International Law and Justice PS130 World Politics Michael R. Baysdell Saginaw Valley State University

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 2

Fundamentals of International Law Combination of expectations, rules, and practices that govern behavior Involve a range of institutions from legal systems to moral codes 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 3

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 4

The Fundamentals of International “Justice” Secular ideologies Growing body of ethical norms Religious beliefs 5

The International Legal System: The Philosophical Roots of Law External sources – Ideological/theological school of law Christian doctrine of Saint Augustine and Saint Thomas Aquinas – Naturalist school of law John Locke: Law of nature that teaches all mankind Internal sources – Positivist school of law: Focus on customs and practice because law is the product of society’s standards 6

Sources of International Law Multilateral and bilateral treaties—codified and binding under doctrine of pacta sunt servanda International custom General principles of law Judicial decisions and scholarly writing --Judicial review—power of court to determine whether laws/executive actions are legal/constitutional --Stare decisis—let precedent stand International representative assemblies 7

Adherence to the Law Compliance: – Voluntary – Through coercion – Lower level of compliance than in domestic systems but growing Enforcement: – By central authorities (slow to develop; UN Security Council best example) – Through self-help 8

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 (U.S. v. Mexico cases, 2001 and 2004) The International Court of Justice ruled that the US violated the rights of 51 Mexicans on death row by withholding their right to assistance from their government. The Court's judgment is binding and final. However, the United States has already failed to obey a 2001 decision by the court in a similar case Regional Courts more effective—ECJ and ECHR EU courts have been a tool for integration

The International Court of Justice Composition: Rosalyn Higgins, President (United Kingdom); Awn Shawkat Al-Khasawneh, Vice- President (Jordan); Judges: Raymond Ranjeva (Madagascar), Shi Jiuvong (China), Abdul G. Koroma (Sierra Leone), Gonzalo Parra-Aranguren (Venezuela), Thomas Buergenthal (US), Hisashi Owada (Japan), Bruno Simma (Germany), Peter Tomka (Slovakia), Ronny Abraham (France), Kenneth Keith (New Zealand), Bernardo Sepulyeda Amor (Mexico), Mohamed Bennouna (Morocco), Leonid Skotnikov (Russian Federation); Registrar: Mr. Philippe Couvreur (Belgium). There are always 15 judges on the court elected by members of the UN and the Security Council. Elected for 9 year-terms. Elections held every three years for one-third of the assembly. Only one person per nationality and if the State is not represented by a justice in a case involving that State, the State can elect an ad hoc justice. Nominees have to meet the requirements of their country’s requirements for their highest court of law, or can be jurists of recognized competence in international law. Both countries must submit to ICJ jurisdiction (Case of Certain Norwegian Loans)

Case of Certain Norwegian Loans France v. Norway (1957, ICJ) Norway had taken out loans from France Norway’s loans were secured by banknotes that were backed by gold During World War I, Norway suspended conversion of banknotes into gold Norwegian law: If creditors would not accept payment in banknotes, debts could be postponed. France wanted to have dispute submitted to tribunakl; Norway insisted this be determined in its own courts; France filed lawsuit in ICJ Submissions to ICJ jurisdiction: Norway: reciprocity. France: Qualified (may refuse issues it considers national issues) Norway: We seek reciprocity--this is domestic matter to us ICJ decision: dismissed case for lack of jurisdiction Sir Hersch Lauterpacht (UK Judge): French submission is so limited that it is tantamount to NO SUBMISSION AT ALL. (Any issue could be considered “national jurisdiction” issues)

Applying International Law and Justice Law, justice, and morality are often understood as culturally based concepts – Cultural perspectives of law, justice, and morality vary greatly – Dispute between non-Western and Western states about using universal standards and practices – Which culture has it “right”? 12

Law and Justice in a Multicultural World: Western versus Non-Western Perspectives Western view: Emphasis on rights of individual 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: Emphasis on rights of the community States are not bound by a preexisting system that works to their disadvantage Rejection of weighted decision-making schemes (such as in the Security Council) that favor the wealthy; emphasis on fairness and equity 13

Applying International Law and Justice in a Multicultural World Is it reasonable to apply same standards to all? Question of the imposition of cultural imperialism Who decides what is acceptable and what is not? – Matter of culture or male chauvinism? 14

Standards of Law for States and Individuals Should states be held to the same standards as individuals? – No: Niccolò Machiavelli – Yes: Thomas Jefferson Countries are increasingly being held accountable for their actions in the court of international opinion and sometimes even in courts of law 15

States, War, and International Law Just War Theory: Includes both just cause and just conduct Just Cause of War: – Jus ad bellum: War as last resort; declared by legitimate authority; waged in self-defense or to establish/restore justice; fought to bring peace Just Conduct of War: – Jus in bello: Proportionality of force to threat; discrimination (must not make noncombatants intentional targets); law and morality of war remain highly controversial Problems with these limits: vague and controversial, rooted in Western-Christian tradition 16

Uncertainties of the Laws of War Prisoner treatment at Abu Ghraib Al Qaida does not have Geneva Convention rights Uncertainty about proportionality—can you use nuclear weapons if attacked chemically? Uncertainty about gauging discrimination— heavy bombing in Iraq ok? Dresden? Tokyo? Hiroshima?

Applying International Law and Justice to Individuals Precedent of individuals’ being held accountable in the 20th century National and international enforcement of international laws in ad hoc tribunals and even in international court 18

Post–World War II Tribunals Nuremberg and Tokyo war crimes trials Instance of victor’s justice? No subsequent tribunals for 50 years 19

Current International Tribunals Rwanda Bosnia/Serbia/Croatia Cambodia Sierra Leone Kosovo Liberia 20

International Criminal Court (ICC) Built on 1998 Rome Statute treaty – Many countries have, or had, reservations, including the United States, which has opted out of the ICC's jurisdiction and not ratified the treaty ICC become operational in 2002 when over 60 countries had ratified it – Now, it has just over 100 ratifications 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 U.S. position: Wants peacekeepers immunized and has signed Article 98 bilateral agreements with 100+ countries 21

The Pragmatic Application of Law and Justice Can ends justify means? – Moral absolutism – Amorality Moral relativism – Should we judge others by our own standards? – Should we respect cultural differences between Western and non-Western views of standards and practices of international law and justice? 22

The Pragmatic Application of Law and Justice National interests issues – Is it pragmatic to apply standards of morality and justice? – Should a nation subject its own military troops and political leaders to jurisdiction of the ICC? – Controversy between protecting property rights of private companies of Western nations v. fairness of using patent law to deny the legal right of Less Developed Countries (LDCs) to produce low-cost, generic drugs to treat diseases such as AIDS that are ravaging citizens of these LDCs. 23

Other Intriguing Areas/Decisions Extraterritoriality Law of the Sea Treaty Chicago Civil Air Convention, 1944 Accretion Universal jurisdiction for severe crimes PIRACY—remedy in the U.S. Constitution?

The Future of International Law and Justice Increasing interaction creates increasing need for law (rules and regulations) Indicators suggest slow but growing respect for international law U.S. resistance to subjecting its citizens, military troops, and political leaders to international law and justice continues Role of international organizations 25

Chapter Objectives After reading this chapter, students should be able to: Discuss the dynamic nature of international law--a primitive but evolving legal system. Evaluate the effectiveness of international law. Identify and examine the roots and characteristics of in­ternational law. Understand how international law is made. Discuss adherence to international law. Analyze the process of adjudication in international law. Discuss the role of justice in the international system and in international law. Enumerate problems in applying international law to different cultures. Discuss the “just war” theory and its limitations. Illustrate how and why international law has been applied increasingly to individuals rather than only to states. Discuss the pragmatic application of law and justice. Analyze the future of international law and justice. All the signs point to increasing respect for international law and a greater emphasis on adhering to at least rudimentary standards of justice. Violations of international standards are now more likely to draw criticism from the world community. It is probable, therefore, that international law will continue to develop and to expand its areas of application