICJ must ensure whether the existence of the rule as a legal rule dominated over countries is also accepted or not."[7] Other similar ideas can also be found in other orders of the ICJ [8]. Indeed, dominant theory in the regard leads to the result that there are two separate and really independent branches or sets of customary international law: one, the issue was fully examined by the international law committee and as a result the commission approved the following article: "The treaty may change as a result of next performance of its members regarding the execution of it as a result of their agreement for changing the articles of the treaty." Existence of two useful points encouraged me to support the above draft: firstly, any type of trend cannot change a treaty, and secondly only the next performance accepted by the parties can change its rules; and on the other hand there must be integration between the trends of member countries. Perhaps, it can be said that by such a general and intensive the commission proceeded so much as to terrify the conference [24, P. 19– 21]. And, as a result, the draft was not approved in the conference related to treaties law, namely, the suspension of the issue in Vienna convention is definitely a shame [18]. As mentioned before, cases of changes in the rules of a treaty through next trend of the members which is the same change by custom are not rare and no one considers it to be illegal. On the other hand, existence of an international law rule based on the permission of any license for changing the rules of a treaty or goodness and desirability of such an infinite rule is doubtful [4, P. 35]. At the same time, we must not ignore the aspect that treaty rules are clearer and more accurate than customary ones which is their very privilege.

• 1.    Effect of acceptance or nonacceptance of priority of international law over national laws: Many jurists consider international law over national laws as a certain and evident principle. Also, some treaties and conventions provide evidences of this, some of which are noted here. Currently, international law over national laws is not only recognized by most scholars and jurists of different countries, but also international case law and modus operandi of states in enforcement of regulations of international law makes such priority evident. International court of justice stated in its 1930 advisory opinion that, “this principle is generally accepted by states that “in relations between states signatories of a treaties, regulations of national law may not be prior to regulations of international law.” This court also stated in case of dispute between France and Swiss over free zones that, “French government may not rely on its national laws in order to limit is international obligations.” In the plan prepared by American jurists’ convention in Rio De Janeiro in 1927, necessity of observance and respecting of international law by national authorities of American countries is accepted, and further, it is stated that national

  laws should not be contrary to international law. Article 2 of the said plan provides that, “regulations of international law constitute an agreement which is part of national laws of every state, and national authorities should modify them according to their constitutions when enforcing them.” Regulations under article 3 supplement article 2 as follows:” regulations of national law should be contrary and inconsistent with conventional international law.” In some treaties recently concluded between nations, principle of priority of international law over national law is explicitly accepted by states; as it is stated in treaty between France and Swiss dated June 1955 that, the two states acknowledge that international agreements and treaties are prior to national law. From their experience they have gained through several centuries of cooperation, and especially, considering important problems arisen in international relations in different periods, different countries in the world have gradually notices necessity of strengthening of bases of international law and acceptance of its priority over national law [3, P. 8–16]. That is why they not only principle of priority of international law, but also some of them have formally recognized principle of priority of international law to national law, and have introduced it into their regulations explicitly[16, P. 9]. Some of them include North America, United States, in 1787 constitution; Italy in 1948 constitution, federal republic of Germany, in 1949 constitution; France, in 1958. In his book, “international law in practice”, Dr. Dominic Carr explains in detail and provides evidence priority of international law in four paragraphs: superiority of international law over constitutions; national laws, administrative extensions and national judicial extensions (George Montigo 1875) including Alabama case, 1875, Mon Ti Joe (on arbitration treatment, high silzy case (George Pinson) Poland (25 may 1936) on superiority over national law, Wimbledon case, etc.).

• 2.    Realm of International Law; The Difference between Global Society and Domestic society: Most of the times, the global society is distinct from the domestic one. There, international law rules cannot be imposed to governments without their permission. Governments – as independent factors – are

• 3.    Imperative Character of the International Law: Imperative Basis of International Law; The first question posed is," how do the principles and rules basically forming international law get the imperative power in an international society composed of independent governments? "Proponents of natural law school including John Austin – British jurist -consider the basis of international law to be natural law and natural law as a par with moral order. Giving such status to natural law and tendency toward retrieving Jus Cognes in Article 53, Vienna Convention 1969 regarding the treaty law having criterion rules is related to morality and the entrance of concepts such as fairness in suit, determination of marine borderlines (continental shell) between governments and international economy novel system can be considered as continuance of natural law naturalism. The establishment of Nuremburg court, after World War II, and the trial of war criminals accused of crime against peace and humanity and citation of court to the matter that criminals should have avoided killing humans by the order of nature and human nature is another example of natural law concept manifestation. Today, other principles ascribed to natural law are: legitimate defense natural right, principle of governments equality which is a par with equality principle in interpersonal

  relationships, fairness principle in settling conflicts, good faith principle, keeping the primrose principle and compensating for damage principle. Advocates of volitional school consider the basis of international law to be resulted from the governments' will and believe that governments give the behavioral criteria imperative power by accepting the principles and rule of international law [27, P. 35–40]. What is inferred from governments' content is a sort of satisfaction declared ahead by the government regarding the compliance with international law rules. Nevertheless, since international law is taken to be the law between governments and emanated from their will; it emerges based on limiting themselves and mutual threats in execution of dominance confining their qualification in relationship with themselves. In legal terms, perhaps content theory can be taken as the simplest description of the obligatory basis of international law and the reason for obligating the commitments by international society members. On the other hand, governments at the same time of being independent can agree upon implementing dominance in complying with some certain behavioral rules called international law. In 1927, international judicature permanent International court of Justice in Lutus case (France claim against Turkey) put it that: "international law is over the relationship between independent countries. So, the rules and regimes dominant over the relationships enacted aiming to organize the terms of such coexistent societies and hoping to achieve common goals are resulted from their will which are demonstrated in international and conventional treaties which explain legal principles accepted with consensus. Then, the governments have no obligation to execute the rules they are not willing to. By the establishment of dominance and autonomy of countries, international content theory provides the necessity of the governments' content to the selection of rules to which the governments want to be committed rather than being included. Common or collective will of governments – belonging to German Trieppel – intends to justify the imperativeness of international rules in terms of legal rules based on common will of the governments resulted from a shared source. By creating a common will, the governments try to get committed to the execution

of rules even individually. The basis makes international law susceptible because the governments can change what they have intended and content theory (as the basis for obligation) is subjected to destabilization. Proponents of law sociological school consider the basis for obligation in international law as resulted from social necessities independent from the governments' will because the imperativeness property of law is emanated from the necessities of living in the international society [28, P. 40–68]. Thus, if a rule is considered by international society as imperative, governments are required to comply with it whether with content or with discontent. Social integration requires the protection of this society's basis against the violation of the legal rules and the obligation of governments to cooperate with each other and their compliance with current international system. Different theories are mentioned regarding the imperative basis of international law each of which has its own value and status. However, the role of volitional school can be evaluated as significant and effective. On the other hand, international law is based on being volitional rather than the other bases [4, P. 37].

Independent legal personality of international community; Development and exercise of rights depends on nature of social group to which such rights apply, and it is clear from this relation that properties of international community are sharply different from properties of political community on state level. Whereas national political community composed of social groups is hierarchically organized and centralized, international community is essentially the community of independent and sovereign states [30, P. 33]. Despite very important innovation we noted in previous pages, and in particular, despite big changes international organizations have brought about in structure of international community, political power is still distributed among its individual members, and international law is still a highly decentralized and lowly institutionalized legal system. For this reason, states, under international law, both impose norm and are subject to norm. Similarly, because unlike national community, political power is not institutionalize in international community, international legal norms are enforced in a decentralized manner. As a result, evaluation of legal status of a state falls within the jurisdiction of another state [20, P. 34]. Based on the said characteristics, it is possible to provide a better answer to the question “does the international community have a legally independent entity? Does such community directly have international rights and duties in the same way that every rightful entity which is subject to and of law does?” International community is by no means in a position to be able to rise to realize international rights and duties, nor is it even able to exploit them effectively through international claiming, the claiming which is one of the criteria every international entity must meet. Also, it can hardly be answered how and who will punish the community in case it fails to fulfill its possible duties[1, P. 4–8]. This issue ceases to be a merely theoretical question when an international organization as the representative of international community fulfills duties which not only have normative aspects but are also operational. Although it seems we are faced with gradual, slow and precautious recognition of some kind of international community personality, “it appears that such community has to some extent ceased to be dispersed and disconnected, and has indeed become subject to international law, because it is no longer the community where few states seek to further their interests. Today’s international community having undergone changes identifies itself with values on which its entity relies. International court of justice has implicitly noted in Barcelona traction case to some aspects of this concept “existence of presumptive rule of international law also explains concept of international community in its today’s evolved form” [26, P. 11–42]. Notwithstanding, the rights to be enjoyed by international community are still limited and can only be exercised by states or international organizations which are traditional rightful entities subject to international law. International community that has undeniable capacity of enjoyment has not the capacity to directly exercise its rights and duties yet, and can’t use it directly. It is also noteworthy that it doesn’t directly bear any legal responsibility [21, P. 584]. Although there have provisions to secure objective and practical representation of collection of states in one institutionalized structure (international authority for depth of seas), it is impossible to distinguish “international community” from the international organization acting on its behalf. In fact, it can be admitted that such community has a certain capacity to exercise such rights only when such community establishes its legal personality in the face of legal personality of the very organization that expresses the will of community. Under current condition of international law, international community is just a trivial rightful entity, first in terms of its broad enjoyment capacity, ad second because it has to borrow the false form of an international organization, and there remains the risk that assembly of member states of this organization retract the capacities of the community in question [22, P. 90].

Conclusion

Obviously, today no classical dualistic approach is dominant over the states. Reversely, even some believe that UN charter - a structural and fundamental value-based document of the states – is against the dualism and shows an international unity [11, P. 120–121]. And, now, UN play a structural role in forming the shared values which are not necessary in their sublime form in an international legal system; the values are seen in terms of resolutions or documents released by UN or during seminars, meetings, assemblies where considerable num- ber of the international actors from the sates to international organizations and even sometimes non-governmental ones are a member of international society. So, even we can say that UN has a suitable structural framework for founding Kantian thoughts (values) in the international legal system. The framework which does not take the governments as its subjects in the line with the classical international law rather pays attention to the liberalistic movements, De Facto beings, partisan groups and individuals as the subject of the international law [26, P. 257]. No doubt, the scope of the topic and number of the subjects and declaration of the shared values acceptable for the domain is signs of a conceptual evolution of an "international legal system" toward a value-based "international legal society". Yet, the issue demands further reflection on the existing legal documents and the international trend. It should be noted that the individual approach of states may be different from what we have in UN charter. Moreover the role of policy in every dimension is the matter that might ignore aforementioned matters. Based on what is discussed above, it is concluded that although the dominant and prevalent theory under discussion is not still deeply rooted into the thoughts of international law scholars, the grounds and perfect reasons are seen regarding the review and revision of the subject related to public international law, conventional international law and treaty international law, The writer of this paper believes that international law scholars must accept the fact that customary international law is a complex in the formation of which both customary and treaty rules of international law have been effective.