During the 19th and early 20th century, individuals were viewed as “objects” of IL, and were not deemed to be”subjects” of IL (Janis & Noyes, 2006, p. 363). Positivists like Jeremy Bentham in 1789 created the term “International Law”, which he defined as the law that relates to the “mutual transactions between sovereigns as such”, and therefore, categorizing laws on the basis of “the persons whose conduct is the object of the law”. Bentham concluded that IL had only states as its subjects (Janis & Noyes, p. 364).
Positivists viewed International Law (IL) as a set of rules with states as its subjects, whereas municipal law was thought of as pertaining to individuals who are subjects of a single state. Legal positivism had taken the 18th century law of nations, a law common to individuals and states, and transformed it into public and private IL. The former was deemed to apply to states, the latter to individuals. Positivists criticized both sides of the discipline. Public IL was “international” but not really “law”. Private IL was “law” but not really “International”. In short, positivists reject the notion that individuals are proper subjects of IL (p. 364)
Before positivism, there was no theoretical insistence that the rules f the law of nations applied only to states (Janis & Noyes, p. 363). The dominant sentiment was of those like William Blackstone who viewed both individuals and states were as the proper subjects of the law of nations. Blackstone distinguished his law of nations from other sorts of law not on the basis of its subjects, and saw that the rule of law of nations as universal, emanating either from natural justice or from the practice of many states. Municipal legal rules, however, emanated from a single state (p. 364)
However, only in recent decades has there been a fundamental shift in beliefs that the rights of individuals may be more important than the needs of states, not simply within nations but across the international system (Week 6 lecture, IL and Human Rights, p. 1). While law can be categorized on the basis of its subjects, in practice, the law of nations and IL have concerned more than the legal rights of states (Janis & Noyes, p. 365). Even during the high tide of positivism, the US Supreme Court had no difficulty seeing individuals as subjects of IL. The Court held that “IL is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination (p. 364)
As Janis & Noyes explained, the concept that individuals can be subjects, as well as objects, of IL logically divides into individual rights at IL and individual duties. The principle that law should protect the rights of individuals against the abuses of governments can be at least be dated back to John Locke’s Two Treaties of Government published in 1690. He believed that human rights, not governments, came first in the natural order of things. In the 18th century, the American declaration of Independence, the French Declaration of the Rights of Man and Citizen, and the US Bill of Rights constituted the documentary foundation on which two centuries of legal protection of human rights in municipal law which has been built (p. 368)
Nonetheless, the trials of Nazi war criminals after the Second World War highlighted the limitations of positivism. Nuremberg re-established plainly and forcefully that the rules of IL should and do apply to individuals. The Charter of the International Military Tribunals at Nuremberg explicitly made individuals subjects to Int’l rules relating to crimes against peace, war crimes, and crimes against humanity (Janis & Noyes, p. 365). Among the main lessons from the Nuremberg Tribunal is that there are individual international rights and obligations that transcend state boundaries. Prior to Nuremberg, it was argued that one of the cornerstones of the Westphalian system of international relations was the principle that sovereign states should be free of outside interference in regulating their own citizens in their own territories (p. 367).
However, the Nuremberg tribunals upheld the fact that individuals rights at IL permeate state sovereignty, permitting outsiders to evaluate how well a state does protecting the rights of inviduals, citizens as well as aliens, in its own territory. It argued that it is wrong, both in terms of describing reality and in terms of preferential expression, for the theory of IL to hold that individuals are outside the ambit of IL rules. Hence, the definition of “nation” under International Law became not limited only to the national state but also the individuals who are the nationals of state. Furthermore, necessary measures taken by all states and international organization to suppress behaviors contrary to IL were consistent with generally recognized principles of IL and should not be considered as intervening in the internal affairs of a state (preservation of the right to self-determination, the prevention of discrimination, the prevention and punishment of genocide, the prohibition against slavery and similar systems and customs, and the prevention and punishment of terrorism) ( D’Amato & Abbassi, p. 111)
Moreover, during the Nuremberg Trial, it was argued that individuals who commit atrocities against humanity must have known that they were acting in defiance of all international laws, and it would be unjust if their wrong was allowed to go unpunished (Janis & Noyes, pp. 373-374). Therefore, the Tribunal rejected the argument that IL is concerned with the actions of sovereign states and provides no punishment for individuals, and further, that where the act in question is an act of state, those who carry it out are not personally responsible, but are protected by the doctrine of the sovereignty of the State (p. 375). The judges ruled that crimes against IL are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of IL be enforced (p. 376). The judges in the Nuremberg Tribunal have relied on precious treaties to reach their verdict, among them was the Treaty of Versailles, which was signed in 1919, and whose Article 7 stipulated that “the official position of defendants shall not be considered as freeing from responsibility, or mitigating punishment. Individuals have int’l duties which transcend the national obligations of obedience imposed by the individual state. Article 3 indicated that “the fact that defendant acted pursuant to orders of his government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment (Janis & Noyes, p. 370). However, the emergence of int’l human rights law in the mid-20th century has been described as the most radical development in the whole history of IL, since it so speedily reestablished individuals as well as states as subjects if IL, although, the rapid emergence of the rules of int’l human rights law, the development of effective international human rights legal process has been more gradual (p. 377)
Among the main challenges to extending International Law to the individuals rights and wrongs are the notions of state protections and responsibilities. However, the traditional doctrines of state protections and state responsibility have at least three significant limitations. First, individuals may only be protected by their national states, with its elusive national links. Second, when the notion of national links is extended to corporations, even more confusion can result. Finally, and most importantly, the objective view of individuals leaves nationals open to abuse by their own states, since its impractical to conceive of a state protecting its own nationals against itself in IL (Janis & Noyes, p. 339)
Furthermore, the doctrine of state responsibility examined in the Nottebohm and Barcelona Traction provided partial protection, but only so as long as a foreign national injured by a state was effectively protected at the international level by that individual’s national state. However, neither the doctrine of the state sovereignty nor its counterpart, the doctrine of state protection, could shield individuals from abuses committed by their own governments (Janis & Noyes, p. 370)
Among other challenges is that international human rights treaties can trigger a “backlash” against international human rights regimes even in democratic societies when treaties call for behavior with which most voters disagree (Janis & Noyes, p. 388). Cultural norms and religious beliefs constitute another challenge in dealing with both states and individuals who violate international law. Proponents of universal international law like Robert Sloane argued that it’s not cultural values that inhibit societies from realizing a legal order that respects universal human rights; it is the self-serving manipulation of these values by elites. Authoritarian leaders often invoke cultural relativism to cloak the characteristic abuses of totalitarian rule (D’Amato & Abbassi, p. 112). The same argument was echoed by Celestine Naymu, who added that the vague notion of culture provides a convenient scapegoat for government institutions and obscures the state’s responsibility in redressing inequalities (p. 115). Ann Elizabeth, rejected international law should accept that fundamental human rights to be restricted by reference to the requirement of any particular religion (p. 115). Therefore, aggrieved citizens within those religious or cultural communities are thus left without formal legal or constitutional remedies. Unless the overlap between cultural norms and formal law and policy is acknowledged and analyzed, the government can exonerate itself by attributing any negative outcome to culture (p. 117).
To conclude, expanding the reach of international law beyond traditional state-to-state interactions into matters directly involving the rights and wrongs of individuals, have ensured that violators of international law will be brought to justice and held accountable for their crimes, and can argued to have improved the status of international human rights in particular. However, despite the rapid emergence of the rules of international human rights law, the development of effective international human rights legal process has been more gradual (Janis & Noyes, p.377). The debate also continues as to whether culture, religion and matters related to state protection, sovereignty and responsibility (as in the case of US rejection of ICJ) can be reconciled with International Law, or whether International Law should transcend all these factors.
References
Anthony D’Amato & Jennifer Abbassi (2006). International Law Today (1st ed). St. Paul, MN: West Publishing
Mark W. Janis & John E. Noyes (2006). International Law: Cases and Commentary (3rd ed). St. Paul, MN: West Publishing
Wednesday, April 15, 2009
Thursday, April 2, 2009
International and Municipal Law
The term International Law (IL) in itself implies a framework of rules and regulations, which states are either legally or morally bound by (D’Amato & Abbassi, 2006, p. 13 & p. 26, Janis & Noyes,2006, p. 3). J.L. Brierly in his classic British introduction to International Law defined the discipline “as the body of rules and principles of action which are binding upon civilized states in their relations with one another” (Janis & Noyes, p. 24).
Mark Janis, 2006, wrote about the historical background of International Law and how has it developed over time. He explained how the Romans knew of a jus gentium, a law of nations or a law “common to all men” (Janis & Noyes, p. 1). In the Seventeenth century, a Dutch jurist named Hugo Grotius in his 1625 writing “The Law of War and Peace” recognized law of nations as a set of rules that bound sovereign states, which then became the foundation of the modern discipline of the law of nations. In 1789, the English philosopher Jeremy Bentham renamed “international law”. Today, the law of nations and International Law are used interchangeably (p. 1).
There is an inherent reciprocity in International Law in a sense that for an independent state to be entitled to full benefits of sovereignty and recognition by the international community it must respect the sovereignty and the entitlements of other states (D’Amato & Abbassi, p. 17). Therefore, international law restrains the state power from threatening the sovereignty of other states; otherwise the offending state will lose its entitlements and be subject to hostilities by other countries. The international community accepted the legality of violating nation’s entitlements in order to repudiate that nation initial offense (D’Amato & Abbassi, p. 22).
Among the various sources of International Law where such rules and regulations are identified are treaties and customary laws accepted by the international community. When neither treaties nor customary laws provide a rule or able to decide on a case involving IL; then the judge may look at other sources including the general principles of law recognized by civilized nations, natural law, and jus cogens or compelling norms (Janis & Noyes, p. 128 & p. 138)
Treaties are contracts between two countries or group of countries. Each country can negotiate the terms of such contracts and either becomes a party obligated to fully carry out the terms of the agreement, or makes specific reservations, understandings or declarations. In practice, treaties have become the main source of International Law, where states are bound to the terms of the agreement and are held accountable if they violate them (D’Amato & Abbassi, pp. 24-26). Disputes are often brought before International Court of Justice (ICJ), whose opinions are not legally binding; however, it provides states with rationale to resolve their problems (Janis & Noise, pp. 27-57). Therefore, treaties are considered international contracts, similar to the domestic legal analogy of drafting a contract (Janis & Noise, p. 54). “Whatever the term used, all agreements have the same legal status, except as their provisions or the circumstances of their conclusion indicate otherwise” ( p. 55).
Among the main criticism to the treaty practice is that treaties never bind all states—only signatories. Moreover, treaties don’t cover every aspect of International Law, hence the need for customary law and other sources of IL. Some treaties are not self-executing, which means that a treaty cannot be enforced without an implanting legislation (D’Amato & Abbassi, p. 53). Furthermore, except for humanitarian treaties (D’Amato & Abbassi, p. 51), and in order to obtain a universal ratification; States can generally refrain from binding by certain provisions of a treaty either by declining to be a party in a treaty or submit reservations as a condition of ratifications in order to protect its domestic interests. However, in treaties covering human rights issues, states might get away with submitting reservations that violate the basic understanding of the treaty, since other states might not object to such reservations if their domestic interests are not implicated (p. 56)
On the other hand, customary law seems to have all the answers to the critics of treaties’ law—it is binding to all states even without their consent, which seems more compelling than law of treaties, and it applies to every dispute whenever a more specific treaty provision does not (D’Amato & Abbassi. p. 59). Customary law is formatted based on previous similar “incidents” or disputes and consequently draw a similar resolution or points in the same direction to obtain one (p. 60). However, developing criteria for what really constitute an incident and when it starts or ends remains a challenge (D’Amato & Abbassi, pp. 64-65). Moreover, certain facts surrounding an incident might not be available till years later, which in turn undermine the validity of the initial resolution (p. 65). Furthermore, since customary law is designed to settle disputes that had precedents in history, it is not capable of addressing non conventional threats like terrorism and WMDs (p. 66).
As Janis and Noyes explained, International Law depends on municipal law—in most instances, when legal rules are applied in practice, they are applied by municipal courts. Moreover, the incorporation of international legal rules into domestic laws is usually done by municipal law governed by the constitution (Janis & Noyes, p. 180). However, there is a debate between monists and dualists as to whether the Constitution should be used as filter to ensure that International Law conforms to national laws—nationalization of International Law (Slaughter, 1997, p.192), or should International Law be allowed to penetrate through the national legal order—denationalization of Constitutional Law (De Burca & Gerstenberg, p. 244)-creating a more universal legal order (Week 4 PDF notes, p. 1). Most governments currently adhere to the ‘dualist’ paradigm, viewing national and international legal systems as separate, each with its own power to settle the effect of any rule from the other system within its own bounds (Week 4 lecture, p. 1)
The U.S constitution gives treaties (provided that treaties are self-executing) and federal laws equal force, and they both trump states laws. The most important US constitutional law decision concerning the relationship of international law and US municipal law is Foster & Elam (J & N., p. 180). Article VI (2) of the US constitution, the Supremacy Clause: The constitution, and the laws of the US and all treaties made or shall be made, under the authority of the US shall be the supreme law of the land. Anything in the constitution or laws of any state to the contrary notwithstanding. In the Asakura v. City of Seattle case is an example of a state law being trumped up by US treaty rule. The case cited Foster & Elam for the proposition that a treaty “operates of itself without the aid of any legislation, state or national; and it will be applied and given authoritative effect by the courts (J. & N. p. 185).
Moreover, the U.S. Constitution also recognizes customary law and, like treaty and federal law, receives the benefits of the Supremacy Clause (Week 4 lecture, p. 4). In the Sosa v. Alvarez-Machan, the Supreme Court Justices stipulated that the US bound to receive the law of nations, in its modern state of purity and refinement (N. & J., p. 248). However, more than 95 percent of all international agreements concluded by the US are in the form of executive agreements. Over the years, Congress tried to curb presidential executive power. The President still enjoys predominant power in foreign affairs (Week 4 lecture, p. 3). Even when the Senate consents to a treaty, the Constitution gives only the President the authority to negotiate, without intrusion by the Senate, as in the case of United States v. Curtiss-Wright (J. & N., p. 211).
Despite the fact the both International Law and Municipal Law depend on each other as we previously explained, De Burca & Gerstenberg in 2006 argued that both politicians and legislators have expressed reservations about the role and function of International Law in domestic affairs. Moreover, legislators are usually skeptical about the authority and utility of International Law and how it should be given effect within domestic system (p. 243). De Burca & Gerstenberg suggested that both International and constitutional norms should be understood as “contextually competing rule-of-law rather than as conflicting legal sources vying against one another” (p. 244)
References
Anthony D’Amato & Jennifer Abbassi (2006). International Law Today (1st ed). St. Paul, MN: West Publishing
De Burca, G. & Gerstenberg, O. (2006, Winter). The denationalization of constitutional law. Harvard International Law Journal, 47(1), pp. 243-262.
Mark W. Janis & John E. Noyes (2006). International Law: Cases and Commentary (3rd ed). St. Paul, MN: West Publishing
Slaughter, A. (1997, Sep/Oct). The real new world order. Foreign Affairs, 76 (5), pp. 183-197
Mark Janis, 2006, wrote about the historical background of International Law and how has it developed over time. He explained how the Romans knew of a jus gentium, a law of nations or a law “common to all men” (Janis & Noyes, p. 1). In the Seventeenth century, a Dutch jurist named Hugo Grotius in his 1625 writing “The Law of War and Peace” recognized law of nations as a set of rules that bound sovereign states, which then became the foundation of the modern discipline of the law of nations. In 1789, the English philosopher Jeremy Bentham renamed “international law”. Today, the law of nations and International Law are used interchangeably (p. 1).
There is an inherent reciprocity in International Law in a sense that for an independent state to be entitled to full benefits of sovereignty and recognition by the international community it must respect the sovereignty and the entitlements of other states (D’Amato & Abbassi, p. 17). Therefore, international law restrains the state power from threatening the sovereignty of other states; otherwise the offending state will lose its entitlements and be subject to hostilities by other countries. The international community accepted the legality of violating nation’s entitlements in order to repudiate that nation initial offense (D’Amato & Abbassi, p. 22).
Among the various sources of International Law where such rules and regulations are identified are treaties and customary laws accepted by the international community. When neither treaties nor customary laws provide a rule or able to decide on a case involving IL; then the judge may look at other sources including the general principles of law recognized by civilized nations, natural law, and jus cogens or compelling norms (Janis & Noyes, p. 128 & p. 138)
Treaties are contracts between two countries or group of countries. Each country can negotiate the terms of such contracts and either becomes a party obligated to fully carry out the terms of the agreement, or makes specific reservations, understandings or declarations. In practice, treaties have become the main source of International Law, where states are bound to the terms of the agreement and are held accountable if they violate them (D’Amato & Abbassi, pp. 24-26). Disputes are often brought before International Court of Justice (ICJ), whose opinions are not legally binding; however, it provides states with rationale to resolve their problems (Janis & Noise, pp. 27-57). Therefore, treaties are considered international contracts, similar to the domestic legal analogy of drafting a contract (Janis & Noise, p. 54). “Whatever the term used, all agreements have the same legal status, except as their provisions or the circumstances of their conclusion indicate otherwise” ( p. 55).
Among the main criticism to the treaty practice is that treaties never bind all states—only signatories. Moreover, treaties don’t cover every aspect of International Law, hence the need for customary law and other sources of IL. Some treaties are not self-executing, which means that a treaty cannot be enforced without an implanting legislation (D’Amato & Abbassi, p. 53). Furthermore, except for humanitarian treaties (D’Amato & Abbassi, p. 51), and in order to obtain a universal ratification; States can generally refrain from binding by certain provisions of a treaty either by declining to be a party in a treaty or submit reservations as a condition of ratifications in order to protect its domestic interests. However, in treaties covering human rights issues, states might get away with submitting reservations that violate the basic understanding of the treaty, since other states might not object to such reservations if their domestic interests are not implicated (p. 56)
On the other hand, customary law seems to have all the answers to the critics of treaties’ law—it is binding to all states even without their consent, which seems more compelling than law of treaties, and it applies to every dispute whenever a more specific treaty provision does not (D’Amato & Abbassi. p. 59). Customary law is formatted based on previous similar “incidents” or disputes and consequently draw a similar resolution or points in the same direction to obtain one (p. 60). However, developing criteria for what really constitute an incident and when it starts or ends remains a challenge (D’Amato & Abbassi, pp. 64-65). Moreover, certain facts surrounding an incident might not be available till years later, which in turn undermine the validity of the initial resolution (p. 65). Furthermore, since customary law is designed to settle disputes that had precedents in history, it is not capable of addressing non conventional threats like terrorism and WMDs (p. 66).
As Janis and Noyes explained, International Law depends on municipal law—in most instances, when legal rules are applied in practice, they are applied by municipal courts. Moreover, the incorporation of international legal rules into domestic laws is usually done by municipal law governed by the constitution (Janis & Noyes, p. 180). However, there is a debate between monists and dualists as to whether the Constitution should be used as filter to ensure that International Law conforms to national laws—nationalization of International Law (Slaughter, 1997, p.192), or should International Law be allowed to penetrate through the national legal order—denationalization of Constitutional Law (De Burca & Gerstenberg, p. 244)-creating a more universal legal order (Week 4 PDF notes, p. 1). Most governments currently adhere to the ‘dualist’ paradigm, viewing national and international legal systems as separate, each with its own power to settle the effect of any rule from the other system within its own bounds (Week 4 lecture, p. 1)
The U.S constitution gives treaties (provided that treaties are self-executing) and federal laws equal force, and they both trump states laws. The most important US constitutional law decision concerning the relationship of international law and US municipal law is Foster & Elam (J & N., p. 180). Article VI (2) of the US constitution, the Supremacy Clause: The constitution, and the laws of the US and all treaties made or shall be made, under the authority of the US shall be the supreme law of the land. Anything in the constitution or laws of any state to the contrary notwithstanding. In the Asakura v. City of Seattle case is an example of a state law being trumped up by US treaty rule. The case cited Foster & Elam for the proposition that a treaty “operates of itself without the aid of any legislation, state or national; and it will be applied and given authoritative effect by the courts (J. & N. p. 185).
Moreover, the U.S. Constitution also recognizes customary law and, like treaty and federal law, receives the benefits of the Supremacy Clause (Week 4 lecture, p. 4). In the Sosa v. Alvarez-Machan, the Supreme Court Justices stipulated that the US bound to receive the law of nations, in its modern state of purity and refinement (N. & J., p. 248). However, more than 95 percent of all international agreements concluded by the US are in the form of executive agreements. Over the years, Congress tried to curb presidential executive power. The President still enjoys predominant power in foreign affairs (Week 4 lecture, p. 3). Even when the Senate consents to a treaty, the Constitution gives only the President the authority to negotiate, without intrusion by the Senate, as in the case of United States v. Curtiss-Wright (J. & N., p. 211).
Despite the fact the both International Law and Municipal Law depend on each other as we previously explained, De Burca & Gerstenberg in 2006 argued that both politicians and legislators have expressed reservations about the role and function of International Law in domestic affairs. Moreover, legislators are usually skeptical about the authority and utility of International Law and how it should be given effect within domestic system (p. 243). De Burca & Gerstenberg suggested that both International and constitutional norms should be understood as “contextually competing rule-of-law rather than as conflicting legal sources vying against one another” (p. 244)
References
Anthony D’Amato & Jennifer Abbassi (2006). International Law Today (1st ed). St. Paul, MN: West Publishing
De Burca, G. & Gerstenberg, O. (2006, Winter). The denationalization of constitutional law. Harvard International Law Journal, 47(1), pp. 243-262.
Mark W. Janis & John E. Noyes (2006). International Law: Cases and Commentary (3rd ed). St. Paul, MN: West Publishing
Slaughter, A. (1997, Sep/Oct). The real new world order. Foreign Affairs, 76 (5), pp. 183-197
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