Chapter 9: International Law and Justice: An Alternative Approach

Moral pragmatism

A decision maker must ask, first whether any tangible good is likely to result from a course of action and, second, whether the good will outweigh negative collateral consequences

Codify (write down) the law

A primary advantage of treaties is that they do this

1. International treaties 2. International custom 3. General principles of law 4. Judicial decisions and scholarly legal writing (tentatively add a fifth: resolutions and other pronouncements of the UN General Assembly)

According to the Statute of the International Court of Justice, four sources of law:

Moral relativism

Actions must be placed in context

Benefits

Adherence to international law leads to this

* Formal law enforcement organizations (police) * Sanctions (fines, prison)

Advanced legal systems, like those found in stable countries, rely mostly on these things to enforce the law

Atrocities that occurred in Bosnia and in Rwanda during the 1990s

After an absence of nearly 50 years, international tribunals reemerged in the 1990s. This was the driving force

Pacta sunt servanda (treaties are to be served/carried out)

Agreements between states are binding according to this doctrine

Optional clause

Although all UN member-countries are technically parties to the ICJ statute, they must also sign this, agreeing to be subject to the compulsory jurisdiction of the ICJ

Self-help

As a primitive society, the global community continues to focus on this for enforcement

1. Primary reliance on bargaining between adversaries 2. Mediation/conciliation by neutral parties 3. Adjudication (and closely related process of arbitration) by neutral parties

As primitive legal systems develop, the method for settling disputes evolves in this way

Ancient Roman concept of jus gentium (the law of peoples)

Basis of general principles of law

1. States submit legal disputes that arise between them and other states 2. The organs or agencies of the UN asks the ICJ for an advisory opinion

Cases come before the ICJ in these two ways

Process of gaining compliance through threats of violence, imprisonment, economic sanction, or other punishment

Coercion is this

Voluntary compliance

Compliance with international law is mostly based on this

* Religious beliefs * Secular ideologies or philosophies * Standard of equity (what is fair) * Common practice

Concepts of just behavior stem from these things

They recognize the need for a system that is made predictable by adherence to laws and it is in their best interest that other countries follow it

Countries follow international law for this reason

* Constitution (constitutional law) * Legislative body (statutory law) * Statutorily authorized rule making by government agencies and officials (decrees, regulation)

Countries usually make domestic law through these means

Fear that US leaders and military personnel might become targets of politically motivated prosecutions

Crux of US opposition to a strong International Criminal Court

Moral absolutism

Ends never justify the means

* It does not have a formal rule-making (legislative) process ---> Codes of behavior are derived from custom or form explicit agreements among actors * Little or no established authority to judge or punish violations of law

Evidence that the current international legal system falls toward the primitive end of the evolutionary scale of legal systems

Roper v. Simmons ruling against executing juveniles

Example of international custom in domestic legal practices and standards

* Ideological/theological school of law * Naturalist school of law

External law reviews

Hugo Grotius

Father of international law

Low politics such as trade, diplomatic rules, and communications

Functional relations involve these things

* Post-World War II tribunals * Current international tribunals * International Criminal Court

How international law and justice is applied to individuals can be divided into these three topics

Resolve issues between IGOs and may even establish general international law

ICJ advisory opinions help do this

Law is derived from an overarching ideology or theology

Ideological/theological school of law holds this

* Enforcement through self-help * Enforcement by central authorities

In all legal systems, enforcement relies on a combination of these two things

Stare decisis (let the decision stand)

In many domestic systems, legal interpretations by courts set precedent according to this doctrine

* Judicial decisions (interpretation), which set guidelines (precedent) for later decisions by the court

In practice, law is also established through this

Origin of states and their need to regulate their relations

International law has its beginnings in this

* The philosophical roots of law * How laws are made * When and why the law is obeyed (adherence) * How legal disputes are decided (adjudication)

International law is based on these four critical considerations

High politics issues such as national security relations

International law is least effective when applied to this

Rapidly expanding range of transnational functional relations

International law is most effective in governing this

* Proportionality (amount of force used must be proportional to the threat) * Discrimination (force must not make noncombatants intentional targets)

Jus in bello (just conduct of war) includes these standards

Jus ad bellum

Just cause of war

Jus in bello

Just conduct of war

The cause of war The conduct of war

Just war theory has these two parts

* Jurisdictional limits * Lack of enforcement

Limits on the impact of the ICJ and other international courts

* Order * Sovereignty * Theory of property (underpinning of capitalism) * Relies heavily on the process and substance of law rather than on equity

Main points of the western view of law

Costs

Non-compliance to international law leads to this

A clause that commits the signatories to submit disputes arising under the treaty to the ICJ

Nonadherence to the optional clause does not entirely exempt a country from ICJ jurisdiction. It is common for treaties to have this

Voluntary compliance Coercion

Obedience to the law in any legal system is based on a mix of these two thingsC

ICC treaty has not been ratified by 46% of the world states, including such notable countries as the United States, China, Russia, India, and Japan

One issue with the ICC

International treaties

Primary source of international law

Self-help to enforce laws and norms, then gradually develop central enforcement authorities

Primitive societies begin by relying on this for enforcement of the law

* Can the ends justify the means? * Should we judge others by our own standards? * Is it pragmatic to apply standards of legality and justice?

Questions regarding the prudence of applying standards of law, justice, and morality

International custom

Second most important source of international law

Such votes reflect international custom and/or the general principles of law

Some scholars contend that resolutions approved by overwhelming majorities of the General Assembly constitute international law for this reason

2002 after 60 countries became party to it

The ICC treaty became operational at this time

Consists of 15 judges, who are elected to 9 year terms through a complex voting system in the UN. By tradition, each of the 5 permanent members of the UN Security Council has one judge on the ICJ

The ICJ is structured in this way

The UN Secretariat, which is the ICJ executive branch, does not have the authority or power to enforce ICJ rulings

The ICJ only has limited effectiveness for this reason

Gives countries a way, short of war, to settle a dispute once diplomacy has failed

The ICJ plays this valuable role in keeping peace

Weighted voting schemes that favor the rich and powerful, such as those in the UN Security Council, the World Bank, and the International Monetary Fund

The LDCs reject this voting method

Principles designed to protect the long-dominant power of this bloc of states

The Western view of law is based on this

Cite other legal decisions in justifying their own rulings

The doctrine of stare decisis is specifically rejected in Article 59 of the Statute of the International Court of Justice, but in practice judges on both domestic and international courts do this

Humans, by nature, have certain rights and obligations

The naturalist school of law holds this

* Different cultural heritage of non-Western states * Recent independence of those states * History of exploitation their people have often suffered at the hands of the West

The non-Western view of international law is influenced by these things

* Sovereignty * Noninterference

The non-Western view of international law supports these things

Law reflects society and the way people want that society to operate

The positivist school of thought holds this

Wars of aggression, genocide, and numerous "widespread and systematic" crimes committed as part of 'state, organization, or group policy" during international and internal wars

The treaty gives the ICC jurisdiction over these things

Increasing international interaction and interdependence

The twentieth century saw the expansion of both concern for and practice of international law in response to this

Ethical norms

There is a growing body of this that help determine the nature of the international system

The Hague Conferences Geneva Conventions

These set down some rules regarding impermissible weapons, the treatment of prisoners, and other matters

Moral, ethical, equitable, and humanitarian standards and behavior

These things in sum equate to justice

1. Leaders are criminally responsible for war crimes they ordered 2. Leaders are responsible for war crimes committed by their subordinates unless the leaders tried to prevent the crimes or punished perpetrators 3. Obeying orders is not a valid defense for having committed atrocities

These three important precedents were established during the post-WWII tribunals

ECJ and ECHR

These two European regional courts have been by far the most effective of the regional courts

Multiple, reinforcing sources

These, while not a separate source of law, are perhaps the strongest foundation for international law

Primitive but evolving legal system

This concept is important to understanding international law

The United States (given its hegemonic role in the international system)

This country will be critical to the ICC's success

Pragmatic legitimacy

This is the key to international voluntary compliance

National courts remain the first point of justice, and the ICC is authorized to try cases only when countries fail to do so

This is true of cases that come to the ICC

Judicial review

This, which is deciding whether a government law or action is constitutional, is another possible role of international judicial bodies

* Human rights violations * War * Unpunished examples of "lawlessness"

Those who discount international law contend that it exists only in theory, not in practice. They cite these things as evidence

Legal systems Justice

Two things that restrain the power-based pursuit of self-interest in a domestic system

Quasi-legislative

UN members are bound by treaty to abide by some of the decisions of the General Assembly and the Security Council, which makes these bodies this

Subjects obey the law because they accept its legitimacy, that is, people abide by rules because they accept the political authority that made the rules and/or agree with the rules themselves

Voluntary compliance occurs when this happens

1. A last resort 2. Declared by legitimate authority 3. Waged in self-defense or to establish/restore justice 4. Fought to bring about peace

Western tradition has believed that jus ad bellum (just cause of war) exists in cases where the war is these four things

* Ideological/theological school of law * Naturalist school of law * Positivist school of law

Where does law originate? There are these three major schools of thought

International Court of Justice (ICJ)

World Court, which is associated with the UN and evolved from the Permanent Court of International Justice (PCIJ)