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Summary of ILHR: Lectures & Readings
concise summary of lectures and readings
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Voorbeeld 4 van de 56 pagina's
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Voorbeeld van de inhoud
International Law and Human Rights Summary1. Theories and Histories of International Law
1.1.What Role for International Law?
Lecture
Course Objectives
o 1. Situate International Law (IL) into a broader historical trajectory
o 2. Analyse the dynamic between IL and international politics
o 3. Identify the core controversies and debates in IL
o 4. Deconstruct the methodological commitments of IR theories about IL
o 5. Apply IL in simple cases
Course Structure
o Part I: Theories and Histories of International Law
o Part II: Structures and Mechanics of International Law
o Part III: Core Issues of International Law
What is law?
o “Law is the recognized, mostly codified, legitimate standard of behaviour that binds
community together”
o Law tends to have three specific characteristics
1. Law is universal (applies to everyone equally)
2. Law is coercive (transgressions and violations are punished)
3. Law is open: individuals can establish their own relationships within the law and
shape it.
Why have law?
o Sociological explanation
o Large societies need formal rules that can be enforced because:
You can make long-term decisions
Order
Predictability of outcome
You can trade with people who are far away
There is someone to enforce the rules when you have a dispute
But why? I study International Relations!
o IR is the study of relations between actors across national borders
As soon as an actor leaves his national border, he is in the realm of IL
o International Law informs foreign policy decisions
o International Law is a way of solving problems with a global scope
o International Law has expanded significantly in the past century and continues to accelerate
o IR scholars have to engage with public international law
International Law and Foreign Policy
o International Law has played an outsized role in informing foreign policy
o President Coolidge (1920)
Key aim of public policy is to reduce “domestic and foreign relations to a system of
laws”
o President Obama’s National Security Strategy of 2010
(…) we should strengthen enforcement of international law and our commitment to
engage and modernize international institutions and frameworks.
(…) strengthening of international norms, and enforcement of international law is not
a task for the United States alone—but together with like-minded nations, it is a task
we can lead.
What is IL?
o There are 2 types of IL
o 1. Public International Law
“a set of rules that states create to regulate and order their own behaviour and that
are intended to bind states in their relationships with each other”
PIL is what IR scholars study when they say “international law”
PIL is what we are going to look at in our course
PIL what you would intuitively consider to be “international law”
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, PIL are for instance: Human Rights, World Trade Organisation…
o 2. Private International Law (also known as Conflict of Laws)
“areas of conflict between national laws and international actors (people,
companies/corporations, or legal entities).”
Covers areas dealing with the clash of domestic laws and domestic laws with
international law
Traces its history to Roman Law and has not been the focus of IR scholars
Focuses on businesses that have contractual obligations in multiple countries and
jurisdictions
Focuses on legal disagreements between private parties
Dispute settlement (arbitration) outside of domestic legal frameworks
Big companies need to solve disputes quickly & move on, but domestic legal systems
can be very slow, so they’d rather have / try arbitration before going to a domestic
court
International Law ≠ Domestic Law
o Domestic Law:
formal rules have some type of enforcement
Sovereign makes law and uses force to make people comply
o International Law
No sovereign –>> No legitimate enforcer
Force plays a very limited part in enforcement
…other forms of sanctions are required to make states comply
Theories of IL in IR
o Theoretical perspectives in IR have very different views of IL
o They disagree over what motivates actors
1. Realist Approaches
2. Functionalist Approaches
3. Constructivist Approaches
4. Marxist Approaches
5. Critical Approaches
o Realism
Analytical focus is on state power and state interest
International Law reflects the power and interest of states
There is no need to explain the proliferation of legal agreements as the questions is
not central to world politics
Compliance of states to IL is seen as an expression of their national interest
IL is inconsequential and only epiphenomenal of power!
o Functionalism / Rationalism
Look at the world: it is organized in large cooperative structures! Clearly nation-states
must care about IL
States enjoy order and the benefits that come with cooperation over time
States spent money and time to justifying their actions
They accept the central realist tenant of rational egoism but argue that realists have
focused on too narrow on short term gains
Interest is not a zero-sum game = all state can win if they work together
International Law matters!
o Constructivism
Focus less on materialistic and strategic approaches to theorize IL and more on
sociological and contextual views
There is an inherently sociological nature of the development of international regimes
Understanding the actors’ purposes and intentions is central to understanding the
existence and operation of IL
IL reflects and informs struggles over international legitimacy
International Law is a reflection of social purpose!
Why do states sign international legal agreements?
o Realism: primarily for cynical reasons; little expectation of compliance
o Functionalism: states want to realize joint future gains
-> costs of committing are lower than the benefits to be gained
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, o Constructivists: states commit because they become persuaded of the appropriateness of
such action and to fashion themselves as a legitimate state.
How is IL implemented?
o Different legal system absorb international law in different ways
o There are, however, two broad theories of understanding the interaction of international law
with domestic law
o Dualism (Heinrich Triepel)
Mainly prevalent in common law jurisdictions
More practical approach, based on precedents
UK, USA, India…
Emphasises the difference between national and international law
For IL to be valid it needs to be adopted and translated into national law
National law has priority over IL that has not been incorporated!
In more extreme cases, dualist hold that international law does not exist as law
o Monism (Hans Kelsen)
Mainly prevalent in civil law jurisdiction
Based more on general legal system that can be deduced on a case-by-case
bass
the Netherlands, Germany, France, Italy…
The international legal framework and the internal legal system form a unity
In a monist state, IL does not need to be translated into national law -> it has direct
domestic effect
In extreme cases, monists hold that national law is null and void if it contradicts with
international law
National Law from an IL perspective
o Vienna Conventions of on the Law of Treaties [VCLT] signed in 1969 (effective from 1980)
Ratified by 35 states
According to VCLT national law cannot be invoked to justify noncompliance with IL
Article 46 VCLT
1. A State may not invoke the fact that its consent to be bound by a
treaty has been expressed in violation of a provision of its internal
law regarding competence to conclude treaties as invalidating its consent
unless that violation was manifest and concerned a rule of its internal law of
fundamental importance.
o LaGrand Case (Germany v USA) 2001
o Avena Case (Mexico v USA), ICJ 2004
“the rights granted under the Convention [on consular Relations] are treaty rights
which the US has undertaken to comply with in relation to the individual concerned,
irrespective of the due process rights under the US constitutional law.” (paragraph
139)
o Germany v Poland (1926), PCIJ
“From the standpoint of International Law and of the Court which is its organ,
municipal laws are merely facts which express the will and constitute the
activities of States, in the same manner as do legal decisions or administrative
measures. The Court is certainly not called upon to interpret the Polish law as such;
but there is nothing to prevent the Court's giving judgment on the question whether
or not, in applying that law, Poland is acting in conformity with its obligations towards
Germany under the Geneva Convention.” (p.19)
o Exchange of Greeks and Turkish Populations (1925), PCIJ
Is there a general duty to bring national law in conformity with obligation under
international law?
“self-evident’ principle in international law, according to which a state which has
contracted valid international obligations is bound to make in its legislation such
modifications as may be necessary to ensure the fulfilment of the obligations
undertaken” (p.20)
IL implementation: simply a matter of national legal tradition?
3
, o “The transformation of international norms into domestic law is not necessary from the point
of view of international law […] the necessity of transformation is a question of national, not
of international law.” - Antonio Cassese
Compliance
o First-order compliance = states complying to with the substantive provisions of a rule
o Second-order compliance = actions in accordance with the ruling of an authoritative body
charged with the interpretation or adjudication of a primary rule (for instance Dispute
Settlement Body of the WTO, ICC, ICJ…)
o Formal international mechanisms to enforce IL are notoriously weak
o Outside of the EU there is hardly any supranational enforcement
o For instance: WTO may order a country to pay a fine because of a trade violation but in
cannot enforce that fine. It is up to the country to which the damage was done to retaliate
with sanctions
Is IL effective?
o Effectiveness is generally assessed by looking at two things:
1) Actual observance (compliance by states) and validity (binding force of the law)
“almost all nations observe almost all principles of international law and
almost all of their obligations almost all of the time.” - Louis Henkin (1917-
2010)
2) Are the broader effects of treaties on society/economy beneficial
o In the past century, IL has worked for more powerful countries better than it has for weaker
countries (for instance by dictating trade terms…)
Recap
o Two forms of IL: public international law and private international law
o Dualism and Monism
o IR scholars look at IL through different perspectives (realism, functionalism, constructivism)
o Compliance is difficult to enforce if a state does not follow IL
o Given the circumstances and conditions: IL is surprisingly effective
Reading
B. Simmons (2008) International Law and International Relations.
Abstract
o International law is a set of rules intended to bind states in their relationships with each
other. It is largely designed to apply to states, both to constrain (the laws of war) and to
empower them (law of sovereignty). Increasingly, international law has been codified, so
that today most international obligations are contained in treaty form, although historically
customary international law played a relatively more important role than it does today. The
role of international law in informing foreign policy decision making has waxed and waned
over the course of the past century. It has also varied significantly across countries. It is
striking the extent to which international interactions have become reflected in and
regulated by formal state-to-state agreements. This article examines international law and
international relations, multilateral treaties, political theories of international law (realism,
rational/functionalist theories, constructivist approaches), and legal agreements. It also
discusses the implementation, compliance, and effectiveness of international law.
Scope and Background
o International Law = the set of rules that are intended to bind states in their relationships
with each other.
o Public international law = the rules which states create to regulate and order their own
behaviour
o Private international law = international agreements about which rules should apply to
private transactions such as contracts, etc.
o International law is largely designed to apply to states, both to constrain (the laws of war)
and to empower them (law of sovereignty).
o “Regimes” were defined to encompass rules, norms, and decision-making procedures, and
while these typically are codified agreements, regime scholars did not explicitly link their
inquiries to in IL per se
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