What is international law; how has it developed over time; in what ways does it differ from, depend upon, and compete with municipal law, and what evidence have you seen thus far that it works?

University Degree Law

Chiu

Vivian Chiu

Seminar 2: International Law

30 March 2008

“What is international law; how has it developed over time; in what ways does it differ from, depend upon, and compete with municipal law, and what evidence have you seen thus far that it works?”

With the growth of globalization and the international spread of democracy, international law has grown more pertinent in the field of jurisprudence. Innovations in technological development such as the telephone and internet, as well as innovation within the travel industry itself, has rendered interaction and interdependence much more involved than in the past. With nations growing closer in interaction, the need for international law becomes more relevant in regulating the relations and dealings of nations. Does IL work?

International law’s purpose is to regulate the interactions of countries and international organizations with the intent of ensuring justice, peace, and equality. The origins of international law can be traced as far back to 1380 B.C. with the ancient civilizations of the Hittites, the Egyptians, the Assyrians, and the Aramaeans with their conduct of peace and alliance treaties. From the sixth century B.C., international relations began in the Greek city-states that dealt with alliances, the treatment of aliens, commerce and navigation, as well as the rules and customs of war, thus leading to the concept of jus gentium. (Grewe 183) Going back in time, the term “International Law” supersedes the earlier expression “law of nations,” long since adopted as a translation of jus gentium. (Sherman 56) Hugo Grotius is credited to be the “father of international law” with his three books written in 1625 titled De jure belli ac pacis libri tres or The Law of War and Peace. (Mautner 577) After the Treaty of Westphalia, international law became more prevalent with the recognition of the sovereign state system. International organizations today are a twentieth century phenomenon that have little in common with earlier forms of institutionalized cooperation to include those of the ancient world. As a result, the legal realm is seeing growth and dominance in international human rights law and other global special interest issues. The American Law Institute provides the most authoritative definition of international law as the “rules and principles of general application dealing with the conduct of states and of international organizations and with their relation inter se, as well as with some of their relations with person, whether natural or juridical.” (“Restatement of Foreign Relations Law”)

International law can be divided into two categories: public and private international law. Public law concerns the legal relations of states, and private international law governs the foreign transactions of individuals and corporations. (Janis & Noyes 2) International law predominantly involves public international law. In The Spirit of International Law, David Bederman writes that international law is defined "as much by what is excluded from its remit and mandate as by what is embraced by the permissible scope of its regulations…" (Bederman 139) International law has been (passive voice) practical and successful in shaping international behavior. The role of international law in ...

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International law can be divided into two categories: public and private international law. Public law concerns the legal relations of states, and private international law governs the foreign transactions of individuals and corporations. (Janis & Noyes 2) International law predominantly involves public international law. In The Spirit of International Law, David Bederman writes that international law is defined "as much by what is excluded from its remit and mandate as by what is embraced by the permissible scope of its regulations…" (Bederman 139) International law has been (passive voice) practical and successful in shaping international behavior. The role of international law in politics has assuredly created a great deal of academic and professional debate, and there are continual dialectics to include opposing intellectual justifications of international law to attempts in demarcating the fine line between formalism and pragmatism.

In discussing international and municipal law, Janis and Noyes state:

“In most instances, when international legal rules are applied in practice, they are applied by municipal courts. Decisions about whether international legal rules are available as domestic rules of decision, i.e., about the “incorporation” of international law into domestic legal process, are ordinarily made by municipal legal systems. Those decisions are generally governed by the municipal legal system’s own constitutional law.” (Janis & Noyes 180)

The most remarkable aspect of international law and where it differs with municipal law is that there is no one true overarching authority that currently creates and enforces it amidst all the states in the world. International law lacks a universal legislature, judiciary, and executive that can enact, interpret and enforce it. Secondly, it constrains and limits the sovereign power of states if those particular countries themselves consent to be bound by such law. In other words, states will surrender a portion of their sovereignty in the hopes that other states will reciprocate: thus ensuring a more peaceful and cooperative international environment. John Austin, a jurisprudential critic in 1832, stated that “the law obtaining between nations is law (improperly so called) set by general opinion. The duties which it imposes are enforced by moral sanctions: by fear on the part of nations, or by fear on the part of sovereigns, of provoking general hostility, and incurring its probable evils…” (Janis & Noyes 2) Countries generally abide by international law due to expectations of reciprocity from other countries, thus leading to more benefits and value in the resulting order. With law constraining power, it ensures that states will have a better chance of obtaining common goals in a just and moral fashion. On the other hand, municipal law can be enforced by its own country, because the citizens (ideally) give legitimacy and consent of governance to its law-making body and political leaders.

The United States’ (U.S.) Constitution establishes the framework and conduct of law for the country, thus clearly defining the role that international law plays in the American legal system. [In] U.S. [United States] v. Belmont[, the case] showcases the hierarchy of American law, thus explaining the difference between international and municipal law. It discusses the role of treaties and [through ]executive agreements as international law, federal power, and state power; all of which are firmly and hierarchically established through the Constitution.

In U.S. [United States] v. Belmont, the key actors involve two international parties: the Soviet and U.S. government. Through an Executive Agreement, “It was agreed that the Soviet Government would take no steps to enforce claims against American nations; but all such claims were released and assigned to the U.S. [United States], with the understanding that the Soviet Government was to be duly notified of all amounts realized by the U.S. [United States] from such release and assignment.” (Janis & Noyes 205) The American court acknowledged that the jurisdiction of the case fell in the State of New York, hence it was in no way a property right within Soviet territory. The court was cognizant of the fact that “no state policy can prevail against the international compact here involved” as an executive treaty was made with the Soviets. (Janis & Noyes 205) In support of United States v. Belmont, the Altman & Co v. U.S. [United States] case defined a treaty as “a compact made between two or more independent nations with a view to the public welfare.” (Janis & Noyes 206) As a result, the finding stated “That the negotiations, acceptance of the assignment and agreements and understandings in respect thereof were within the competence of the President may not be doubted. Governmental power over external affairs is not distributed, but is vested exclusively in the national government. And in respect of what was done here, the Executive had authority to speak as the sole organ of that government. The assignment and the agreements in connection therewith did not, as in the case of treaties, as that term is used in the treaty making clause of the Constitution (Art. 2, 2), require the advice and consent of the Senate.” (Janis & Noyes 206) The case of United States v. Belmont highlights executive power, but from a bigger picture, it also proves the supremacy of international law (treaties) over federal and state law. Good!

International law depends largely upon municipal law’s enforcement at the domestic level. [However, i]It must be made clear, however, that international law itself takes the form of international treaties, customary international law, and general principles of law as recognized by civilized nations. An example of international law depending on municipal law is the 1980 Filartiga v. Pena-Irala [case -] where the customary international law of freedom from torture was adjudicated by a domestic court. (Janis & Noyes 19) How did the Court come to decide that torture was a customary law?

The case of Foster & Elam v. Neilson exemplified international law conflicting with domestic law. Chief Justice Marshall established the principle of self-executing treaties in federal law by relying on Article VI (2) of the Constitution, the Supremacy Clause:

“This Constitution, and the laws of the United States which shall be made in Pursuance thereof; and all treaties made, or which shall be made, under the Authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, any thing in the Constitution or laws of any State to the contrary notwithstanding.” (Janis & Noyes 183)

Chief Justice Marshall argued that “a treaty is in its nature, a contract between two nations, not a legislative act,” and he continued that “our constitution declares a treaty to be the law of the land. It is consequently to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative position. (Janis & Noyes 182) On the whole, Foster & Elam v. Neilson serves as an ideal example of the relationship between international law and municipal law with the emphasis of treaties becoming a law of the land through the concept of “self-executing treaties.”

What about effectiveness of IL? Conclusion recapping your major points?

WORKS CITED

Bederman, David J. International Legal Perspectives: Old and New: The Spirit of International Law. University of Georgia Press, 2002.

Grewe, Wilhelm G. “Sources Relating to the History of the Law of Nations.” The American Society of International Law 90 (1996).

Janis, Mark W., and John E. Noyes. International Law: Cases and Commentary. 3rd. St. Paul: West Publishing Co., 2006.

Mautner, Thomas. “Grotius and the Skeptics.” Journal of the History of Ideas. 66 (2005).

"Restatement of Foreign Relations Law." American Law Institute. 1 Apr 2008 <http://www.law.columbia.edu/library/Research_Guides/internat_law/pubint#Definition%20of%20International%20Law>.

Sherman, Gordon E. "Jus Gentium and International Law." The American Journal of International Law. 12(1918).

Indent subsequent lines in citations.

This paper is not clear on the author’s position as to whether IL works (or is effective). This paper recognizes that municipal law and IL differ with respect to enforcement, but how do they differ otherwise? What about differences as to substance and rationale? Good effort at using the cases to support your points! The Altman case was not necessary and the space you saved could better be used to address the effectiveness of IL.

Italicize or underline case names in the text of the paper. For a more effective writing style, use the active voice instead of the passive voice. Always introduce abbreviations the first time used and then use them consistently throughout the entire paper. This rule applies to commonly used abbreviations such as US, UN, or UK. You cannot assume your reader will understand them and, therefore, it is important to properly introduce them.

Use a block quote with 50 or more words and indent both sides. With a block quote, do not use quotation marks unless the source is quoting another source. Also note that the end punctuation rule is reversed with block quotes.

This paper was submitted two days late (on April 1) but a reduced penalty, in accordance with instructor discretion, was approved prior to submission due to circumstances discussed with the student.

124 - 6 point penalty = 118/150