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The following are the “official” reading questions for this course. Students should feel free to offer their own replies to these questions via the “Comments” function below.

Classes 1-2: 9 & 11 February

  1. How would you define the term “international law”?
  2. A Cross-Sectional Comparison. Scholars in a variety of fields examine IL, but they often employ different approaches to and develop different perspective on the same substantive issues. Compare and contrast these differences.
  3. Is “international law” an oxymoron?
  4. What are the sources of international law?
  5. Do the sources of IL affect their enforceability, applicability, and/or violability?

Class 3: Tuesday, 16 February

In this class, we consider several perspectives on a range of similar questions. As you read, think carefully about the questions and the opinions of our several commentators (the Athenians, the Melians, Grotius, and Hobbes).

  1. What do the various commentators suggest is the relationship between power and morality, between “might” and “right”?
  2. What do the various commentators suggest is the relationship between morality and self-interest? Is the “observation of right” “folly”?
  3. What do the various commentators suggest is the relationship between fortune in war and the righteousness of a cause?
  4. Several of these commentators suggest that (what we call) international regimes (including international law) might be developed to help govern international relations. According to them, do such regimes serve the interest of the powerful or the weak?
  5. According to Grotius, what are the bases of natural law? What sources does he privilege in his distillation of its precepts?
  6. According to Hobbes, is there justice in the state of nature?
  7. According to Hobbes, what is our “natural right”? What is “natural law”? How does Hobbes’ understanding of these terms compare to Grotius’ rendering of the “fountain of right”?
  8. Hobbes suggests that an individual cannot renounce his or her right to life. If that is the case, how can the Leviathan perform its original task?
  9. How and why do individuals create a commonwealth in Hobbes’ account?
  10. Inferring from the passages we read, what does Hobbes make of the notion of “international law”?

Class 4: Thursday, 18 February

In this class, we consider the “law” part of “international law.” Our goal is to gain a richer perspective on the different ways in which lawyers, judges, and legal scholars have understood the sources, nature, and workings of the law.

  1. What does Holmes think is the relationship between morality and law? How does his view compare with that of the perspectives we considered on Tuesday? As a positive matter, is Holmes right in his depiction? Do you agree with him, from a normative standpoint?
  2. According to Holmes, “what are the forces which determine [the law’s] content and its growth”? Do you agree with this perspective?
  3. Holmes warns us to “beware of the pitfall of antiquarianism.” Are there any good reasons to resist Holmes’ tendency to remake our laws based on our assessment of their expected consequences?
  4. Holmes suggests “As a step toward that ideal it seems to me that every lawyer ought to seek an understanding of economics.” Given your interest in international law, doesn’t this suggestion make you want to take International Political Economy? (I’ll be offering it again next fall!)
  5. What does Kennedy mean by the formulations “the abuse of deduction” and “the fantasy of gaplessness in legal discourse”?
  6. What does Kennedy see as the defining features of the two sides in the ongoing debate about legal formalism? On which side would you place OW Holmes, Jr? On which side would you place Justice Scalia? On which side would you place yourself?
  7. What does Scalia mean by the “general rule of law” and “personal discretion to do justice”?
  8. What are the implications for adopting one approach to law versus the other for how we understand, shape, and practice international law?
  9. How well do these two formulations map onto the two sides of the debate elucidated by Kennedy?
  10. What is the difference, in Scalia’s account, between questions of “law” and questions of “fact”?

Class 5: Tuesday, 23 February

  1. What did Carr think was the appropriate relationship between morality and foreign policy?
  2. Carr’s book included the subtitle “An Introduction to the Study of International Relations.” What role, if any, do you think International Law would play in that mode of studying IR?
  3. What does Morgenthau mean by “positivism” and “functionalism”? What is the relationship between the two?
  4. What was the context in which Morgenthau crafted his article? What role do you think that context played in shaping his views?
  5. Did George Kennan think the US should rely more on international law or on diplomacy? On what basis did he make these suggestions? What are his argument’s greatest strengths and weaknesses?

Class 6: Thursday, 25 February

  1. What does Abbot mean by “the concept of legalization”? How does he see law playing out in international politics? Do you think his perspective differs from that which you would expect to see given by a lawyer?
  2. Why do Goldstein & Martin suggest that legalization limits the progress of trade liberalization?
  3. If Goldstein & Martin are correct, what might be the trade-offs of limiting the growth of international law in the realm of international economics?
  4. If there is no sovereign to enforce contracts, how do international treaties constrain states?
  5. What are the differences and similarities in the perspectives of political scientists and lawyers in their attempts to consider international law? Do they ask the same questions? If so, do they arrive at the same answers?

Class 7: Tuesday, 2 March

  1. What do Morrison and White suggest is the nature of the distinction between domestic and international politics? What do they suggest is the implication of this type of distinction? What do you think this means for our understanding of international law?
  2. According to Epps what determines the rights and privileges assigned to non-state actors? In what ways has the legal personality of these actors changed? In what ways should we expect them to change in the future?

Class 8: Thursday, 4 March

  1. What are the different ways by which a state may lay claim to territory? How ought conflicting claims be decided?
  2. In what ways does international law treat the question of jurisdiction differently than does domestic law? What are the implications of these differences?
  3. Describe the different “principles” by which states may claim jurisdiction. Which principle do you think ought to be given deference when they conflict?

Class 9: Tuesday, 9 March

  1. Nations have existed for millennia without international courts to sort out their disputes. Why do we need them now? How did they sort out their disputes without them?
  2. What are the major features of the ICJ? What is the relationship between the ICJ and the UN?
  3. What is the extent of the ICJ’s jurisdiction? What are the extent of its powers?
  4. How does the structure of the ICJ compare with the structure of other major courts, like the Supreme Court of the United States? Why do you think this model was adopted?

Class 10: Thursday, 11 March

  1. What are the major features of the ICC? What is the relationship between the ICC and the UN?
  2. What is the extent of the ICC’s jurisdiction? What are the extent of its powers?
  3. How does the structure of the ICC compare with the structure of the ICJ? How does it compare with the structure of other major courts, like the Supreme Court of the United States?
  4. On what grounds does Kissinger stake his resistance to “universal jurisdiction”?
  5. On what grounds does Roth advocate “universal jurisdiction”? How do his views compare to those issued by Kissinger? Whose argument do you find more persuasive?

Class 11: Tuesday, 16 March

  1. How does the legal body of the WTO (the DSB) compare to other international legal bodies we have considered (the ICJ, the ICC, &c)?
  2. Powerful states like the United States have often modified their behavior in response to the legal proceedings of the DSB. How would EH Carr explain this? How might OW Holmes, Jr?
  3. According to Barton, et al, what is the relationship between power and law within the WTO?

Class 12: Thursday, 18 March

  1. Is the EU best understood as an international organization or as an burgeoning nation-state? What are the implications of the answer to that question?
  2. How does the European Court of Justice compare to the other international legal bodies we have considered? How does it compare to the domestic legal systems with which you are most familiar?
  3. Which variables best explain European integration: political, economic, social, or ideological?
  4. How do Garrett and Weingast explain the coordination required to create the EU legal system?

Class 13: Tuesday, 30 March

  1. What is a “treaty”? How do states ensure that their treaty partners will abide by the terms of the treaty? What are the punishment mechanisms for the violation of treaties?
  2. What is a “reservation”? Why do you think the Vienna Convention on Treaties allows for reservations?
  3. Can we be sure that treaties constrain? Isn’t it possible that there is a selection effect–that states only sign treaties they intend to follow and, thus, that treaties themselves do not alter behavior?

Class 14: Thursday, 1 April

  1. What is the law of the sea? Why can’t states claim ownership over portions of the high seas in the saw ways that they can over portions of unoccupied territory?
  2. What were the arguments made by John Selden and Hugo Grotius? What was the source of their disagreement?
  3. We have read some Grotius before. Compare and contrast the perspective Grotius gave in On the Law of War and Peace with the account he gave in Mare Liberum. Do they share the same assumptions? How are they different?

Class 15: Tuesday, 6 April

  1. What is the role of international law in protecting the environment? If states have always recognized the dangers of unregulated activity on the environment (e.g. overfishing) why is international environmental law so comparatively young?
  2. Some have argued that the best way to protect the environment is to establish property rights over the “commons.” This notion underpins the “cap and trade” system. In that sense, international environmental law looks more like the law of the sea than protection of human rights. Do you think tat is the best legal analogy?
  3. Why do you think the US has resisted the Kyoto Protocol? Do you think this has been wise?

Class 16: Thursday, 8 April

  1. What is the significance of “declaring” rights? Why have some hesitated to establish written lists of these rights?
  2. What have been the most significant innovations in our understanding of “human rights” over the last several centuries?
  3. Given conflicting views on issues like the role of women and children in society, the rights of the accused, and the optimal level of the freedom of expression, can we really say that there are “universal” rights? If so, what are they? If not, how should we go about determining which rights are universal and how we ought to secure them?

Class 17: Tuesday, 13 April

  1. What are the similarities and differences between the international and regional systems of human rights (in terms of conceptions of human rights)? What are the similarities and differences in terms of implementation and protection of human rights?
  2. What are the differences between the various “regional” perspectives on human rights?
  3. (Reconsider Question 3 from Thursday, 8 April.)

Class 18: Thursday, 15 April

  1. How has the legal concept of “self-defense” evolved over time? What role do you think the Second World War played in inspiring some of these changes?
  2. Does the existence of nuclear weapons change our understanding of “self-defense”? How does international law treat threats to use nuclear weapons?
  3. Do you think the United States was justified in its involvement in Nicaragua?
  4. When two states are at war, does it make sense to talk about legal restrictions on the use of force? Isn’t war the antithesis of law?
  5. What were the legal outcomes in the Erdemovic and Kejelijeli cases? How were these outcomes shaped by power versus law?

Class 19: Tuesday, 20 April

  1. According to Epps, on what grounds is intervention legally justified? What about the case of humanitarian intervention?
  2. Rogers agrees with Thomas Franck’s characterization of the Kosovo operation, in which “the unlawfulness of the act was mitigated, to the point of exoneration, in the circumstances in which it occurred.” What does this say about the relationship between law and morality? Do you agree or disagree with Rogers and Franck? If you agree, what do you think are the conditions that justify violating international law?
  3. What do Evans and Sahnoun mean by “the responsibility to protect”? What problems might there be in determining how this responsibility will be shared?

Class 20: Thursday, 22 April

  1. What are the potential dangers of fighting for more than a country’s own defense? Is doing so legal?
  2. What did President Bush see as the relationship between American interests and American principles? If one were to assume that the former followed the latter, does that make him a Grotian?
  3. Given his characterization of the French campaign, do you think that Forsythe would agree that US interests will suffer if we compromise on our principles? Do you President Bush would agree that we did compromise on our principles?
  4. In the Second World War, Hitler and Stalin continually raised the stakes of brutality in a vicious circle. Does this lend credence to Forsythe’s framework (since Hitler’s brutality backfired) or does it undermine it (since Stalin’s brutality enjoyed success)? Do you think the Athenians hastened their decline by massacring the Melians?
  5. According to the Bush Administration, why wouldn’t the Supreme Court have jurisdication in Hamdan v. Rusmfield? On what grounds did the Court decide otherwise?
  6. On what grounds did the Court rule that the UCMJ and the Geneva Conventions apply?

Classes 21-24

  • (Nuremberg Trial Simulation)

83 Responses to “Reading Questions”

  1. Derek Whelan says:

    Derek Whelan
    Class 12 Reading Question 4

    Garrett and Weingast first propose a general theory of coordination and institutions and then apply this theory to the formation of the EU legal system and the completion of the “internal market”. The first component of coordination according to Garrett and Weingast, is common interest between nations based on ideas and social norms. When states become aware of these common interests, they predict how other states will act based on expectations that Garrett and Weingast call “focal points”. These focal points form the foundation of cooperation. However, a decentralized confederation lacking institutions and substantial legalization relies too heavily on these focal points for cooperation and suffers from several of their defects. Oftentimes such focal points are not sufficient to garner cooperation when states are presented with more than one path to mutual and equal benefit and have no formal means to select the same path. In other situations a path to mutual benefit exists but each nation can further their own benefit at the expense of the other’s in a prisoner’s dilemma situation. Common focal points do not accommodate for ambiguity and unexpected contingencies. Garrett and Weingast therefore propose that “in the absence of a natural or preexisting focal point, an institution can construct one by devising the required set of specifications and by making them known to the community”. Institutions thus serve to coordinate expectations and interpretations and allow for maximum predictability to smooth the way for cooperation.
    Garrett and Weingast apply this developmental path of institutions to the EU legal system to explain the signing of the Single European Act 1987 and the completion of the “internal market.” The focal point in this case was the powerful incentive to liberalize trade based on the economic principle of mutual recognition, in which goods and services that may legally be sold in one country should have unrestricted access to other markets. The precedent for mutual recognition had already been set by the Treaty of Rome (1958), which declared the objective of the “removal of all barriers to movement”, and the European Court of Justice’s (ECJ) decision in Cassis de Dijon (1979) furthered this precedent. What was missing was an institution of sufficient strength to construct and institutionalize this focal point to achieve cooperation. The EU legal system serves as this institution and the desire for an internal market thus allowed the cooperation to strengthen this system to what it is today. The Single European Act introduced qualified majority voting in the Council of Ministers so that smaller EC members could not block the passing of trade liberalization laws. The ECJ, meanwhile, has a stature of supremacy in which it can uphold directives against the wishes of national governments and its system of laws are “far more akin to that of an entrenched written constitution.” The ECJ is able to perform the critical functions of monitoring defection and incomplete contracting and publicly identifying defectors to trade agreements so as to reduce the incentives for such behavior.

  2. Stephanie Astaphan says:

    Stephanie Astaphan
    Class 13 – Reading Questions
    Areas of Int’l Law: Positive Agreements
    Beth Simmons and Daniel Hopkins

    Can we be sure that treaties constrain?

    The most significant hurdle in understanding the extent to which international law, and most specifically treaties, can actually shape the decision of governments is in determining whether treaty effects are merely reflections of underlying state preference or are evident of an independent influence on behavior.

    Treaty commitment is not random… but it does not follow that treaties are ineffectual. While the process of making a treaty commitment is costly, and thus only governments with intention to comply would generally be willing to undertake with process, such anticipatory compliance should not cast doubt on the commitment value of the treaty itself according to Simmons and Hopkins.

    Furthermore, screening effects (on which states ratify) and constraining effects (on state behavior) are not mutually exclusive – conditions may arise under which it would be tempting for committed states to renege on a treaty, ie unanticipated circumstances. However, having paid the costs of ratification and having staked their reputations on compliance, a legally committed government will still rationally want to avoid the inconsistency costs of reneging.

  3. Andrew Conner says:

    Is the EU best understood as an international organization or as an burgeoning nation-state? What are the implications of the answer to that question?

    I would characterize the EU as a burgeoning nation-state that can still retreat to the model of an international organization. Since its creation it has expanded its size and the scope of its authority, and this has caused some repercussions. The first is the identity crisis that exists in Europe. People have their national identities, but there is a new European identity that has formed. The Europeans are on course to eventually (after many decades) regard themselves as European first and ______ second. The migration of different national and ethnic groups to “greener pastures” will blur the barriers between peoples over time, and the European identity will supercede the national identities.

    The second repercussion of the expansion of the EU is the growing financial obligations of the organization. The current global recession has exposed the weakness of the Union as the wealthy states (primarily Germany) have been reluctant to send more money to countries that have suffered greatly from the collapse such as Greece, Spain and Portugal.

    Although these are in no way the only repercussions of the expansion of the size and power of the EU, the identity crisis and growing financial burden that has been placed on the wealthy nations could cause the member states to retreat from the development of a nation-state and instead limit the EU to being an international organization with an integrated market and more convenient traveling for the citizens of its member states. If Germany alone decided to pull out of the EU and pursue a trade relationship like that of Switzerland, then the house of cards would collapse. The fear of this alone might encourage the EU member states to slow the expansion of the organization.

  4. Matt D'Auria says:

    The Vienna Convention on the Law of Treaties identifies a treaty as any formal agreement between two or more states that is written down and governed by international law. However, Epps immediately points out that treaties do not necessarily have to be written down in order to be binding. I personally find this point to be an intriguing one. Given the classic saying that “oral agreements aren’t worth the paper they’re written on,” I’m surprised to learn that agreements made verbally can be considered binding treaties that have the force of international law. I wonder why the Vienna Convention sought to limit the definition of treaties to agreements that are “in written form?”
    In the section on the “Observance, Application, and Interpretation of Treaties,” the Vienna Convention establishes the overarching principle of treaty law, pacta sunt servanda. This principle declares that all states that enter into a treaty are bound by its provisions and therefore must perform the legal obligations established by the agreement in good faith. Thus, when a member party violates certain provisions of an international treaty, other members have the right to seek redress. Such justice is most often achieved using the courts. For example, a state that wishes to punish another state that has failed to perform its legal obligations established by an international treaty may look to the dispute settlement mechanism of the UN’s judiciary organ, the International Court of Justice.

  5. Chime Dolma says:

    Epps states, “All modern states have an internal system of law designed to determine when agreements between people or organizations are to be considered binding and enforceable in court.” And this is known as contract law. But such international treaty like the Vienna Convention, which was concluded in 1969 and came into force in 1980 functions a bit differently.
    In order for a treaty to be effective, it needs to be concluded and ratified. In terms of capacity to conclude a Treaty, states are free to designate anyone to represent the state and the designated person has the “full power” to authorize any steps that are necessary to be taken and for ratification, every state has its own municipal law for determining which organs of government are empowered to make a treaty binding on the state, as Epps describes the process of United States mode of concluding and ratifying a treaty. In the Vienna Convention, Article 2 (1) (d) defines a reservation as Epps quotes, “A unilateral statement, however phrased or name, made by a state, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that state.” I feel this definition has a problematic in the sense that it gives the individual nations an opportunity to downplay the common purpose of that treaty. In other words, this gives a lot of flexibilities to countries to interpret treaties, which I think is one of the fundamental causes for disputes over interpretation.
    The Vienna Convention on Law of Treaties defines treaty in Article 2 (1) (a) as “an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.” This seems to be such a great example for the international community to better integrate the nations by creating fair “treaties” which will be protected by the laws of International. However, the “convention, pact, protocol, charter, act, concordat, declaration, exchange of notes or agreement” doesn’t always work the way the international community anticipate it to work. For example: the dispute between Mexico and United States is an example, the Avena case, which was about fifty two Mexican individuals who were detained, arrested and sentenced by the United States without giving them the right to access the legal rights that Vienna Convention declares for individuals. This was a case that was disputed and brought to the International Court of Justice. As a result of this dispute, the ICJ has concluded that US has violated the Vienna Convention but there was also a problem with the ways they interpret the use of language in the treaty. This draws our attention to the notion of interpretation of the treaties. Epps describes the reason why the International Court of Justice concluded that United States have violated the international law with such assertion, “On this aspect of the case, the court thus concludes: that the United States committed breaches of the obligation incumbent upon it under Article 36 (1) (b), the United States committed breaches of the obligation incumbent upon it under Article 36, (1)(b) to notify the Mexican consular post of the detention of the Mexican nationals listed subparagraphs (except two individuals in this case), the United States also violated the obligation incumbent upon it under Article 36, 91)(a) of the Vienna Convention to enable Mexican consular officers to communicate with an have access to their nationals, as well as its obligation under (1)(c) of that Article regarding the right of consular officers to visit their detained nationals, ….” In short, under the Article 36 in Vienna Convention on Laws of Treaties, if a foreign national is arrested or detained, the nation that is arresting is required to notify the individual’s native country to provide the reason for their arrest. And United States failed to follow such procedure and thus the court concluded the US has violated the law.

  6. Brian Watroba says:

    Epps defines a treaty as “an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation” (55).

    Epps also admits that treaties are basically enforced by “the goodwill of states”, and that while there are international courts (the ICJ) and legal measures to ensure their enforcement, the legitimacy of a treaty is basically dependent on each state’s voluntary compliance. Simmons would agree with her, but offer some optimism by explaining how state reputation on the international stage naturally helps in the enforcement of treaties. Simmons claims that there are consequences of treaty violation beyond the small punishments handed out by ICJ rulings—such as economic sanctions. If a country violates a treaty, it builds a bad reputation and has a more difficult time entering into future treaties, agreements, and international organizations. As we’ve already seen, organizations such as the WTO and UN have their advantages, and states want to avoid being “left out”.

    I think it’s interesting how agreements and legal measures such as the Vienna Convention of Treatises and the ICJ make treaty law seem well defined and enforced on the surface, but aren’t so effective in reality. For instance, the scope of the Vienna convention is fairly narrow. It only applies to cases between states, and doesn’t apply to cases involving international organizations. Secondly, while the ICJ may convict states that violate international treaties, its punishments aren’t so severe. It doesn’t have much levying power over states. I agree with Simmons that states are reluctant to violate treaties in order to preserve their international reputation, but I would take it a step further and say that this is the main factor behind treaty enforcement, not fear of ICJ sanction punishments.

  7. Diane Lopez says:

    What is a “treaty”? How do states ensure that their treaty partners will abide by the terms of the treaty? What are the punishment mechanisms for the violation of treaties?

    A treaty as defined by Epps is an agreement among states. It is important to note that a treaty does not need to be called “treaty” in order for their to be an existing agreement, in fact there are many names for treaties and many forms. Once a treaty is formed there are strict enforcement, for example: Epps points out that an internal law does not surpass the treaty; therefore abiding by the internal law of a state and disregarding treaty is unjustifiable. In terms of enforcing the treaty and making sure that states are abiding by the treaty, it’s a risk merely because there really isn’t a court that can actually monitor those who abide by the treaty. This where the notion of trust and reputation comes in because if a state has a bad rep then it is in the best interest of other states to avoid making treaties with them.

    To respond to Matt’s point on verbal treaties:
    I think the Vienna Convention limited the treaties to written forms merely because it is easier to enforce and regulate. International law is already complicated and having verbal treaties among states would only make international law harder to regulate. The Vienna Convention took it upon themselves to study the language of the treaty, the meaning; they address coercion and corruption, just to ensure that the treaties are being followed and that there isn’t any confusion. If this is for a written treaty, imagine how much more they’d have to do for a verbal treaty?

    This article is quite interesting because it talks about a Prime Minister who violated an article of the Vienna convention for personal benefits


    This article is also interesting because it talks about these treaties and the role of corruption.

  8. Miles Abadilla says:

    According to the UNCLOS: Ships can traverse portions of high seas so long as they’re passage is “innocent” in that there are no intentions of collecting information of a coastal state, use of force, interference of communications, fishing, pollution or anything that generally is not the purpose of passage through the waters.
    Transit passage states that ships/aircraft are allowed to traverse through foreign waters so long as they do not enter/leave the state and merely continue an expedition through the waters.
    Grotius argues that natural law and the law of nations dictate that the seas are open to all and navigation by state should not be hindered, whether by man or papal decree. Grotius argues that “parceling-out of the sea…suffices without inconvenience for the general use of all” (372). Selden and Freitas counter Grotius’ arguments with the fact that, because one can benefit from the sea, either through “navigation or fishing,” the seas can belong exclusively to one people” and that the “extension of [such] dominion” is dependent “on the ruler’s actual power” (373). Grotius echoes the United Nations Convention on the Law of the Sea which allows any ships to travel freely in foreign waters. As long as, according to the UNCLOS, navigation through waters remains “innocent” or for the purpose of “transit passage, International Law sides with Grotius’s arguments.
    As with the previous reading, Grotius again calls upon Roman Law stating that “air, running water, the shore and the sea” were open to all (372). Grotius uses moral backing by stating that it is inconvenient not expedient to hinder passage of ships in certain areas of the sea for a nations self-interest. To Grotius, self-interest remains behind what is best for all, exemplified by his use of “law of nations” and “natural law” to speak for the international community as a whole.

  9. Anna says:

    What is the role of international law in protecting the environment? If states have always recognized the dangers of unregulated activity on the environment (e.g. overfishing) why is international environmental law so comparatively young?

    International law has recently become concerned with the environment because the harmful effects of industrialization and pollution have become scientifically accepted by the international community only in the second half of the twentieth century. Even more recent is the idea that it is the international community’s responsibility to protect the global environment and not just the individual states. There is now an awareness that carbon emissions, pollution, nuclear accidents, etc. will always have less respect for national boundaries than humans can be taught to and therefore the problem is alarmingly everybody’s responsibility.
    International law is still not protecting the environment adequately enough because the international community fails to reach a consensus as to what the allocation of responsibility among the states should be. Industrialized states are the ones who got us into this mess, but it’s not just they who are being affected by it. At the same time, developing states are not as well equipped to deal with environmental protection as developed ones are, although everyone would benefit from taking protective measures. Groups like the WWF with worldwide membership are definitely helpful agents to the process of global environmental protection. I think in the end there will be a system of laws governing environmental protection, hopefully sooner rather than later, but that it will only emerge after the awareness of the need to protect the environment will reach a very high level, which may take a matter of time or another natural disaster.

  10. Moriel Rothman says:

    Some have argued that the best way to protect the environment is to establish property rights over the “commons.” This notion underpins the “cap and trade” system. In that sense, international environmental law looks more like the law of the sea than protection of human rights. Do you think that is the best legal analogy?

    No. The idea of establishing property rights over the “commons” as a means to protecting the environment is disconcerting and retroactive. The commons system in the case of the law of the sea is workable in large part because the effects of overfishing- given as an example as it is one of the most salient issues in dividing the sea- are tangible. Such is not the case with the environment. Despite extensive scientific research affirming the existence of anthropogenic climate change, and UN conventions such as the Copenhagen talks affirming its existence and the gravity of the problems it poses to all humanity, states (such as our own) continue to pollute extensively and to poison the air above and around us. If the commons system were to be enacted, in all likelihood corporations and factories currently perpetrating the worst instances of pollution and environmental degradation would presumably migrate to a certain country that had decided that immediate profit was more desirable than the effervescent guarantee of a sustainable planet scores of years down the road. As such, rather than attempting to impose a commons system as a means to curb carbon emissions and protect the environment, it is time for major and binding international legislation that applies to every country (albeit at varying levels, taking into consideration economic and developmental disparities). And, of course, the US must spearhead this effort, if it is to have any relevance. The main issue with instituting a commons system is that it would in all likelihood amount to too little, too late as the level of environmental “well being,” if you will, is rapidly deteriorating and thus international legislation that is more dramatic and more radical is required. As soon as possible.

  11. Derek Whelan says:

    What is the role of international law in protecting the environment? If states have always recognized the dangers of unregulated activity on the environment (e.g. overfishing) why is international environmental law so comparatively young?

    I would agree with Anna that the primary reason international environmental law is so young is because the transboundary nature of climate change has only been widely recognized in the second half of the twentieth century (really the last two or three decades). As stated by the ICJ the general realization has come to fruition that “the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn.” The growth of international environmental law, as Epps points out, has been substantial, but the issue of enforcement remains a problem. Climate change resulting from carbon emissions has raised such international concern because of the expansive nature of its environmental harm. However, while the shared, global nature of the issue encourages legal action in many ways it also discourages it in the sense that there is often no clear or disproportionate victim with enough incentive to take legal action. The Trail Smelter Case, for example, prompted the United States to file suit with the International Joint Commission because the state of Washington was suffering clear environmental damages that undisputedly originated from a Canadian smelting company. More often than not, however, environmental damage is distributed more evenly and less dramatically making such a case unlikely.
    Non-governmental groups like the World Wide Fund for Nature or Greenpeace International are therefore critical to international environmental law. Where states may be reluctant in agreeing to norms and enforcing them due to conflict with large industrial interests, non-governmental groups do not suffer from such constraints. Another interesting component of international environmental law is that of legal liability. Considering the majority of carbon emissions are omitted by private corporations and households within states and not by governments themselves, enforcement of international environmental law is largely a function of how effectively and aggressively states monitor environmental impacts. What is critical to this monitoring process is that governments are held to a standard of care that is not simple “due diligence” but “strict liability”, in which states are liable for damage caused within their boundaries regardless of the degree of monitoring that took place. Recent international law has made important strides in requiring environmental impact assessments before major projects and international institutions like the World Bank have assisted in this process by requiring such assessments before making any loans. As Epps concludes, however, the success of such movements will depend on the willingness to “put long term protection of the environment ahead of short term economic success.”

  12. Andrew Conner says:

    Can we be sure that treaties constrain? Isn’t it possible that there is a selection effect–that states only sign treaties they intend to follow and, thus, that treaties themselves do not alter behavior?

    To say that treaties themselves do not alter behavior because states only sign treaties that they intend to follow ignores the dynamic nature of democracies. In the United States a treaty signed by the President and ratified by the Senate binds future administrations and congresses until the treaty expires. Yes there are times, such as the US withdrawal from the ICJ, where an administration chooses to ignore a treaty and let it expire. However, when those in power believe that a treaty, for all its perceived flaws, is beneficial to the state’s long-term interests, then they will submit themselves to the constraints.

    We can look at the example of NAFTA and the provision that allowed Mexican trucks to travel in the United States. This was obviously not popular among the unions (TEAMSTERS), which generally support Democrats. Senator Dorgan (D, ND) created an amendment that ended this program, and Mexico threatened to retaliate citing its anti-competitiveness and the violation of NAFTA. President Obama has since asked for new legislation to be created that will address this concern.


  13. Miles Abadilla says:

    Rakove recounts the declaration of “rights” and how pervasive rights have become once made into public discourse. Initially, rights were something allowed by the crown in England but it soon evolved and developed. First Parliament had the right to govern and enact laws, but soon the rule of the Stuarts caused a backlash and led to the need of individuals to exercise their own rights. Among these rights include the right to religious freedom—owing to the Protestant Reformation, right to property (Locke), and the right to live and sustain oneself (Hobbes). Another form of rights was that of the collective. Citizens as a whole were entitled to certain rights that the monarchy could not impose itself upon. Tyranny threatened rights of many sorts. Soon rights were declared, codified, legalized and in many other forms that the concept of rights for all became widespread. Critics of “rights-talk”, or the idea that rights have become ordinary and far too prominent discourse in society, state that “rights-talk” can “discourages the political deliberation and compromise that democracy requires” (Rakove 18). Although this statement may hold true, it is still important to push the idea of upholding certain individual rights. In any given country one can view how certain group’s of individuals lack the means to exercise their individual rights. It is important that “rights-talk” remain prominent in public discourse so that people are aware of genocide or the taking away of a group’s rights and how such rights are necessary and should be upheld.

  14. Stephanie Astaphan says:

    Stephanie Astaphan
    Classes 16 and 17 – Reading Questions
    Universal Right and Conflicting Views on Human Rights

    The most active and rigorous promotion and enforcement of human rights occurs at the regional level since the US Human Rights System, while important, often lacks stringent enforcement mechanisms because states have been unwilling to submit to a governance structure believed to be politically motivated and remote from national life.

    The European System and the Inter-American System hold many of the same rights in high regard as follow similar channels for the protection of these rights in the event of violation within the region. Therefore, these two systems could theoretically be consolidated easily into a universal system for the protection of human right that equally resembles its two constituent parts. Certain rights held in high regard under the African System however, are fundamentally different from those found in the European or American System, making accurate incorporation of the African System into the universal system exceedingly difficult. That is, with conflicting views between regional systems on the content of human rights, a universal system seems impossible particularly because even the slimmest of system, comprised of only the lowest common components of all regional system is controversial in that these basic right have different interpretations and implications for other right in each of the different and separate regional systems.

    As such, the difference between regional interpretations and expectations for human rights would seem to suggest that any finite conception of list of human right cannot be truly “universal”.

  15. Derek Whelan says:

    Reading question 3 of class 16 with regards to Leyla Sahin v. Turkey

    My issue with the ruling in Leyla Sahin v. Turkey was that the fact that the case was considered a human rights case and was referred the European Court of Human Rights ultimately did not seem to distinguish it from any non-human rights case heard by domestic courts. Leyla Sahin hoped that the case would violate article 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms on the grounds that the ban on wearing the Islamic headscarf was an unjustified interference with her right to manifest her religion. This article holds that “Everyone has the right to freedom of thought conscience and religion… to manifest his religion or belief, in worship, teaching, practice and observance.” However the second paragraph of the same article prompted the court to rule against her. This paragraph states that freedom to manifest one’s religion is “subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
    With this second paragraph in mind, the court made its decision based on the “prescribed law” as mapped out in the article, which the court referred to as the “laws in force.” The relevant “law in force” in this case was the constitutional law of Turkey. The court thus decided that allowing students “neck and hair to be covered with a veil or headscarf on grounds of religious conviction” in universities was contrary to the constitution. Furthermore, the “impugned interference primarily pursued the legitimate aims of protecting the rights and freedoms of others and of protecting public order.” It seemed to me that the concept of a human right held no weight in the situation. To state that “everyone has the right to manifest one’s religion” and say that this same right is subject to “limitations as are prescribed by law and are necessary in a democratic society” in the same article is completely contradictory. The idea behind a human right is that it carries a special, transnational significance that can supersede the rulings of domestic courts. The European Court of Human Rights, however, seemed to interpret article 9 as instructing them to simply submit to the Turkish constitution. If prescribed human rights are subject to “limitations as are prescribed by law and are necessary in a democratic society” are they really different from ordinary domestic law?

  16. Andrew Conner says:

    Why do you think the US has resisted the Kyoto Protocol? Do you think this has been wise?

    The US has resisted the Kyoto Protocol because there is no way for the treaty to be enforced. It is a good faith agreement that relies on states seeking to enhance and preserve their reputations, but there is no way for anyone to know which states abide by the treaty and which states do not.

    I believe that resisting the Kyoto Protocol is a very wise course of action because the negative effects of abiding by the treaty far outweigh any gains made by signing it. Should the US seek to cut its emissions under the guildelines of a treaty that is not universal and cannot be enforced, then the production that previously occured in the US will shift to other countries because consumer demand will not decline. Countries such as China and India emit more greenhouse gases per unit of production than the US, so the global emissions would likely increase should the US adopt the Kyoto Protocol. Such cuts in production would mean an increase in unemployment which would in turn lead to higher government spending on welfare programs. These costs are not worth the better reputation that the US would gain by signing the Kyoto Protocol.

    In order to seriously reduce the emission of greenhouse gases a universal treaty that is enforceable must exist, but the possibility of that happening is unlikely. Even if it were, what would be the trade-off? We discussed this idea in class, but I’d like to elaborate on the cost of a global reduction in greenhouse emissions. The global agricultural industry, like all industries, would face stricter regulations should the states of the world cooperate to lower greenhouse emissions. These regulations would translate into real costs for producers, which would then raise the price of food world wide. The people that would suffer the most from an increase in food prices happen to be many of the same people who might suffer should global climate change be the disaster many predict it to be. I wonder which option they’d choose.

  17. Nes says:

    Given the level of differences on the value of rights, not just at regional levels but also between states within those regions, the concept of universal rights is rather tricky. While generally there are some rights that can be considered truly universal as found across many of the regional and international charters of human rights (such as liberty, happiness, etc.), others are not so easy to agree on, particularly those found or completely absent in one or more charter (the right to work, the extent of religious freedom, the rights of colonized peoples).

    Perhaps, one way of establishing truly universal rights (while perhaps somewhat naive and ideal) is to gather a consensus on what states do not want rather than on what they do. For example, states can try and agree that no one wants or deserves discrimination based on their race, religion, etc. rather than that everyone is entitled to those rights, which may lead to a consensus somehow.

    One other, somewhat more surface level approach is to have charters agree to their wording universally for those rights that they find inalienable. As is often the case, the mere wording of a certain article can have profound influence on how the laws prescribed are applied to cases. In establishing universal rights that all can agree to, then the most careful approach should be taken when wording documents, across documents and across languages to make sure that nuances are dealt with or eliminated.

  18. Matt D'Auria says:

    Why do you think the US has resisted the Kyoto Protocol?

    First off, I think the United States has resisted Kyoto because many Americans still don’t believe that there is a fundamental problem to fix. The argument that climate change will eventually wreak havoc on our planet (via melting ice gaps, sea level rise, increased drought etc) remains on rather shaky ground, and the issue generally seems to be of low salience to voters.

    I also don’t think the United States is willing to accept a future where less energy and less economic growth will be available to the peoples of the world. Participating in Kyoto would essentially require the United States to reduce our energy emissions to levels comparable to those in the 1970s. Thus, drastically curtailing energy use, so the argument goes, will forestall the type of economic development that our nation has experienced since that decade by preventing technological innovation. Also, energy reduction will lead to other significant economic costs, like a smaller GDP and higher fuel and electricity costs for the average American household. Some people continue to argue that reducing our consumption of energy would also decrease our national security. As our army is one of the nation’s greatest consumers of energy, reducing emissions could compromise military operations and readiness. To our government, then, the costs associated with reducing American energy emissions greatly outweigh the proposed (dubious) benefit of reducing the average world temperature by a fraction of a degree.

    Finally, I think the United States has resisted Kyoto because our government is convinced that it is neither fair nor effective. The fact that developing countries like China, India, and Brazil are exempt from the Protocol’s emission reduction targets is extremely worrisome because, as they develop, their greenhouse gas emissions will eventually match (or even exceed) the reductions achieved by developed countries participating in Kyoto. When I consider the implications of excluding developing countries from Kyoto, the concern that painful carbon suppression will, in the end, make no difference to the climate seems to be more reasonable.

  19. Chime Dolma says:

    Reaction to these ideal laws and question# 3
    The Universal Declaration of Human Rights starts with article (1); “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” As much as I feel cynical or skeptical of these beautiful words, I am also convinced that these beautiful words will be applicable or will be more true to more people in the near future. In other words, most of these claims that are made in the universal declaration of human rights are now too ideal due to a number of things: to maintain power, to truly compete with other nations, to co-exist with other nations without breaking the promises. However, the occurrence of shattered promises will be reduced or less, if every individual take the responsibility to study about human rights and truly reflect what it could contribute to the world without breaching the existing promises or declarations. I believe that change/movements/revolutions always start with one person and it occurs like a chain of reaction. Therefore, to achieve these ideal goals or promises it has to start with individuals, who are able to recognize that these words are right now, are ideal ideas, but believe that these words will not be empty words someday. One may question whether it would be possible to achieve every single right that is listed as rights of a man or a person. The answer would be no because as we could see in the various case studies that laws conflict with one another and it is impossible to assert both are equally important. Therefore, I think one essential issue is what we mean by rights of the man; laws that are considered as customary laws or any individual rights. This means, it takes process and prioritizing to determine what ought to be universal laws and usually the question that lawmakers ask themselves are; what are the main things that are severely harmful to the society as it is quoted in the Declaration of the Rights of Man and of the Citizen; “Law can only prohibit such actions as are hurtful to society……” When it comes prioritizing, it starts with what we call the “basic” rights of the people, and usually those are the universal rights; that includes such as freedom of speech, right to live, free of torture etc. This gets at this questions of whether we think the issue that’s presented in the case of Llatory Huaman v. Peru is violation of universal rights.
    Given conflicting views on issues like the role of women and children in society, the rights of the accused, and the optimal level of the freedom of expression, can we really say that there are “universal” rights? If so, what are they? If not, how should we go about determining which rights are universal and how we ought to secure them?
    I do think there are universal rights (i.e. free from torture). Although one could conclude that the case of Llantoy is one way of torturing and not granting freedom of self-determination 3.4, 3.5 and 3.7 pp 304-305, and therefore it’s violation of one of the “universal” rights. However, laws are matter of prioritizing and understanding the impact/consequences (as the consquentialists state) and exploring the origins. Although this above case is truly compelling, realistic case of violation of women’s basic rights in many countries, I am not sure if law makers would consider this violation is more severe than a case of someone who has been physically tortured to death. So I think most of the time, policies and decisions are made based on its severity (consequences) and origins (appropriateness). Moreover, to add on the note of universal=customary law, depending on the regions of the world, it varies because of its cultural and traditional values and standard of basic rights, therefore such topic like abortion and its importance play different roles in different parts of the world. However, torturing a person is rather more unacceptable mostly everywhere, thus I would categorize torturing as universal rights, which means there are universal rights, but such topic like abortion is debatable.

  20. Moriel Rothman says:

    What are the differences between the various “regional” perspectives on human rights?

    First, we have the United States, whose “regional perspective” on human rights is the most reticent and non-committed in the world, aside from Somolia. Andrew Moravcsik writes that the paradox of United States policy on international human rights law and treaties (a policy Moravcsik characterizes as “ambivalent and unilateralist” despite a robust culture of domestic discourse and debate over civil and political rights) stems not from a particular “cultural” opposition to human rights or internationalism, per se, but rather from a unique combination of four factors: geopolitical power (with which the United States is clearly generously endowed), democratic stability (which was proven in a undeniable way by the 2008 election of the son of an African immigrant whose middle name is that of Shi’ite Islam’s most revered martyr), conservative ideology (Tea Party, anyone?), and institutional decentralization (no clever line for me here- the United States is indeed institutionally decentralized).

    That said, the United States is party to the American Convention on Human Rights, along with other parties in the Organization of American States. Its mechanisms are indeed rather robust, but one cannot be overly optimistic about their implementation, given the United States track record with international human rights, especially in its own region.

    On the other end of the spectrum, there is Europe, whose “regional perspective” on human rights could perhaps be portrayed as the mirror image of the United States’, at least in principle, as it is theoretically very robust and active. According to Epps, the most active “promotion and enforcement of human rights” currently occurs at a regional level in Europe. The European Convention for the Protection of Human Rights and Fundamental Freedoms is a regional treaty- and the first of its kind- which gives protection to a long list of human rights regionally. It’s enforcement is based on its member states, with the European Court endowed with the power to tell member states that their laws or actions violate the Convention, and thus with the capability to force separate states to repeal or alter laws in order to meet the standards of the Convention.

    As far as other regions go, there is a very different take on human rights issues. Asia, for one, has no regional order, and although the Arab States have a human rights charter, they opposed Bashir’s indictment, which does not speak highly for their commitment to human rights over self-protectionism (Bashir himself is Arab). The African Charter system has a number of human rights mechanisms, and they are seemingly well-oriented, but wholly ineffectual and incapable of taking any meaningful action against the plethora of violations occuring in present day Africa as we speak.

    Regional perspectives play important roles, as the UN system severely lacks enforcement mechanisms, and such a fact was illustrated by the ICC’s attempted indictment of Bashir of Sudan, who, upon hearing of his indictment, literally did a dance and proceeded to expel humanitarian aid groups from the country. International human rights systems and mechanisms are desperately toothless, and thus beg significant reorientation. However, the question that must be asked then is whether regional enforcement is really much better.

  21. Diane Lopez says:

    What were the legal outcomes in the Erdemovic and Kejelijeli cases? How were these outcomes shaped by power versus law?

    Erdemovic was sentenced to 10years in prison after he plead guilty. In making this decision the court took many factors into account, the first being “The extreme gravity of the crime.” Crimes against humanity has been branded as the worst possible crime. It also took into account “mitigating factors.” The defendant tried to argue that he was under duress when he committed the crime because he was following the orders of his leader. According to the court, his argument was not compelling because he failed to provide concrete evidence. The majority found that duress cannot serve as a “defence” for killing because there is no where in the law that specifically states that duress can serve as a “defence”. However, the dissenting opinion argues that if the law does not specifically state something, one should assume that the issue is governed by rule governing the general matter. (p.437)

    I have trouble accepting that duress does not play a factor. What is to be done in cases like Rwanda when Hutus were forcibly armed and given weapons to kill Tutsi? In the film “Sometime in April” there is a scene where the protagonist is given a gun and forced to kill his Tutsi friends, or else he and his friends would be killed. Situations like these should be examined differently when assessing the level of duress. I agree with the dissent that there strict requirements should be met, in order to determine whether duress can serve as a defence. If restrictions aren’t implemented then it is implied that anyone can claim duress.

  22. Chime Dolma says:

    Does the existence of nuclear weapons change our understanding of “self-defense”? How does international law treat threats to use nuclear weapons?
    The existence of nuclear weapons of certainly changes our understanding of self-defense. The notion of use of force is only lawful when it concerns self-defense. The prohibition of self defense is specified in Article 2(4) as “against the territorial integrity or political independence of any state . . .” (392) the notion of self-defense is an exception in article (51) that justify the use of force. However, the concept of self defense has evolved since the invention nuclear weapons after WWII. This new weapon has a new impact on international relation specifically concerning self-defense since the nuclear weapons possess very different characteristics than the conventional weapons. In order for the nuclear weapons to work as self-defense mechanism, it has to have the capability, credibility, and vulnerability. Therefore, the fact that it is a mechanism that requires coercion or deterrence in order to demonstrate it capabilities to other nations, it should be considered a threat no matter what. However, Epp asserts, “whether this is a “threat” contrary to article 2 paragraph 4, depends upon whether the particular use of force envisaged would be directed against the territorial integrity or political independence of a state, or against the purposes f the United Nations or whether, in the event that it was intended as means of defence.” (391)

  23. Miles Abadilla says:

    As the Rogers reading suggested, states should work towards “formulation of a principled code of law regarding humanitarian intervention” that is only used during instances of mass atrocities, such as genocide. Human intervention should distinctly have an altruistic goal and must only be used as a means to stop extreme instances of violence or to prevent the dissolution of a state (Somalia). By framing humanitarian intervention, or state intervention, to “the responsibility to protect” the discourse is shifted from forcible entrance of a state to helping groups/individuals subject to violence. Of course use of force or the non-use of force inherently contains political motivations. Russia and China, for example, continue to remain opposed to the idea of humanitarian intervention, possibly for each nations passed dealings with their own minority population. It makes sense for Russia or China to be disinclined from intervening external forces. For this reason, it is important to create conventions explicitly stating what can or cannot be allowed and the result must be ratified by states. Once ratified, the Security Council or the ICJ have legal reasoning to hold states to their obligations. At this point, without codified legal law, I would be in agreement with Rogers standards for humanitarian intervention as a means to save lives when the Security Council fails to act and done so by following the idea of proportionality

  24. Nadia Schreiber says:

    “The responsibility to protect” refers to a nation’s/government’s duty to take care of its citizens. People have the right to be comfortable and feel safe within in their own nation, and it is the duty of the state to ensure that safety. In the past, states have used this idea as a way of justifying actions that might otherwise not be seen as okay by the international community (such as the United States’ use of September 11 as a justification for the wars in Iraq/Afghanistan). Evans and Sahnoun want the old use of this ideal to be changed, and be seen as more of a responsibility than a right.

    While it is a good idea to see this as a responsibility, that raises the question of who shares that responsibility. Evans and Sahnoun say that “although this responsibility is owed by all sovereign states to their own citizens in the first instance, it must be picked up by the international community if that first-tier responsibility is abdicated, or if it cannot be exercised” (Evans and Sahnoun). This then gets into questions of jurisdiction: if one country does not protect the rights of its citizens, it is the duty of the international community to step in: but who steps in? And how do they step in? Is force the only way of resolving these issues, or are there other means?

  25. Nes says:

    As Rogers suggests, stating the opinion of Thomas Franck, action such as that taken in Kosovo can be justified with the circumstances under which that action was taken. In other words, military intervention (humanitarian intervention) can be taken when the community at large understands that the circumstances are dire enough (genocide, etc.) that such intervention is necessary. States are morally obligated, at least on the international level, to protect and uphold its citizens’ lives. Thus, when this is at stake, intervention may be justified.

    To a large extent this statement seems reasonable. If the international community can agree that some crimes are so inhumane as to be worthy of prosecution under ‘universal jurisdiction’ then I would assume those crimes give rise to justification for intervention. No state (or groups or individuals) should ever be allowed to commit mass murder, genocide, etc., while a state looks on. Thus, when such crimes occur, and the state fails to do anything, then I imagine that intervention at the international level is justified. As humans, there is a moral obligation there.

  26. Andrew Conner says:

    When two states are at war, does it make sense to talk about legal restrictions on the use of force? Isn’t war the antithesis of law?

    Legal restrictions on the use of force are a luxury of the powerful, and a weak state that both finds itself under attack from a stronger state and seeks to defend itself would likely be forced to engage in “illegal” activities for the sake of self-preservation. This could include the use of chemical weapons as well as targeting civilians, but regardless history, for the most part, is written by the winners.

    After the Second World War there were the Nuremberg Trials were held for Nazis that committed “crimes against humanity,” but no similar trials were held (to my knowledge) for the Allied commanders who ordered the 1,000 plane bombing raids that incinerated Dresden as well as other cities in both Germany and Japan. The dropping of the atomic bombs was not for the purpose of destroying Japan’s military capabilities, but rather it was intended to break their will to fight. Some would call that an act of terrorism, but for others it is the path to victory.

    While international law was nowhere close to being as developed in the 18th century as it is today, there were still customs regarding how people conducted war. Of course the upstarts in the American colonies (think of Mel Gibson in The Patriot) who conducted guerrilla campaigns against the British army were violating the rules of war, but what people most remember is the outcome of the war. Granted there were not tribunals or courts to try anyone at that time, but conflicts such as this one are where we really can test the “reputation effect.” Apparently the chance to achieve victory was worth the damage to the reputation.

    In closing, I recognize that I’ve used examples from a more “barbaric” past and we live in “exceptional” times in terms of the development of international law, but the laws of war can only exist when there is a state (or states) that is powerful enough to enforce them. Usually this state does not find itself to be in violation of these laws, and often times there is no need for it to do so because it possess far superior military strength. In the modern era we see people like Erdemovic facing tribunals, but would Navy SEALS end up before a military tribunal for punching a captured enemy combatant if the US found itself with its back against the wall? Would we worry about our reputation and honor treaties that we’ve signed even if it could lead to our destruction? I am of the opinion that we would not wait for Sparta and that we would do everything in our power to survive.

  27. Derek Whelan says:

    Class 19 Reading Question 2

    I would agree with Rogers and Franck with regards to the Kosovo intervention. One of the main criticisms of the NATO Kosovo intervention was that it was done without explicit approval from the UN Security Council (although the ensuing peace agreement was ratified by the council). As the most justified institution to authorize the use of forceful intervention, the Security Council would have justified NATO’s actions in an ideal world. Many have made the argument that because only five powerful nations have permanent seats on the Security Council, it has come to serve as a form of neocolonialism in which these five states have pursued their own interests under the guise of humanitarian intervention. While this may be the case in some instances, I think more often the council suffers from the opposite problem. The five permanent members of the council rarely share the same “colonial” interest that could be achieved by abusing the justification of humanitarian intervention. If for example, one permanent member hoped to forcefully secure certain economic benefits for itself under the guise of humanitarian intervention, the other four would have no reason to sign off on such an act. However, as proven by the Kosovo intervention, only one permanent member needs a personal incentive to prevent forceful intervention by the UN where it is reasonably justified. Considering China and Russia have demonstrated a general propensity to favor policies of non-intervention, forceful intervention from the UN Security Council is not often agreed upon.

    Another criticism of the intervention is that there is not enough explicit justification in the language of any specific UN policy. The UN charter, however, was drawn up to deal primarily with interstate dealings and there are therefore relatively few resolutions that address serious humanitarian problems within a state. The most explicitly outlined justification for the use of force in UN doctrine is self-defense. However self-defense is a luxury available only to states with enough military prowess to defend themselves. On a moral basis I would agree with Franck in that the situation in Kosovo was a legitimate humanitarian crisis and represented a clear case of genocide aimed at furthering Milosevic’s concept of a “Greater Serbia.”

  28. Matt D'Auria says:

    According to Epps, on what grounds is intervention legally justified?

    As Epps points out, the United Nations Charter establishes that all member states enjoy “sovereign equality” and that such equality requires all United Nations members to refrain from interfering in the internal and external affairs of any other state. Thus, the charter establishes a rule of non-intervention. There are, however, certain situations in which intervention is legally justified.

    It would seem that the most prevalent situation of justified intervention occurs when a state intervenes in the affairs of a foreign state in order to protect nationals who are traveling abroad and/or their property. The article by Kelley Pease and David Forsythe also hits on this type of “justified” intervention, labeling it as “an extended concept of self-defense” to cover nationals who are in danger. The example of such intervention that immediately comes to mind (and one to which both Epps and Pease/Forsythe make reference) is the US attempt in 1980 to rescue American hostages held in Iran. Of course, we have to be careful when we say that such intervention is “justified” because we do not want to imply that it is without controversy. As Pease/Forsythe suggest, many states (especially smaller, developing ones) strongly oppose such intervention because they believe larger, more developed nations use interference based on protection of nations to mask certain underlying economic and strategic objectives (such as the desire to restructure a foreign government.)

  29. Moriel Rothman says:

    Rogers agrees with Thomas Franck’s characterization of the Kosovo operation, in which “the unlawfulness of the act was mitigated, to the point of exoneration, in the circumstances in which it occurred.” What does this say about the relationship between law and morality? Do you agree or disagree with Rogers and Franck? If you agree, what do you think are the conditions that justify violating international law?

    Franck’s characterization of the Kosovo operation is that the circumstances in Kosovo in 1999 -with Serbian forces escalating repression of and violence against the Kosovar Albanians, in a way that seemed to many observers to resemble the lead up to the massacres and genocidal incidences that took place four years prior in Bosnia-Herzegovina, and were carried out by essentially the same army under the command of the same Serbian leader, Slobodan Milosevic (although Milosevic would claim that he did not control the Bosnian Serb forces, all serious scholarship states otherwise)- made it such that violating international law was not only permissible, but in fact right. The acceptance of this characterization is in and of itself a rejection of Hobbesian realism, which states that right is a manufactured function of law, and thus violating laws cannot be right. It is, to use an American example, an embrace of Martin Luther King Jr.’s philosophy, in that it asserts that the law is fundamentally a good thing, but there are certain elements of the law- be it segregation or the non-allowance of intervention even in cases of genocide- that are unjust, and thus must be disobeyed or ignored. It could be argued that humanitarian intervention, as defined by Rogers (“the use of force without authorization of the Security Council to protect sections of a state’s population from gross and persistent human rights abuses”) is, if genuine, international manifestations of King’s philosophy of Civil Disobedience, although there is the major caveat of King’s philosophy being one of non-violence, and the philosophy of Humanitarian Intervention being one of righteous violence.

    Astonishingly, based on my spotless track-record of pure and uncut realism, I would tend to agree with Rogers and Franck, and the international lawyers who they call the “sixth group,” and go so far as to say that humanitarian intervention may in fact not even constitute a violation of international law, even if it is not sanctioned by the Security Council, so long as it is only cases of the utmost extreme. In such an argument, implicit is the belief that the international system of laws is based around the idea of fundamental rights, and thus protecting those rights militarily, when there is absolutely no other option- such as in the case of Rwanda, say- cannot really be said to violate the law, or at least the spirit of the law (just as King’s Civil Disobedience, it was argued, could not truly be construed as violating a constitution which contained a declaration that all men are created equal).

    What are the conditions that justify violating international law? Very rare. The worst of the worst. Genocide, etc. I would generally agree with the jus cogens formulation found in the Rome Statute of the ICC: Egregious, intentional, and widespread genocidal acts warrant the violation of international law, as they are in opposition to natural law and in violation of intrinsic rights based in the spirit of humanity. And yes, that final formulation sounds flowery and may scare some based on its anti-secular, anti-relativist connotations, but it, or something like it, is the only sound basis for the support of the violation of law on the basis that it is “unjust,” and for the support of human rights that transcend law.

  30. Brian Watroba says:

    According to Evans and Sahnoun, the “responsibility to protect” defines the limits under which a state is able and expected to intervene internationally for humanitarian causes. The somewhat recent change of terminology from “intervention” to “protection” has three main advantages: 1) it “implies evaluating the issues from the point of view of those needing support, rather than those who may be considering intervention,” 2) it ensures that the primary responsibility to protect lies with state concerned, and 3) creates a new umbrella concept that incorporates the “responsibility to prevent” and the “responsibility to rebuild”.

    We’ve read a few articles about the tug of war between state sovereignty and outside intervention for the defense of jus cogens. Evans and Sahnoun propose that sovereignty now implies a “dual responsibility”: that states have the external responsibility to respect the sovereignty of other states, and at the same time the internal responsibility to respect the dignity and basic rights of all the people within the state. This new definition, along with the “responsibility to protect” terminology, hold individual states much more accountable for the domestic protection of human rights and jus cogens. The “responsibility to protect” begins with the state experiencing humanitarian issues. The article claims that “only if that state is unable or unwilling to fulfill its responsibility to protect, or itself the perpetrator, should the international community take the responsibility to act in its place”.

    Coercive measures may include political, economic, judicial—and in extreme cases—military intervention. However, the lines are very blurry. How can one fairly determine which cases require economic measures, and in which situations military intervention is defensible? As Epps notes, the right of the use of force in intervention is granted by the U.N. Security Council, but in the past fifty years this power has been used very ineffectively. Also, there are many problems concerning how this “responsibility to protect” will be shared among the international community. The article outlines how the responsibility begins with the country experiencing humanitarian issues, and when it is unable or unwilling to resolve them, the responsibility is then projected on the rest of the international community. If a certain country cannot resolve its own humanitarian issues, the responsibility for intervention falls on the richer and more developed states. Epps provides the example of the intervention in Korea in 1950, and how while the right to use military force was granted by the U.N. Security Council, the operation was basically managed by the United States. Also, because U.N. peacekeeping forces are assembled on a volunteer basis, states with particular political or economic interests may be quicker to “protect” certain states. A prime example is the U.S. invasion of Kuwait in 1990, which in the political aim of protecting oil fields served the interests of the United States and other Western countries.

  31. Stephanie Astaphan says:

    Stephanie Astaphan
    Classes 19 – Reading Questions
    The Use of Force and Intervention
    According to Epps, on what grounds is intervention legally justified? What about the case of humanitarian intervention?

    As Epps points out, the United Nations Charter is based on the principle of the “sovereign equality” of all its members and carries with it the notion that every state is prohibited from interfering in the internal affairs of another state so as to maintain this equality. Thus, the charter clearly establishes a rule of non-intervention and regards intervention as precisely unlawful. There are, however, particular circumstances under which intervention is justifiable.

    The case of humanitarian intervention may be an example of one such circumstance. While not formally sanctioned or codified and thus, not regarded as established in customary international law, a number of states and various scholars of international affairs have suggested that there is a right to military intervention in the internal affairs of other states where the purpose of the intervention is to preserve or promote certain concepts that are regarded as central to the framework of international law, such as human rights or democracy or peace and security. And with every occasion that a state intervenes in another state to preserve or promote one of these favored interest and is not opposed by the international community, that state’s action contribute to the development of an accepted state practice. These justifications would thus mitigate, to the point of exoneration, the unlawfulness of state intervention based on the circumstances in which it occurred. For example, in 1999, NATO carried out a bombing campaign against Yugoslavia without authorization from the UN Security Council in response to perceived wide spread human rights abuses carried out by the Serb government against the minority ethnic population of Kosovo Albanians. Without UNSC authorization, the bombing clearly violated international legal norms, however, many governments and scholars argue that something needed to be done to end the atrocities at Kosovo and that NATO was the appropriate entity to do it. As such, there seems to be an emergence of a limited and conditional right of humanitarian intervention which would permit the use of force to protect the lives of a threatened population when the decision is taken by a responsible multilateral organization and the UNSC does not expressly oppose this decision.

  32. Andrew Conner says:

    What are the potential dangers of fighting for more than a country’s own defense? Is doing so legal?

    I believe it was George Kennan who best identified the potential dangers of fighting for more than a country’s own defense when he discussed the risks of fighting for ideas. Having lofty goals such as building democracy and containing communism prolongs wars far beyond what is necessary to protect one’s country, and we can see evidence of that in the 21st century. Had the President stated that the destruction of Al Qaeda and the crippling of the Taliban regime were the nation’s only goals in Afghanistan, then the US could have simply used the Air Force, Navy and special forces to accomplish the mission. Since the President set the goal of spreading democracy to the country as well, the US was forced to fight a counter-insurgency with more troops on the ground. This resulted in more casualties than was necessary for the protection of the US. This is the danger, but for some people the reward of spreading freedom and democracy throughout the world is worth the cost. Who’s to say they are wrong on moral grounds? On legal grounds it’s another story.

    The “Declaration of the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty” states that “Every State has an inalienable right to choose its political, economic, social and cultural systems, without interference in any form by another State.” This clearly states that such lofty aspirations as spreading democracy are in violation of international law. We may think that political systems such as those of Saudi Arabia and Iran should cease to exist, but we do not have the legal right to act on those beliefs.

  33. Moriel Rothman says:

    On the Nazis.

    I do not have an excessive amount to say on the subject that has not been said, but it is truly shocking to read first hand the documents detailing the plans and ideas of the Nazis, expecially the Wannsee Protocol. The most appalling part of it is the lack of passion, the lack of emotion that is behind these deeply calculated, logical and rational methodologies and strategies for slaughtering millions of Jews. It is indubitably true that I have a personal bias, as a Jew, while reading these documents; however, I believe that Judge Jackson in his statement that these crimes shock the very conscience of humanity, and that no argument of sovereignty or of orders can excuse such atrocities. Returning to the case of Erdemovic, when the question arises between knowingly slaughtering innocents and risking one’s own life, there is a moral and legal obligation incumbent upon all to do the latter, and if the latter proves impossible, or the perpetrator chooses to live and to kill, there is no doubt in my mind that the perpetrator must be prosecuted for the crimes committed, regardless of orders, circumstances of duress or personal risk.

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