ALFRED VERDROSS: especial internacionalistas

Verdross was more strongly interested in the philosophical than in the political foundations of international law. However, Verdross was anything but apolitical. Looked at today, it is certainly surprising – or should I say disappointing? – that in the mid-thirties Verdross still described Mussolini as a defender of Christian values,8 and the National-Socialist doctrine of international law as anti-imperialistic and federalist. But maybe for a person of Verdross’s background and upbringing – Catholic, conservative – it was not uncommon at that time to view Fascism and National-Socialism as bulwarks against Communism.

Universalism and Community
The universalistic conception of international law which Verdross adopted20 is rooted in the Stoic-Christian view that mankind as a whole forms a moral-legal unity anchored in natural law. The Stoics had defined this community as a cosmopolis; Cicero had referred to the societas humana which, proceeding from the family, expands into a community embracing all of mankind.21 The first hint of a subdivision of this community into states can be traced to St. Augustine, according to whom it would be better for humanity to consist of a plurality of states organizing a plurality of peoples (regna gentium) coexisting as peaceful neighbours, instead of the Roman Empire.

The clearest exposition of the universalistic conception can be found with the Spanish scholars of the School of Salamanca, however. Its founder, Francisco Vitoria, proceeded from the Aristotelian-Stoic-Thomistic assumption that men are social beings by their very nature, and concluded accordingly that statally organized peoples (gentes) shared this characteristic and, hence, like human individuals, were in need of a legal order governing their mutual relations, namely the `ius inter omnes gentes’.

The universalistic community-oriented doctrine pronounced in Suarez’ text was also followed by Hugo Grotius25 and in Christian Wolff’s `civitas maxima’.26
From the 17th century onward, this universalistic line of thought has been sharply opposed by an individualistic concept of international law and relations. It is rooted in the conviction that law may be established only by an authority above and superior to its subjects. Since, however, states are not subject to any supranational authority, the only rule that can prevail between them is the law of nature. Thus, Thomas Hobbes argued that states still existed in a pre-social situation of potential or actual war (bellum omnium contra omnes):
To his exposition of Hegel’s philosophy of law as applied to international law, Verdross adds two remarks, however.32 First, he points out that Hegel himself had stated that the peoples of Europe constitute a family, whereby their mutual behaviour is modified to the better. Verdross further emphasizes that Hegel’s intention was to describe the state of affairs prevailing in his time; in no way did he intend to exclude a further development of international law.

both Kelsen and Verdross, writing in the 1920s, posited their Kantian, universalistic conceptions of international law

he voice of the young Austrian observer was heard and the parliamentary Constitutional Commission, referring explicitly to the reasoning put forward by Verdross, returned to the original government proposal defended by him, which entered into force as the famous Article 4 of the Constitution of the Weimar Republic.
Since that time, constitutional provisions following the model of Article 4 and thus recognizing the binding force of universal international law not only on the international but also at the domestic level, have proliferated. Some of them go as far as investing international law with a rank superior to that of municipal legislation or even constitutional law.
International Law and Municipal Law: Verdross’s Theory of Moderated Monism
nternational law as an autonomous concept dates back to early modernity. However, it was only at the end of the 19th century that a theory developed which not only distinguished between international law and municipal law but completely separated them. This theory is known as Dualism (or Pluralism). Its main proponents were Heinrich Triepel in Germany and, following him, Dionisio Anzilotti in Italy.50 They defended a radical separation of international law and domestic law not only on the grounds that each of them had different sources and addressed different subjects but also on the basis of the consideration that municipal acts contrary to international law could nevertheless continue to claim binding force within the domestic legal system of the state concerned.

Obviously this theory contrasts sharply with the Hegelian view of international law constituting each sovereign state’s `external state law’, a system merely of self-commitment accepted voluntarily by states within their respective municipal legal orders. Such a view can be called monist because it considers international law to be nothing but a specific part of municipal law, granting superiority, or primacy, to the latter.

However, the monism represented by Verdross rests upon fundamentally different premises, namely on a specific adoption of the universalistic conception of international law which I have described in the preceding section. On this basis, it advocates the unity of international and domestic law, with international law enjoying primacy.

According to Verdross, the temporary, provisional, validity of domestic rules contrary to international law is simply a consequence of the decentralized structure of international law, which leaves it up to states to regulate as a matter of essentially domestic concern their relationship with their own municipal organs.

Finally, Verdross returns to his universalistic conception of international law when, after admitting that mankind does not constitute a universal inter-human legal community, he stresses that states and other international legal entities are, however, parts of the community bound together by universal international law, a community comprising the whole of mankind. As a result, the community of states also needs a constitution which links its members, even if this constitution predominantly regulates relations between sovereign powers and not, as in a statal community, relations between human beings.

The Key Role of General Principles of Law
Within the theory of sources of international law, Verdross undoubtedly made his most important and lasting contribution in the sphere of the `general principles of law’. This is not to diminish the importance of his other work on international law-making, as, e.g., on the variety of modes of formation of customary international law,63 on the law-making function of General Assembly resolutions64 or on informal consent as the original, overarching source of international law.

Forbidden Treaties’: The Breakthrough of Ius Cogens
Verdross’s writings on the substantive limits of the freedom of States to conclude treaties present another example of how his stand on issues of philosophy of law determined his views on concrete international legal questions. For natural law adherents, the claim that in international law, too, there exist certain norms that cannot be derogated from by the will or consent of States inter se, will meet with no objections. In fact, even an observer sceptical vis-à-vis the possibility of natural law constituting anything like an operative, directly applicable system of rules, might concede that, if natural law considerations were to have any place in legal discourse, it might be that of setting limits to the validity of certain norms of positive law, of depriving them of their claim to authority, whenever they evidently and grossly contradict the postulates of justice.84

On this basis, Verdross gives the following list of immoral and, consequently, void treaties:
1. Treaties binding a state to reduce its police or its organization of courts in such a way that it is no longer able to protect at all or in an adequate manner, the life, the liberty, the honour or the property of individuals on its territory.
2. Treaties obliging a state to reduce its army in such a way as to render it defenceless against external attacks.
3. Treaties obliging a state to close its hospitals or schools, to extradite or sterilize its women, to kill its children, to close its factories, to leave its fields unploughed, or in other ways to expose its population to distress.
4. Treaties prohibiting a state from protecting its citizens abroad.93
Half a century after the drawing up of this list while some elements contained in Verdross’s enumeration would have to be modified, or could only be read in a certain limited way, I submit that this list still encapsulates the core of rights iuris cogentis appertaining to sovereign states. What modern international law has added to it is an emphasis on peremptory obligations on states. In this regard it might be illuminating to compare the principles of ius cogens formulated by Verdross in 1937 with his last treatment of the issue in the third edition of Universelles Völkerrecht, which was published several years after Verdross’s death but whose statements on ius cogens bear his unmistakable mark. There, a distinction is drawn between peremptory rules contained in general international law aside from the United Nations Charter and the new ius cogens introduced by the Charter. The examples given of treaties contravening the first category bear a close similarity to the 1937 list:
1. Treaties by which two states bind themselves to interfere in the rights of third states; for example, by stipulating that assistance should be given in an unlawful war.
2. Treaties obliging a state to restrict its freedom of action to an extent of incapacitation and inability to honour its duties under international law, for example, by limiting the powers of its police force and thus rendering the maintenance of public order impossible.94
To this are to be added the principles of ius cogens introduced by the UN Charter. The most important principle in this regard is the prohibition of the threat or use of force in international relations, because the maintenance of international peace constitutes the ultimate purpose of the world organization.
The second principle of a peremptory nature in the law of the United Nations concerns the respect for fundamental human rights, based on the inherent dignity of the human person and owed to all without distinction as to race, sex, language or religion. Verdross stresses that those rights include not only the classic civil and political liberties but economic, social and cultural rights as well.
Finally, a treaty would also violate the ius cogens of the Charter if two or more states thereby committed themselves to prevent a people from exercising its right of self-determination.95


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