International Law and the State

1
International Law and the State

• International Law A Definition

2
What is International Law?

• A traditional definition of international law
  or Public International Law or the Law of
  Nations the legal relationships between
  sovereign states the law of the sea or the laws
  of war.
• More modern definitions the legal relationships
  that exist between and among international
  organizations, individuals, multinational
  corporations and other entities that are
  considered capable of possessing the
  characteristics of international personality.

3

• The field of international law was only open to
  states nation-states that is.
• Reasons the theory of international law had
  defined the field as state-centered
• only states possess international legal rights
  and duties therefore no other entities are
  capable of possessing international legal rights
  and obligations.

4
Evolution of States

• The role of states has evolved - states took on
  an increasing array of activities.
• the corporation, international organizations and
  the individual came to occupy a different place
  in the international legal spectrum.
• many subjects, originally considered as being
  outside the scope of international law, would
  have to be included in it.

5
International vs State Law

• Traditionally, the way in which a state treated
  its own citizens was considered to be a subject
  of that states law alone.
• If state A passed laws allowing it to chop off a
  petty thiefs hands, there was no body of law
  outside the municipal law of State A that exerted
  authority over the state.
• Most writers on international law would now
  maintain that every state is subject to a body of
  law broadly called human rights.

6
Law as Protector of Human Rights

• International human rights laws attempts to
  prohibit such treatment
• it violates the individuals right to be free
  from cruel or excessive punishment
• bodily dismemberment is considered cruel and
  excessive for a petty thief.
• In this way the individual is now seen as
  possessing international rights and also some
  international obligations

7
Scope of International Law

• The scope of international law has changed and
  broadened as new entities and new concepts have
  gained acceptance in the international arena.
• Some of the most important non-state actors
  include, non-governmental organizations (NGOs),
  corporations and subnational governments.

8
Non-Governmental Organizations NGOs

• NGOs have almost always existed
• the Catholic church and labor organizations.
• NGOs have increased in number and nature
  internationally
• NGOs have no national definition and are
  not-for-profit organizations that distinguish
  them from corporations.
• NGOs, include human rights activists,
  environmentalists, womens groups, indigenous
  peoples, consumer advocates etc. Amnesty
  International, Greenpeace

9
NGOs- Some Notes.

• Amnesty International an international human
  rights watch group that attempts to set political
  prisoners free.
• Greenpeace is an environmental group that
  attaches itself to several causes worldwide.
• Both groups do more than lobby for change and
  have attempted to seek leverage wherever possible
  typically in the form of having states voice
  their opinions.

10
NGOs - Consultative Status

• NGOs have also been given some limited formal
  status in international decision making.
• The Economic and Social Council (ECOSOC) for
  instance gave consultative status to
  international NGOs that satisfied some basic
  criteria.
• Certain NGOs can actually access ECOSOC
  proceedings, and if they are from prominent NGOs,
  can make verbal suggestions and even propose
  agenda items.
• But only labor has been granted its own
  institution through the International Labor
  Organization or ILO.

11

• The power and status of NGOs in international law
  however doesnt compare with that of states
  within the United Nations.
• efficient coordination of activities and power to
  incite activism have given NGOs the power to
  pursue global political agendas, as well as
  pressure nations into taking international legal
  initiatives.

12
Corporations and IL

• Corporations are international non-state actors
  and have been part of the international system
  historically.
• The Hudsons Bay Company and the British East
  India Company (BEI) had sovereignty over their
  trading routes and areas. The BEI actually ran
  colonial India.
• For the most part however, these companies
  brokered treaties, coined currencies and
  initiated wars.

13
Multinational Corporations and IL

• MNCs have replaced oligopolistic international
  firms.
• Corporations are still not afforded the decision
  making power at the international level except
  where the International Chambers of Commerce
  (ICC) may share a seat at the table with the
  International Labour Organization (ILO).
• MNCs can be involved in other multilateral forums
  dealing with development and environmental
  issues.
• Solving disputes between MNCs in different
  countries dispute resolution panels tend to form
  the dispute around the respective nations - as
  MNCs are becoming even more multinational and no
  longer tied to any nation, this may change

14
Subnational Governments

• Subnational governments do take a role in
  international affairs that is unprecedented
  particularly at the economic and cultural levels.
• Subnational governments are states, provinces,
  localities that have become involved in
  international trading and economic arrangements
• E.g. Mexico-Texas Trade Commissions, fairs, and
  separate arrangements. Quebec and France is
  another example where the two may have their own
  trading arrangements on certain items separate
  from Canada-France trade.
• Quebec also belongs to an association of
  francophone or french-speaking states.

15
Subnational Limits in the International Arena

• However, while subnational governments may have
  some status at the UN, they are limited in their
  actual decision making power at the state level
  primarily because they are still under the
  control of the national government and cant
  stray far from national policy.

16
Decade of International Law

• International law increasingly encompasses
  several actors at many different levels.
• The 1990s were declared the decade of
  international law by the United Nations General
  Assembly
• there was the establishment of the first truly
  international tribunals for prosecuting war
  crimes in Bosnia and Rwanda
• UN resolutions were passed that provided the
  framework for the international coalition that
  forced Iraq out of Kuwait
• we witnessed the abolition of apartheid in South
  Africa after a great deal of international
  pressure and economic sanctions
• the General Agreement of Tariffs and Trade was
  replaced with the World Trade Organization (WTO)

17
Nature of International Law

• International law in all forms and arenas is
  making its impact as a necessary regime 
• Almost all nations observe almost all
  principles of international law and almost all of
  their obligations almost all of the time
• Important states do tend to follow international
  law and there are sanctions for those states that
  do not particularly if they tend to utilize the
  norms of international law in their respective
  international relations

18
History of International Law

•   There are three periods of public
  international law that can be identified
  Ancient, Medieval and Modern.
• Ancient
• treaties were signed by city-states as early as
  3100 B.C.E.
• The first historical international treaty was
  signed at by two Mesopotamian city-states to
  govern their international relations over
  sovereignty rights of certain areas. Included
  were
• provisions for refugees and their extradition and
  the exchange of diplomats between city- states.

19
Ancient International Law

• Treaties did not necessarily lead to peaceful
  international relations during the course of this
  period.
• E.g. Alexander the Great invaded the Middle
  Eastern civilizations and led the region towards
  a 300 year Hellenic Age, influencing
  international diplomacy even more.
• The Greek City states were subordinate to higher
  laws governing the relations between city-states
  called the Customs of the Hellenes which
  allowed for protection for aliens, diplomatic
  immunity for foreign officials and the right of
  asylum in certain cases.

20
Ancient International Law Roman Empire

• The Romans conquered the region by 30 BCE and
  practiced universality with those city-states
  that accepted its authority and waged war with
  those which did not.
• Roman law subsumed international law within it
  for the next 1000 years creating the Western
  system.
• All non-Roman entities under Roman control were
  thus part of an integrated international system

21
Medieval Period and International Law

• This period was considered the dark ages
  particularly with the advent of the crusades.
• The Muslims (under the Arab conquest) conducted
  their own crusades in the period 700 AD or CE and
  conquered the majority of the Middle East.
• Internationally speaking, they rejected any
  equality with nations that did not practice the
  same religion or culture, and the Roman system
  was replaced with a feudal system.
• Internationalism was replaced with the merger of
  a single political authority and land in that
  region.

22
Medievalism and IL The Reformation

• Europe meanwhile was heavily impacted by the
  Germans and Vikings until the Catholic Church
  attempted to unify it under its central
  authority.
• during the early part of the Inquisition and
  colonialism this worked until the Protestant
  Reformation in the 1600s.
• The emergence of the Reformation stopped the
  Church from subsuming international affairs under
  its central authority.
• The feudal regions fought during this period
  creating the Thirty Years War from 1618 to 1648
  each of which declared their own sovereignty.
• The concept of absolute sovereignty and separate
  nation states in the modern era tend to stem from
  this.

23
Modern International Law

• The term International Law was coined by
  British philosopher, Jeremy Bentham in 1789, but
  it was a Dutchman, Hugo Grotius (1583-1645) who
  contributed most significantly to the body of
  modern international law, in his book, The Law of
  War and Peace, published in 1625.
• Grotius conceived of a voluntary law based on the
  consent of nations the concept of territorial
  sovereignty and the State as the supreme actor
  subject to no external power was was central to
  this body of law marking the transition to the
  modern era of international law.

24
Modern International Law

• The era of modern International law began with
  the Peace of Westphalia in 1648
• a series of treaties were initiated bringing back
  the concept of a broad-based sovereignty.
• The idea of a collective self-defense was also
  conceived of here. Institutions such as the
  League of Nations and the Organization of
  American States (OAS) were based on the ideals
  sought at Westphalia.
• The Peace of Westphalia was not to continue since
  at that time there was no international
  institution that mediated conflict between
  nations. Nations simply formed alliances with
  other self-serving nations.
• The Congress of Vienna in 1814-1815 attempted to
  do just that, but resulted mainly in the dividing
  up of Africa into European colonial strongholds.

25
Modern International Law

• The notion of national sovereignty was
  consolidated between the period of Westphalia and
  World War I in 1914.
• The notion of international law was largely
  European
• Both the post World War II era and the post Cold
  War era brought with it newly independent
  nations. (Africa in the post WWII era, and
  Eastern Europe in the post Cold War era

26
Schools of Thought in International Law

• The three major schools of thought are natural
  law, positivism and eclecticism.
• natural law.
• Here, law must reflect some linking between legal
  principles and morality.
• This school of thought goes back to the Greek
  (Stoic) period of 500 BCE, and was utilized in
  the British Magna Carta .
• If we link these two elements, it means
  essentially that we have fused what was perceived
  as some divine-ness into all things natural.

27
Natural Law

• Philosophically then, we would have to consider
  natural law as not being given, but being
  inherent in the natural order of things.
• the concept of natural law recognized that all
  living things were equal in gods eyes. Man-made
  laws must incorporate elements of natural law.
• British Philosopher, Thomas Hobbes developed a
  conception of natural law divorced from theology.
  In the Leviathan, published in 1651, Hobbes
  suggested that man was antisocial, not social, as
  in the Stoic and Christian tradition.

28
Natural Law and the State of Nature

• Living in a state of nature in which he is nasty
  and brutish man is at war with every other man.
• Driven by the instinct of self-preservation, man
  is led to form a contract with other men and
  surrender his natural rights to the authority of
  the State (or Leviathan) the embodiment of the
  separate wills of those who made the contract.
• The divorce of natural law from theology made it
  possible for states to assert their sovereignty
  in more absolute form but at the same time, it
  destroyed the conception of a higher law and made
  their conduct a matter to be determined by their
  own free agreement.

29
Naturalists

• Naturalists look to higher laws in the standard
  of international conduct.
• The standard of international conduct was to be
  determined by the application of reason to
  international relations, not by custom and
  treaty.
• US vs. The Schooner Amistad

30
US vs Schooner Amistad

• Supposing these African negroes not to be
  slaves, but kidnapped.the treaty with Spain
  cannot be obligatory upon them and the conflict
  of rights between the partiesmust be decided
  upon the eternal principles of justice and
  international law.

31
Jus Cogens

• The modern day tendency towards natural law had
  much to do with the very inhuman consequences of
  the Nazi Holocaust.
• That is, domestic policy was not above natural
  laws as they applied to people (and their own
  right to exist).
• The principle of jus cogens plays a major role
  in the naturalist school of thought. This means
  compulsory law, an authoritative law from
  which no state can ever deviate.

32
Treaties Containing Jus Cogens

• Three International Draft resolutions and
  Treaties contain jus cogens as central provisions
  
• the 1969 Vienna Convention on the Law of
  Treaties,
• the UN International Law Commissions 1976 Report
  of Its Draft Articles on State Responsibilities,
  and
• the 1986 Vienna Convention on the Law of Treaties
  Between States and International Organizations.

33

• While natural law and the concept of jus cogens
  suggests that certain norms exist and must not be
  superceded by other principles, a great tension
  exists between state sovereignty and
  international laws binding states together.
• Under what circumstances would jus cogens
  ultimately work ?

34
The Positivist School

• The positivist school concerns itself with
  practice and consent over theory and morality.
• It was to be expected that with the increasing
  interaction between states there should be
  increased interest in the substantive body of
  international law.
• Dutch publicist, Bynkershoek (writing between
  1702 and 1737), substituted reason for the law of
  nature, and held that reason and usage
  constituted the two sources of international law.

35
Positivist Law as Reason

• Permanent usage would appear to embody the
  dictates of reason that is, it represented the
  collective reason of successive generations and
  of various nations
• in consequence it imposed a reciprocal obligation
  as if such usage were based upon mutual consent

36
Positivism and Custom

•  In this way, Bynkershoek could appeal directly
  to custom in support of certain claims, and he
  even went so far as to assert that there was no
  law of nations except between those who
  voluntarily submitted to it by tacit agreement.
• John Jacob Moser, (a German writer in the 18th
  C.) contributed to the modern conception of
  positivist international law by being concerned
  solely with the accumulation of treaties and
  usage which, in the form of precedents, gave a
  positive character to international law.

37

• The positivist approach was increasingly
  popularized as the nation-State became more and
  more a sovereign legal entity.
• The positivist approach has been criticized for
  focusing on the legalistic, and not what is
  necessarily right, or moral. As we know from
  domestic law, law and justice are often two
  separate entities.

38
Eclectic / Groation School of Thought

• This third school of thought is an interesting
  mix of the positivist and the natural law
  schools.
• Emer de Vattel began with the recognition of the
  state as a corporate person having an
  understanding and will of its own and susceptible
  immediately to rights and obligations.
• as men are subject to the laws of nature, and
  as their union in civil society cannot exempt
  them from the obligations of observing those laws
  since in that union they remain note the less
  men, the whole nations whose common will is but
  the outcome of the united wills of the citizens,
  remains subject to the laws of nature and is
  bound to respect them in all its undertakings.

39

• Since the State was merely the outcome of the
  expressed will of a collection of citizens, then
  the State necessarily is bound by the law of
  nature governing citizens.
• Problem it was difficult to apply the law of
  nature to states ---since States are States --
  not individuals.
• In some cases there were certain matters in which
  right and wrong stood out clearly, so that there
  could be no doubt as to the principle of law
  involved.
•  In the absence of a supreme authority capable of
  deciding between nation and nation, there were
  cases in which the application of the law of
  nature was not clear.

40

• In these cases, each nation must be allowed its
  own interpretation of the law of nature. This
  was the field of the voluntary law of nations a
  lower plane of imperfect rights, in which the
  principles of the law of nature were accommodated
  to the duties of the state to itself.
• The Eclectic or Groation school of thought
  therefore, recognized customs, treaties, and
  conventional law, but these laws could not
  conflict with natural laws since nothing could
  obligate a nation to violate natural law.

41
Sources of International Law

•  Sources of international law derive from
  customs, treaties, general principles, judicial
  decisions, scholarly writings, and UN
  resolutions.
• A rule derived from one source however, may
  conflict with a rule provided by another source
• A bilateral treaty (or a treaty between two
  States) may conflict with a multilateral or
  universal custom.
• For example, the agreement between Hitler and
  Stalin where they agreed to divide Europe, their
  treaty conflicted with the universal custom
  against waging wars that violate territorial
  sovereignty.

42
Customs

•    In terms of a hierarchy of sources, customs
  tend to be at the top of the rung, and resting on
  the customary rule, pacta sunt servanda or good
  faith performance.
• Their existence is regulated by the law of
  treaties. Third in line are the agreements and
  acts made by international organizations.