International Law and Morality: The Alternative Approach Chapter 9 International Law and Morality: The Alternative Approach

Fundamentals of International Law and Morality

The Primitive Nature of International Law Primitive but evolving system Rudimentary form of rule-making in which codes derive from custom or agreement Limited authority to judge or punish violations of the law

The Growth of International Law Its beginning coincides with the origins of the state Hugo Grotius: "father of international law“ Twentieth century saw the expansion of both concern for and practice of international law in response to increasing international interaction and interdependence

The Practice of International Law Most effective in functional relations that involve low politics (trade, communications, rules of diplomacy) Least effective in high political issues such as national security Growing sensitivity to legal standards and growing acceptance of norms of behavior

The Fundamentals of International Morality Ideologies Growing body of ethical norms Religion

The International Legal System: The Philosophical Roots of Law External sources Ideological/theological school of law Saint Augustine and Saint Thomas Aquinas Naturalist school of law John Locke Internal sources Positivist school of law: Focus on customs and practice

How International Law Is Made International treaties International custom General principles of law Judicial decisions and scholarly writing International representative assemblies

Adherence to the Law Enforcement Compliance Voluntary Through coercion Lower level of compliance than in domestic systems but growing Enforcement By central authorities (slow to develop) Through self-help

Adjudication of the Law International courts World Court (ICJ) and regional courts Attitudes toward adjudication Sovereignty remains a substantial barrier ICJ jurisdiction limited States can reject court's decisions States can attach reservations to their agreement States must agree to be subject to ICJ Little power of enforcement

Use and effectiveness of adjudication Some modest indicators of growing support for adjudication

Applying International Law and Morality

Law and Morality Issues of Cultural Perspective

Western and non-Western Perspectives Western view protects the power of long-dominant states. Order, sovereignty, property rights, and legal processes are emphasized, as opposed to equity and fairness Non-Western view is that states are not bound by a preexisting system that works to their disadvantage; strong emphasis on sovereignty; rejection of weighted decision-making schemes (such as the Security Council) that favor the wealthy. Emphasis on fairness and equity Calvo Clause Western view: Emphasis on rights of individual Non-Western view: Emphasis on rights of the community

Applying International Law and Morality in a Multicultural World Cultural imperialism

Applying International Law and Morality to States Should states be held to the same standards as individuals? No: Niccolò Machiavelli Yes: Thomas Jefferson

States and issues of law and morality Issues of sovereignty Sovereignty: slowing, ebbing

Issues of war Just war theory Jus ad bellum: War as last resort; declared by legitimate authority; waged in self-defense or to establish/restore justice; fought to bring peace Jus in bello: Proportionality of force to threat; discrimination (must not make noncombatants intentional targets); law and morality of war remain highly controversial

Issues of the biosphere Obligation of states and individuals to use biosphere responsibly Law of the Sea Convention Defines coastal zones, regulates mining and sharing of revenue Sovereign self-interests versus international common interest

Issues of human rights Growth in international attention Images in media Efforts of individuals and organizations Major source of international instability Gap between legal standards and their application

Applying International Law and Morality to Individuals National enforcement of international law

Using national courts to prosecute crimes under international law Adolf Eichmann General Augusto Pinochet Hissene Habre

Current international tribunals Rwanda Bosnia Cambodia Sierra Leone Kosovo

International Criminal Court (ICC) UN-sponsored ICC Countries' reservations Jurisdiction over genocide and a range of widespread and systematic crimes of war National courts are first point of justice, ICC is court of last resort

Law and Morality: Issues of Prudent Judgment and Application Can ends justify means? Moral absolutism Amorality Moral relativism

Should others be judged by own standards? Divergent values and cultural imperialism Violation of sovereignty

What if moral and legal standards clash?

Is it prudent to apply moral and legal standards? Realist argument about national interests Stand for what is right Justice necessary for world survival Moral prudence: find middle ground between morality and amorality

The Future of International Law and Morality

Increasing Interaction Creates Increasing Need for Law Indicators suggest slow but growing respect for international law