AN INTRODUCTION TO INTERNATIONAL LAW
"The case against historical objectivity is like the case against international law, that it does not exist" (Sir Isaiah Berlin)
International law exists, but it suffers from neglect. It has had a hard time settling debates over foundational concepts such as justice and reciprocity, and of course, there is the unfortunate and well-known fact that no consensus over the definition of terrorism has ever been reached. This doesn't mean the field is any less important. It just means there are many challenges ahead. Indeed, one would be hard pressed to discover a more challenging area of law, whether in theory or practice. The field is very important since almost everything a nation does, and almost everything other nations do, affects or is affected by international law. Like all law, it is all around us. It cannot be ignored. Pretending it doesn't exist does not make it go away. Regardless of one's opinion of it, it must be studied and learned about.
The ALE (American Law Institute) defines international law as "law that deals with the conduct of states and of international organizations and with their relations inter se [among themselves], as well as some of their relations with persons, whether natural or juridical" (Buergenthal & Murphy 2002). More elegant definitions can be found, such as the common one where it can be described as "law that deals with the relationships between states, or between persons or entities in different states." Even simpler definitions can be found reducing it to "laws governing relations between nations." There's an unfortunate tendency for the simplest of definitions to focus only on nation-states, as if nation-state relationships were the only thing that mattered, but the fact is that any entity (even a corporation or a person) which possesses "international personality" is subject to international law. This is important because without including international organizations or personalities, there would be no basis for international trade law, international humanitarian law, or international human rights law. If one's purpose was to argue that international law doesn't exist, they would be on fairly solid ground by arguing that no appropriate international governing body or central authority exists. It is quite easy to point out the limitations of the International Court of Justice and the United Nations in this regard. Besides the definitional conundrums over what constitutes something "international," there is the problem of specifying exactly what the "law" consists of. The most common answer is "a system of rules," but if it's a system, it's a very weak system with the same entities creating the law also being its enforcers. A better answer is to say that international law consists of norms, standards, treaties, agreements, customs, and some rules, but one would be hard pressed to call that anything more than a primitive system. Despite not being neat and tidy, international law represents an ethics or jurisprudence (of what ought to be and how to get there). In fact, John Austin, the famous legal philosopher (who happened to be Jeremy Bentham's student), once called international law a type of "positive morality" (Austin 1954). Positive morality in Austin's scheme includes laws of honor, sociological mores, conventions/customs, parts of constitutional law, and most of all, international law. It may be worth quoting Austin, as below:
John Austin on International Law
|The existence of law is one thing; its merit or demerit is another. Whether it be or not be is one inquiry; whether it be or not be conformable to an assumed standard, is a different inquiry. A law, which actually exists [and can be described as such], is a law, though we happen to dislike it, and though it may vary by text, it is the means by which we regulate our approbation and disapprobation.|
It was Jeremy Bentham who first coined the word "international" in 1780 (Bentham 1970). He invented the word to give meaning to the Latin phrase jus (or ius) gentium (law of nations). Jus gentium refers to the law established among all people by natural reason, as compared to jus civile (the system of law peculiar to one state or people). It should be noted that much scholarship regarding the history and development of international law is a debate over its origins in natural law or positive law, and as tempting as it is to go into this, we'll forego the opportunity in lieu of more practical matters. Most definitely, a GLOSSARY OF TERMS is needed, and key Latin words one is likely to encounter include:
1. compromis --an agreement or
stipulation where states jointly submit a dispute to the International Court of
Justice for resolution
2. erga omnes -- the obligations of a state toward the international community as a whole, including the proscription against aggression, genocide, slavery, and racial discrimination
3. ex aequo et bono -- out of equity or fairness
4. ipso facto -- by the fact or act itself
5. jus ad bellum -- law governing resort to force
6. jus in bello -- law governing conduct of war, sometimes called humanitarian law or the law of war
7. jus cogens -- peremptory norms of international law from which no derogation by treaty is permitted, peremptory being a word meaning there can be no contradiction or denial about the truth of something
8. jure gestionis -- acts which are commercial by nature
9. jure imperii -- acts which are governmental or sovereign by nature, and under U.S. law, foreign governments retain immunity for intrinsically governmental acts
10. jus sanguinis -- the right of "blood" meaning a person's citizenship is determined by the citizenship of the parents, or one of them
11. jus soli -- the law of the soil or place of one's birth as the basis of citizenship
12. lex ferenda -- norms in the process of ripening into law
13. lex lata -- law that is binding and well-established
14. lex mercantoria --merchant law or commercial law, including market customs that are binding
15. male captus, bene detentus -- the doctrine that a state may try persons brought to its courts by irregular means, even by abduction from another state, in violation of international law, in the absence of protest by the other state
16. mutatis mutandis -- when what must be changed has been changed; new procedures to fit new circumstances
17. opinio juris sive necessitatis -- the conviction that a behavior is required by law, as distinct from other motivations, such as habit or humanitarianism, with such conviction being the requirement before any norm can be considered part of customary law
18. pacta sunt servanda -- the principle that all agreements and treaties which are in force should be observed in good faith
19. rebus sic stantibus -- a rider to the pacta sunt servanda principle which allows a party to nullify a commitment if there have been significant changes in the underlying assumptions and conditions of an agreement or treaty, also known as the "change-in-circumstances" doctrine
20. terra nullius -- this land, or thing, which belongs to no one
LEGAL-TECHNICAL PROCEDURES OF INTERNATIONAL LAW
It is customary to distinguish between two branches of international law, public and private. Private international law has to do with the rights and duties of individuals as they are affected by overlapping jurisdictions. Public international law consists of the rules, principles, customs, and agreements that nation-states and other international entities accept (or consent to) having the force of law in their relations. Most scholarship is focused on public international law. There are four (4) sources of international law: (1) treaties; (2) customs; (3) reason; and (4) authority. Treaties and customs are the two strongest sources; reason is the weakest source (because of competing conceptions of justice and natural rights); and authority is a weak source because the world has never had a constitution, only those institutions known as the League of Nations (1920)=>Permanent Court of International Justice (1921)=>United Nations (1946)=>International Court of Justice (1946)-see below. Under international law, a treaty normally prevails over any national law which may conflict with it, hence there are fairly relaxed rules on accession and dissension to treaties. It would be a mistake, however, to characterize international law as relaxed. There are actually quite formal legal-technical procedures to establishing an international treaty or agreement, involving at least the following stages:
negotiation, the stage at which parties tacitly recognize some complementary
interest and strategize to interact with one another
(2) adoption, the form and content of a proposed agreement are settled
(3) signature, or indication of a willingness to continue and refrain from things which defeat the purpose
(4) ratification, where the usual procedure is to allow a time-frame for parties to seek the necessary approval on the domestic level or enact the domestic legislation to give it effect, and the treaty or agreement is held by a third-party depository
(5) acceptance or approval, which depending upon the constitutional law of each party requires executive action, legislative consent, or neither
(6) confirmation, a verbal expression to be bound by the treaty or agreement
(7) entry into force, where provisional conditions are met or a certain number of minimum parties have to express consent
(8) accession, the act by which parties indicate full acceptance and/or other parties accept the opportunity to join in, depending upon provisions of the treaty or agreement.
The International Court of Justice and International Criminal Court
|Located in The Hague, Netherlands, the International Court of Justice (ICJ) - pictured at right -- consists of 15 judges and was established by the UN in 1946 as its principal judicial organ. However, the ICJ doesn't make international law; the UN General Assembly does, according to Chapter IV Article 13 of the UN Charter. ICJ jurisdiction is twofold: settling international disputes and giving advisory opinions. It has been more successful with the latter because the lack of enforcement power is clearly a handicap. The US withdrew from compulsory jurisdiction in 1986, and only accepts the court's settling of disputes on a case-by-case basis. Only a small number of contentious cases (with binding rulings) have emerged from the court, and in fact, most cases brought before it have been relatively minor in significance. Advisory opinions are not binding, and even in contentious cases, jurisdiction is only by consent, with consent obtained by diplomats or compromissory clauses included in treaties. Despite the appearance of impotence, the Court's existence establishes a basis of legal reasoning that the UN Security Council uses, for example, in deciding to impose sanctions.||
The ICJ (above) should not be confused with the ICC (International Criminal Court - below)
|Also located in The Hague, Netherlands, the International Criminal Court (ICC) - pictured at right -- was established in 2002 to prosecute international crimes and only after that date. A country must sign the Rome Statute to be subject to its jurisdiction, and the US has a curious on-again, off-again relationship to it, unlike other countries which simply withdraw en masse whenever one of its leaders gets indicted. Genocide, war crimes, and crimes against humanity are the main subjects of the court. Cases must be referred to it by the UN Security Council, although the ICC can act somewhat independently, especially with investigations (if the case meets what is called a certain "gravity" threshold). Punishment is left to individual states, which often results in no punishment at all. The biggest complaint is the cost of its operation, which requires almost as much money as it takes to operate the UN.|
International justice mostly operates by majority rule and arrives at its decisions by consideration of international conventions, international custom, and the "general principles of law recognized by civilized nations." It may also refer to academic writing and previous judicial decisions to help interpret the law, although the Court is not formally bound by its previous decisions. If the parties agree, the Court may also decide ex aequo et bono, or "in justice and fairness," which involves a decision based on general principles of fairness rather than specific law. Numerous treaties (at least 244) explicitly mention the ICJ as the final arbitrar of disputes which cannot be settled by mediation. Jurisdiction is limited only to cases where both parties have bound themselves in advance to submit disputes arising under a specific treaty, but many nations submit their dispute to the court after a dispute has arisen either by special agreement to do so or by making a declaration under the "Optional Clause" of the Court's statute. Judgments are backed up by whatever U.N. Security Council recommendations are made. It is unfortunate, however, that the Court's powers have been limited by the unwillingness of the losing party to abide by the Court's ruling, and by the Security Council's unwillingness to enforce consequences. Ultimately, the only enforcement power that the ICJ has (as with international law as a whole) is stigmatization, whereby non-complying governments open themselves up to retaliatory measures by other governments.
Schwebel (1994) provides balanced insights into the ICJ's strengths and limitations, as well as a review of forty-five judgments and eighteen advisory opinions during 1946-1984, concluding that most of the Court's judgments and opinions have been of high quality, although a few have been somewhat elliptical. Schwebel (1994) also analyzes the Optional Clause in some detail, which is the way most major nations (including the United States), after a dispute has arisen, bind themselves to the Court's compulsory jurisdiction. Declarations to abide by the Optional Clause are usually accompanied by "Reservations" which limit the extent of agreement. Most of these reservations allow for unilateral withdrawal at any time. For example, the UK's reservation reads that it reserves: "the right at any time ... and with effect from the moment of ... notification, either to add to, amend, or withdraw ... in this declaration which has been made until such time as notice may be given to terminate it." The US reservation pioneered a self-judging tactic known as the Connally Reservation, which withholds from compulsory jurisdiction "disputes with regard to matters which are essentially within the domestic jurisdiction of the USA as determined by the USA." The effect has been an erosion in the original intent of the Optional Clause, but the Court suffers from other problems too. A few times in its history (at least five times), a state has refused to produce a defendant to appear in court. In addition, there is the problem of conformity with judgment.
In Nicaragua v. United States (1984), the ICJ found the United States guilty of illegally arming, training, equipping, financing, and supplying the Contras in breach of customary law not to intervene in the affairs of another state, but the United States withdrew its acceptance of the Court's judgment and never paid the reparations it was ordered to pay. In addition, the Court seems to have a general unwillingness to take on politically controversial matters because in 2004, the ICJ denied a claim by the former Yugoslavia against NATO for alleged illegal actions during the Kosovo War of 1999. Although the Court passed over on the claim via jurisdictional grounds that Yugoslavia was not a party to the ICJ statute at the time it made the application, it could (or should) have heard the case nevertheless to exercise its authority. With advisory opinions, the Court has been more influential, issuing important statements on threats to use nuclear weapons in 1996, and in 2005, on putting up physical barriers between nations such as the Israeli West Bank wall, fence, or "security barrier." Critics of the ICJ abound. See this Critique of the ICJ Advisory Opinion (doc) at the Case for Israel website which is also a good analysis on the inner workings of the ICJ.
CONCEPTIONS OF JUSTICE IN INTERNATIONAL LAW
Conceptions of justice are not just of theoretical interest. Many problem areas of international law have an essential justice dimension, including war, conflict, trade, environment, nonproliferation, and legal proceedings against individuals in international courts. Justice conceptions also play a practical role in the decision-making processes of political actors (Franck 1997; Albin 2001). Unfortunately, there is no precise agreement on the meaning of the term justice for any kind of international order or any system of international relations given the disagreements between IR schools of thought, particularly realism and liberalism. This section examines those disagreements and outlines some predominant and emerging conceptions of justice.
Realist conceptions typically put order before justice, and idealist conceptions typically put justice before order, reflecting the respective belief that the origins of international law are in positive law (the purpose being to establish order and stability in an anarchical society) or in natural law (the purpose being to promote values such as fairness and equity). The justice v. order debate is often a divisive one among scholars. Realist proponents of "international order" (as opposed to "international justice") frequently argue that some minimum order is necessary (e.g., a balance of power, regulatory and monitoring institutions, and/or the status quo) before justice can be realized. International order is then established after violence has settled and relative stability has been achieved. In other words, the realist position is to take the world as it is right now (with room for minor adaptations and change), work on eliminating needless violence, and establish the preconditions for justice which flow from a greater sense of security (for the states themselves as well as the international system). Neorealists tend to take the position that some principles of justice (at least ethics and morality) are inherent in the rational, prudent use of power, especially when the practices of just war and humanitarian intervention are involved (Walzer 2000).
Liberals usually consider "international justice" from the approach that existing arrangements are inequitable to begin with, and that the status quo is unsatisfactory, and what needs to be done is some primary work on justice issues first -- issues like world poverty, hunger, disease, and ecological balance. This position is quite prevalent among Third World nations or developing states. Conceptions of social justice, natural rights, and/or basic human needs are often used to support this line of argument -- that with alleviation of suffering comes peace, with peace comes order, and with law comes better peace (the "peace through law" approach which characterized much 20th century thinking). Neoliberals (universalists and neo-idealists) tend to focus almost exclusively upon concerns for human emancipation, self-determination, harmony and well-being (cosmopolitanism), with the most fruitful concept being the universalist idea of "common humanity" or Common Heritage of Mankind often found in discussions of outer space or maritime law (Basler 1998). Burton's (1990) non-coercive, cooperative approach to world society is representative of the neoidealist position which opposes almost all kinds of conflict. Numerous other varieties of liberal justice conceptions can be found, almost all of which, in one way or another, embrace pluralism, a political sociology term for a system of power sharing among competing parties and interest groups.
Distributive justice (to each according to their contribution) is a typical scholarly focus. Societies distribute all sorts of things, not just wealth and power, but social goods like honor, education, work, free time, and even love (Walzer 2004). Much writing on distributive justice in the literature is drawn from the liberal, social contractarian, Rawlsian perspective in Justice as Fairness (Rawls 1971) and The Law of Peoples (Rawls 2001). In fact, it might be fair to say the Rawlsian perspective dominates most discussions of justice. To summarize a rather extensive line of reasoning, the Rawlsian conception basically holds that there is a fundamental difference between charity (to each according to their needs) and distributive justice (based on equal opportunity to contribute). Do-gooding alone does not produce egalitarian societies, and basic human rights are not the same as rights under a constitutional democracy. There is also a fundamental difference between political ethics and personal ethics. Political institutions operate on a different moral ground than what most individuals do. It is only feasible to design institutions (e.g., tax codes, wage laws, etc.) that have the effect of increasing peoples' sense of democratic participation so they stop constantly comparing themselves to others (in terms of how well-off they are) are start living freer and better lives. In The Law of Peoples, Rawls (2001) argues that the reason of this notion is the basis of most constitutional democracies, is viewed as legitimate across most religious and non-religious views, and sets forth the moral grounds for rendering assistance to non-liberal societies burdened by unfavorable political and economic conditions. The foremost critics (e.g. Nozick 1977) of the Rawlsian conception of distributive justice are those who advocate non-collectivist approaches (no seeking of the "greater good") and a minimal state or "nightwatchman state" that concentrates on protecting its citizens and isn't drawn into excess regulation of everyday life which often intrudes on liberties (note: the "nightwatchman" conception is sometimes called Libertarian justice).
Economic justice is another common scholarly focus. How each person earns a living, enters into contracts, and exchanges goods and services is part of the material foundation for sustenance and well-being. Economic justice is also closely related to conceptions of social justice (the just organization of social institutions) and environmental justice (the ethical implications of sustainable economic growth). Efforts to develop ideal-types (Kapstein 2004) as well as typologies (Beitz 1999) have characterized attempts to elucidate conceptions of economic justice which can be modeled and tested by scientific methods. Typically, the focus is on the equity components of economic arrangements using social psychology's exchange theory as a guide to equity (as perceptions of fairness). The equity approach to economic justice (as also a form of distributive justice) has a long history going back to Aristotle. According to Kapstein (2004), such approaches tend to be classifiable as whether they are communitarian (concerned with globalization's greater openness and its effects, domestically and internationally), liberal internationalist (concerned with globalization effects on the legitimacy and stability of an international order as well as the effects on income distributions and poverty), or cosmopolitan (concerned with the effects of the prevailing economic structure on the well-being of persons). Linklater (1990) points out that the communitarian and cosmopolitan positions provide the most dialogue for the possibility of developing an agreed-upon justice theory, and that this dialogue centers upon the problem of dual loyalty (to one's state as citizens and to one's world as human beings). Linklater (1990) is spot on. Normative theory (about what is just) and ideas about "international morality" are exactly what is needed. Along these lines, the thinking is that there must exist some set of universal values that we can all agree on, regardless of whether they are enshrined in international law or not. If an international morality exists, then it is likely certain universal principles of justice can be derived from it. An advantage of this morality or virtue approach is that not only could agreed-upon, common denominator, transnational rights be derived, but there could also be a set of international obligations along the lines of altruism (or other values) which elicit the felt need for sacrifice, charity, and benevolence. Virtue approaches may hold some promise of improvement over the current "opinio juris" arrangement whereby a rule of customary law is said to exist if it has been accepted for some time by the world's major nations without consistent objection by other nations. The problem, however, is that most of the things referenced by virtue approaches are rather fuzzy rights, and the most practical problem in all of international law may be figuring out how to expand obligations and not just rights.
Other theoretical approaches also exist. Cosmopolitan justice (Moellendorf 2002) has been the topic of recent dialogue between international relations scholars. It is generally agreed that at least two versions have emerged: weak cosmopolitanism, the idea that all human beings are of equal worth; and strong cosmopolitanism, the idea that we all have equal responsibilities to everyone else. One would have to be a bigot or racist to disagree with the first, so debate usually boils down to ethics of the second, which holds that there is a necessity to help the needy in the name of cultivating our mutual interest in the global community. Most cosmopolitans are opposed to nationalism, and particularly the nationalistic sense of patriotism. Immanuel Kant, the famous German philosopher and author of Perpetual Peace (1795), argued that cosmopolitanism should be seen as a third sphere of public law -- in addition to constitutional law and international law -- where individuals have rights as "citizens of the earth" rather than as citizens of particular states. Numerous interesting variants of cosmopolitanism exist, and they all tend to strive for reform of the UN by creating a "Second Assembly," an assembly of the people, as Segall (1991) puts in. David Held (1995) is perhaps the most well-known modern cosmopolitan, and some of his ideas are as follows:
|Seven Clusters of Cosmopolitan Democratic Law|
|1. Body (Health) - physical and
emotional wellbeing; clean, nontoxic environment; control over fertility
2. Welfare (Social) - universal childcare; education; community services; development of talents and abilities
3. Culture (Cultural rights) - freedom of thought and faith; freedom of expression; toleration; pursuit of modes of discourse
4. Civic (Civic associations) - freedom of information; ability to form or join autonomous associations and group projects
5. Economy (economic rights) - guaranteed minimum income; avenues to productive resources; diverse forms of consumption; ability to pursue economic activity without immediate financial vulnerability
6. Security (pacific rights) - peaceful coexistence; lawful foreign policy; accountability of political leaders; non-coercive relations
7. Politics (legal and regulatory relations) - due process; equal treatment; participation in debate; adequate and equal opportunities
Restorative justice is an additional, emerging approach, and it is usually contrasted with retributive justice. Under restorative justice, justice is seen as a form of healing. It can also be contrasted with many Christian approaches since it is not so much a rejection of the punishment orientation as it is an alternative to blame and shaming approaches. Basically, restorative justice seeks to repair the harm done by any offense, empower communities, and reintegrate offenders (and victims) back into the "fold" through reconciliation rituals. A key concept is forgiveness (which is seen as the antidote for vengeance and perpetual hatred). Amnesty, victim testimony, reparations, and rehabilitation are other key ideas. The notion is somewhat popular in criminal justice [See John Fuller's Peacemaking site], and in the international context, restorative justice is often manifested in the form of Truth and Reconciliation Commissions. "Truth" in this context usually means "forensic truth" or the digging up of evidence that certain atrocities were committed, by whom, against whom, when, and where, the purpose being that no one can deny it happened (as with Holocaust denial). Amnesty is sometimes used to trade justice for truth. Reconciliation is a process involving acknowledgment and contrition from the perpetrators and forgiveness from the victims. Reparations are a complex topic deserving of detailed explanation, as below:
A Primer on Reparations
|Reparations are often popularly associated with the idea of financial compensation to individuals, but in practice, most reparations are given to groups for collective projects to remedy past ill-treatment (Howard-Hassmann 2008). Also, most reparations do not involve the exchange of money, but symbolic gestures such as apologies and guarantees of nonrepetition. The international law of economic rights provides stronger backing for reparations to those currently suffering injuries rather than those who suffered injuries in the past and are long-dead. Demands for reparations are demands for social justice, not demands for redistribution of wealth. It is of concern that the two goals, social justice and redistributive justice, may be incompatible, or at least overlapping to some unnecessary extent. Some classic examples of well-done reparations policies were the Jewish demands for reparations after the Holocaust, and payments for the US internment of Japanese citizens during WWII. However, there are many groups in the world (in Asia, Africa, Latin America, and elsewhere) who have never received even an apology. Standing international law does NOT provide for retroactive reparations for slavery or colonialism (declared illegal in 1960). Standing international law DOES provide for reparations for genocide, crimes against humanity, and war crimes, and for such offenses, no statute of limitations exist although the crimes must have been outlawed before they were committed. Reparations law also provides for individual reparations if the case involves disappearance, torture, or extrajudicial execution, and in such cases, heirs to the victims are eligible to make claims although the line of descent is limited, often only to the great-grandchild stage (at least according to Nuremberg standards). The ICC, not the ICJ, is the appropriate forum for reparations.|
RECIPROCITY AS A CONCEPT AND LEGAL PRINCIPLE
A key concept in international law is reciprocity. Basically, the principle of reciprocity is that any favors, benefits, or penalties granted, promised, or threatened by one state to the citizens of another should be returned in kind. Perhaps the most common legal usage of the concept is in the penalty or negative sense, where under international law, an accuser engaging in the same conduct as the accused shall be disqualified from asserting a legal violation. Reciprocity is a fundamental principle in tariff law, copyright law, immigration law, the law of the sea, and the law of criminal extradition. Keohane (1986) and others have argued that reciprocity should be considered a Golden Rule or "meta-rule" in international law because, in part, the foreign policy actions of states almost always correlate highly with the actions others take towards them, at least at one time or another. Similar ideas can be found which are couched as even more empirical. Game-theoretic models are prevalent since reciprocity tends to be remarkably well-suited to Prisoner's Dilemma situations. Pareto-efficient states (a Pareto optimum refers to when it is no longer possible to make anyone better off without making at least one person worse off) with competitive electoral politics are the hope and dream of experts who elevate reciprocity to the status of essential cement for and between societies (Kolm 1996). There are many related mathematical concepts, such as Dupreel's theorem which holds that as rivalries mature, states are more and more likely to imitate each other's behavior. In addition, there's conflict spiral theory (North et al. 1964) which holds that a misperception of intentions and an escalation of confrontation are likely when there is reciprocal-like signalling of intent to achieve certain outcomes. It is not clear what one is to make of the literature on reciprocity as a concept in relation to international law. There are conflicting conceptualizations of the term (Byers 1999), and the reciprocity literature is difficult to synthesize. It might be said that among certain nations (e.g. the U.S. and Russia) or during certain periods of conflict (e.g., Cold Wars), it has been found that the level of conflict usually follows predictable reciprocal patterns, at least if one is not dealing with "crazy states" or rogue states (Litwak 2000). However, the more immediate need is not for models of reciprocal conflict, but models of reciprocal cooperation. Theoretically at least, the greater the level of cooperation, the greater the payoff.
Reciprocity is informal justice at best, but it points to the Hohfeldian problem of how fulfilling obligations or duties are sometimes more important than exercising or not exercising rights. Reciprocity is important because it refers to international perceptions of what is compensatory and fair, but it is difficult to determine when something is fair without a common, standardized measure of value. Most exchanges (concessions or escalations) between nations are only reciprocal in the sense that something is matched, but that does not mean that the magnitude of the match is equivalent. What's needed is some standardized measure of effort, like equity, or some standardized measure of respect and admiration, like desert (Pojman & McLeod 1999). The standard form of the equation ought to be something like "A should receive x from B because A put in so much effort and work on y" or "A deserves x from B by virtue of y." In the latter case, y should be something that A is responsible for, not simply because they need it. Justice as reciprocity is not charity. Some conceptualizations in cosmopolitanism or social justice might view basic human need in such terms, but need by itself does not usually trigger reciprocity. On the other hand, there are undeveloped theoretical notions of entitlement which might help sort out the relative undeservingness of inequalities. For international law to flourish, it will need more flexible concepts beyond what reciprocity can provide. As Florini (2005) has pointed out, simple concepts like transparency and accountability can help keep issues of justice and equity in the forefront of most discussions about global governance.
As a legal principle, reciprocity is a powerful weapon at work in international law and international relations generally. Quite often, states do not pursue certain short-term courses of action (that would be in their best interests) out of concern for reciprocity in the long-run. This ability of reciprocity to modify the behavior of nation-states as well as individuals is remarkable, and can encompass various circumstances -- such as the enforcement of foreign judgments, asset protection, diplomat protection, private suits in US courts by foreigners, etc. Take, for example, the case of Boos v. Barry (1998), which dealt with the appropriateness of protest in front of a government building but not in front of a foreign embassy on US soil. This extension of privilege to a foreign embassy carries with it an expectation (whether realized or not) that American embassies on foreign soil will be reciprocally protected from protest. Or, take the older case of Hilton v. Guyot (1895) which dealt with the comity of nations, or the courtesy between nations that obligates their mutual recognition of each other's laws. In Hilton, the Supreme Court refused to give conclusive effect to a French judgment. In that case, suit was brought in federal court in New York on a judgment rendered against an American citizen by a French court of competent jurisdiction. The Supreme Court held that a foreign judgment would not be given conclusive effect unless the courts of the rendering country would give the same effect to a comparable judgment of an American court. Reciprocity is also involved in the law of extradition. For example, Factor v. Laubenheimer (1933) set the precedent for using reciprocity as the legal principle of choice when conflicting interpretations of a treaty exist.
TREATIES AND TREATY LAW
A treaty is defined as "a written contract or agreement between two or more parties which is considered binding in international law (Evans & Newnham 1998). Other names for a treaty are accord, agreement, arrangement, charter, compromise, declaration, general act, and protocol, but when the word "treaty" is specified, this usually refers to the most formal and highest instrument of agreement (Myers 1957), although informal treaties may be equally as important (Lipson 1991). The parties to a treaty can be states, heads of state, governments, or international organizations. They are generally not binding on sub-state actors, but they are intended to become the law of the land among nations who adopt them. The phrase "law of the land" comes from the Magna Carta and refers to all of a country's common law, statute law, and customs. It was enshrined in the Supremacy Clause (Article VI, Clause 2) of the U.S. Constitution, as follows, and has been the subject of scholarly debate and inquiry ever since:
Does a Treaty Override the Constitution?
|Article VI, Clause 2: This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.|
|Reid v. Covert, 354 U.S. 1 (1957): No agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution. In short, as “[the Supreme] Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty,” the Constitution remains the supreme law of the land and treaties may neither supplant nor amend it.|
The answer to the question of whether a treaty trumps the Constitution is not that easy. Surely, on principle, it does not, despite what Secretary of State John Foster Dulles said in 1952 when he told the American Bar Association that "Treaty law can override the Constitution … and cut across the rights given the people by their constitutional Bill of Rights." However, in practice, despite what the Supreme Court has said, the "accord" of a ratified treaty must become part of federal statutory law. The integration of treaty law is NOT by incorporation, nor by amendment, but by revision in the policies and procedures regarding how a law is enforced. For example, if an international treaty were to ban guns or drugs, the nations affected would be expected to become stricter in cracking down on guns and drugs. There is a lot of built-in leeway with treaty enforcement, and the most well-known exception was provided by Thomas Jefferson himself when he said "just as there are circumstances which excuse the non-performance of contracts between man and man, there are also between nation and nation when performance becomes impossible, non-performance is not immoral, and if performance becomes self-destructive to the party, the law of self-preservation overrules the law of obligation to others" (Koch & Peden 1972: 317).
Many times, a treaty is brokered, supported, or advocated by an international organization. This includes the United Nations as well as other entities. Let's take a moment to examine what an international organization is:
|What is an International Organization?|
| An international
organization is a group with an international membership, scope, or
presence. There are two main types: INGOs (international nongovernmental
organizations) and IGOs (international governmental organizations).
An INGO is typically a voluntary, humanitarian, or charitable
organization, but they can also be a private foundation or business
enterprise. As Iriye (2002: 208) puts it, "the line between
business enterprises and nongovernmental organizations is becoming
blurred" as some businesses do sponsor humanitarian or relief work.
A IGO is typically made up of sovereign states, with notable examples
being the UN, EU, or WTO. To cite Iriye (2002) again, most
international organizations exist to meet one or more of the following
1. universal human rights -- the rights of women, children, the sick and disabled (e.g., Amnesty International, Human Rights Watch)
2. humanitarian relief -- for the hungry, and the sick (e.g., UNICEF, Doctors without Borders, Red Cross)
3. development -- for places without energy or sustainable agriculture (e.g., World Bank, Oxfam)
4. environmental safeguarding -- for places with defoliation, desertification, or endangered species (e.g., Friends of the Earth, World Wildlife Fund)
5. cultural exchange -- for multiculturalism or awareness of diversity (e.g, UNESCO, Fulbright Program)
6. peace and disarmament (e.g., Greenpeace, Federation of American Scientists, Council on Foreign Relations)
There are two kinds of treaties (bilateral and multilateral), and sometimes it happens where a regime is created. The concept of regime is important, so let's take a moment to examine this.
A "Regime" under International Law
|A regime is a norm-governed framework of rules, expectations, and prescriptions for action between signatories and relevant actors to a multilateral treaty (Krasner 1983). The framework is based upon mutual recognition of a common need for cooperation under the idea of reciprocity, this need for cooperation sometimes being called an "issue area" or interdependence (Keohane & Nye 1977). Because interdependence exists toward the goal of a positive sum outcome (synergistic effects, or the whole being greater than the sum of parts), membership in a regime cannot be specified in advance. Membership decisions are made as the regime is maintained, and as functional integration leads to further cooperation and coordination between a wider set of actors (called positive feedback loop creation in systems theory or regime analysis). In today's world, regimes tend to form around issue areas dealing with trade relations or the environment, in the former case by what are called multilateral "rounds" (e.g. GATT, or the General Agreement on Tariffs and Trade), and in the latter case by conventions and protocols (e.g., the Kyoto Protocol on global warming). A round is a set of agreements that seek to bind nations, like a treaty, to reduce certain tariffs under the most favored nation principle, but it is unlike a treaty in being more of a congressional-executive agreement giving the executive branch temporary authority from Congress if a majority of Congress approves. Conventions as well as protocols are treaties by another name, and a treaty is not necessarily permanently binding upon the signatory parties unless registered with the U.N. and under US law has achieved advice and consent of two-thirds of the Senate. The Kyoto Protocol is unique in that the Senate voted against it in 1997, but VP Gore symbolically signed it in 1998, and the U.S. supports it in principle but rejects the exemption granted to China (the world's second largest emitter of carbon dioxide). Also, as far as copyrights are concerned, "patent regimes" exist (Drahos & Braithwaite 2003) in the form of the little-known Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which governs such things as bootleg videocassettes or unlicensed use of patented pharmaceutical processes, and is a tool used by large corporations and conglomerates to keep things like urgently-needed AIDS drugs from third-world nations. It is important to note that what is described here is mostly the "neutral" sense of the word regime as used by most political scientists. Some people use the term to describe repressive or undemocratic governments, but that is not the word's primary meaning.|
Treaties are almost always negotiated by diplomats (or plenipotentiaries, see below), and they usually require ratification by a Congress or Executive branch of government (the United States Constitution, Article II, Section II requires a two-thirds vote by the Senate). Most states usually ratify treaties by Executive action. For international lawyers, there are two Latin phrases associated with the law of treaties: pacta sunt servanda (treaties must be kept); and rebus sic stantibus (a fundamental change of circumstance requires breaking the treaty); both of which are part of jus cogens (a higher law or compelling law considered so fundamental that no nation out of good faith may attempt to ignore it or contract out of it with treaties; in other words, genocide or slave trade cannot be the basis of treaties). While jus cogens is an intriguing concept (ultimately derived from natural law and deserving of further research), there is the more important question of when a treaty or agreement is consistent with domestic law.
A Primer on Diplomacy
| When the first tribe of cavemen
realized that it might be better to listen to what the messenger
from another tribe had to say before killing and eating him,
diplomacy was born. The concepts of messenger, emissary, ambassador,
envoy, herald, and to some extent, angel, are all concepts similar
in meaning to diplomat. The idea that there is a time and place for
persons who are "off-limits" or under a "white flag" from harm is
the idea of diplomacy. The social taboo against killing well-meaning
foreigners on state business is one of the world's oldest taboos,
and much of diplomacy is ultimately derived from principles of
social justice. The ancient Greeks called such visitors "heralds"
and throughout the centuries, the profession of herald (like one's
heraldry or coat of arms) ran in families. The Romans are generally
credited with creating "archivists" (specialists in diplomatic
precedents and procedures) and so-called "secret" diplomacy, but the
Italian states during the fifteenth century created public positions
known as "ambassadors". The word diplomat comes from the Greek word
"diploun" meaning "to fold" which refers to the stamped metal plates
early diplomats used to carry. These metal plates consisted of
passes to come and go across international borders, and were called
"diplomas" which eventually became associated with documents of
academic achievement. As the years went on, the Vatican and England
helped spread the practice of housing permanent missions (embassies
or consulates) overseas. By 1815 at the Congress of Vienna, every
nation officially approved and sanctioned a global diplomacy
system. A standard definition of diplomacy is "the application of
intelligence and tact to the conduct of official relations between
governments and independent actors" (Satow 1905). To become a
diplomat requires earning a title, inheriting a title, or having one
bestowed upon you by the sovereign of your country. In the United
States, the standard procedure has traditionally been to work for awhile as a career
foreign service officer and then rise in rank and stature.
However, since the 1960s, there has been an increasing
politicization of ambassador appointments, often with as much as 60%
or more of the top ranks filled via a spoils system benefitting
donors who contributed the most financially to the political
campaign of a President. The following titles are what one is likely
to encounter among diplomatic teams and consulate missions, but it
should be noted that representatives to the United Nations are
usually required to be at the level of plenipotentiary, and that in
most instances, almost all envoys regard themselves as extraordinary.
Treaties may be classified as executory (also called non-self-executing) or self-executing. An executory treaty is one in which the terms of the stipulation imply a contract when either of the parties engage to perform a particular act. Such a treaty addresses itself to the political behavior of the affected governments, not the judicial branch, and in this respect, the legislature must execute the contract before it can become a rule for the court. On the other hand, a self-executing treaty is one that operates of itself without the aid of legislation. If the treaty provisions are self-executing, it is unnecessary to plead the treaty's existence. It is the equivalent of an act of Congress, and insofar as it affects individual rights, it is a part of the municipal law of a country. At least four factors are to be considered when determining whether a treaty is self-executing: (1) purposes of the treaty and the objectives of its creators; (2) the existence of domestic procedures and institutions appropriate for direct implementation; (3) the availability and feasibility of alternative enforcement methods; and (4) the immediate and long-range social consequences of self or non-self-execution. The topic of self-executing and/or non-self-executing doctrines plays an important role in the laws of war, whether "private rights" attach to certain provisions in treaties and agreements, and generally refer to the Senate's advise and consent role in whether a treaty or agreement is binding on domestic law.
What if a treaty or agreement is inconsistent with a domestic statute? What role does international law play in the formation of US foreign policy? What are the exact tasks of the political branches in making, terminating, and interpreting international law and treaties? Constitutional scholars will point to the Supremacy Clause (Article VI) for guidance (and that’s a good place to start), but that clause alone is insufficient to address all issues arising from how treaties execute themselves within domestic law. Typically, courts today hold that a “dualist” form of the legal system exists, “in which the international and domestic legal systems operate separately and discretely” (Dycus et al. 2002). The caselaw is also instructive in this regard, as the following brief illustrates:
Goldwater v. Carter (US Court of Appeals, DC Circuit, 1979, 617 F 2d 697, vacated and remanded, 444 US 996 (1979))
| Although the
Supreme Court did not directly address the issues set forth in
Goldwater (the Court of Appeals judgment was vacated, and the
case remanded to the District Court with directions to dismiss the
complaint), based primarily on the fact that the issues raised were
entirely “political questions,” Goldwater is still
instructive as to the President’s national security powers and
international treaty powers in particular. Courts have also
occasioned the opportunity to invoke the political question doctrine
to dismiss challenges to the president’s military activities in El
Salvador, Vietnam, the Persian Gulf, and Yugoslavia. Remember,
generally speaking, “The conduct of foreign relations is committed
by the Constitution to the Executive and Legislature… the propriety
of what may be done in the exercise of this political power is not
subject to judicial inquiry or decision” (Oetjen v. Central
Leather Co. 1918). That is, a reading of the Article III,
section 2, that allows for the courts to review every “case or
controversy” relating to foreign affairs is too expansive a reading,
and the Supreme Court frequently declares such matters as non-justiciable.
FACTS IN THE CASE
Various members of Congress sued in a District Court seeking declaratory and injunctive relief to prevent the termination of a mutual defense treaty with the Republic of China without senatorial or congressional consent. President Carter announced that effective January 1, 1979, the US would recognize the People’s Republic of China (PRC) and would withdrawal recognition of the Republic of China (ROC) (Taiwan) – effectively terminating the US Mutual Defense Treaty with Taiwan that same date. The DC District, after taking an amended complaint to establish standing, found for the Plaintiffs. An appeal was taken; whereby the Appellate Court reversed, holding, in pertinent part, that the President did not exceed his authority in terminating a mutual defense treaty with Republic of China in accordance with treaty’s termination clause, and without obtaining two- thirds Senate consent or majority consent in both houses.
ISSUES IN THE CASE
(1) If the President needs the “advice and consent” of the Senate to enter into a treaty, does it then follow that he must seek the same “consent” to terminate a treaty?
(2) Since the Supremacy Clause reads that all treaties should be the Supreme Law of the Land, does it then follow that treaties can only be unmade either by (a) the same process that made them, or (b) the same means by which a statute (or law) is made or terminated; that is, a subsequent federal statute?
(3) Does the Constitution grant such foreign relations powers to Congress given a reading of Article I and II of the Constitution?
ANALYSIS OF THE CASE
The majority decision in Goldwater answered the above questions in the negative, for the following reasons. First, if we are to assume from the language of the Constitution that treaties must be unmade in the same fashion that they were made, should the same inference be drawn to the President’s power to appoint certain officers or Ambassadors? The Constitution states that officers appointed by the President must be met by Senate confirmation, but it has never been suggested that the President may not terminate the services of such officials without prior authorization. Second, the Supremacy Clause should not be read so broadly – Article VI was written to ensure that federal law, the Constitution, and treaties prevailed over state law in any form, but “these three types of Supreme Law are not necessarily the same in their other characteristics, any more than are the circumstances and terms of their creation the same.” The Supremacy Clause is, therefore, more a status-prescribing provision, not a procedure-prescribing provision. Furthermore, the Constitution does not expressly speak on the termination of treaties; and the mere fact that treaties share a common characteristic with other Supreme Laws does not support a conclusion that they can only be unmade by (a) the same process that made them, or (b) the same means that a statute (or law) is made or terminated. “The fact that the Constitution, statutes, and treaties are all listed in the Supremacy Clause as being superior to any form of state law does not mean that the making and unmaking of treaties can be analogized to the making and unmaking of domestic statutes any more than it can be analogized to the making or unmaking of a constitutional amendment.” Finally, the Court is generally wary of extending “implied” Congressional powers into areas where they have typically not resided; absent an unmistakably clear intention that Congress should have such powers therein – particularly in regards to foreign relations. Drawing some authority from the Curtis-Wright decision, this Court also broadly acknowledged the President as the primary actor of the federal government in the field of international relations; stating that such a role is not limited to acting as a communicator for the US, but also “embraces [a role as] an active policy [decision-maker] as to the conduct of the United States in regard to a treaty in response to numerous problems and circumstances as they arise.” Moreover, the Court drew upon the Executive Powers found within the Constitution, Article II, highlighting that those powers are “generalized in a manner that bespeaks no such limitation upon foreign affairs powers”; of course, unlike the powers conferred upon Congress in Article I, which are specific, detailed, and limited.
Effectively, the decision in Goldwater supports the President’s authority alone to terminate a treaty containing a termination clause, and to some extent, irrespective of whether there's a termination clause because by dictum, the decision also suggests that the President can terminate a treaty because of changed conditions or breaches by the other party. While eight such unilateral acts of treaty termination have occurred since the Goldwater case, this fact alone does not establish a constitutional custom per se – neither would such a custom survive the express opposition of Congress. The Goldwater decision is not without its critics since one could argue that the Curtis-Wright rationale is overstated, and that allowing such a broad stroke of executive power may be difficult to contain. Additional criticism draws upon a reading of the Constitution that the Senate should “advise” the President, but in fact, Congress does take some part in some negotiations – for example, four of the eight member delegation that negotiated the UN Mutual Defense Treaty were members of Congress. Since Goldwater and with current events, the usual action is to break diplomatic relations rather than resort to the purely political issue of recognition. It may be noteworthy that withdrawal of recognition came to the forefront in the War against Afghanistan. President Bush weighed his options, and decided that the Taliban forces were entitled to certain Geneva entitlements (not POW status, however), but he mightily considered whether to deny the Taliban government and her forces Geneva protections altogether (as he decided for Al Qaeda). The basis of that position, of course, is that the President could withdraw the US’s recognition of Afghanistan as a “High Contracting Party” to the Geneva Conventions based upon the argument that Afghanistan was in effect a “failed state.” The President ultimately chose a different route; therefore, a revisit of Goldwater was not needed. Certain legal questions remain, however, regarding the impact of Goldwater, as follows:
| In 1983, the Reagan
administration decided to develop and test “Star Wars” – requiring
essentially a liberal re-interpretation of the ABM Treaty
(Limitation of Anti-Ballistic Missile Systems) with the Soviets; so
that the ABM Treaty could permit SDI development and testing. This
decision was met with resistance by the Senate, especially Senator
Joe Biden, who introduced Senate Resolution 167, which stated, in
part, that treaties are to be determined in light of how the Senate
understands them, and in the manner in which represented to the
Senate when the Senate gave its advice and consent. It can be said
that a modification or amendment to a treaty creates a new treaty;
requiring the advice and consent of the Senate. However, this all
depends upon how you interpret the Constitution. If you take a
Textualist approach, like Scalia, you rely upon the text of the
treaty itself; bearing no (or as little as possible) relation to the
legislative history of its ratification. “The greatest defect of
legislative history is its illegitimacy. We are governed by laws,
not by the intentions of legislators.” (Scalia). However, Biden’s
group relied upon extensive legislative history (hearings, committee
reports, floor debates) to counter Reagan’s re-interpretation. Other
scholars have suggested that treaty interpretation should fall
within several different models or rules of interpretation. It’s an
important question, because are we to expect the President to
anticipate every circumstance or problem, and return to the Senate
each time for the proper consent? Additionally, doesn’t the
Constitution vest the execution of laws, and therefore some
interpretative powers, to the Chief Executive?
Two interpretative models specific to treaty interpretation can be identified: (1) Behavioral or Functional Model -- where many factors affect the president’s re-interpretive functions; such as, (a) what the Senate said when it put-forth its advice and consent; (b) what was said prior to consent; (c) attitudes of treaty partners; (d) support in record and in text of treaty; (e) how different the new interpretation is from the old; (f) assess the changed circumstances that affect the treaty; and (2) Topical Limits Model -- where determining which branch has authority over the specific topic at issue in a particular international agreement allows deference based upon that authority. You can hopefully see the difficulties here – many international agreements cover topics that include both branches of government (i.e. arms control), and some even all three branches (humanitarian law); further, when the treaty is enacted, there may be further blurring of the topical line (in wartime or peacetime). Contemporary jurisprudence of treaty interpretation based on principles of good faith, ordinary meaning, and in light of object and purpose all seem to favor the Biden position and/or the Behavioral/Functional Model.
The International Court of Justice (ICJ) holds that customary general practice should be accepted as law, and that such customary law has the character of jus cogens. Individuals can be held accountable as well as nation-states. It should be remembered that jus cogens refers to a higher law or compelling law considered so fundamental that no nation out of good faith may attempt to ignore it. In this section, it may be helpful to think of jus cogens as consisting of general norms, and to think of customary law (like treaties) as consisting of specific norms. Nonetheless, customary law itself has some wider meanings, and the more recent term, peremptory norm, has come into standard usage. The most frequently cited definition of customary law is by Rosenne (1994) that "it consists of rules of law derived from the consistent conduct of states acting out of the belief that the law required them to act that way." This definition contains three elements: (1) widespread repetition by states of similar international acts over time; (2) acts must occur out of sense of obligation (opinio juris); and (3) acts must be taken by a significant number of states and not be rejected by a significant number of states. Buergenthal & Murphy (2002) state that customary international law develops from the practice of states. To international lawyers, the practice of states means official governmental conduct reflected in a variety of acts, including official statements at international conferences, diplomatic exchanges, formal instructions to diplomatic agents, national court decisions, legislative measures or other actions taken by governments to deal with matters of international concern.
Customary law consists of the implicit and informal understandings created by interactions between state-based actors in the history of acceptable conduct established over time in both war and peace. In the wider, anthropological sense, customary law is established by patterns of behavior that can be objectively verified within most social contexts. It gets its name from the practice, common ever since the Middle Ages, of codifying (or writing down) the customs or expressions of law used to settle civil disputes between communities. Such customs become law when they become the undisputed way by which entitlements and obligations are regulated. Customary law should not be confused with common law (which essentially deals with the ways someone is compensated for a harm), nor should it be confused with criminal law (which essentially deals with the ways someone is punished for a wrong). Customary law is frequently a precursor to treaty law (which consists of explicit understandings and formal agreements), but it is not necessary to sign a treaty for customary law to apply. In international law, some principles of customary law carry the same weight as peremptory norms (accepted by the international community as a whole, but not listed or catalogued anywhere). The Vienna Convention on the Law of Treaties (1969) defines a peremptory norm as "a norm accepted and recognized by the international community as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character." Examples include prohibitions against aggressive war, piracy, genocide, slavery, and torture. A matter of some importance is the effect of international customary law on the domestic law of a nation. Reciprocally, a country's domestic laws can also provide evidence of international custom.
It may be helpful to think of customary law as falling somewhere behind treaties and jus cogens. Generally speaking, the existence of “customs” found within international laws are “deduced from the practice and behavior of states.” A specific definition is illusive, but customary law should at a minimum contain evidence of some continued general practice – leading to a belief that the practice has essentially become law. While some scholars disagree over the usefulness or value of such a concept, others contend that customary law should not be overlooked because it effectively mirrors the concerns of the global community. If you think of a treaty as a binding bilateral contract, it may be useful to think of customary law as a tacit agreement; that is, an “implied” agreement within the international community requiring states to act within certain norms or customs. Customary law can be thought of as having two basic elements: one, the material facts in the actual behavior of states; and two, the psychological or subjective belief that such behavior is law. Both elements are necessary, because to omit element two would make it difficult to distinguish between what’s customary law per se from what are only general principles of morality or social usage. For example, certain nations, like the United States, may pursue a line of conduct purely for reciprocal benefits or for goodwill (e.g., foreign aid), but these acts alone, of course, would not become a continued practice within the understandings of customary law. Again, the importance of the second element is not without its critics, some arguing that courts should lead the way in determining what customs become binding upon the international community.
In the hierarchy of international obligations, the concept of jus cogens is the summit, representing a certain superior value system within the international community. The rule of jus cogens, as stated by Article 53 of the Convention on the Law of Treaties, in part, says that treaties will be void “if, at any time… [a treaty] conflicts with a peremptory norm of general international law.” These peremptory norms are thought to be underogable, by treaties or any other local or special custom within the international community. The concept is present in American jurisprudence, as in US v. Matta Ballesteros (71 F.3d 754, 9th Circuit (1995)), wherein it was noted… “Jus cogens norms which are nonderogable and peremptory enjoy the highest status within customary international law, are binding on all nations, and cannot be preempted by treaty.” The concept of jus cogens mirrors, in some respects, the influence of natural law theory, but there are just as many, one could argue, that see contractarian principles in it. Others (like Tomuschat & Thouvenin 2006) argue the concept is hyper-inflated in claims that jus cogens or obligations erga omnes must be paramount considerations in every conceivable instances, even concerning indirect repercussions, for example, with regard to things like immunity limits, damages reparation, prisoner statuses, and whether the duty not to ‘recognize as lawful’ a situation created by the illegal use of force or other serious breaches of a jus cogens obligation is an obligation without substance. Some basic prohibitions do, however, have consensus at the jus cogens level within the international community, such as prohibitions against torture, the illegal use of force, genocide, and slave trade. It should be noted, however, that no clear agreements are set on all controversial customs.
Perhaps the more interesting question becomes “by what mechanisms are certain practices consumed by the rules of jus cogens?” Since such underogable rules carry significant implications for the international law community as a whole, a stringent test is appropriate. In light of Article 53 above, a two pronged test is suggested: (1) a proposed international rule (arising from lesser customs or treaties) must exist; and (2) universal acceptance of that rule should exist by an overwhelming majority of states, and such states must cross ideological and political divides. This seems simple, but note that universal acceptance is required to ensure that a minority of states are not thrust into the demands of a powerful majority.
What about state responsibilities in light of jus cogens? Consider the following (3) points of settled law on the matter:
no state shall recognize as lawful a ‘serious breach’ of a peremptory norm
certain “reservations” that offend a rule of jus cogens may be unlawful, and state conduct that violates a rule of jus cogens may not enjoy a claim of state immunity
the relief which [the UN Charter] may give the Security Council in case of conflict between one if its decisions and an operative treaty obligation cannot – as a matter of simple hierarchy of norms – extend to a conflict between a Security Council resolution and jus cogens
However, the most important impact of customary law and jus cogens may be the effect they have on the domestic law of a nation, and for this, the following landmark case is instructive and also illustrates the view of the United States on international legal institutions:
Committee of US Citizens Living in Nicaragua v. Reagan US Court of Appeals, DC Circuit, 1988 859 F.2d 929
| FACTS IN
In 1986, the International Court of Justice (ICJ) found that the United States had violated both treaty obligations and customary international law through its policy of providing financial support to the paramilitary activities of the Contras against the Sandinista government in Nicaragua. The US pulled out of the international court proceeding (and effectively her jurisdiction) prior to its ruling; as President Reagan then requested that the US Congress appropriate funds to continue support for the Contras. Congress complied with his request, even after the ICJ decision.
Subsequently, certain US citizens living in Nicaragua, and various other organizations who opposed this policy, brought suit in a DC Circuit Court seeking injunctive and declaratory relief against funding of the Contras in Nicaragua – on grounds that such funding was contrary to US treaty obligations under the UN Charter, and further contradicted customary international law. The Circuit Court dismissed the complaint citing the political question doctrine, but an appeal was heard and decided upon by the US Court of Appeals, DC Circuit, in 1988.
ISSUES IN THE CASE
Issues in the case were extensive, but for the purposes here, we should only focus upon its implications with customary law and jus cogens.
(1) Did Congress’s decision to disregard the ICJ judgment violate customary international law?
(2) If States submit to the jurisdiction of an international court are the rulings then send-forth binding as a matter of the rules of jus cogens?
Generally, the Court held (in regards to the above issues) that:
(1) A statute inconsistent with customary international law effectively modifies or supersedes that international law to the extent of inconsistency; and
(2) Judgments of the ICJ do not fall within the definition of jus cogens or peremptory norms of international law.
The famous statement that “international law is part of our law” should be qualified, as it was by Justice Gray, to give a better understanding of that principle. “Where there is no treaty, and no controlling executive or legislative act… resort must be had to the customs and usages of nations.” Therefore, although few courts have had the occasion to decide specifically whether statutes supersede customary international law, the Nicaragua Court argued that the established rule of abrogating treaties via subsequent statutes gave the implicit authority that the same should be held in regards to international customary law – that is, “subsequently enacted statutes preempt existing principles of customary international law.”
Alternately, the Court entertained whether the rules of
jus cogens operate domestically as if they were part of the US
Constitution, and whether international court decisions were part of the
peremptory norms of jus cogens. The Court eluded the former issue by
effectively rejecting the view that ICJ decisions rose to the level of jus
cogens. However, the Court did surmise that, “if Congress [had] adopted a
foreign policy that resulted in the enslavement of our citizens or of other
individuals, that policy might well be subject to challenge in domestic court
under international law.” But, the Court first chose to answer the latter
question, in part, by analyzing the means in which certain rules transform from
customary to peremptory. Since decisions of an international court (and their
jurisdictions) were dissimilar in nature to the few norms, arguably, within the
rules of jus cogens, the Court was reluctant to accept them within that
superior value system. Citing certain restatements of law in footnotes, the
Court noted that the norms of jus cogens are: “the principles of the
United Nations Charter prohibiting the use of force… and fundamental human
rights law that prohibits genocide, slavery, murder, torture, prolonged
arbitrary detention, and racial discrimination.” Further, the Court’s
reluctance to establish a peremptory norm here can be seen in the same light as
the doctrine of jus cogens being of such uncertain scope that a domestic
court should not on its own authority refuse to give effect to an agreement on
the ground that it violates a peremptory norm.
Additionally, within the language of the Vienna Convention and its strict criteria for establishing peremptory norms, the Court reasoned that judgments by an international court simply did not qualify. In order for such a customary norm of international law to become a peremptory norm, there must be a further recognition by the international community as a whole [that this is] a norm from which no derogation is permitted. Finding that less than a third of UN members had consented to obligatory jurisdiction by the ICJ, and that, in fact, many nations imposed “significant reservations on the scope of their consent,” the Court understandably backed off the plaintiff’s assertion that such jurisdiction, and its resulting decisions, were universally accepted within the international community.
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O'Connor, T. (2012). "Introduction to International Law," MegaLinks in Criminal Justice. Retrieved from http://www.drtomoconnor.com/3040/3040lect01.htm.