Relevance/effectiveness of the role of International Law in International Relations/Global Politics

Chapter Nine: International Law and the Search for Justice
What Students Should Learn from This Chapter
 Discuss the principles, customs, and rules of international law.
 Explain the philosophical roots of law, the historical evolution, and how international laws are
made, obeyed, and decided.
 Discuss the legal standards and justice amid differing cultural values and ideals, and the
application and enforcement of international legal rights and responsibilities to states and
individuals.
 Identify and evaluate the underlying sources of and continuing debates concerning international
humanitarian law
Key Concepts
 adjudication
 compulsory jurisdiction
 crimes against humanity
 diplomatic immunity
 due process
 European Court of Justice (ECJ)
 head-of-state immunity
 ideological/theological school of law
 International Court of Justice (ICJ)
 International Criminal Court (ICC)
 international law
 jus ad bellum
 jus in bello
 jus post bellum
 moral absolutism
 moral pragmatism
 moral relativism
 naturalist school of law
 optional clause
 pacta sunt servanda
 positivist school of law
 Special Tribunal for Sierra Leone
 transitional justice
 Vienna Convention on the Law of Treaties
 war crimes
Outline
I. Fundamentals of International Law:
A. There is no international executive, legislature, or judiciary.
B. Compulsory jurisdiction does not exist, and anarchy often enables chaos and violence.
C. Evolutionary Nature of International Law.
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D. Differences in culture and historical experiences lead people and nations to develop very
different conceptions of what is right and just.
E. Despite these significant obstacles, international law exists and increasingly functions in
impactful ways across the globe.
F. Evolutionary Nature of International Law:
1. All legal systems, domestic or international, evolve, from primitive to modern.
2. The current international legal system falls toward the primitive end of the
evolutionary scale of legal systems
3. No formal rule-making (legislative) process as more sophisticated systems do.
4. Resolutions are not legally binding for states.
5. Little compliance mechanisms: little established authority to judge or punish
violations of law.
G. The Growth of International Law
1. Elements of ancient Jewish, Greek, and Roman custom and practice combined
with newer Christian concepts to form the beginning of an international system
of law.
2. Holland’s Hugo Grotius (1583–1645), the first scholar of international law, who
wrote On the Law of War and Peace.
3. Treaty on the laws of treaties: Vienna Convention on the Law of Treaties,
drafted in 1969 and entered into force in 1980.
H. The Practice of International Law
1. Those who discount international law contend that it exists only in theory, not in
practice.
2. There is substantial evidence that states do accept international law and most
times obey it.
3. Most effective in in governing the rapidly expanding range of transnational
functional relations.
4. Low Politics: Traditionally (even questionably) dealing with trade, diplomatic
rules, and communications.
5. High Politics: Issues such as national security and conflict.
II. The International Legal System:
A. The Philosophical Roots of Law:
1.Three major schools of thought on where laws originate.
a) The ideological/theological school of law: set of beliefs rooted in
political, religious, ethnic, or cultural identity.
b) The naturalist school of law: Humans, by nature, have certain rights and
obligations.
c) Positivist school of law: Law reflects society and the way people want
that society to operate.
2. Modern international lawmaking is much more decentralized and fragmented.
3. Five sources of law that the international community recognizes (ICJ):
a) international conventions or treaties, whether general or particular;
b) international custom, as evidence of general practice accepted as law;
c) general principles of laws, recognized by civilized nations;
d) judicial decisions, and;
e) the teaching of the most highly qualified writers and scholars.
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4. Diplomatic immunity: Grants most diplomats freedom from prosecution for
certain crimes while working abroad.
B. Adherence to the Law:
1. Compliance with the Law. Obedience to the law in any legal system
2. Compliance with international law is mostly voluntary rather than based on
coercion
3. Pragmatic legitimacy is the key to international voluntary compliance.
4. Extralegal factors, such as reputation, credibility, and socialization, tend to
promote state compliance.
5. Peer pressure matters.
6. Well-ordered domestic systems.
7. Tribunals and courts, centralized enforcement of international law.
8. Increasing use of economic and diplomatic sanctions.
9. Enforcement often occurs through armed intervention.
C. Adjudication of the Law
1. Evolution of resolving disputes
a) (1) primary reliance on bargaining between adversaries, through
b) (2) mediation/conciliation by neutral parties, to
c) (3) adjudication and the closely related process of arbitration by neutral
parties
2. International Courts: International Court of Justice (ICJ), which serves as the
UN’s judicial arm.
3. Regional courts of varying authority and levels of activity: No authority of
domestic courts.
a) The European Court of Justice and the European Court of Human Rights
b) The Inter-American Court of Human Rights
c) The Central American Court of Justice
d) The Community Tribunal of the Economic Community of West African
States.
4. The concept of sovereignty remains a potent barrier to adjudication.
5. Optional clause: Parties agree to be subject to the ICJ’s compulsory jurisdiction.
6. 1984, when Nicaragua filed a case with the ICJ charging that US The ICJ ruled
in favor of the Nicaragua but the US withdrew its consent to the optional clause.
7. The ICJ has only limited effectiveness.
8. ICJ advisory opinions also help resolve issues between IGOs.
III. Applying International Law and Justice:
A. Law and Justice in a Multicultural World
1. Most of the international law and concept of justice impacting global politics are
of Western origins.
2. Promotion of legal standards is a major challenge
3. Differing cultural values and ideals, and the application and enforcement of
international legal rights and responsibilities to states and individuals.
4.Law and Cultural Perspectives. Western and non-Western translations and
applications
5. Should we judge states and individuals by the same standards?
B. States, War, and International Law
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1.The social, legal, ethical, and moral debate over when (if ever) we can justify war
2. International Law on Decisions to Go to War
3. The jus ad bellum:
a) (1) just cause: discernment and possession of a “just cause” for war;
b) (2) competent authority: the sanctioning of war by a proper or what
Aquinas would term a “legitimate authority,” or an authority possessing
a right to rule on such a question on the basis of its sovereignty;
c) (3) right intention: the actor’s motivation for war as stemming from a
“right intention,” de-fined as a just motivation;
d) (4) reasonable hope for success: a priori evidence of at least a reasonable
hope for a successful outcome to the war;
e) (5) proportionality (of ends desired): the relative proportionality of the
end or ends desired from the war relative to the means of war that would
be employed to attain them; and
f) (6) last resort: military force can only be employed after all other
peaceful alternatives have
C. Applying International Law and Justice to Individuals
1. Twentieth-Century War Crimes Tribunals
2. After an absence of nearly 50 years, international tribunals reemerged in the
1990s.
3. The atrocities that occurred in Bosnia-Herzegovina and in Rwanda
4. Rape and forced impregnation emerged as a strategic weapon of war
5. The atrocities in Bosnia and Rwanda shocked the conscience of the world.
6. The media brought images from these regions to our newspapers and televisions
7. The conflict in Kosovo in 1998-99 indicted 161 individuals as war criminals,
convicting 90 of them.
8. The most important of the trials conducted by the ICTY was that of Slobodan
Milošević, the former president of Yugoslavia.
9. The International Criminal Tribunal for Rwanda (ICTR) first since World War II
to punish heads of government.
D. The Pragmatic Application of Law and Justice
1. Can ends justify means?
2. Moral argument in the face of complex choices.
3. Relatively weak international legal system can make the practice and application
of strong moral principles dangerous.
4. Should we judge others by our own standards?
5. Is it pragmatic to apply standards of legality and justice?
IV. The Future of International Law and Justice: All signs point to increasing respect for
international law and a greater emphasis on adhering to at least rudimentary standards of
justice
V. Chapter Summary
A. International law is weak in comparison to domestic law with limited compliance.
B. International law is derived from multiple sources, including norms and principles,
customs, and treaties.
C. International law is very Western in origin.
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Suggested Lecture Topics and Class Activities
1) Discuss the nature of international law.
2) Examine the growth of international law.
3) Have students in groups discuss major constraints in enforcing international law.
4) Discuss the international legal system. Does it work?
5) In small groups: Evaluate the successes and failures of International Court of Justice (ICJ).
6) Analyze the historical evolution of international law.
7) Put students into groups. Have them discuss major differences between high and low politics.
8) Put students into groups. Have them discuss the pros and cons of international law rooted in
Western civilization.
9) Discuss Compliance with the Law.
Discussion Questions
1) How do we strengthen the compliance mechanisms of international law?
2) Will international law eventually replace domestic laws? Discuss why you think this will or will
not happen.
3) Why do many states accept international law?
4) Is the international law too Western? Why or why not?
5) Is a robust system of international law possible, given the extensive political, social, and cultural
diversities that define our world? What are the arguments for and against such a system?
6) What do you think are the major obstacles to the effective implementation and enforcement of
international law?
7) What are some of the competing legal philosophies in international law?
Website Resources
Uphold International Law
https://www.un.org/en/sections/what-we-do/uphold-international-law/
Silence and the Use of Force in International Law
https://www.lawfareblog.com/silence-and-use-force-international-law
Video Resources
International Law Explained

Why would States not comply? How to promote compliance – Theor