What is International Law?
· It is a system of law that governs relations between states and other subjects of international law.
In What Sense is International Law, Law?
· Although states covet their sovereignty, there are a number of issues where limiting sovereignty is important to the protection of certain state interests. The establishment of an international legal order deals with these issues:
o Security of Nationals when they are abroad
o Certainty/Predictability-the systems evens out the balance of power
o Commons- there are gaps where no state is sovereign-space and sea- and so rules are needed for what occurs in those commons
o Rules to deal with Trade and Trans-boundary activities-like Mail, Travel, business, and intellectual property
How does International Law Differ From Law as it is Understood in a Domestic Context?
· It is different from law understood in the domestic context b/c international law regulates nations, whereas domestic law regulates persons and individuals
B. Does International Law Really Matter—see “Efficacy of the Current IL System”
C. On What Basis is International Law Derived and What Impact Does that Basis Have on its Further Development?
1. Historical Perspective-The Peace of Westphalia and the Evolution of
International Law as the Law Between States
Peace of Westphalia
o Comprised of the Treaty of Osnarbruck and Treaty of Munster which ended the 30 yrs war.
o Marked the emergence of nation states removed from the Over-arching control of the Holy Roman Empire.
§ Was the first attempt to establish something resembling world unity on the basis of state’s exercising their own sovereignty and not subordinate to any other earthly power (HRE)
o The Framework of the Peace of Westphalia set up for:
§ Concert of Europe
§ Hague Peace Conferences which created League of Nations after WWI
§ United Nations
o Specific Aspects of the Peace of Westphalia that still Pervade International Law
§ Idea of religious toleration & protection of religious minorities transitioning into:
· Minority rights
· Individual/human rights
o Generally the idea that individual rights must be protected by all states that wish to take part in international organizations
o What those specific individual rights are-often a point of disagreement
§ That all parties to the peace are obligated to defend and protect all and every article of this peace
§ Dean Acheson: Cuban Quarantine
· International law is an ethical distillation-it is a guide for a what state should be doing. It is not an obligation to follow.
· There are no principles of law that a sovereign should accept at the price of the destruction of our way of life.
· He does give 1 nod—that international law provided a mechanism for the states to cool off and not escalate
§ Draft Memo from Alberto Gonzales to Bush on Geneva Conventions
· This is a new type of war and a new type of enemy-GC don’t apply
· Afghanistan is a failed state, so it cannot be bound to treaties and we are not bound to states which are not bound by treaties.
· Neither Afghanistan nor Taliban are going to abide by the GC.
Question to think about: Does Terrorism change the Westphalian legal order? Well, it does in the sense that sovereign states are no longer dealing with other sovereign states, but with amorphous terrorist groups who are everywhere. The Westphalian legal order