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?

Defining International Law

Traditional: the rules determining the conduct of states in their dealings with one otherIncreasingly, though, individuals and corporations – not

just states – viewed as subjects of international lawNewer: 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 CharterGeneva ConventionKyoto 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 1969. 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.

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.

Areas of International Law

war

humanrights

diplomacy

environment

War

When is it legal?“just wars” versus wars of aggression

What conduct is legal?No chemical or biological weapons; no land minesNon-combatants should not be targetedExcessive force should be avoidedPOWs

Diplomacy

Diplomatic recognition and immunity

Embassies as sovereign territory

Human Rights

New and controversial areaHow do you define it?Infringes on national sovereignty

Broad political rightsHelsinki 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.

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 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)RwandaBosniaSudan?

U.S. and Human RightsChampion?

Led campaign for rights in Soviet Union, then ChinaHypocrite?

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 conventionsEconomic, social and cultural rightsElimination of discrimination against womenRights of child

Question Two:How is it enforced?

Well, no … not really

Supranational Enforcement?

Option #1International Court of

Justice

ICJ = World Court

A branch of the UNmeets in The Hague (Netherlands)

15 judges serving nine-year terms

selected by UN

Hears cases brought by states against other statesExample: border disputes (Honduras v. El Salvador)

Jurisdiction? ShakyU.S. and mining of Nicaragua’s harbor (1986)

Option #2National Courts

U.S. courts Individuals can play, too

High jury awards

Greater enforcement power

Belgian courtsHuman rights cases (Geneva conventions)

Spanish courts (Judge Baltasar Garzón)The Pinochet case

Option #3The Court of Public Opinion

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

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

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