IO: The UN & International Law

IO: The UN & International Law Lecture 21: Tuesday, 1 May 2012J A Morrison Hugo Grotius (1583-1645) "Father of International Law"

Discussion 3 Rescheduling • Disc 3 Normal Time: Th 3-3:50 • This Thursday, Come to Disc 1 or 2 • Disc 1: 12:30-1:20 • Disc 2: 1:30-2:20 • Or come to Office Hours next Tuesday

Lec 21: UN & Int'l Law • The UN and IL as IO Specifics • The United Nations • International Law • Perspectives on IO

Remember that we are studying international organization (IO), which we understand as the organization of the international system.

Last time, I presented a framework for thinking about IO: its nature, mechanisms, causes & consequences, &c.Today, we'll look at two specific aspects of IO: the United Nations and International Law.

The United Nations (UN) might be considered as an "international organization."International Law (IL) might be considered as a collection of "international norms."But, remember, there is overlap between these mechanisms!

We'll take each in turn…

Do you remember the common pattern by which the Anglo-American postwar order was created?

(from Lecture 19)

The United Nations was created according to largely the same pattern…

Precursors to the United Nations • League of Nations • 1919-1946 • Established in Treaty of Versailles • Atlantic Charter • 14 Aug 1941 • Anglo-British: Agreement between Churchill & FDR • Agreement on postwar int'l order

The Atlantic Charter "THIRD, they respect the right of all peoples to choose the form of government under which they live; and they wish to see sovereign rights and self-government restored to those who have been forcibly deprived of them…" "FOURTH, they will endeavor, with due respect for their existing obligations, to further the enjoyment by all States, great or small, victor or vanquished, of access, on equal terms, to the trade and to the raw materials of the world which are needed for their economic prosperity…"

Both articles undercut Churchill's commitment to preserving the British Empire and the commercial agreements of the British Imperial Preference System.Churchill resisted…but to no avail.

These principles established the framework for the United Nations several years later.

"WE THE PEOPLES OF THE UNITED NATIONS DETERMINED to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom, AND FOR THESE ENDS to practice tolerance and live together in peace with one another as good neighbours, and to unite our strength to maintain international peace and security, and to ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest, and to employ international machinery for the promotion of the economic and social advancement of all peoples, HAVE RESOLVED TO COMBINE OUR EFFORTS TO ACCOMPLISH THESE AIMS" -- Charter of the United Nations (26 June 1945)

Creation of the United Nations • UN Charter: 26 June 1945 • Purposes of UN: • Minimize violent conflict • Protect human rights • Promote cooperation

Principle Organs of the UN • General Assembly: deliberative assembly of all member nations • Security Council: power to create binding resolutions • Economic and Social Council: promote cooperation and development • Trusteeship Council: govern non-governing territories (now kaput) • International Court of Justice: (see below) • Secretariat: performs some executive and administrative functions  And a number of other organizations in the "UN family"

Security Council • Five permanent members • France • Great Britain • US • Russia • China • Ten elected members • Vetoes • Russia used to be most aggressive • Now US protects Israel from sanctioning

UN Reform • Purview • Too broad? • Too narrow? • Criticized for inefficiency and corruption • Iraq Oil-for-Food Program • "Democratic Deficit" • Instruments of "global governance" are not democratic

III. INTERNATIONAL LAW • What is international law? • The Sources of International Law • Limits of International Law • International Law in International Organization

What is international law?The answer to this question depends entirely on your perspective…

Some consider IL to be that which we have been calling IO, including all of the rules, procedures, agreements (explicit and implicit), norms, patterns, institutions, organizations, and processes of interaction that exist in the international system.

We'll use a narrower rendering, understanding international law as the rules governing international relations.A more technical definition: IL deals "with the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical." American Law Institute, Restatement of the Foreign Relations Law of the United States (Third), §101 (1987).

These "international relations" can involve states, international organizations and institutions, and foreign nationals.

Classic Understanding of Types of International Law • Public IL: Rules governing relations between states • Private IL: Rules governing relations between states and "private" entities—individuals, corporations, &c.  This distinction, however, has never been particularly tidy.

Areas of International Law • Law of the Sea • International Environmental Law • Human Rights • International Criminal Law • Laws of war & peace…

International Law & War • Jus ad bellum: "right to wage war" • the laws of war & peace concerning the initiation of violent conflict • e.g. When is it just to go to war? • Jus in bello: "justice in war" • the laws of war & peace concerning the practice of war • e.g. What weapons can I use and against whom?

There is a key debate among IL scholars: are jus ad bellum and jus in bello distinct?Some, like Grotius, say: Yes--Just because you are attacked doesn’t mean there are no limits on the defense you employ!

From whence comes international law?

(1) Customary Law • Rules of conduct based on "international custom, as evidence of a general practice accepted as law" • Distinct from habit—e.g. rule of the road • Examples: No wars of aggression; no genocide Statute of the International Court of Justice. Article 38(1).

(2) Conventional Law • "International conventions, whether general or particular, establishing rules expressly recognized by the contesting states" • Agreements concluded between states • Examples: Treaties Statute of the International Court of Justice. Article 38(1).

(3) General Legal Principles/Domestic Law • "The general principles of law recognized by civilized nations" • Principles can be derived from academic and juridical writing—decisions, treatises, &c. • Principles can be derived from domestic laws around the world • jus cogens: principles so fundamental that no convention or custom can violate them (e.g. no genocide) Statute of the International Court of Justice. Article 38(1).

In some ways, international law is analogous to domestic law.Some international laws are extrapolated from domestic laws.And conventional law might be akin to statutory law within states.

There is one crucial respect, however, in which international law is distinct from domestic law: enforcement.Why would states follow IL when there is no sovereign to coerce compliance?

(We'll explore that question shortly…)

Naturally, international law—even in our narrow rendering—touches many of the aspects of IO: norms, institutions, treaties, and, of course, int'l orgs like the UN.

International Court of Justice (ICJ) • Principle judicial organ of the UN • Created in UN Charter (1945) • Role: "to settle, in accordance with international law, legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies." • 15 judges on 9-year appointments; elected by UN General Assembly & Sec Council

International Criminal Court (ICC) • Created in Rome Statute of the ICC (Jul 1998) • Entered into force in 2002 • ICC "an independent, permanent court that tries persons accused of the most serious crimes of international concern, namely genocide, crimes against humanity and war crimes." • Court of Last Resort • 18 judges on 9-year appointments; elected by member countries • Independent of UN; but cooperates with UN Security Council

Yea, well, I'm not so sure these international organizational thingies do anything anyway. I need some theory. Take this, haters!

Aite. Let's use Abbott's four "theories" to see how they might make sense of these mechanisms of international organization.

(1) Structural Neorealists • Assumptions • States are the primary actors • The distribution of power determines outcomes • Conclusions • These "mechanisms of organization" only function insofar as they are compatible with the interests of powerful actors • Institutions, norms, organizations, &c., are epiphenomenal

(2) Liberals • Assumptions • Individuals are the primary actors • Domestic political configurations matter • Conclusions • Different individuals use these mechanisms differently • The application of mechanisms depends on where they are applied

(3) Institutionalists (Regimes Theorists) • Assumptions • States are the primary actors • Int'l institutions change the context of interaction • Conclusions • Int'l regimes can alter incentives • Int'l regimes can signal and "type" int'l actors

IO: The UN & International Law