States are the sole source of legitimate authority; they are sovereign States are determined to maintain their status Purpose of ILAW in the international society Support the idea of a society of sovereign states through appropriate rules and laws Provide basic rules of coexistence among states but dont undermine sovereignty Help mobilize compliance with rules in the international society Main source of intl legal agreements is State Consent ILAW tends to cater to the interests of the most powerful REALIST VIEW OF ILAW Many realists oppose adopting an unduly legalistic approach to world politics Fear ILAW is a straight jacket on their sovereignty Distrust ILAWs emphasis on sovereign equality Realist perception of ILAW they dont reject ILAW completely States use ILAW arguments as a tool to support their national interests See ILAW often as wishful thinking See phenomena like war as extralegal Inevitable ILAW reflects interests of most powerful Most fundamental principle of ILAW (pacta sunt servanda) is qualified by the principle while circumstances remain the same (rebus sic stantibus) States are free to withdraw from treaties & are sole interpreters of when circumstances have changed LIBERAL PARADIGM Observing the world shows order does exist and is related to ILAW Liberals focus on cooperative impulses of men and States Assumptions States increasingly compete with nonstate actors in producing outcomes in the international society States are not unitary, single-minded entities driven by national interests, they are pluralistic collections of interests & complex interdependence States have mutual interests & will act collectively more often than realists believe LIBERALIST VIEW OF INTERNATIONAL SOCIETY Man is rational & cooperation is based on enlightened rationality of mutual gain Shared vision of world order built on values Challenges State-centered realism Challenge the amorality of realism Numerous actors are capable of influencing ILAW Community values are center stage Law and institutions serve a broad range of functions Need value-laden institutions namely liberal democratic states and free trade LIBERAL VIEW OF ILAW Encourage the development of ILAW Norm Entrepreneurs Treaty development General reject State control over all aspects of ILAW NGO expansion Institutions building ILAW is a key to developing an integrated global approach to global issues that are proliferating BRIDGING THE REALIST-LIBERAL DIVIDE 21 st century will be pulled by two competing forces History is search for the optimal political unit; swings b/t 2 extremes Single universal political order Multiple, small, fragmented polities Competition b/t forces of integration and disintegration is not new, and this has implications for our world today Aim is a more mature anarchy (Barry Buzans phrase) Avoid bad liberalism (wishful thinking) Avoid bad realism (resignation to failure) NATURAL LAW System of laws purportedly determined by nature & is universal Certain rights and values are inherent in nature of man & can be universally understood through reason Higher law from which all men can divine natural justice from injustice It means the order that governs the actions of the universe Some argue man is obliged to contribute to the greater good of society Opposite of the positivists view of law - one that views law as whatever man says it is so long as the appropriate procedure is used Natural law is used to criticize positivist or specific written law by saying it is against nature TWO SCHOOLS OF THOUGHT THAT DOUBT THE STATUS OF INTERNATIONAL LAW 2 schools of thought believe the political conditions necessary for an effective legal system to exist are absent in international society Positivist philosophy rejects natural law, based on math & science Positivism in law Authority of human political structures replace the science aspect of the philosophy Law = command by a sovereign power backed by force International law is enforced by moral sanctions and fear only, not true coercive law Societies that only have norms have not advanced into true laws Realism classic realists dont dismiss ILAW completely International society is one of anarchy and all member states ceaselessly compete to pursue their own interests ILAW must rely on self-help Struggle for power is not constrained by moral or legal principles Cooperation is always limited and short term ILAW has only limited role, its undeveloped; international community is decentralized Inevitably, ILAW reflects interests of the powerful RESPONSE TO POSITIVISTS AND REALISTS Positivists and realists definition of law is oversimplified Few laws are so unambiguous as to leave no room for interpretation People dont only obey out of fear; they often accept law as legitimate or because it serves their self-interests There are many laws or rules that have no coercive character Law doesnt only come from a sovereign, it can evolve in the common law system where laws emerge through courts & interpretations ILAW is decentralized and under-developed, but it reflects intl society In the real world the number of areas in which ILAW has come to play an important and growing part REAL WORLD DEVELOPMENTS Since 1945 there have been a number of areas that ILAW has played an important and growing part Growth in various legal systems around specific treaties States appear to take these rules seriously Most states observe most rules almost all the time When states dont observe the rules, they devote significant resources to try and demonstrate that what they are doing does in fact accord with ILAW as they interpret it NORMS vs. LAWS Both norms and laws are techniques for societies or groups to gain compliance Norms imply something ought to happen in a given circumstance Enforced by informal, societal mechanisms Generally vague; not interpreted uniformly Often can vary depending on individual factors Law employs a formal institution with established coercive sanctions Has an separate, independent system of enforcement, courts, judiciary, rules of procedures, evidence Standard is all are equal before the law MODERN POSITIVIST HANS KELSEN Detached science of law from other social sciences Concept of norm is a proposition that something ought to happen in a given circumstance Norms can prescribe or permit certain actions Moral norms and legal norms are social techniques to achieve certain ends, but legal norms employ coercive sanctions and function with their own distinctive and autonomous system with separate rules ILAW meets the criteria for law because States right to self-help acts as a functional equivalent to coercive sanction ILAW has 2 characteristics that distinguish it from domestic law it is primitive and decentralized; lacks objective organs to determine if wrong occurred and administer sanctions. EVOLUTION OF INTERNATIONAL LAW International society is decentralized system of power Lacks norms and institutions to determine if a wrong occurred and to coerce States to correct themselves Primitive legal systems can evolve to be more centralized and institutionalized With increasing globalization, more formal law becomes more useful Three stage process From norms, customary international law develops Then customary law is codified in treaties Then treaties create institutions to enforce the codified norms ILAW is a primitive legal system EVOLVING INTERNATIONAL LAW Interaction among states occurs in context of rules and norms Example: Intl society is made up of sovereign states Rules like non-interference in internal affairs and diplomatic immunity uphold that norm Content of norms and rules have expanded in recent decades to include broad norms on human rights and the environment Norms and rules change through time TWO VIEWS OF LAW Rule of law model is an idealized type (law as more autonomous from politics) Separates law from moral, social or economic factors Legal systems had to be autonomous and separate from other aspects of society to prevent abuse and corruption Requires professional class of highly trained professionals Structural complexity and well established procedures Roman view where there is society there is law (law as closely connected to politics) Law is merely a set of norms and rules that have taken a particular form and acquired a particular function covering certain interactions How law acquires its form and functions is a product of political, social, economic and cultural factors Gradually law evolves to be obligatory, universally applicable to members of a society, accepted as legitimate and complex Societies use a blend of state, religious and historical developments to create law FUNDAMENTAL PRINCIPLES OF INTERNATIONAL LAW States must consent to any rule before it is bound by them Hierarchy in the order of the three sources of ILAW #1 Treaties expressly recognized #2 Custom, practices accepted as law #3 General principles recognized by states Treaties must be observed pacta sunt servanda While circumstances remain the same rebus sic stantibus The second principal is qualified by the second States are free to withdraw from treaties and are the sole interpreters of rebus sic stantibus States are sovereign and equal; other States will not interfere with their domestic affairs MAKING OF INTERNATIONAL LAW - TERRORISM EXAMPLE Long disagreement on creating intl regime against terrorism One mans terrorist is another mans freedom fighter Could only get specific conventions on aerial hijacking, terrorist financing, internationally protected persons such as diplomats 9/11 changed limited goals of terrorist with limited weapons into fear of global terrorists willing to kill large #s of civilians US consistently used legal arguments in support of its actions including Guantanamo, invading Iraq, killing Bin Laden Strong criticism from international lawyers Resulted in complex amalgam of legal, quasi-legal and unilateral and multilateral military measures that some see as an emerging new regime Others see it as breakdown in international law SOFT LAW Soft law = vast array of non-binding instruments that may have some legal consequences Many object to using word law if it is non-binding Includes things like General Assembly resolutions, codes of practice, joint communiques, framework agreements Many states have come to prefer soft law for many reasons Used to declare new norms that may lead to a later treaty STATES ARE EVOLVING States themselves are evolving Increasing demands for welfare, not just national security West has re-defined the understanding of what is a legitimate state End of Cold War means West is less constrained to prop up regimes that fall far short of good governance standards Concern for states reputation as a law-abiding and trust-worthy actor Norm entrepreneurs play key role throughout the system WHAT IS A PARADIGM? Ways of seeing/understanding the world; based on series of assumptions or beliefs Comprehensive perspectives that organize our overall understanding Help us see meaningful patterns in a confusion of events Steer our attention toward some things and away from others Astronomy example Hobbes and Locke REALIST PARADIGM Realists insist theyre skeptics; Hobbesian view Believe power drives all politics, national and international No world govt, legislature, court, police and never likely to be Decentralized State system will remain in the future Assumptions: States are the lead actors on the world stage States behave as unitary, ego-driven, rational actors; national security is #1 and almost only goal Given decentralized, anarchic system w/o global govt, there is inherent mutual distrust; conflict is the norm; self- help is bottom line IDEALIST (LIBERAL) PARADIGM Observing the intl system shows that order does exist and this order is related in important ways to ILAW Focus on cooperative impulses of men & States; Locke based Assumptions: States increasingly compete with nonstate actors in producing outcomes in the international arena States are not just unitary, single-minded entities driven by their national interests; they are more pluralistic collections of interests States have mutual interests in will act collectively to address problems more often that Realists believe REVIEW OF RECENT MATERIAL Do you understand the intimate connection b/t ILAW & intl politics? What is international law? What is a political system? How do they inter-relate? What are the key differences between domestic law and intl law? Can you define/explain the following concepts? Natural law Rule of law model vs. Roman view (that where there is society there is law) What do the positivists say about ILAW? What is a paradigm? What do the Realist & Liberal paradigms claim about human nature, politics and ILAW? Do you understand the relationship between norms and law? What is a norm and soft law? What is the key difference b/t norms and law? Stages of evolution of ILAW ILAW IN ANTIQUITY Is ILAW a European invention or an international phenomena? Ancient times Elementary self vs. other norms on how to treat members vs. outsiders First likely areas of minimal norms were in diplomacy, treaties and war Treaties, like contracts, originate in simple requirement (and moral norm) that promises need to be honored (pacta sunt servanda) 500BC social and economic interaction was more intense & rules and norms expanded in Greece, Rome, India and China GREEK AND ROMAN LEGAL DEVELOPMENTS Earliest Greek and Roman rules related to diplomacy, war, treaties Just cause, rituals for start and end of war Moved slowly from custom to written body of common jurisprudence Very rudimentary institutional structure supported the laws Rhetoric & debate started principle of justification for actions argued in public forum Rome as law giver Created sophisticate array of legal concepts & moved to delineate legal rules from religious obligations Two distinct periods of Roman ILAW 500-150 BC fluctuating balance of power; dealt with several states on basis of equality 150BC 400AD Empire period; increase in centralization and based on t MIDDLE AGES (400 1492) Varied number of actors with varying kinds of legal authority Though ignored in practice, war was morally connected to justice Chivalric codes of righteous conduct in war in West and Islam No universal or coherent body of rules or institutions, but some growth in: Moral and ethical doctrines State practice Diplomacy Origins of sovereignty Legal culture EMERGING POSITIVE ILAW (1500-1800) Sovereign state system emerged in Europe Explosion of scholarly writing Law is the product and servant of specific political issues Factors contributing to the emergence of ILAW Discovery of New World Stronger emphasis on territory Increased legal research on defining society to which ILAW applies Great Community of Mankind concept society of States concept GREAT COMMUNITY OF MANKIND & SOCIETY OF STATES Great Community of Mankind Human race as a whole should be seen as a single community governed by moral norms Looked toward Greek and Roman stoics Hugo Grotius (1583-1645) argued natural law would be valid even if God did not exist; included states, non-state actors & individuals in ILAW Society of States Intl society isnt united by moral obligations but by common interests (order & liberty) Emerich de Vattel (1714 67) Each sovereign state claims and actually possesses an absolute independence from all others Living in society imposed general obligations to live in harmony w/ other states Only permissible institutional underpinnings to keep order are diplomacy & balance of power TREATIES OF WESTPHALIA 1648 Ended the Thirty Years War First major congress of its kind; almost all of Europe attended Symbolic origin of the modern European intl society Principle that rulers of a territory can determine the official religion Freedom of religion Shift toward positivist principle that ILAW is what a society of sovereign states consents to FRENCH REVOLUTION TO LEAGUE OF NATIONS French and American revolutions gave push to ideas of national self-determination and democracy Had enduring impact on underlying principles of ILAW Sovereignty based in the people, not the ruler Rise of doctrine of sovereignty Moved from basing ILAW on custom toward written consent Treaties only bind those that sign Areas covered did not impinge of key national interests After Napoleonic ward, the rise of great powers to lay down the law to smaller powers when the great powers agreed Society of states gradually became universal Developments in the area of war CONTEMPORARY ILAW UN gives institutional form to a legal order that is universal Expanding areas that are subject to ILAW Deeper process of legalization of world politics than ever before Rise of soft law Impact of globalization on the nature of intl society Greater concern with internal affairs w/i states Increased emphasis on human rights Most ideas are Western rather than universal & have been resisted by some Western emphasis on good governance by States also reinforce traditional state system REVIEW OF LAST WEEK Review of ILAW in Ancient and Medieval times Elementary concepts of self vs. other; trade, war and diplomacy were first areas of minimal normative rules Basic principles of ILAW come from formalized agreements (treaties) Pacta sunt servanda and the concept of changed circumstances Emergence of the positivists What is the differences between the Great Community of Mankind idea of the international community and the Society of States idea of that same community? Rise of the Euro-centric Westphalian system Europe centric at the start; global now The rise of the State; its core elements and its key powers Concept of state sovereignty Foundation of interstate relations What the UN Charter says about sovereign equality and non-intervention UN Charters exception to non-intervention Chapter VI and VII THIRTY YEARS WAR 1618-48 Europe in 1618 - conflict between Protestants and Catholics Spain to Sweden - nightmarish famine, disease, destruction. One of longest, most destructive conflicts in European history Consequences Devastation of entire regions Decreased the population of the German states, Low Countries, Italy Most combatant powers were bankrupted "The Westphalian System" The Peace of Westphalia = beginning of the intl state system Key principles of the Peace of Westphalia The principle of the sovereignty of states and the fundamental right of political self-determination for the ruler or majority; minority protection The principle of legal equality between states The principle of non-intervention of one state in the internal affairs of another state SOVEREIGNTY AS A CONCEPT Sovereignty is the foundation of interstate relations and world order Definition: Independent, unfettered power of state in its jurisdiction It has never been inviolate, either in law or practice Technology and communication have made borders permeable Despite globalization, democratization and privatization worldwide, the state remain the fundamental building block of international society THE BASICS Sovereignty denotes Competence Independence Legal equality Decides and acts without intrusions from other sovereign states Includes things like political, economic, social and cultural systems Formulation of foreign-policy HISTORICAL EVOLUTION OF THE STATE Treaty of Westphalia (1648) Thirty years of religious wars Supremacy of state enshrined with system of independent and equal units as a way of establishing peace and order Montevideo Convention on Rights and Duties of States (1933) Spells out 4 core elements Permanent population Defined territory Functioning government Ability to enter into relations with other states Max Weber Administrative apparatus with a monopoly on the legitimate use of force within its territorial borders Some states are de jure but not de facto sovereign TREATIES OF WESTPHALIA 1648 Ended the Thirty Years war Marked the symbolic origin of the modern European intl society Pushed the right of the rulers to determine official religion of territory First major Congress of its kind, attended by almost all European states Idea that ILAW is what a society of sovereign states consented to Only applied to Europe; outside was open for colonization SOVEREIGNTY AND THE UN CHARTER Art 2(1) UN based on sovereign equality of all its members Art 2(7) UN cannot interfere in domestic matters Art 1(2) - all members assume obligations when they join UN ICJ: b/t independent states, respect for territorial sovereignty is an essential foundation of intl relations Sovereignty is key constitutional safeguard of intl order Equality and legal status is customarily viewed as protection for weaker states in the face of pressure from powerful states SOVEREIGNTY IS NOT UNLIMITED Charters collective intl obligations for maintaining intl peace Chapter VII sovereignty is not a barrier to Security Council action in response to threat to peace or an act of aggression. Sovereignty may be limited by customary law & treaties RESPONSIBILITIES OF SOVEREIGN STATES Expanding network of obligations in field of human rights Sovereignty cannot shield internal violations of human rights that contradict international obligations First 45 years, Charter put state sovereignty over human rights Balance shifted in 1990s; norm of nonintervention is softening LIMITS TO SOVEREIGNTY Erosion by economic, cultural, environmental interpenetration Limits by customary law and voluntary treaty obligations The right of self-determination Weakening of the sanctity of borders Broadening conception of international peace and security The collapse of state authority CONTINUITY IN STATE SOVEREIGNTY State decision-making remains central to the entire system There is no overriding global authority, in existence or soon to be in the making CONTEMPORARY ILAW Expansion of areas of intl life that are subject to intl law Rise of soft law - rules and norms that create some sense of obligation among states, short of legal obligation by treaty Impact of globalization Greater concern with internal affairs within states Increasing emphasis on human rights Most ideas are Western rather than universal & some are resisted Western emphasis on promoting good governance by viable States also reinforce the traditional State system DEFINITIONS INTERVENTION consists of various forms of nonconsensual action that directly challenge state sovereignty. NONINTERFERENCE is the principle that affairs which fall within the domestic jurisdiction of states anchor the system of international relations and one sovereign state must not intervene in opposition to another states authority JURISDICTION broadly refers to the power, authority and competence of the state to govern persons and property on its territory INTL ACTORS, POWER AND AUTHORITY Actor: any person or body whose decisions and actions have repercussions for intl politics States are most important; they can wield significant armies; have the power to tax and spend; answer to no one higher Power: ability to affect others to get the outcomes one wants, to get others to do what the otherwise would not do Hard vs. Soft (attractive) Power soft is not necessarily more effective or ethical; depends on circumstances Authority: a moral, normative or juridical concept involving legitimacy WORLD POLITICS AND INTERNATIONAL LAW Overlap between actors in world politics and in intl law Key actors in both categories States Intergovernmental organizations (IGO) Nongovernmental organizations (NGO) ROLE OF STATES The most important actor in the system of ILAW are states State practice gives rise to custom Interstate negotiations produce treaties Take part in proceedings before the International Court of Justice Once a portion of territory is designated a state, that territory and its inhabitants are to be governed independently of the populations of other portions of territory Possess the armies and police organization Control the embassies and consulates (see some of the functions of a diplomatic mission on page 24 of textbook) SOVEREIGNTY To belong to the international (political) system of states, a state must be sovereign. Sovereign = constitutional independence, unfettered power within its jurisdiction State capacity to enter into relations w/ other states & is key criterion of statehood Independence is the right to exercise state functions w/i its territory, to the exclusion of any other state. STATES, NATIONS AND NATION-STATES State: a political unit that has territoriality, population, govt and sovereignty Answers to no higher authority To be a state, one must be recognized as state by other states Monopoly on the legitimate use of force Nation: group of people who have some combination of common language, culture, religion, history, mythology, identity or sense of destiny, national narrative Often claim right to self-determination (to decide ones own political fate) Intl system reluctant to recognize secession except for serious genocide, violent state collapse, or oppression Nation-State: a state whose citizens are overwhelmingly members of single group STATES, NATIONS, NATION-STATES Nations may be found within states, or the nation-state can have a state thats population is a single nation; or a state can have a number of nations within its borders In 19 th century, the idea that every nation should have its own state grew In 20 th century the idea of self-determination grew Woodrow Wilson announced a new intl order based upon justice and upon the rights of all people to determine for themselves their own governments SELF-DETERMINATION Self=determination THE PRINCIPLE THAT THOSE LIVING WITHIN A PARTICULAR TERRITORY HAVE A RIGHT TO CHOOSE THEIR OWN POLITICAL SYSTEM Self-determination is listed in UN Charter as a general & specific purpose of UN Intl Covenant proclaims that all peoples have the right of selfdetermination (peoples sometimes used in place of nations or ethnic groups) Can lead to integration or disintegration Self-determination is an explosive principle It does not prohibit civil war Does not specify a means to resolve the conflicts that follow Problem of overlapping rights to self-determination STATE SUCCESSION STATE SUCCESSION HOW ONE STATE RELACES ANOTHER AND WITH WHAT LEGAL AND POLITICAL CONSEQUENCES Two multilateral treaties cover when one state replaces another, legal and political consequences Dissolution of USSR Dissolution of Yugoslavia RECOGNITION OF STATES States want recognition from other states, so its a very controversial ILAW issue Recognition and non-recognition were sometimes used to signify approval or disapproval Express recognition a formal statement of recognition of a new state by an existing state One unequivocal statement of full recognition of a state isestablish diplomatic relations Implied recognition actions by an established state (making a bilateral treaty) with a new state that indicate it is recognized as a state US Position: US will now only recognize States, not Governments of those states, and will make a decision about establishing diplomatic relations with governments instead JURISDICTION OF THE STATE Jurisdiction = legal authority & can relate to legislative, executive or judicial action Some principles are in flux and states often disagree about them Territorial principle - State has jurisdiction over all persons, property and activities in its territory and its airspace and in the waters subject to its sovereignty Active personality principle state may prosecute its nationals for crimes committed anywhere in the world (as long as its domestic law allows for it); state may also prosecute crimes committed on its ship, aircraft and spacecraft registered in its state. Effects doctrine state may have jurisdiction over person whose behavior outside its territory causes injury within its territory Protective principle state may punish acts that threaten its security even if committed by non-nationals outside the territory of the state JURISDICTION OF THE STATE (CONT.) Some aspects of the ILAW relating to jurisdiction are not clear Passive personality principle some states assert the right to try a foreigner for injuring its nationals outside its territory (but this is NOT a widely recognized right of jurisdiction) Universal jurisdiction some internationally defined criminal offenses for which a state has jurisdiction to arrest and try a person no matter where the offense occurred; Slavery Piracy Genocide an certain war crimes And offenses covered by various multilateral treaties on terrorism Growing human rights litigation based on universal jurisdiction (Pinochet) JURISDICTION OF A STATE OVER ANOTHER STATE Jurisdiction of one state over another is a fundamental prohibition No state has the legal right to exercise its jurisdiction over another state State immunity a state may not perform any governmental act or send its agents to arrest or restrain any person or property in the territory of another state without the latters consent Doctrine of absolute state immunity the courts in one state cannot hear any case brought against a foreign state unless the state has waived its immunity and consented to the proceedings. By middle of 20 th century, absolute immunity gave way to restrictive immunity which imposed limits on absolute immunity If a state is acting in a commercial capacity, it doesnt have a more privileged position than any other trader or company Should immunity be granted to states violating human rights? HEAD-OF-STATE IMMUNITY Pinochet case Spain passed universal jurisdiction law over human rights violations and torture 1998 Spain issued an intl warrant for the arrest of Senator Augusto Pinochet who was in the UK getting medical treatment Pinochet was arrested a couple of weeks later in the UK Arrest warrant alleged Pinochet intentionally inflicted severe pain and suffering while he was Chiles president 1988-92 1999 - House of Lords ruled Pinochet was not entitled to immunity In March 2000 Home Secretary ruled Pinochet was too ill and frail to be extradited to Spain and he returned to Chile and died