National v International Law

1. National v International Law And does international law really exist anyway?

2. The Law • It is one of the great expressions of sovereignty • It expresses the power and authority of the state against “anti-social” behavior • Law embodies the values of the people of that country that, in turn, determine what is right and wrong. • We have tried to establish certain “Basic Human Rights” globally too.

3. The Law is Binding • Everyone is a citizen of someplace, and they are bound by the laws of their country, or whatever country they are in at the time—you don’t question the legitimacy of the law. • So, if you commit a crime against the laws of a country, you may fairly expect to be punished for that act. The state has real enforceable sanctions

4. So this is how it is. • So, in brief, the law represents the rules of that society (state) and sanctions are reserved for those who willfully disregard that law. We all understand that. • The laws are made by the people of that country and so, in theory, express the values of that society. The peoples’ representatives are called Legislators

5. Most Important Shared Sovereignty • The law expresses the values of the majority of the people, in a democracy, in a country. • So, laws can and do vary from country to country. • So, how do you reconcile this with International Law? That’s the problem. No Sovereignty Traditional Sovereignty

6. Where do the ‘rules’ come from, internationally speaking? • They come from several places. First, sometimes states consistently follow certain general practices out of a sense of legal obligation (customary law). Second, the rules may come from international agreements (conventional law). And third, general principles that are common to the national laws of many states usually contribute to international law.

7. What Happens Above This Level • We are all bound by the laws of our country or the country we are in. • But above that, the players are not individuals, but States. • There is, for instance, no World Government—so there is no body with the power of sanction above the state. • The European Union is, as usual, an indefinable exception This is what international law is trying to avoid.

8. What is “International Law?” • International law consists of rules and principles, which govern the relations and dealings of nations with each other. It can only work if the nation-states, which make up the system, accept and abide by those rules.

9. The Buck Stops…where? The Actors • There is no institution, if you are a US citizen, above the level of the Federal Government and the Supreme Court that has any real jurisdiction over you. • States, however, can agreeto be bound by the terms of a Treaty or Protocol—but, notice, they agree; it is voluntary. • Who will enforce it if they disregard the agreement later?

10. Why have International Law? • International law provides an alternative to the use of force in settling disputes by relying on compromise, cooperation, mutual legal obligations, and common ends. In today’s world of increasingly interdependent nations and economies, the resolution of conflicts without violence is more essential than ever.

11. Versailles, 1919 Treaties (Instruments) • A state does not give up any sovereignty in signing a Treaty. It lends its name to an agreed course of action. • The big difference then, is not just the players, but the sanctions. • How do you arrest a state and send it to jail? Is Iraq that?

12. Is it enforceable? • Yes, there are several mechanisms by which international law can be enforced. One way is through the use of international pressure short of the use of force, such as economic pressure. Another is prompted by a nation’s wish to maintain a favorable public (national as well as international) image. This is particularly integral to the enforcement of human rights law. Also, nations must realize that in order for international law to function, each nation-state must assume responsibility for its enforcement. One of the ways in which they can do this is by supporting and participating in international bodies, such as the United Nations

13. Are There Institutions? • Yes, we have the International Court of Justice in the Hague. • However, the US wanted nothing the do with the International Criminal Court. Why? • Because it is taking international law to the level, not of the state, but of the individual, which would be threatening the Constitutional rights of an American At the ICJ, states bring actions against other states.

14. Where is the UN in all of this? • The United Nations is an international organization (one created by international agreement and/or has membership consisting primarily of nations) that was formed in 1954. Today it has 191 Member States. Its declared purposes are to maintain peace and security, to develop friendly relations among nations, to achieve international cooperation in solving international problems, and to be a center for harmonizing the actions of the nations and attaining their common ends. The UN Charter specifically calls on it to undertake the progressive codification and development of international law.

15. What is the “International Criminal Court?” • The ICC was established by the Rome Statute in 1998 and officially came into force on July 1, 2002. It is the first ever permanent, treaty-based, international judicial body capable of investigating and trying individuals accused of the most serious violations of international humanitarian and human rights law, namely genocide, crimes against humanity and war crimes. Like preceding ad hoc international criminal tribunals, the ICC is based on the idea that individuals can and should be held criminally accountable for the actions of states.

16. What is the purpose of the ICC? • The ICC makes international standards of conduct more specific, provides an important mechanism for implementation of these standards and ensures that the perpetrators are brought to justice before the ICC when national Courts are unable or unwilling to do so. Equally important could be the impact on national laws as ratifying nations fulfill their obligation to ensure that these crimes can be tried within their own borders

17. X Where is the US relative to ICC • President Bill Clinton signed the 1998 Rome Statute in December 2000. Less than six months after that, however, the Bush administration withdrew the US signature on the treaty and announced that it has no intention to become party to the Statute. Furthermore, the U.S. has repeatedly tried to undermine the Court and this opposition is creating tensions with allied nations, nearly all of which have signed and ratified the treaty and with the international community at large.

18. What is the International Court of Justice? • This is a body that predates the United Nations, and is a place for adjudicating cases brought by one state against another. • Its decisions are not binding or enforceable in any serious way. This is why the USA participates.

19. Remember • The great German Chancellor, Prince Bismarck said: “A Treaty is just a scrap of paper.” Germany disregarded all its international obligations when it invaded Belgium.

20. So, why is this Important? • It’s what Prof. Lynton Caldwell called “The Second Generation of Problems.” We dealt with the first generation, somewhat, using the institutions of the nation state. Now, they do not suffice to tackle “Second-Generation Problems” • Which are? • Globalization: Financial Crime, Terrorism, AIDS, Traffic in Women and Children, Climate Change • The rise of the Multi-National Corporation

21. Implications • The state is going to be really hard-pressed to tackle Global problems, even collectively, without some agreed rules and sanctions. • But, we are caught in the middle of an historical trap. To have effective international law, we need to yield some degree of national sovereignty.

22. A Good Example • Should you regulate, for instance, the WWW? The ultimate symbol of the anarchy of Globalization? • How do you shelter your children from something that can originate anywhere? • And yet the anarchy of the web is seen by many as the purest expression of democracy

23. New Challenges • US Unilateralism is seen as a challenge to Multilateralism, or collective action. • The NATO bombing of Kosovo was seen by many as totally contrary to international law, as is the invasion of Iraq • The challenge: can international law evolve to deal with globalization?