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Topics for today. Events of the day/week International law (IL) and the United Nations (UN) Humanitarian intervention: Kosovo 1999 . Should international law (IL) guide US policies?. The case against international law. International law Limits state sovereignty

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topics for today
Topics for today
  • Events of the day/week
  • International law (IL) and the United Nations (UN)
  • Humanitarian intervention: Kosovo 1999

Hans Peter Schmitz

the case against international law
The case against international law
  • International law
    • Limits state sovereignty
    • Is ineffective in creating peace and security
    • Undermines democratic accountability and the rule of the people
    • Imposes similar standards on vastly different situations
    • Is outmoded in the ‘war on terrorism’

Hans Peter Schmitz

the case for international law
The case for international law
  • International law
    • Creates predictable behavior among states
    • Establishes universally shared norms
    • Strengthens the rule of law
    • Provides weak

Hans Peter Schmitz

basics of international law
Basics of international law
  • What is “international law”?
  • What are the sources of international law?
  • What does international law actually “do”?
  • Comparing the International Court of Justice (ICJ) and the International Criminal Court (ICC)

Hans Peter Schmitz

defining il
Defining IL
  • International law regulates the legal relationships among states. IL’s main purpose is to regulate relations between equal participants of international politics.
  • Public and private IL
    • Public international law: subjects and objects of regulations are states
    • Private international law: subjects are states; objects of regulations are non-state entities such as businesses

Hans Peter Schmitz

sources of il
Sources of IL
  • Art. 38 of the Statute of the International Court of Justice:
    • International conventions (treaties)
    • International custom
    • general principles of law
    • judicial decisions and teachings

Not mentioned in Art. 38:

    • Binding acts by intergovernmental organizations and
    • Non-binding acts (example: resolutions of the UN General Assembly) by intergovernmental organizations (“soft law”)

Hans Peter Schmitz

1 international conventions treaties
1. International Conventions/Treaties
  • Primary source of IL
  • Treaties are inter-governmental agreements fully respecting state sovereignty.
  • Definition: A treaty is a written instrument governed by international law agreed upon by at least two state parties (and not illegal by international standards).

Hans Peter Schmitz

how international treaties become domestic law
How international treaties become domestic law
  • Signature: signifies the intent of a state to adhere to the treaty obligations. State is no longer allowed to act internationally against the treaty.
  • Ratification: makes a treaty legally binding domestically. In the US, the Senate ratifies international treaties (by 2/3 majority), which turns them into “supreme law of the land.”
  • Accession: one-step acceptance of an international treaty
  • Reservation(s): unilateral statement of a state filed with ratification stating that the state will not adhere to certain parts of a treaty. Can not violate the object and purpose of a treaty. Some treaties do not allow for reservations.

Hans Peter Schmitz

2 custom
2. Custom
  • If treaties fail to provide sufficient guidance, international custom will be used to determine actions:
  • International custom has two components, which have to be present simultaneously and consistently:
    • Practice - what states actually do
    • Opinio Juris - what states profess to belief (what officials say in their public statements)

Hans Peter Schmitz

treaties and custom
Treaties and Custom
  • Treaties only bind signatories.
  • Custom is applicable to all states.
  • For example, the prohibition on the use of force primarily applies to members of the UN (signatories of the Charter), but has also become customary international law.

Hans Peter Schmitz

3 general principles of law
In addition to treaties and custom, one may resort to general principles of law:

Analogies drawn from domestic law

General principles of law (such as natural law)

Jus cogens: absolute rules with no possibility of derogation.

3. General Principles of Law

Hans Peter Schmitz

4 judicial opinion
A final source to determine what international law recommends in a given situation is judicial opinion:  

Potential sources are

International Law Commission (ILC)

International Court of Justice (ICJ)

International Criminal Court (ICC)

“judicial decisions and the teachings of the most highly qualified publicists”

4. Judicial Opinion

Hans Peter Schmitz

tasks of international law
Tasks of International Law
  • Legislation
    • Regulate international relations, transnational transactions, domestic issues
  • Administration
    • Define responsibilities and tasks
  • Adjudication
    • peaceful conflict resolution

Hans Peter Schmitz

international court of justice
International Court of Justice
  • The principal judicial organ of the United Nations
  • Dual role: settle disputes among states and give advisoryopinions to UN organs. Since 1946, the ICJ has delivered 78 judgments and 24 advisory opinions (early 2004).

ICJ settles disputes among states, if

    • Two state parties explicitly agree to submit an issue to the ICJ.
    • Jurisdictional clause; an intergovernmental treaty names the ICJ as the dispute settlement mechanism.
    • States have signed reciprocal agreements with other states to submit disputes among them to the ICJ (2003: 64 such declarations existed).

Hans Peter Schmitz

icc and icj
ICC and ICJ
  • The International Court of Justice (ICJ) is a civil court that decides only disputes between states.
  • The International Criminal Court (ICC) is a criminal court that will prosecute individuals.
  • Like the ICJ, the ICC is permanent and not geographically limited. Both courts are headquartered in The Hague, Netherlands.
  • Check out the ICC webpage and the ICJ webpage.

Hans Peter Schmitz

iraq and il 2003
Iraq and IL, 2003
  • Was the 2003 invasion of Iraq legal under international law?
  • Answer: NO
  • Does it matter that the invasion was illegal under current international law?
    • Realism: No. Law follows power.
    • Institutionalism: Yes. It undermines democratic alliances.
    • Idealism/Identity: Yes. It undermines the power of the UN.

Hans Peter Schmitz

kosovo and il 1999
Kosovo and IL, 1999
  • Was the 1999 humanitarian intervention in Kosovo legal under international law?
  • Answer: International law provides no solid basis.

Hans Peter Schmitz

the illegality argument
The Illegality Argument
    • Treaty: it is a violation of the UN Charter.
    • Article 2 (4) of the UN Charter (p. 279)
  • Custom: there is no viable precedent set.
    • Bangladesh 1971, Uganda 1979, etc.
  • ‘Just war’ doctrine: rules of impartiality and proportionality were violated.
    • States have not consistently intervened when atrocities were committed.

Hans Peter Schmitz

the legality argument
The Legality Argument
  • Treaty: UN Charter 2 (4)
    • A humanitarian intervention does not challenge territorial inviolability and sovereignty, it simply rescues people (p. 281).
    • The intervention promotes a major goal of the UN (human rights).
  • Custom (state practice):
    • Law should be in line with moral imperatives.
  • ‘Just war’ doctrine: do something!
    • True, the international community does not help many deserving populations, but that is irrelevant (p. 282).

Hans Peter Schmitz

illegal but setting precedent
Illegal, but setting precedent
  • Actions were not legal, but:
    • Exhaustion of other means.
    • Security Council paralyzed.
    • Wide-spread condemnation by the international community.
    • Goal was limited to stopping atrocities.
    • Kosovo case will set precedent for the future.

Hans Peter Schmitz

different approaches
Different approaches
  • The intervention was illegal. (p. 283/4)
    • Focus in written law and state practice. ‘Literal’ interpretation of ‘founding fathers’ and ‘sovereignty’ (the travaux preparatoires).
    • Focus on justifications of previous interventions.
  • The intervention was legal.
    • Narrow def. of ‘territorial integrity.’
    • Greater emphasis on other ‘purposes’ of the UN (human rights).
    • Precedents are separate from their justifications.

Hans Peter Schmitz

different values
Different values
  • The intervention was illegal. (p. 285/6)
    • Maintenance of international peace (narrow definition: absence of war).
    • Fear of abuse: opening the flood-gates to other interventions. The law is too clumsy to develop viable exceptions (p. 286).
  • The intervention was legal.
    • Promotion of human rights (broad def. of peace).
    • States should not be allowed to ‘hide’ behind outdated legal rules.

Hans Peter Schmitz

conflicting rules
Conflicting rules
  • Can two conflicting rules be reconciled?
    • Rule against aggression/rule to prevent genocide (p. 291)
    • Question: How are the acts justified?
  • Two possibilities:
    • Serbia ‘lost’ its jus cogens protection against outside intervention because it violated another jus cogens rule (against genocide). (p. 292)
    • Only non-violent means can be used to end mass atrocities.

Hans Peter Schmitz

solution
Solution
  • Focus on state practice with special concern for (p. 297):
    • Stability of the international system (293).
      • Which rule is least harmful to the system overall?
      • Answer: sovereignty, not human rights.
    • Accountability of states for their actions (294).
      • Which behavior is more accountable?
      • Answer: Non-intervention (p. 296)

Hans Peter Schmitz