Chapter 8

Question 1

Naturalist school of law

Answer 1

Contends that humans, by nature, have certain rights and obligations.

John Locke argued that there is “a law of nature” that “teaches all mankind, who will but consult it, that all [people] being equal and independent [in the state of nature], no one ought to harm another in his life, health, liberty, or possessions”. The world stage is a collective of states and individuals, natural law’s rights and obligations also apply to the global stage and form the basis for international law.

Question 2

Positivist school of law

Answer 2

Advocates that law reflects society and the way people want that society to operate. Therefore, law is and ought to be the product of the codification or formalization of a society’s standards.

Question 3

How is international law made?

Answer 3

• International treaties
• International custom
• General principles of law
• Judicial decisions and scholarly legal writing
• International representative assemblies

Question 4

International treaties

Answer 4

Most important source of international law, they codify, or write down the law.

Question 5

International custom

Answer 5

Second most important source of international law. Binding legal rules that have developed on global or region levels through continued practice.

Question 6

General principles of law

Answer 6

The general principles of law recognized by civilized nations, such as the idea that freedom from unprovoked attack is an inherent human right, into international law.

Question 7

Judicial decisions and scholarly legal writing

Answer 7

Legal interpretations by courts set precedent according to the doctrine of stare decisis (let the decision stand).

Question 8

International representative assemblies

Answer 8

The General Assembly cannot legislate international law the way that a national legislature does.

Question 9

Tribunals

Answer 9

A court of justice.

Question 10

Post WWII tribunals

Answer 10

Nuremburg and Tokyo war crimes trials, German and Japanese leaders were tried.

Set three precedents:

• Leaders are criminally responsible for war crimes they ordered
• Leaders are responsible for war crimes committed by their subordinates
• Obeying order is not a valid defense for having committed atrocities.

Question 11

Current international tribunals

Answer 11

After an absence of nearly 50 years, international tribunals reemerged in the 1990s.

The establishment in 1194 of a tribunal for Bosnia and Rwanda to prosecute those who committed atrocities. The tribunal for the Balkans sits in the Hague, in the Netherlands.

The Rwanda tribunal is located in Arusha, Tanzania.

A joint UN-Sierra Leone tribunal was established in 2002.

Another joint tribunal linking the UN and Cambodia. Joint tribunal established in May 2007 between the UN and Lebanon.

Question 12

International Criminal Court (ICC)

Answer 12

Has jurisdiction over wars of aggression, genocide, and numerous “widespread and systematic” crimes committed as part of “state, organization, or group policy” during international and internal wars.

Question 13

Universalists

Answer 13

A group of people who subscribe to the belief that human rights are derived from sources external to society, such as from a theological, ideological, or natural rights basis.

Question 14

Relativists

Answer 14

A group of people who subscribe to the belief that human rights are the product of cultures.

Question 15

Cultural imperialism

Answer 15

The attempt to impose your own value system on others, including judging others by how closely they conform to your norms.

Applied:
Relativists contend that trying to impose human rights on the world stage constitutes cultural imperialism. The prevailing definitions of human rights substantially reflect the values of the dominant Western powers and are dismissive of some values of Asian, African, and other societies.

The nature of human kind is not based on culture, therefore, human rights are universal.

Question 16

What are some human rights problems?

Answer 16

How widespread and harsh oppression can be and the widespread abuse of individual rights such as freedom of religion and expression.

Question 17

Has there been any progress, regarding human rights?

Answer 17

It would be naïve to argue that the world has even begun to come close to resolving its numerous human rights issues; it would be equally wrong to deny that a start has been made and that one aspect of globalization is the increased concern for and application of human rights principles.

Groups work independently and in cooperation with the UN and regional organizations to further human rights. They add to the swell of information about, and criticisms of, abuses and help promote the adoption of international norms that support human rights.

There are several barriers to progress on human rights. Cultural standards are different, so a human rights violation in one country is culturally acceptable in another.

Human rights also remain a fairly low priority for most countries.

Political selectivity disposes all countries to be shocked when opponents transgress human rights and to ignore abuses by themselves, by their allies, and by countries they hope to influence.

Question 18

Is there any compliance to law? Voluntary? Coercion?

Answer 18

Obedience to the law in any legal system is based on a mix of voluntary compliance and coercion.

Voluntary compliance occurs when subjects obey the law because they accept its legitimacy; that is, people abide by rules because they accept the political authority that made the rules and/or agree with the rules themselves.

Coercion is the process of gaining compliance through threats of violence, imprisonment, economic sanctions, or other punishment.

Question 19

ICJ, the jurisdiction

Answer 19

International Court of Justice (ICJ)- associated with the UN, sometimes called the World Court. Consists of 15 judges, who are elected to nine-year terms through a complex voting system in the UN. Each one of the 5 permanent members of the UN Security Council has one judge on the ICJ, the others are elected to provide regional representation.

The authority of the ICJ extends in theory to all international disputes. Cases before the ICJ come in two ways:
o When states submit legal disputes that arise between them and other states
o When one of the organs or agencies of the UN asks the ICJ for and advisory opinion

Question 20

Optional clause. US example

Answer 20

Although all UN member-countries are technically parties to the ICJ statute, they must also sign the optional clause agreeing to be subject to the compulsory jurisdiction of the ICJ. About 2/3 of countries have not done so, many others have withdrawn consent.

Nicaragua filed a case in 1984 with the ICJ charging that the US support of the Contra rebels and its mining of Nicaraguan harbors violated international law, the US argued that the charges were political, and therefore, that the court had no jurisdiction. The ICJ ruled that it did have jurisdiction, but the US withdrew consent to the optional clause.

Question 21

What is the effectiveness of the international courts?

Answer 21

It’s effectiveness is very limited. There are jurisdictional limits and lack of enforcement. Countries are hesitant to follow the decisions of international courts that aren’t backed up by an executive branch with powerful enforcement authority.

Question 22

Jus ad bellum

Answer 22

(just cause of war) exists in cases where the war is a last resort, declared by legitimate authority, waged in self-defense or to establish/restore justice, and fought to bring peace.

Question 23

Jus in bello-

Answer 23

(just conduct of war) includes the standards of proportionality and discrimination. Proportionality means that the amount of force used must be proportionate to the threat. Discrimination means that force must not make noncombatants intentional targets.