cag university law faculty. international law i 2 instructor: ast. prof. sami doğru law among...

Cag UniversityLaw Faculty

International Law I2

Instructor: Ast. Prof. Sami DoğruLaw Among Nations: An Introduction To Public International Law, Von Glahn, G., &

Taulbee, J.L. (2010). (9th ed.). New York: Pearson.

So now you have an idea of what international law generally involves.

We see that it refers to a set obligations that states and other potential entities agree to be bound by.

It also governs or influences the relations that states (& other potential entities) have with each other.

What is International Law?

But can international law really be taken seriously?

Some people are skeptical . . .

After all, what is to stop governments from

complying only when it is convenient?


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Some Points from Skeptics . . .Take a look at 3 in particular:

1. “International law is the law which the wicked do not obey and the righteous do not enforce.” – Abba Eban

2. “…[t]he training ground for the imagination.” Jean Giradoux

3. “… the vanishing point of jurisprudence.” Nicholas Onuf

What are your thoughts on these quotes? Agree? Disagree? Why?

These quotes reflect quite a bit of skepticism regarding international law.

In fact, there is a range of perspectives to consider.

We will only take a look at three, in particular.


Realism, Liberalism, & Constructivism

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Political Realism

According to realists, “states constantly seek out their own interest and constantly seek to enhance their own power position to ensure their survival.

For realists, the lack of any measures or institutions for third-party enforcement means that agreements or cooperative ventures have a temporary quality because states will abandon them when their interest and power dictate that they can.” (p.11)

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In other words, without 3rd party enforcement, agreements/ventures will not be long-lasting.

They will have no teeth, so to speak.

Political Realism

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According to Kenneth Waltz, “International politics is more nearly a realm in which anything goes.” (p.11)

He is not alone in his thoughts.

Consider the following quote from Thomas Hobbes:

Political Realism

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“And covenants, without the sword, are but words and of no strength to secure a man at all.

Therefore, notwithstanding the laws of nature . . ., if there be no power erected, or not great enough for our security, every man will and may lawfully rely on his own strength and art for caution against all other men.”

– Thomas Hobbes

Political Realism

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Do you agree with Thomas Hobbes?

What are some points that you could make against his statement?

Write down reasons to refute his statement.

Time allotted: 15 minutes

Political Realism

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With realism, there is an assumption that “state interests must always be competitive and never congruent . . .” (p. 11)

But there is another perspective that differs with this view.

Political Realism

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Liberalism

Liberals argue that “states can and do cooperate on a sustained basis because they cannot otherwise achieve their goals.” (p.11)

In other words, the realists are exaggerating the potential problems and are overlooking all of the factors that not only encourage long-term cooperation, but even make such cooperation necessary.

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Liberal critics point to several examples to support their position, such as institutional support and many fundamental rules that affect state actions.

Think about the following:

- Laws that protect diplomats and state visitors.

- Nutritional standards sponsored by the Food and Agricultural Org. (FAO)

- Legal advisors employed to avoid foreign relations problems with other states.

Liberalism

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Examples (cont’d)

-International long-distance calling, international mail, & international travel are all possible because “international law provides the framework through which states cooperate in regulating these activities.”

- “International law regulates every flight by an international air carrier into a country.”

(p.11-12)

These are all examples that liberal critics use to address concerns of realists.

Liberalism

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Constructivism

This particular theory;

- stays away from taking sides and

- tries to provide an explanation as to how and why the world works the way it does.

It is a social theory that deals with shared values. (p.12-13)

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“For constructivists, law is seen as legitimate not because it flows from some perceived authority but because the actors have internalized the values as legitimate.

Legitimate norms are mutually constructed as common understanding evolves.” (p.13)

In other words, the more interaction you have between states, the better the chances of building & strengthening common bonds which lead to a common agreement regarding legal norms.

Constructivism

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In-Class Activity

Of the three theories we have discussed, which one do you favor most?

Why?

Allotted time: 10 minutes

These perspectives reminds us of how people differ when it comes to international law.

How we think and what we believe serve to influence our actions.

Our actions are what shape not only our own personal environment (home, work, school, relationships, etc.), but also, to some extent, the world we live in.

Speaking of actions, let’s apply this to the international dealings between

countries. Here is a different quote to consider . .

.

“It is also worth mentioning . . . that during the four hundred years of its existence international law has in most instances been scrupulously observed . . .

[T]o deny that international law exists at all as a system of binding legal rules flies in the face of all the evidence.” (p.14) Hans Morgenthau

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Does It Work?According to Morgenthau, you can’t deny that the

international legal system does work, to a certain extent.

After all, you can look to history and to events of today to realize that there is cooperation among states.

So, generally it works. But how well? That is the question.

Morgenthau was ready to confirm the success of the international legal system; nevertheless, he had a very legitimate concern.

He feared that the legal system did very little in the area of enforcement. (p. 15)

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Since we are dealing with states, it is difficult to see to it that everyone “behaves”.

Fear of punishment does little to force compliance and obedience.

Also, there is no 3rd party entity in place to force compliance.

Does It Work?

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So,

- if fear of punishment is not the “end-all-be-all” reason for compliance or obedience, and

- if there is “no effective third-party authority to force states to utilize judicial means or to enforce decisions, and

- if no hierarchy of courts with compulsory jurisdiction exists” . . .

Does It Work?

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Is international law really law?

Unfortunately, this question is still being asked, and not only by students.

The answer depends on what is meant by law.

Whereas the binding nature of domestic law is not questioned, new students of international law are confronted with the issue:

is international law merely a collection of principles that a state is free to ignore when it suits it?

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Whereas every day newspapers report crimes, it is usually only when a flagrant breach of international law occurs that the media take notice of international law.

This can give a distorted impression of the nature of international law.


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International law has no ready sanction for its breach.

Because there is no international police force or army that can immediately step in, international law is often perceived as not really law.

Yet the record of even the most developed domestic legal systems in dealing with crime does not bear close scrutiny.


There are several ways to think about law.

In the domestic legal system, we think of law as the rules that the government issues to control the lives of its citizens.

Those rules are generally created by the legislature, interpreted by the judiciary, and enforced by the executive branch, using the police, if necessary, to force citizens to obey.

What is law for the international community if there is no one legislature, judiciary, executive branch, or police force?

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Imagine a school playground with several children at play.

The “law” is the set of playground rules that the teacher tells her students.

For example, she might tell them, “Don’t hit your classmate.”

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Two different reasons can explain why the children will follow this rule.

On the one hand, they may follow the rule only because they are afraid of being punished by the teacher.

On the other hand, the students may believe that it is a bad thing to hit their classmates.

Since it is a bad thing to do, they will follow the teacher’s rule.

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In the first case, they will obey the rule only if the teacher is there and ready to punish them.

In the second case, students will obey the rule even if the teacher is not there.

In fact, even if the teacher is not present, the children may obey the rule because

- they have become used to not hitting each other and

- have therefore enjoyed playing with each other.

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Just as certain common understandings between children may make it easier for them to play, collective agreement on certain rules can often serve the interests of all the members of a community.

Just as on a playground without a teacher, in the international setting there is no central authority.

For the most part, however, states will follow the rules they have agreed to follow because it makes these interactions easier for all parties involved.

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Thus, the fact that there is no overall authority to force compliance with the rules does not necessarily mean that there is no law.

Law still exists in this setting, though it may be practiced and enforced in different ways.

International law can therefore be called “real law,” but with different characteristics from the law practiced in domestic settings, where there is a legislature, judiciary, executive, and police force.

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But is international law really law?

If, as H. L. A. Hart argued;

- law derives its strength from acceptance by society that its rules are binding,

- not from its enforceability,

then international law is law.


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• But is international law really law?

When we look at the sources of international law,

- its binding force does not come from the existence of police, courts and prisons,

- it is based on the consent (express or implied) of states, and national self-interest:

«if a state is seen to ignore international law, other states may do the same.

The resulting chaos would not be in the interest of any state.»


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• Essay Question

«A legal system grounded in the will of its subjects, that does not posses a centralised legislature or effective means for its enforcement cannot be a form of law at all.»

Discuss


Why do states obey international law?

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Why Do States Obey International Law?

First let’s hear from you!

List your own reasons (at least 4) on a sheet of paper.

Allotted time: 10 minutes

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Motivating Factors for ComplianceAlthough there are many motivating factors

for compliance, we will discuss 7 in particular :

1. Desire for Order & Predictability2. Consent & Obedience3. Enlightened Self-Interest4. Credibility & Reputation5. Law Habit6. Reciprocity7. World Opinion

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Desire for Order & Predictability“. . . Given a choice, most individuals will

prefer order and predictability.” (p.16)After all, who wants to live in a constant state

of chaos and uncertainty? We all would like to live our lives in peace.

“Maintaining normal relations with other countries depends upon the predictable behavior of others.

The observance of the known rules of international law thus becomes a requirement for states.” (p.16)

Motivating Factors for Compliance

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Desire for Order & Predictability (cont’d)

States’ desire for order can be found in a variety of examples.

Here is one:

Standing instructions for government personnel.

“Standing instructions try to anticipate potential problems and give specific procedures for dealing with them according to international law.” (p.16)


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For example,

- What if a group of foreign diplomats decide to visit your city?

- How should local police behave?

- What if something happens (i.e., a traffic accident or some other problem)?

- How should local police handle it?

- What about embassy staff? How should those people behave?


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These questions would be addressed by standing instructions.

Standing instructions allow not only your government, but also other states to know what is appropriate.


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Consent and Obedience

According to the text, “[m]any writers believe that because states make the law through their formal consent, they necessarily feel obligated to honor the rules in order to achieve specific common aims.”


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Consent and Obedience (cont’d)Here is a quote from the Lotus case (we’ll

discuss Lotus later on):“International law governs relations between

independent states.

The rules of law binding upon states emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between co-existing independent communities or with a view to achievement of common aims.” (p.16)


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Consent and Obedience (cont’d)

In other words, most of the time, when states provide their word (or agreement), then those states usually feel bound to honor it.


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Enlightened Self-Interest

In our day-to-day activities, why do we follow rules (even if we don’t feel like it)?


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Enlightened Self-Interest (cont’d)

You follow the rules because they are in your best interest!

And the same thing is true for independent states.


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Credibility and ReputationHaving a good reputation is a very valuable

asset to have. Consider this real-life example:

- Have you ever asked a favor from a friend?

- What if this friend told you he would perform this favor for you and then later on decided not to?

- How would you feel?

- Would you ask anything else of this friend?

- Why or why not?


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Credibility and Reputation

Here’s another example:

- Do you shop at Forum or Real? Do you shop online?

- How do you choose where to shop?

- Do you often ask others’ opinion when considering a place to shop?

All of these questions are real-life examples of how credibility and reputation influence behavior and relations with others.


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Credibility and ReputationThis also applies to relations between

independent states.

“Having the reputation of keeping one’s word and dealing within the law can facilitate good relations and aid in achieving goals that require the cooperation of others.

A reputation for principled behavior and for being dependable and reliable is a [valuable asset].” (p.17)


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Credibility and Reputation

“Conversely, having the reputation of not honoring one’s bargains or playing by the rules can seriously inhibit the pursuit of goals, no matter how powerful you may be.” (p.18)


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Law Habit

"In our lives, we obey rules out of habit.

For example:

- When driving, we accept the traffic rules and generally follow them when we get into our cars.

- The same applies in the international arena.

“Routine observance of the rules promotes a ‘habit of law’ – a simple acceptance of the law as a factor in everyday decision making.” (p.18)


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Reciprocity

“One cannot complain when he is treated as he treats others.”

- Emmerich de Vattel


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Reciprocity

“Any government contemplating a violation of a rule of law must consider the reactions of other states. . .

[Indeed], a government’s observance of an obligation stands as the condition that guarantees the observance of other governments, and vice versa.” (p.18)


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Reciprocity

Let’s take a look at some examples:

• Treaties – “A treaty is no more than a set of conditional promises:

- to get the benefits promised by the other party, governments must give the benefits they have promised.” (p.18)


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ReciprocityExamples:

• Reciprocity Legislation – For example:

State X may “enact a [law] that would permit individuals from a foreign country to exercise certain rights within [its borders] only if the foreign country extends the same rights and privileges to [State X’s citizens within that foreign country’s borders].” (p.19)


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Reciprocity

Examples:

• Diplomatic Relations – “Every receiving state most likely has diplomats of its own in other countries.

Observing and enforcing the rules of protocol and immunity for resident diplomats are primary conditions of having other states treat your diplomats in the same manner.” (p.19)


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World OpinionAlthough this one may be a little difficult to

prove, some believe that what the world thinks of a state may have some bearing on how the state behaves.

For example:

- If State X is known to be an oppressive abuser abuser of its citizens, the world may form a negative opinion of this state.

In turn, this may affect its foreign relations with other states.

Think of it as peer pressure on a large scale. :-)


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Wrap-Up

This material is a basic introduction of international law.

We explored definitions, various perspectives, and some motivational factors for compliance.

Please review your notes on this presentation. This material will be included on both the quizzes and the exams.

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What’s Next . . .

Sources of International Law (Chapter 3 for those following along in the text)

Discuss in detail the various sources of international law

• Discuss possibilities beyond Article 38.

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