Scott Smith wrote:Roberto wrote:Scott Smith wrote:Roberto wrote:It has nothing to do with the question there the legal institution called sovereignty comes from.
Sovereignty derives from the need for common endeavor and defense from the state of "Nature." POWER/Authority/Sovereignty is not created as a means to enforce legal institutions; such institutions are derived and built merely to codify that POWER/Authority/Sovereignty.
My question was not what needs and considerations lead to the creation of the institution of sovereignty, but what the legal basis for the coming into being of that institution is.
There is no "legal basis" for Sovereignty because Sovereignty IS itself the Law.
Smith is really a funny bone.
After long sermons in the sense that law needs a higher authority to come into being, he all of a sudden seems to believe in a law that is there just because it is there, without being derived from any legislating authority or community.
Scott Smith wrote:The codification of that is only the pomp, not the animal itself.
The animal itself is what I'm talking about.
What legislating authority or community does it come from?
Roberto wrote:But he seems to be aware that sovereignty requires the acknowledgement thereof.
Scott Smith wrote:[Pointless blah-blah-blah, wherein he again beats around the bush and confuses the physical force it takes to uphold and maintain sovereignty or limitations thereof with the legal basis of such sovereignty and such limitations.]
Scott Smith wrote:The Allied powers of WWII liked to call themselves the United Nations. While this is charming they were still nothing more than a coalition of Sovereigns fighting another coalition of Sovereigns. They may use the term "outlaw nations" in their propaganda but this carries no real "legal" meaning, mystical or majesterial.
Of course it carries a legal meaning, whether Smith likes it or not.
The contents and limitations of sovereignty being derived from and subordinated to the rules and principles that a community of nations has agreed to abide by (they don't just grow on a tree, as Smith would have it), it is perfectly legitimate to call the violator of such rules and principles and outlaw.
Alfred Streim ([i]International Law and Soviet Prisoners of War[/i]) wrote:However, Hitler’s legislative power had its limits (as all such power does) arising in particular (according to general legal opinion) from the fundamental principles of human behavior that have crystallized in all civilized nations on the basis of ethical agreement. This means that the Führerbefehl depriving Soviet POWs of law of war protection was illegal. Even if we did not share this opinion, Hitler’s will, which was legally valid, that Red Army soldiers in German captivity should be excluded from the law of war would be irrelevant, since the prevailing opinion is that international law has precedence over national law if the latter conflicts with the former. It hardly needs saying that this was indeed the case.
Emphases are mine.
[...]The Charter makes the planning or waging of a war of aggression or a war in violation of international treaties a crime, and it is therefore not strictly necessary to consider whether and to what extent aggressive war was a crime before the execution of the London Agreement. But in view of the great importance of the questions of law involved, the Tribunal has heard full argument from the Prosecution and the Defence, and will express its view on the matter.
It was urged on behalf of the defendants that a fundamental principle of all law -international and domestic- is that there can be no punishment of crime without a pre-existing law. " Nullum crimen sine lege. nulla poena sine lege." It was submitted that ex post facto punishment is abhorent to the law of all civilised nations, that no sovereign power had made aggressive war a crime at the time the alleged criminal acts were committed, that no statute had defined aggressive war, that no penalty had been fixed for its commission, and no court had been created to try and punish offenders.
In the first place, it is to be observed that the maxim nullum crimen sine lege is not a limitation of sovereignty, but is in general a principle of justice. To assert that it is unjust to punish those who in defiance of treaties and assurances have attacked neighbouring states without warning is obviously untrue, for in such circumstances the attacker must know that he is doing wrong, and so far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished. Occupying the positions they did in the government of Germany, the defendants, or at least some of them must have known of the treaties signed by Germany, outlawing recourse to war for the settlement of international disputes; they must have known that they were acting in defiance of all international law when in complete deliberation they carried out the designs of invasion and aggression. On ,this view of the case alone, it would appear that the maxim has no application to ,the present facts.
This view is strongly reinforced by a consideration of the state of international law in 1939, so far as aggressive war is concerned. The General Treaty for the Renunciation of War of 27th August, 1928, more generally known as the Pact of Paris or the Kellogg-Briand Pact, was binding on sixty-three nations, including Germany, Italy and Japan at the outbreak of war in 1939. In the preamble, the signatories declared that they were:-
" Deeply sensible of their solemn duty to promote the welfare of mankind; persuaded that the time has come when a frank renunciation of war as an instrument of national policy should be made to the end that the peaceful and friendly relations now existing between their peoples should be perpetuated .... all changes in their relations with one another should be sought only by pacific means .... thus uniting civilised nations of the world in a common renunciation of war as an instrument of their national policy .... "
The first two Articles are as follows:-
" Article I: The High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies and renounce it as an instrument of national policy in their relations to one another."
" Article II: The High Contracting Parties agree that the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means."
The question is, what was the legal effect of this Pact? The nations who signed the Pact or adhered to it unconditionally condemned recourse to war for the future as an instrument of policy, and expressly renounced it. After the signing of the Pact, any nation resorting to war as an instrument of national policy breaks the Pact. In the opinion of the Tribunal, the solemn renunciation of war as an instrument of national policy necessarily involves the proposition that such a war is illegal in international law; and that those who plan and wage such a war, with its inevitable and terrible consequences, are committing a crime in so doing. War for the solution of international controversies undertaken as an instrument of national policy certainly includes a war of aggression, and such a war is therefore outlawed by the Pact. As Mr. Henry L. Stimson, then Secretary of State of the United States, said in 1932:-
" War between nations was renounced by the signatories of the 'Kellogg-Briand Treaty. This means that it has become throughout practically the entire world .... an illegal thing. Hereafter, when nations engage in armed conflict, either one or both of them must be termed violators of this general treaty law .... We denounce them as law breakers."
But it is argued that the Pact does not expressly enact that such wars are crimes, or set up courts to try those who make such wars. To that extent the same is true with regard to the laws of war contained in the Hague Convention. The Hague Convention of 1907 prohibited resort to certain methods of waging war. These included the inhumane treatment of prisoners, the employment of poisoned weapons, the improper use of flags of truce, and similar matters. Many of these prohibitions had been enforced long before the date of the Convention; but since 1907 they have certainly been crimes, punishable as offences against the laws of war; yet the Hague Convention nowhere designates such practices as criminal, nor is any sentence prescribed, nor any mention made of a court to try and punish offenders. For many years past, however, military tribunals have tried and punished individuals guilty of violating the rules of land warfare laid down by this Convention. In the opinion of the Tribunal, those who wage aggressive war are doing that which is equally illegal, and of much greater moment than a breach of one of the rules of the Hague Convention. In interpreting the words of the Pact, it must be remembered that international law is not the product of an international legislature, and that such international agreements as the Pact have to deal with general principles of law, and not with administrative matters of procedure. The law of war is to be found not only in treaties, but in the customs and practices of states which gradually obtained universal recognition, and from the general principles of justice applied by jurists and practiced by military courts. This law is not static, but by continual adaptation follows the needs of a changing world. Indeed, in many cases treaties do no more than express and define for more accurate reference the principles of law already existing.
From the Judgment of the International Military Tribunal for the Trial of German Major War Criminals
Source of quote:
http://www.yale.edu/lawweb/avalon/imt/proc/judlawch.htm
Emphases are mine.
