S OURCE OF A UTHORITY

1. SOURCE OF AUTHORITY How International Law makes Sovereign States behave. Emmy Yuhassarie

2. Three Major Conceptual Questions • Whether what we call international law is really law and , if so, what it is that makes a norm a norm of international law ( as distinct from , say, political or social norm) and • How we identify a norm as an international legal norm; • Which has authority to cause compliance to it, or if it does not have authority as domestic law, it has caused States comply to it, somehow.

3. According to Hart, the legality of International law is problematic because it “ resembles ... In form though not at all in content, a simple regime of primary or customary law” • International law is clearly more than a set of social norms, but at the same time it does not fit ( entirely) the concept of law developed for domestic law . • WHY HART comes to that conclusion ( lack of Rule of Recognition & lack of Secondary Rule)

4. The scepticism pertains to the making of international law: • The absence of a centralized and official law maker; • Vertical relationship between that law makers and its legal subjects; • The absence of secondary rules ( rule of change and adjudication ) or even of rule of recognition which , as Hart showed, lies at the foundation of a full-fledged and autonomous legal system . International jurisdiction remains the exception and, when it exists, it is mostly non-universal and non-compulsory.

5. The Strength basis • The base of effectiveness of International law:is not as positive law, but; • Interdependency and state’s self interest; • The common goal, that is PEACE, STABILITY and ORDER • A self perpetuating quality of International law as a system of law • The practitioner habit of obedience; • The flexible nature and Freedom

6. The shortcomings • Lack of Institution • Lack of positive regulations • Lack of certainty • Lack of common vital rules and interests, but recent development there is a trend among the nations to map the common rules and interests

7. Case: Medellin Case • Jose Ernesto Medellin accused of rape and murder. 2 girls. He was arrested by the Texas police Sept 1994 convicted murder &sentenced to death on Oct the same year. • Mexican Consular learned the case and files a state habeas corpus petition. The claim that he had been denied his rights under VCCR, an international treaty to which the US and Mexico are both parties. • At the time of his arrest, Medellin was not informed of these rights • While domestic legal proceeding moving fast, Mexico gov filed a case against US at ICJ. Jurisdiction was based on Art 1 of the Optional Protocol of VCCR to which both States were parties. • ICJ issued its decision in 2004, on Avena case, ruled that the US had violated its obligation under the VCCR , and ordered the US to review their convictions and sentences, or a relief order. • The US Supreme Court granted certiorari on the question of whether the US must follow ICJ ruling.

8. Case... • In 2006 US SC delivered an opinion on other VCC case and ruled that ICJ decisions “are entitled only to . . . respectful consideration” and are not binding on US Courts; • Rather than wait the President was ordering the states to follow the instructions of the ICJ. By issuing this order, Pres Bush generated a conflict between his administration and the governments and court systems of several of the states and exposed himself to the accusation that he was doing violence to the federalist structure of the united states. • The Texas Court of Criminal Appeals concluded, for example, that “ the president has exceeded his constitutional authority by intruding into the independent powers of the judiciary”.

9. USSC on the opinion that the president’s memorandum is binding to the states. • Though looking to the international level for answers fail to reveal any obvious pressure on the US to follow the ICJ ruling. The ICJ nas no ability to enforce its ruling on the US, and there were no credible threats of sanctions by any states. • After US gave effect to the Aveena decision – the US announced its withdrawal from the VCCR’s Optional Protocol, depriving ICJ of jurisdiction over future disputes. • Exactly How does International law works?

10. Why would a “ legal obligation” for which there are no obvious enforcement mechanisms affect the behavior of the world’s most powerful country?? • Why did the president and the US not choose to simply ignore the ICJ decision?

11. US also removed its safeguard measures on steel following a loss before the WTO’s appelate body. • Mexico reformed its telecommunications regulations to comply to decision of WTO Panel. • Namibia accepted the ICJ decision on longterm border dispute in favor of Botswana. • British government bowed to ruling from the ECHR that gay individuals be permitted to serve in the armed forces. Even recommending to amend domestic regulation on homosexuality • NAFTA could enforce domestic regulations to change

12. US passed the Foreign Relations Authorization Act which includes implementing legislation for the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. This legislation amends title 18 of the USCode to establish criminal penalties for persons committing or attempting to commit torture outside of the US. • The Chemical Weapons Convention Implementation Act requires that the US government seek the issuance of a search warrant in response to a demand from the Organization for the Prohibition of Chemical Weapons to engage in a challenge inspection of a public or private facility. • The Basel Accord on International Convergence of Capital Measurement and Capital Standards, a soft law instrument that sets standards governing the capital –asset ratios maintained by central banks, was initially signed by the G-10 and Luxemburg, but has subsequently been implemented by more than 100 states.

13. Some Theories of the Source of Authority • The Command Theory led by Austin; • The Consensual Theory; • Natural Law; • The Principle of “Ubi Societas ubi jus”.

14. A. Austin’s “The Command Theory” • Unless the rules of a system amounted to a collection of orders backed by threats, emanating from a sovereign, they were not ‘positive law’’. • Thus, international law, because it is not made up of commands, is properly to be regarded as a species of ‘positive morality’ and is not within the province of jurisprudence.

15. B. The Consent Theory • The binding quality of international law– its existence as law – flows from the consent of states. • This consensual theory stipulates that no international can be created without the consent of the state which is to be bound. • Thus ‘new’ states would not be bound by pre –existing rules because consent is the source of all legal obligations. • It is said to be a ‘positivistic’ system of law based on the actual practice of states. • State’s consent may be given in a variety of ways – express in treaties or implied in custom – but essentially the system of international law is based on voluntary self-restriction.

16. The Weakness of Consent Theory • How can a state be bound only by self-imposed obligation? • If consent is the basis of international law how it is that these new states are bound by preexisting rules of customary law? ( jus cogens cannot be altered by the consent of states, even in a treaty form)

17. C. Natural Law • This theory presuppose an ideal system of law, founded on the nature of man as reasonable being. • Empirically, natural law theory finds little support in international law. However, natural law may be a good descriptive label for such concepts as equity, justice, and reasonableness, which have been incorporated in substantive comity principles, rebus sic stantibus, rules of law. Eg. human rights, jus cogens, res nulius. Etc.

18. Natural Law … • Natural law theory is a mode of thinking systematically about the the connections between the cosmic order, morality, and law • Natural law has also played a central role in the development of modern political theory ( regarding the role and limits of government and regarding natural rights) and international law • Aspek yang tercakup dalam Natural Law aspect could be traced back to the thought of several great thinkers such as: Plato, Aristoteles,Cicero, which perfected by Aquinas; which after furthered by Renaissance, oleh Francisco Suarez, Hugo Grotius, Samuel Pufendorf, John Locke and JJ Rousseau. Natural and natural rights theories were intergral parts of theological, moral, legal, and political thought.

19. Classical & Modern • Classical Natural Law : Normally asking: how does one act morally. Or more specifically: what are one’s moral obligations as a citizen within a state? What are the limits of legitimate ( that is moral) government actions? • Modern Natural Law, most are responding to legal positivism,

20. The meaning of “Natural” The explanations of ‘natural’ can diverge radically, for example: 1. that moral principles can be read off of “ nature” or a normatively charged universe; 2. that moral principles are tied to human nature – and nature here is used to indicate either the search for basic or common human characteristics ( to the extent that this is different) some discussion of human teleology, purpose or objective within a larger, usually divine plan; and 3. that there is a kind of knowledge of moral truth that we all have by our nature as human beings.

21. Natural Law and God Natural law theory has become associated for many people with religius belief. But in 17-18th C. Grotius may have been the first to make statement which indicate the diminished role of God in the theory. “What we have been saying would have a degree of validity even if we should concede that which can not be conceded without the utmost wickedness, that there ts no God, or that the affairs of men are of no concern to Him.” Similarly, some theorists were searching for principles from which an international law could be constructed, principles which could be accepted by nations and peoples of very different faiths.

22. D. Ubi Societas, Ubi Jus • Law is necessary for the society to function and, because it is necessary, it is ex hypotheses binding. • It does not seek to explain international law in terms of the way rules are created, or by reference to some higher authority. Rather, the legal quality of international law lies in the fact that it is needed and that this is recognized by states themselves, the legal persons to whom it is addressed.

23. In Conclusion • The basis of compliance of the international law is • 3 R: reputation, reciprocity, and retaliation; • The ultimate or highest reasons for acting good or acting in accordance with the norm is STATE’s SELF-INTERESTS : reputation, integrity , rewards .( Rational Choice Theory)