Politics 1B

Intro to IR - Week 4

International Law, Norms and Human Rights

Prof Lisa Otto
lisao@uj.ac.za
 What is International Law?
 The set of rules and obligations that states recognise as binding on each
other.
 Traditionally, IL = law among states, but there is pressure for this to change
given the increased importance of non-state actors.
 Only those rules that states recognise as binding are considered IL.
 No presumption that all relations between states are regulated by IL.
 Only matters on which states recognise obligations, such as under
treaties.
 Thus, IL is an area of central dispute.
 Liberals see IL as an essential part of int’l politics, helping to regulate
relations in a mutually beneficial way. IL tends to enforce itself as
violation would lead to loss of prestige, harming a state’s interests.
 Economic structuralists say IL is biased in favour of the powerful as they
write the laws and determine when they are enforced.
 Constructivists say IL represents a codification of shared norms and an
expression of shared purpose. Also see negative reputational
consequences for violating law.
 Feminists see IL as a possible means to redress injustice by est.
international standards.
History of International Law
 Hugo Grotius wanted to produce systematic Just War Theory.
 Remember jus ad bellum (cause) and jus in bello (conduct).
 There are several familiar ideas in his approach:
 There must be a just cause to go to war.
 War must be declared by legitimate authorities.
 The means used must be humane.
 The means used must be proportional.
 In the 20th century, states try to strengthen the role of IL through:
 Conventions – e.g. Genocide Convention of 1948.
 Treaties – e.g. Nuclear Non-Proliferation Treaty of 1970.
 Agreements – e.g. General Agreement on Tariffs and Trade of 1994.
 Regional entities – e.g. the EU and AU.
 Protocols – e.g. Geneva Protocol of 1925 (banning biological and
chemical weapons).
Sources of International Law
 Three major sources per Article 38 of the Charter of the Int’l Court of
Justice:
 Int’l conventions or treaties.
 Int’l custom, as evidence of a general practice accepted as law.
 The general principle of law recognised by ‘civilised nations’.
 Another possible source – judiciary rulings and legal opinion.
 The UN General Assembly is not considered a source of IL.
 UN Security Council resolutions are binding.
 The source of all IL is states’ agreement to accept certain obligations and be
bound by them.
 There has been a steady effort since WWII to codify essential aspects of
custom and general principles into formal agreements.
 See https://youtu.be/0ViSYjt-wGw for an explainer on IL.
 Enforcement of International Law
 Judgement:
 Int’l Court of Justice:
 The ICJ is empowered to determine if states have violated IL.
 It is part of the UN system.
 It adjudicates disputes b/w states on matters over which they
previously agreed. If they did not previously agree, then it has no
jurisdiction.
 It is generally believed to be well-functioning… BUT states don’t like
being brought before the ICJ nor losing, but losing parties can simply
ignore rulings.
 Unilateral determination of violations.
Enforcement of International Law

 Enforcement:
 By UN organs, with matters often referred to the UN Security Council.
 By specific treaty organisations, like the WTO’s dispute settlement
body which has mandatory jurisdiction.
 Blended enforcement, where enforcement can be carried out by the
aggrieved state or others acting on its behalf.
 Pros – doesn’t rely on force or sanctions.
 Cons – uneven enforcement is still likely.
 By individual states with use of diplomatic pressure, sanctions, force.
 When states benefit from IL it is not in their nature to violate it.
 Consequences for violations:
 Loss of future benefits.
 Other states are unlikely to honour their obligations to that state.
 Damaged reputation makes it more difficult to reach future
agreements.
Cases For and Against International Law

 Against – Realists and economic structuralists regard IL as:

 Irrelevant.
 Not having a significant effect on state behaviour.
 Powerful state forcing weaker states to accept certain laws.
 Law only being enforced when the powerful benefit.
 Contradicting the notion of ‘law’ as something that applies to all
equally.
 For – Liberals and constructivists argue:
 Focusing on coercive enforcement ignores the ways in which IL solves
problems for states.
 States thus need treaties and law.
 IL enables states to avoid dangerous situations.
 States that violate IL pay a high price.
 IL can’t be explained using a domestic analogy.
 IOs are not an emerging world government.
 IOs are inherently weak, with no enforcement mechanisms.
 The Difference b/w IL and Domestic Law
 The main difference is a lack of reliable enforcement.
 To those who believe enforcement is crucial, IL appears weak.
 For those who argue compliance takes care of itself and that laws are
adopted to serve states’ interests, IL is important, and they see IL and
domestic law as similar.
 Both sides have a point:
 Voluntary compliance is more important in IL, BUT…
 IL does have important effects on state behaviour.
IL v Domestic Law
IL v Domestic Law
International Regimes & Norms
 Int’l regimes = shared understandings about how states will behave on a
particular issue.
 Not formal laws but are significant in shaping state behaviour, even if they
are unwritten.
 Int’l norms = shared ethical principles and expectations about how actors
should and will behave in the int’l arena; and social identities, indicating
which actors are considered legitimate.
 Jus cogens = norms that are not negotiable.
 The highest set of rules in the int’l system.
 Binding on all states.
 Override any other principles of IL.
 Entails: prohibition of the use of force, prohibition of certain int’l crimes
and atrocities, human rights violations.
 Based on int’l acceptance of fundamental, superior values.

For more see: https://www.youtube.com/watch?v=NcrnJLO5AAs

International Norms
 Norms motivate states to behave in certain ways, incl. to cooperate.
 Norms help redefine state interests.
 Norms spread in various ways:
 IOs – est. and promote standards.
 State to state – depends on prestige and power.
 Transnational groups of gov’t experts – reach agreement.
 Bottom-up influence – norm entrepreneurs can lead norm adoption.
 Conflict can also occur over norms.
 Accepted norms don’t always strengthen over time.
 Norm of attacking non-combatants in war: completely abandoned in
WWI and WWII.
 Human rights = inalienable individual rights incl. personal rights, rights in
law, political rights, economic and social rights, and community rights.
 Deliberate violations = crime against humanity.
 Violations also raise the question of int’l obligation.
 Concept clashes with sovereignty – reimagined under R2P.
 Movement against the death penalty – spread of int’l norm.
 Genocide / War Crimes / Crimes Against
Humanity
 Genocide = a specific attempt to destroy, in whole or in part, a national,
ethnic, racial, or religious group by killing their members or by other means
such as serious bodily or mental harm.
 Perpetrators may impose measures to prevent birth, or forcibly transfer
children from the group to be raised by another.
 War crimes = a set of transgressions established by the 4th Geneva
Convention incl. wilful killing, torture or inhumane treatment, wilfully causing
great suffering or serious injury to body or health, unlawful deportation or
transfer, and unlawful confinement.
 Came to greater attention due to WWII atrocities. Then later in Rwanda and
Yugoslavia (Bosnian genocide) where responses of the int’l community were
slow / non-existent.
 Crimes against humanity = serious violations committed as part of a large-
scale attack against any civilian population.
 The Rome Statute lists 15 crimes, incl: murder, rape, imprisonment,
enforced disappearances, enslavement (of women and children esp),
sexual slavery, torture, apartheid, deportation.
Responsibility to Protect
 International Criminal Court
 The Rome Statute of 1988 established the court in response to questions
over recourse to justice for victims of heinous crimes alongside how these
could be prevented.
 Ratification grew and it took effect in 2002, establishing the ICC. It can’t
hear retrospective cases.
 The ICC is unique in being created by a treaty and not the UN – it
cooperates with the UN but is independent of it.
 The ICC tries individuals rather than states for: genocide, war crimes,
crimes against humanity, and crime of aggression.
 Has jurisdiction: in territories of state parties, in other countries if crimes
were committed by nationals of state parties or where ICC jurisdiction has
been accepted, or where referred by the UNSC under Chapter VII of the UN
Charter.
 Complements rather than replaces national courts.
 Is a court of last resort.
 See: https://www.youtube.com/watch?v=Jw_cQrGwMJo