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Chapter 9 International Law and Morality: The Alternative Approach

Chapter 9 International Law and Morality: The Alternative Approach. Power not ruled by law is a menace. Arthur J. Goldberg, U.S. Supreme Court Justice. Fundamentals of International Law and Morality. Combination of expectations, rules, and practices that govern behavior

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Chapter 9 International Law and Morality: The Alternative Approach

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  1. Chapter 9International Law and Morality:The Alternative Approach Power not ruled by law is a menace. Arthur J. Goldberg, U.S. Supreme Court Justice

  2. Fundamentals of International Law and Morality • Combination of expectations, rules, and practices that govern behavior • Involve a range of institutions from legal systems to moral codes

  3. The Primitive Nature of International Law • Primitive but evolving system • Rudimentary form of rule-making in which codes derive from custom or agreement • Limited authority to judge or punish violations of the law

  4. The Growth of International Law • Its beginning coincides with the origins of the state • Hugo Grotius: "father of international law“ • Twentieth century saw the expansion of both concern for and practice of international law in response to increasing international interaction and interdependence

  5. The Practice of International Law • Most effective in functional relations that involve low politics (trade, communications, rules of diplomacy) • Least effective in high political issues such as national security • Growing sensitivity to legal standards and growing acceptance of norms of behavior

  6. The Fundamentals of International Morality • Secular ideologies • Growing body of ethical norms • Religious beliefs

  7. The International Legal System: The Philosophical Roots of Law • External sources • Ideological/theological school of law • Christian doctrine of Saint Augustine and Saint Thomas Aquinas • Naturalist school of law • John Locke-Law of nature that teaches all mankind • Internal sources • Positivist school of law: Focus on customs and practice because law is the product of society’s standards

  8. How International Law Is Made • Multilateral and bilateral treaties • International custom • General principles of law • Judicial decisions and scholarly writing • International representative assemblies

  9. Adherence to the Law • Compliance • Voluntary • Through coercion • Lower level of compliance than in domestic systems but growing • Enforcement • By central authorities (slow to develop) • Through self-help

  10. Adjudication of the Law • International courts • World Court (ICJ) and regional courts • Attitudes toward adjudication • Sovereignty remains a substantial barrier • ICJ jurisdiction limited • States can reject court's decisions • States can attach reservations to their agreement • States must agree to be subject to ICJ • Little power of enforcement

  11. Applying International Law and Morality • Law and morality are culturally based concepts • Vary greatly • Often times opposing standards and practices

  12. Western view: Emphasis on rights of individual Western view protects the power of long-dominant states. Order, sovereignty, property rights, and legal processes are emphasized, as opposed to equity and fairness Non-Western view: Emphasis on rights of the community Non-Western view is that states are not bound by a preexisting system that works to their disadvantage; strong emphasis on sovereignty; rejection of weighted decision-making schemes (such as the Security Council) that favor the wealthy. Emphasis on fairness and equity Cultural Perspectives on Law and Morality:Western versus non-Western Perspectives

  13. Applying International Law and Morality in a Multicultural World • Is it reasonable to apply standards at all? • Question of the imposition of cultural imperialism • Who decides what is acceptable and what is not? • Matter of culture or male chauvinism?

  14. Applying International Law and Morality to States • Should states be held to the same standards as individuals? • No: Niccolò Machiavelli • Yes: Thomas Jefferson

  15. States and Issues of Law and Morality • Issues of sovereignty • Issues of war • Issues of the biosphere • Issues of human rights

  16. Issues of Sovereignty • No longer a legal absolute • Growing intolerance of human rights abuses • Recognizable tension between power and responsibility for states

  17. Issues of War:The legality and proper conduct of war • Just War Theory • Jus ad bellum: War as last resort; declared by legitimate authority; waged in self-defense or to establish/restore justice; fought to bring peace • Jus in bello: Proportionality of force to threat; discrimination (must not make noncombatants intentional targets); law and morality of war remain highly controversial

  18. Issues of the Biosphere • Obligation of states and individuals to use biosphere responsibly • Law of the Sea Convention • Defines coastal zones, regulates mining and sharing of revenue • Sovereign self-interests versus international common interest

  19. Issues of Human Rights • Growth in international attention • Images in media • Efforts of individuals and organizations • Major source of international instability • Gap between legal standards and their application

  20. Applying International Law and Morality to Individuals • Precedent of individuals being held accountable in the twentieth century • National and international enforcement of international laws in ad hoc tribunals and even an international court

  21. Using National Courts to Prosecute Crimes under International Law • Adolf Eichmann • General Augusto Pinochet • Hissene Habre

  22. Current International Tribunals • Rwanda • Bosnia • Cambodia • Sierra Leone • Kosovo

  23. International Criminal Court (ICC) • UN-sponsored ICC • Countries' reservations • Jurisdiction over genocide and a range of widespread and systematic crimes of war • National courts are first point of justice, ICC is court of last resort

  24. Law and Morality: Issues of Prudent Judgment and Application • Can ends justify means? • Moral absolutism • Amorality • Moral relativism • Should we judge others by our own standards?

  25. The Future of International Law and Morality • Increasing interaction creates increasing need for law (rules and regulations) • Indicators suggest slow but growing respect for international law • Role of international organizations

  26. In sum… With the growth of international interaction in the last century, international law has developed, and rudimentary standards of morality are being established. Although this growth has been slow, there will definitely be continued progress in the future.

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