National v International National v International LawLaw
And does international law And does international law really exist anyway?really exist anyway?
The LawThe Law
It is one of the great expressions of It is one of the great expressions of sovereigntysovereignty
It expresses the power and authority It expresses the power and authority of the state against “anti-social” of the state against “anti-social” behaviorbehavior
Law embodies the values of the Law embodies the values of the people of that country that, in turn, people of that country that, in turn, determine what is right and wrong.determine what is right and wrong.
We have tried to establish certain We have tried to establish certain “Basic Human Rights” globally too.“Basic Human Rights” globally too.
The Law is BindingThe Law is Binding
Everyone is a citizen of someplace, Everyone is a citizen of someplace, and they are bound by the laws of and they are bound by the laws of their country, or whatever country their country, or whatever country they are in at the time—you don’t they are in at the time—you don’t question the legitimacy of the law.question the legitimacy of the law.
So, if you commit a crime against the So, if you commit a crime against the laws of a country, you may fairly laws of a country, you may fairly expect to be punished for that act. expect to be punished for that act. The state has real enforceable The state has real enforceable sanctionssanctions
So this is how it is.So this is how it is.
So, in brief, the law represents the So, in brief, the law represents the rulesrules of that society (state) and of that society (state) and sanctions are reserved for those who sanctions are reserved for those who willfully disregard that law. We all willfully disregard that law. We all understand that.understand that.
The laws are made by the people of The laws are made by the people of that country and so, in theory, express that country and so, in theory, express the values of that society. The peoples’ the values of that society. The peoples’ representatives are called representatives are called LegislatorsLegislators
Where do the ‘rules’ come from, Where do the ‘rules’ come from, internationally speaking?internationally speaking?
They come from several places. First, They come from several places. First, sometimes states consistently follow sometimes states consistently follow certain general practices out of a sense certain general practices out of a sense of legal obligation (customary law). of legal obligation (customary law). Second, the rules may come from Second, the rules may come from international agreements (conventional international agreements (conventional law). And third, general principles that law). And third, general principles that are common to the national laws of are common to the national laws of many states usually contribute to many states usually contribute to international law. international law.
What Happens Above This LevelWhat Happens Above This Level
We are all bound by the laws of our We are all bound by the laws of our country or the country we are in.country or the country we are in.
But above that, the players are not But above that, the players are not individuals, but individuals, but States.States.
There is, for instance, no World There is, for instance, no World GovernmentGovernment—so there is no body with —so there is no body with the power of sanction above the state.the power of sanction above the state.
The European Union is, as usual, an The European Union is, as usual, an indefinable exceptionindefinable exception
What is “International Law?”What is “International Law?”
International law consists of rules International law consists of rules and principles, which govern the and principles, which govern the relations and dealings of nations with relations and dealings of nations with each other. It can only work if the each other. It can only work if the nation-states, which make up the nation-states, which make up the system, accept and abide by those system, accept and abide by those rules.rules.
The Buck Stops…where? The The Buck Stops…where? The ActorsActors
There is no institution, if you are a US There is no institution, if you are a US citizen, above the level of the Federal citizen, above the level of the Federal Government and the Supreme Court Government and the Supreme Court that has any real that has any real jurisdictionjurisdiction over you. over you.
States, however, can States, however, can agreeagree to be bound to be bound by the terms of a Treaty or Protocol—by the terms of a Treaty or Protocol—but, notice, they but, notice, they agree; it is voluntary.agree; it is voluntary.
Who will enforce it if they disregard the Who will enforce it if they disregard the agreement later?agreement later?
Why have International Law?Why have International Law?
International law provides an International law provides an alternative alternative to the use of forceto the use of force in settling disputes in settling disputes by relying on by relying on compromise, cooperation, compromise, cooperation, mutual legal obligations, and common mutual legal obligations, and common endsends. In today’s world of increasingly . In today’s world of increasingly interdependent nations and economies, interdependent nations and economies, the resolution of conflicts without the resolution of conflicts without violence is violence is more essentialmore essential than ever. than ever.
Treaties (Instruments)Treaties (Instruments)
A state does not give up any A state does not give up any sovereignty in signing a Treaty. It sovereignty in signing a Treaty. It lends its name to an agreed course lends its name to an agreed course of action.of action.
The big difference then, is not just The big difference then, is not just the players, but the sanctions.the players, but the sanctions.
How do you arrest a state and send it How do you arrest a state and send it to jail? Is Iraq that?to jail? Is Iraq that?
Is it enforceable?Is it enforceable? Yes, there are several mechanisms by which Yes, there are several mechanisms by which
international law can be enforced. One way is international law can be enforced. One way is through the use of through the use of international pressureinternational pressure short of short of the use of force, such as economic pressure. the use of force, such as economic pressure. Another is prompted by a Another is prompted by a nation’s wish to nation’s wish to maintain a favorable public (national as well as maintain a favorable public (national as well as international) imageinternational) image. This is particularly integral . This is particularly integral to the enforcement of human rights law. Also, to the enforcement of human rights law. Also, nations must realize that in order for international nations must realize that in order for international law to function, each nation-state must assume law to function, each nation-state must assume responsibility for its enforcement. One of the responsibility for its enforcement. One of the ways in which they can do this is by supporting ways in which they can do this is by supporting and participating in international bodies, such as and participating in international bodies, such as the United Nations the United Nations
Are There Institutions?Are There Institutions?
Yes, we have the International Court Yes, we have the International Court of Justice in the Hague.of Justice in the Hague.
However, the US wanted nothing the However, the US wanted nothing the do with the International Criminal do with the International Criminal Court. Why?Court. Why?
Because it is taking international law Because it is taking international law to the level, not of the state, but of to the level, not of the state, but of the individual, which would be the individual, which would be threatening the Constitutional rights threatening the Constitutional rights of an Americanof an American
Where is the UN in all of this?Where is the UN in all of this? The United Nations is an international The United Nations is an international
organization (one created by international organization (one created by international agreement and/or has membership consisting agreement and/or has membership consisting primarily of nations) that was formed in 1954. primarily of nations) that was formed in 1954. Today it has 191 Member States. Its declared Today it has 191 Member States. Its declared purposes are to maintain peace and security, to purposes are to maintain peace and security, to develop friendly relations among nations, to develop friendly relations among nations, to achieve international cooperation in solving achieve international cooperation in solving international problems, and to be a center for international problems, and to be a center for harmonizing the actions of the nations and harmonizing the actions of the nations and attaining their common ends. The UN Charter attaining their common ends. The UN Charter specifically calls on it to undertake the specifically calls on it to undertake the progressive codification and development of progressive codification and development of international law. international law.
What is the “International Criminal What is the “International Criminal Court?”Court?”
The ICC was established by the Rome The ICC was established by the Rome Statute in 1998 and officially came into Statute in 1998 and officially came into force on July 1, 2002. It is the first ever force on July 1, 2002. It is the first ever permanent, treaty-based, international permanent, treaty-based, international judicial body capable of investigating and judicial body capable of investigating and trying individuals accused of the most trying individuals accused of the most serious violations of international serious violations of international humanitarian and human rights law, namely humanitarian and human rights law, namely genocide, crimes against humanity and war genocide, crimes against humanity and war crimes. Like preceding ad hoc international crimes. Like preceding ad hoc international criminal tribunals, the ICC is based on the criminal tribunals, the ICC is based on the idea that individuals can and should be held idea that individuals can and should be held criminally accountable for the actions of criminally accountable for the actions of states. states.
What is the purpose of the ICC?What is the purpose of the ICC?
The ICC makes international standards of The ICC makes international standards of conduct more specific, provides an conduct more specific, provides an important mechanism for implementation of important mechanism for implementation of these standards and ensures that the these standards and ensures that the perpetrators are brought to justice before perpetrators are brought to justice before the ICC when national Courts are unable or the ICC when national Courts are unable or unwilling to do so. Equally important could unwilling to do so. Equally important could be the impact on national laws as ratifying be the impact on national laws as ratifying nations fulfill their obligation to ensure that nations fulfill their obligation to ensure that these crimes can be tried within their own these crimes can be tried within their own borders borders
Where is the US relative to ICCWhere is the US relative to ICC
President Bill Clinton signed the 1998 President Bill Clinton signed the 1998 Rome Statute in December 2000. Less Rome Statute in December 2000. Less than six months after that, however, the than six months after that, however, the Bush administration withdrew the US Bush administration withdrew the US signature on the treaty and announced signature on the treaty and announced that it has no intention to become party to that it has no intention to become party to the Statute. Furthermore, the U.S. has the Statute. Furthermore, the U.S. has repeatedly tried to undermine the Court repeatedly tried to undermine the Court and this opposition is creating tensions and this opposition is creating tensions with allied nations, nearly all of which with allied nations, nearly all of which have signed and ratified the treaty and have signed and ratified the treaty and with the international community at large. with the international community at large.
What is the International Court of What is the International Court of Justice?Justice?
This is a body that predates the This is a body that predates the United Nations, and is a place for United Nations, and is a place for adjudicating cases brought by one adjudicating cases brought by one state against another.state against another.
Its decisions are not binding or Its decisions are not binding or enforceable in any serious way. This enforceable in any serious way. This is why the USA participates.is why the USA participates.
RememberRemember
The great German Chancellor, Prince The great German Chancellor, Prince Bismarck said: “A Treaty is just a Bismarck said: “A Treaty is just a scrap of paper.” Germany scrap of paper.” Germany disregarded all its international disregarded all its international obligations when it invaded Belgium.obligations when it invaded Belgium.
So, why is this Important?So, why is this Important?
It’s what Prof. Lynton Caldwell called “The It’s what Prof. Lynton Caldwell called “The Second Generation of Problems.” We dealt Second Generation of Problems.” We dealt with the first generation, somewhat, using the with the first generation, somewhat, using the institutions of the nation state. Now, they do institutions of the nation state. Now, they do not suffice to tackle “Second-Generation not suffice to tackle “Second-Generation Problems”Problems”
Which are?Which are? Globalization: Financial Crime, Terrorism, Globalization: Financial Crime, Terrorism,
AIDS, Traffic in Women and Children, Climate AIDS, Traffic in Women and Children, Climate ChangeChange
The rise of the Multi-National CorporationThe rise of the Multi-National Corporation
ImplicationsImplications
The state is going to be really hard-The state is going to be really hard-pressed to tackle Global problems, pressed to tackle Global problems, even collectively, without some even collectively, without some agreed rules and sanctions.agreed rules and sanctions.
But, we are caught in the middle of But, we are caught in the middle of an historical trap. To have effective an historical trap. To have effective international law, we need to yield international law, we need to yield some degree of some degree of sovereigntysovereignty. .
A Good ExampleA Good Example
Should you regulate, for instance, the Should you regulate, for instance, the WWW? The ultimate symbol of the WWW? The ultimate symbol of the anarchy of Globalization?anarchy of Globalization?
How do you shelter your children How do you shelter your children from something that can originate from something that can originate anywhereanywhere??
And yet the anarchy of the web is And yet the anarchy of the web is seen by many as the purest seen by many as the purest expression of democracyexpression of democracy
New ChallengesNew Challenges
US Unilateralism is seen as a US Unilateralism is seen as a challenge to Multilateralism, or challenge to Multilateralism, or collective action. collective action.
The NATO bombing of Kosovo was The NATO bombing of Kosovo was seen by many as totally contrary to seen by many as totally contrary to international law, as is the invasion international law, as is the invasion of Iraqof Iraq
