International Law

Two Questions  What is international law?  Does such a thing really exist?  How is international law enforced?  Isn’t it really just a matter of power politics?  What is international law?  Does such a thing really exist?  How is international law enforced?  Isn’t it really just a matter of power politics?

Defining International Law  Traditional: the rules determining the conduct of states in their dealings with one other  Increasingly, though, individuals and corporations – not just states – viewed as subjects of international law  Newer: the body of rules and principles, formal and informal, operating at the international rather than national level  Traditional: the rules determining the conduct of states in their dealings with one other  Increasingly, though, individuals and corporations – not just states – viewed as subjects of international law  Newer: the body of rules and principles, formal and informal, operating at the international rather than national level

Sources of International Law  Explicit agreements (Treaties, conventions, protocols)  UN Charter  Geneva Convention  Kyoto Protocol  Customary Law (like “common law”)  Widespread, representative and consistent practice of states  Norms (general principles of morality and justice)  UN’s Universal Declaration of Human Rights  Explicit agreements (Treaties, conventions, protocols)  UN Charter  Geneva Convention  Kyoto Protocol  Customary Law (like “common law”)  Widespread, representative and consistent practice of states  Norms (general principles of morality and justice)  UN’s Universal Declaration of Human Rights

The Vienna Convention It was adopted in It has been ratified by 114 states. Some countries that have not ratified the Convention, such as the United States, [4] recognize parts of it as a restatement of customary law and binding upon them as such.statesUnited States [4]customary law  It defines a treaty as "an international agreement concluded between states in written form and governed by international law," as well as affirming that "every state possesses the capacity to conclude treaties."  Most nations, whether they are party to it or not, recognize it as the preeminent "Treaty of Treaties"; [ It is widely recognized as the authoritative guide regarding the formation and effects of treaties. For example, the United States recognizes that parts of the Convention is part of customary law. In India, the Supreme court has recognised the customary status of the convention.United StatesIndia It was adopted in It has been ratified by 114 states. Some countries that have not ratified the Convention, such as the United States, [4] recognize parts of it as a restatement of customary law and binding upon them as such.statesUnited States [4]customary law  It defines a treaty as "an international agreement concluded between states in written form and governed by international law," as well as affirming that "every state possesses the capacity to conclude treaties."  Most nations, whether they are party to it or not, recognize it as the preeminent "Treaty of Treaties"; [ It is widely recognized as the authoritative guide regarding the formation and effects of treaties. For example, the United States recognizes that parts of the Convention is part of customary law. In India, the Supreme court has recognised the customary status of the convention.United StatesIndia

Areas of International Law war human rights diplomacy environment

War  When is it legal?  “just wars” versus wars of aggression  What conduct is legal?  No chemical or biological weapons; no land mines  Non-combatants should not be targeted  Excessive force should be avoided  POWs  When is it legal?  “just wars” versus wars of aggression  What conduct is legal?  No chemical or biological weapons; no land mines  Non-combatants should not be targeted  Excessive force should be avoided  POWs

Diplomacy  Diplomatic recognition and immunity  Embassies as sovereign territory  Diplomatic recognition and immunity  Embassies as sovereign territory

Human Rights  New and controversial area  How do you define it?  Infringes on national sovereignty  Broad political rights  Helsinki Accords (1970s)  U.N. Covenant on Civil and Political Rights (1966)  U.N. Covenant on Economic, Social and Cultural Rights (1966)  New and controversial area  How do you define it?  Infringes on national sovereignty  Broad political rights  Helsinki Accords (1970s)  U.N. Covenant on Civil and Political Rights (1966)  U.N. Covenant on Economic, Social and Cultural Rights (1966)

States and the Development of International Human Rights and Humanitarian Law  After the states of UN General Assembly adopted the UDHR in 1948, they also adopted the Convention on the Prevention and the Punishment of Genocide (1948).  States moved outside of the UN to redress the atrocities that were committed during World War II, thereby greatly expanding the scope of international humanitarian law (IHL).  In 1949, states codified the expectations regarding the treatment of civilians in international conflict and in occupied territories in four Geneva Conventions.  Common Article 3 extended the protection of civilians to internal conflicts.  After the states of UN General Assembly adopted the UDHR in 1948, they also adopted the Convention on the Prevention and the Punishment of Genocide (1948).  States moved outside of the UN to redress the atrocities that were committed during World War II, thereby greatly expanding the scope of international humanitarian law (IHL).  In 1949, states codified the expectations regarding the treatment of civilians in international conflict and in occupied territories in four Geneva Conventions.  Common Article 3 extended the protection of civilians to internal conflicts.

States and the Development of International Human Rights and Humanitarian Law cont’d.  States also created international law to address the continuing human rights problems associated with refugees and migrants after the World War II and the onset of the Cold War.  1951 Convention Relating to the Status of Refugees (and the 1967 Protocol) and the 1954 Convention Relating to the Status of Stateless Persons and 1961 Convention on the Reduction of Statelessness provide the legal framework for the protection of refugees and stateless persons.  States also created international law to address the continuing human rights problems associated with refugees and migrants after the World War II and the onset of the Cold War.  1951 Convention Relating to the Status of Refugees (and the 1967 Protocol) and the 1954 Convention Relating to the Status of Stateless Persons and 1961 Convention on the Reduction of Statelessness provide the legal framework for the protection of refugees and stateless persons.

States and the Development of International Human Rights and Humanitarian Law cont’d.  Even though important states, such as the US and Russia, are not formal parties to many human rights and humanitarian treaties (including optional protocols), the principles enshrined in the law (whether ratified or not) contribute to the development of customary international law.

Human Rights  U.N. Convention Against Torture (1984)  Rights of threatened groups  U.N. Convention on the Elimination of Racial Discrimination (1965)  U.N. Convention on the Elimination of Discrimination Against Women/CEDAW (1979)  U.N. Convention on the Rights of the Child (1989)  Genocide (1948 convention)  Rwanda  Bosnia  Sudan?  U.N. Convention Against Torture (1984)  Rights of threatened groups  U.N. Convention on the Elimination of Racial Discrimination (1965)  U.N. Convention on the Elimination of Discrimination Against Women/CEDAW (1979)  U.N. Convention on the Rights of the Child (1989)  Genocide (1948 convention)  Rwanda  Bosnia  Sudan?

U.S. and Human Rights  Champion?  Led campaign for rights in Soviet Union, then China  Hypocrite?  U.S. trained torturers during Cold War; and used torture at Guantanamo and in Iraq  Targets counter that U.S. itself has largest number of prisoners; a vast population of poor and homeless; persistent racism  U.S. hasn’t ratified many human rights conventions  Economic, social and cultural rights  Elimination of discrimination against women  Rights of child  Champion?  Led campaign for rights in Soviet Union, then China  Hypocrite?  U.S. trained torturers during Cold War; and used torture at Guantanamo and in Iraq  Targets counter that U.S. itself has largest number of prisoners; a vast population of poor and homeless; persistent racism  U.S. hasn’t ratified many human rights conventions  Economic, social and cultural rights  Elimination of discrimination against women  Rights of child

Question Two: How is it enforced?  Well, no … not really Supranational Enforcement?

Option #1 International Court of Justice

ICJ = World Court  A branch of the UN  meets in The Hague (Netherlands)  15 judges  serving nine-year terms  selected by UN  Hears cases brought by states against other states  Example: border disputes (Honduras v. El Salvador)  Jurisdiction? Shaky  U.S. and mining of Nicaragua’s harbor (1986)  A branch of the UN  meets in The Hague (Netherlands)  15 judges  serving nine-year terms  selected by UN  Hears cases brought by states against other states  Example: border disputes (Honduras v. El Salvador)  Jurisdiction? Shaky  U.S. and mining of Nicaragua’s harbor (1986)

Option #2 National Courts  U.S. courts  Individuals can play, too  High jury awards  Greater enforcement power  Belgian courts  Human rights cases (Geneva conventions)  Spanish courts (Judge Baltasar Garzón)  The Pinochet case  U.S. courts  Individuals can play, too  High jury awards  Greater enforcement power  Belgian courts  Human rights cases (Geneva conventions)  Spanish courts (Judge Baltasar Garzón)  The Pinochet case

Option #3 The Court of Public Opinion  This is also called “shaming”  NGOs  International media  And it often works!  This is also called “shaming”  NGOs  International media  And it often works!

An Example of Shaming: Canada and Harp Seal Pups

So who’s right? Realists or Liberals?

Realists are Right  The powerful prevail  Especially on security issues  Example: International Criminal Court  New permanent court (2003) in The Hague  18 judges  Will replace ad hoc war crimes tribunals, hearing cases brought against individuals for crimes against humanity  U.S. won’t participate  The powerful prevail  Especially on security issues  Example: International Criminal Court  New permanent court (2003) in The Hague  18 judges  Will replace ad hoc war crimes tribunals, hearing cases brought against individuals for crimes against humanity  U.S. won’t participate

U.S. and the ICC  U.S. secured U.N. resolution exempting U.S. nationals from ICC jurisdiction for crimes committed during UN operations  U.S. demanded that other states enter into bilateral agreements promising not to surrender U.S. nationals to the ICC  Clinton signed treaty on 12/31/2000; Bush took unusual step of “unsigning” on 3/6/2002  U.S. secured U.N. resolution exempting U.S. nationals from ICC jurisdiction for crimes committed during UN operations  U.S. demanded that other states enter into bilateral agreements promising not to surrender U.S. nationals to the ICC  Clinton signed treaty on 12/31/2000; Bush took unusual step of “unsigning” on 3/6/2002

Then again … maybe the Liberals are right  To back out of the ICC, GWB actually followed another international treaty  Vienna Convention on the Law of Treaties requires signatories to “refrain from acts that would defeat the object and purpose” of a treaty.  Bush’s “unsigning” (by announcing U.S. intent not to ratify) cleared the U.S. from the obligations of the Vienna Convention  To back out of the ICC, GWB actually followed another international treaty  Vienna Convention on the Law of Treaties requires signatories to “refrain from acts that would defeat the object and purpose” of a treaty.  Bush’s “unsigning” (by announcing U.S. intent not to ratify) cleared the U.S. from the obligations of the Vienna Convention