International Law

Economics Political Theory
1

Here’s a question for a module I’m doing, I thought some of you may appreciate:

I thought it might pertain to a lot of the discussion here since my teacher hinted that one view is that since when a country signs an international treaty it must subject itself to the laws contained in a treaty such treaties allow for a greater extent of legal pluralism in the country, and as such is one way to “anarchy”. Now, to me this just seems like bullshit, since it just adds another layer of bureaucracy and centralizes power, but if anybody here has any thoughts…

Anyway, if any law students here want to be help it’d be much appreciated.

2

It depends on who has standing to bring suit under the international law regime. If it’s just a system for governments to settle their disputes then you are right. If individuals can challenge their own national government or other national governments under the international regime then all of the national regimes are weakened. Have a look at the 11th amendment.

3

The Rome Statute of the ICC (International Criminal Court) was approved in 1998 to prevent Genocide, amongst other war crimes, to prevent crimes against humanity. International criminal law has a strong relationship with the coexistence of plural legal systems as when a nation state ratifies a treaty it must be prepared to abide the laws which it contains. As with other branches of international law, nation states must be ready to lose some of their sovereignty as these laws, once accepted, have a direct aplicability into the national law of the country in question. Not only will the country be subjected to these international laws, but its population too - who really doesnt have much of an opinion in the matter as the President and the parlament may ratify a treaty without the permission of the citizens (even if the parliament is supposed to be a good representation of the peoples will). Even though countries like Portugal who are part of the european union, accepted the terms of this organization, dont agree that its laws should have greater power over their own national laws. However, many argue that if this wasnt the case, member states would be able to overrule the laws of these treaties, and damage the homogenous application of the international laws. It is a fact that member states who do sign these treaties have transfered some of their sovereign powers to the hands of these international organizations, which wouldnt in fact exist without the compliance of various nations.

It is ludicrous to think that such compliance or the existence of plural legal systems in terms of international law would lead to anarchy, as these organizations take a form of Super power, removing national power from its members. However, plural legal systems in one society is a step away from legal positivism as more sources of law become applicable in that country (in its external law) In this specific case of international criminal law, human rights, fighting against war crimes and genocide etc, it does create a new source of law in a member state, who can now use these articles (from the treaty) in a court situation for example, rather than only applying its own laws, from its civil code or constitution, etc. However this does not lead to a free state, or anything like it. It does step away from democracy, but seems to me more like approaching a totalitarian international state.

4

Right, that sounds like what I was thinking, since, anarchy is the situation in which each individual can choose their own law. And this is clearly not the case here.

5

Yes of course. When this plural legal system was used at first, it was used in tribes. Where each group of people would be ablle to create its own laws, moral codes etc. However, even though international criminal law does provide a new set of laws, it doesnt provide and ALTERNATIVE set of laws. This is the key word here, as that would make more sense. Of course member states were not forced to ratify any treaty, but the political and economical pressure weaker states receive might be why they comply to it in the first place.

6

RIght, unless the individual can disregard any existing laws it doesn’t seem to fit what most people here would define as “anarchy”.

7

Ask Geoff Plauche. He wrote a good paper related to this topic a few years ago.

8

I was wondering however if anyone else had any more views on this matter. Not only about the specific international criminal law, but with international law in general

9

But is it really the case that the members of the ICC are now subordinate to its provisions? It seems to me they are going along with the ICC because it suits them to do so at the moment. What power does the ICC have to compel any nation that does not comply with it? All the ICC can do is ask other nation states to apply pressure.

And I don’t believe in the notion of divided sovereignty either. Sovereignty means the right to act as ultimate judge. How can there be more than one ultimate? When a dispute between the center and a member nation arises one or the other is always going to have the final say. That and that alone is the sovereign.

10

International law only makes coherent sense as the law governing sovereign nations. The idea of international law having reach within a nation’s domestic affairs and having jurisdiction over individuals is centralization to an awful degree. Tyranny with a global tax base, and nowhere to hide from it.

11

The ICC claims to act accordingly towards crimes against humanity which deminish the human race by setting up ad hoc courts. In july 2002 104 member states joined. Russia, USA and China refused to have their “war crimes” investigated and trialled by saying that their local courts are able to maintain justice.Right now most of their cases are coming from Africa, which they believe makes them look unfair and unbalanced. They aim to become a universal power for justice against crimes such as genocide, sex slavery, brutal murder, within the time of war, but outside of the "context "of this war.

Even though countries like USA and Russia are able to hide away from this “centralization” as byzantine said, is due to their influence in world politics. Just like other branches of international law, they say they only step in, and meddle with affairs once the local courts have proven to not be able to deal with the issues by themselves. However this is very relative, as a country may say they are dealing with the problem well, for example China saying they have no war crimes to confess, or that war crimes are crimes committed in specific circunstances of extreme violence and terror, and the ICC stepping up and claiming this to be a sign of “not being able to handling the issue” if, China had ratified the treaty that is. In terms of other countries, it is harder to deny the act of joining these international “organizations” due to political pressure.

This court may be seen as juust another way to erode the customs of places like Africa. Its not just centralization of law per se, more specifically its centralization of “American” law so to speak as they’re defending the western conception of human rights. These end up destroying their sovereingty in an external manner. They may still have internal sovereignty over their citizens, but according to political science, sovereign states should have external and internal powers, which by signing up to these organizations causes them to lose the former.

in a broader sense, any liberty these citizens have, is maimed by the fact that their government, and entity which is supposed to represent them, agrees to certain terms in international treaties. Even though i personally strongly believe in human dignity and human rights, i think imposing laws on war crimes in this manner can be considered the act of tyranny.

Even though by signing an international agreement, the state gains the access to one more legal system and its laws, it loses Liberty, which kind of defeats the purpose of “pluralismo juridico” or the coexistence of more than one legal system in a society - which is to run away from legal postivism, and therefore a fixed and rigid set of laws.

Ps: i apologize for any language mistakes i may have made, as im Portuguese [:D]