an introduction to contemporary international law 2015

Lung-chu Chen is an internationally recognized scholar and Professor of Law at New York Law School, specializing in international law, human rights, and the United Nations.. Justice and

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An Introduction to Contemporary International Law

A POL IC Y-OR IENTED PER SPEC T I VE

Third Edition

Lung-chu Chen

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Library of Congress Cataloging-in-Publication Data Chen, Lung-chu, author.

An introduction to contemporary international law : a policy-oriented perspective / Lung-chu Chen.— Third edition.

pages cm

Includes bibliographical references and index.

ISBN 978-0-19-022798-2 (hardback) : alk paper)—ISBN 978-0-19-022799-9 (pbk.) : alk paper)

1 International law I Title

or changed by recent developments, traditional legal research techniques should be used, including checking primary sources where appropriate.

(Based on the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.)

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Myres S. McDougal (1906–1998)

and Harold D. Lasswell (1902–1978) Proponents of an International Law of Human Dignity

Part one | Delimitation of the Task

1 International Law in a Policy-Oriented Perspective 3

Part two | Participants

2 Nation-States 25

Problems of Self-Determination and Recognition in Practice: The Evolution of

3 International Governmental Organizations 61

Part three | Perspectives

6 Minimum World Order and Optimum World Order 101

Part four | Arenas

7 Establishment of and Access to Arenas of Authority 123

Part five | Bases of Power

8 Control over Territory 149

9 Control and Use of the Sea 161

High Seas 176

11 Control of People: Nationality and Movement 211

Competence to Admit, Exclude, and Expel vs Individual Demands

12 Protection of People: From Alien Rights to Human Rights 241

The Evolving Notion of Popular Sovereignty: From State Sovereignty to the

x Contents

13 Vertical Allocation of Authority 269

14 Horizontal Allocation of Authority 277

Part six | Strategies

15 The Diplomatic Instrument 301

Pacta Sunt Servanda 328

Withdrawal, Denunciation, Suspension, and Termination 334

The Relation between International Agreements and U.S Constitutional

17 The Ideological Instrument 343

18 The Economic Instrument 361

19 The Military Instrument 377

Part seven | Outcomes

20 The Intelligence Function 403

21 The Promoting Function 415

22 The Prescribing (Lawmaking) Function 423

23 The Invoking Function 439

xii Contents

24 The Applying Function 447

Recourse to International Governmental Organizations (Especially the United

Toward Effective Management of Sanctioning Measures to Optimize Sanctioning

25 The Terminating Function 461

26 The Appraising Function 469

Part eight | Effects

27 Succession of States 481

29 Individual Criminal Responsibility 509

The Frustration of Attempts to Impose Individual Criminal Accountability in the

Post–Cold War: Establishment of Ad Hoc Tribunals 517

Part nine | Prospects

30 Toward a World Community of Human Dignity 535

Alternatives for a World Order of Human Dignity: A Grand Strategy of Simultaneity

dr Lung-chu Chen is an internationally recognized scholar and Professor of Law at New York Law School, specializing in international law, human rights, and the United Nations He previously served as Research Associate, Senior Research Associate, and Senior Research Scholar at Yale Law School He received his LL.B. with first-place honors from National Taiwan University, his LL.M.  from Northwestern University, and  his LL.M.  and J.S.D.  from Yale University While still a junior at the National Taiwan University, he ranked first of some four thousand participants in Taiwan’s national examination for judgeship and other high governmental posts—a unique dis-tinction in Taiwan’s history

He is founder and chairman of the Taiwan New Century Foundation, founder and president of the New Century Institute (New York), and charter president and honorary president of the Taiwan United Nations Alliance (TAIUNA) He is a board member of the Policy Sciences Center, a former president of the Taiwanese Society of International Law, and a former national policy adviser to the president of Taiwan

Formerly he was also chairman of the section on international law of the Association

of American Law Schools, a member of the executive council of the American Society

of International Law, a director of the American Society of Comparative Law, and a

on Individual Rights and Responsibilities In addition, he served as vice president and

a member of the governing council of the International League for Human Rights and president of the North America Taiwanese Professors’ Association He was a principal

xvi About the Author

lecturer at the International Institute of Human Rights in Strasbourg, a training center for human rights experts founded by Nobel Peace Prize winner René Cassin

Justice and Universality (editor), An Introduction to Contemporary International Law, Human Rights and World Public Order (with Myres S. McDougal and Harold

addition, he has written and edited numerous books and articles in Chinese Currently

he is general editor of a series of books relating to the U.N. system published under the auspices of the Taiwan Institute for U.N Studies, a project of the Taiwan New Century

in Chinese published jointly by the Taiwan New Century Foundation and the New Century Institute

Law:  A  Policy-Oriented Perspective is to propose to readers an answer to the

ques-tion: What is international law? The answer given follows in the tradition of the New Haven School, whose policy-science approach to international law has its origins in the works of Professors Myres S. McDougal and Harold D. Lasswell of Yale Law School Beginning in the mid-twentieth century, Professors McDougal and Lasswell and their collaborators sought to understand and to describe the forces rapidly reshaping the global landscape after the end of World War II According to them, international law is

prac-tices For students wishing to understand international law, I submit that there is no

bet-ter place to start than with the New Haven School’s systematic approach to world events and its accompanying set of intellectual tools for identifying and describing the factors that underlie international legal order

With the twenty-first century well underway, every feature of this decision process

is impacted by the ever-quickening pace of globalization, technological change, and interactions among the world’s peoples Through the use of contemporary examples, the third edition aims to build on the previous editions by contextualizing and drama-tizing these changes with reference to seven features that characterize the New Haven

strategies, outcomes, and effects As explained in chapter 1, these elements make up what

xviii Preface to the Third Edition

this process that is the ultimate subject of this book

By participants we mean both the states and non-state actors who take part in the

process of authoritative decision Traditionally, scholars believed that only states could properly participate in international law However, this view has given way to a more nuanced perspective The third edition aims to enlighten readers to the many ways in which states, non-state entities, and even individual people can take part in the interna-tional legal process Chapter 2 explores the complex relationships among the concepts

of statehood, self-determination, recognition, and international politics that animate the creation of new states, as dramatized by the example of Taiwan Chapter 3 describes the increasingly important roles played by intergovernmental organizations such as the

mini-mum world order and optimini-mum world order—two outcomes by which the effectiveness

of international legal processes may be measured As of today, the United Nations has grown to include 193 member states, compared to 189 in 2000, owing to the inception

of new states such as Timor-Leste (East Timor), Montenegro, Serbia, and South Sudan.Chapter 4 describes the establishment of transnational nongovernmental organiza-tions and associations and their growing influence in international arenas These bod-ies include civil society organizations that promote human rights and other important objectives as well as multinational corporations, whose power to influence world order has increased tremendously as an outgrowth of the global pursuit and distribution of wealth Meanwhile, individuals—acting on their own and as representatives of terri-torial communities or functional groups—have taken on new prominence globally In chapter 5, individuals are presented as the ultimate actors in the international legal pro-cess Furthermore, the third edition of this book places greater emphasis on the central-ity of human beings in international law, as evidenced by an increased recognition of human rights and the expansion of individual criminal responsibility

com-munity viewed in light of the pursuit of their common interests The New Haven School posits that all individuals share an interest in both minimum world order—the minimi-zation of unauthorized coercion and violence—and optimum world order—the widest possible shaping and sharing of values As such, chapter 6 of the third edition empha-sizes the notion of “human security,” a term that embraces both minimum and opti-mum world order

arena denotes the establishment of, and access to, international structures of

author-ity The trend in recent decades has been toward a higher degree of tion as demonstrated by agencies such as the World Trade Organization (WTO) International bodies provide a forum where participants may deliberate and coordinate actions across borders International bodies may also provide access to third-party deci-sion making, as exemplified by the dispute settlement procedures under the Law of the

institutionaliza-Sea Convention and the WTO The introduction of international criminal tribunals, such as the International Criminal Tribunals for the former Yugoslavia and for Rwanda, represent the world community’s condemnation of egregious human rights abuses The International Criminal Court, established in 2002, now serves as a forum for the pros-ecution of individuals accused of perpetrating certain crimes under international law.

Bases of power, as outlined in chapters 8 to 14, encompass both nonhuman and human

resources Nonhuman resources include territory, the use and control of the sea, and other shareable and nonshareable resources Since the Law of the Sea Convention went into effect in 1994, controversies have arisen over competing claims to the use of exclusive economic zones and ownership of territories in the South China Sea and other regions Global warming has introduced a new dimension to such issues, as de-icing in the polar regions leads to geopolitical tensions, while some island nations face probable extinction from rising sea levels Meanwhile, the overall well-being of the global environment has emerged as a focal concern, as leaders struggle to reach agreements necessary to limit pollution amid a rush toward industrialization and to deal with the growing problem

of climate change

Globalization and the effects of the attacks of September 11, 2001, have altered our thinking about human resources and the transnational movement of people Simultaneously, the protection of people has taken on greater importance Traditional notions of state sovereignty are giving way to the more urgent responsibility to protect human rights, and the number of issues that are of “international concern” is increasing

as people recognize their deepening interdependence

to make decisions within defined realms Authority may be distributed vertically, as between the general community of states and individuals, or horizontally across group-ings of states The horizontal allocation of authority is becoming increasingly common

as participants face challenges that defy the jurisdiction of singular nations

ideol-ogy, the economy, and the military These instruments are employed alone or in ous combinations in the pursuit of values, as explored in chapters 15 to 19 Issues arising under the diplomatic instrument—for example, the protection of nationals abroad—highlight the interplay of international law and domestic law International agreements, which are the outcome of diplomatic interactions, deserve special attention and study

vari-in recognition of their traditional role as a source of vari-international law In light of this importance, the third edition offers the reader a more detailed analysis of international agreements in relation to domestic law and U.S. constitutional principles The ideologi-cal instrument has been enhanced by the dissemination of science-based technologies such as personal computers and mobile phones Communications technologies, includ-ing the worldwide Internet, permit us to be better informed more quickly and to interact easily with counterparts everywhere The emerging information society presents both challenges and opportunities and highlights the conflict between the desire for the free

xx Preface to the Third Edition

flow of information and governmental control of media Use of the economic ment is oriented pragmatically to the goal of human development, as exemplified by the Millennium Development Goals (MDGs) The recent global economic crisis has brought with it new challenges and dynamics among the developed and developing nations Finally, the aftermath of 9/11 has forever changed our understanding of the mil-itary instrument The resulting “preemption doctrine” and the proliferation of weapons such as unmanned aerial drones have pushed the boundaries of the law of war as tradi-tionally understood At the same time, the desire and necessity for increased humanitar-ian intervention has led many to accept a larger role for militaries in the defense and protection of mass human rights

instru-Outcomes refer to the seven functions that make up the international process of

authoritative decision These functions, which are highlighted in chapters  20 to 26,

termina-tion, and appraisal Information gathering and dissemination has been strengthened by

the impact of technology and by the fact-finding activities of both officials and ficials Promotion by nongovernmental organizations and individuals plays an increas-ingly influential role in the international decision-making process and the prescriptions adopted by both domestic and international bodies Chapter 24 acknowledges the diffi-culties of ensuring compliance with international norms, while putting such challenges

rehabilitation, reconstruction, and correction The appraisal function has evolved

demo-cratically thanks to the dissemination of technologies that permit a wide range of ticipants to assess the outcomes of various actions

par-The cumulative effects of the decision functions, described in chapters 27 to 29, can be observed in a trend toward greater accountability for states and individual decision makers under international law As highlighted in chapter 28, events such as the Arab Spring must

be understood in relation to the right to self-determination and states’ responsibility for moting the well-being of their peoples In the realm of individual criminal responsibility, the importance of the establishment and operation of the International Criminal Court cannot be overemphasized The third edition includes a new chapter 29 that explores the vital role individual responsibility plays in the emerging field of international criminal law Individuals—notably representatives of states—can and must be held accountable for con-duct that is inimical to fundamental human rights and dangerous to world order

pro-Chapter 30 of the third edition ends with a call for a “grand strategy of simultaneity.” International law matters because it can help us build a stronger world community based

on the notion of human dignity for all people Individuals are the driving force behind this positive change However, individuals must be educated about how international law shapes the world around them in order to serve effectively as citizens and decision

Law: A Policy-Oriented Perspective supplies a new generation of students with the

inter-est, insights, and intellectual tools needed to do their part

Where possible, contemporary examples have been used to illustrate key principles, with many examples current as of 2013 In some cases, references are made to events taking place in 2014 The treatment is admittedly brief, as the purpose of the text is not to provide a history of world events, but to help readers understand the nature of international authoritative decision Therefore, readers are encouraged to consider these examples in light of more recent events and to notice new examples on their own in the years to come.

I remain indebted to my mentors—Myres S. McDougal and Harold D. Lasswell In writing the third edition of this book, I hope to contribute, however modestly, to their ongoing legacies as founders of the New Haven School of international law, from which countless scholars, students, practitioners, and other members of the world community have benefited and will continue to benefit

Throughout my years at New York Law School, I have received much support from both the faculty and student body I wish to thank Dean Anthony Crowell, former Dean Richard Matasar, former Interim Dean Carol Buckler, and Associate Dean Deborah Archer for their continued support of my scholarly works, as well as the colleagues who have offered their assistance and generous feedback over the years I am also indebted

to the staff of the New  York Law School library, especially Associate Dean Camille Broussard, Senior Reference Librarian Michael McCarthy, and their teams From the student body, I would like to acknowledge my research assistants, Manny Alicandro, Eduardo Blount, Vanessa Craveiro, Joshua Eidsvaag, Corey Gaul, Neil Giovanatti, Timothy Han, Jennifer Lin, Jeffrey Liu, Rebecca Eunhye Moon, Samuel Newbold, Joan O’Hara, Agata Ratajczyk, Halina Schiffman-Shilo, James Tai, and Jessie Tang for their help and diligence throughout the researching, writing, and editing process In particu-lar, I would like to thank Matthew Goodro, whose efforts contributed significantly to the first draft of the third edition, and Nicholas Turner, who remained dedicated to the project to the end and whose editorial and organizational skills were instrumental to its completion

At Yale Law School, I am thankful to Dean Robert C. Post and former Dean Harold

H. Koh for encouragement and support At Oxford University Press, I wish to extend sincerest thanks to Blake Ratcliff, whose efforts were essential to the publication of the third edition I also wish to thank John Louth for his support The production team, Alden Domizio, Balamurugan Rajendran, and Mary Rosewood, deserve special praise for their superlative expertise and efficiency

I also extend my appreciation to the New Century Institute for support and to the board members and staff of the Taiwan New Century Foundation for their profes-sional assistance In particular, I wish to thank Dr. Lung-Fong and Joanne Chen and

Dr. Wen-Hsien Chen for their encouragement and support

And last but not the least, I  wish to thank my dear wife, Judy, our children, our children-in-law, and our grandchildren for their affection, patience, and enduring support

International law is a continuing process of authoritative decision by which members of the world community identify, clarify, and secure their common interests These common interests consist of minimum world order and optimum world order

Minimum world order refers to the minimization of unauthorized coercion and

world order refers to the widest possible shaping and sharing of values, for example,

respect, power, enlightenment, well-being, wealth, skill, affection, and rectitude, larly expressed in terms of human rights, self-determination and self-governance, edu-cation and global communication, health and environmental protection, trade and development, transfer of technology, human solidarity and diversity, and social justice.The end of the Cold War did not put international law out of business On the con-trary, although the threat of a nuclear holocaust might have been reduced for the time being, the need for maintaining minimum world order and for securing optimum world order has become ever more pressing

popu-As humankind ushers in a new millennium and a new century of knowledge and power, the degree of global interdependence has deepened, and the amazing frequency

of transnational interactions continues to accelerate The global village is real in fact and

in perception “Globalization” has become a catch word of the new era As an ongoing process of authoritative decision, international law is as dynamic as ever and constitutes

a distinct part of the globalizing process Taking one another into account, all actors—nongovernmental as well as governmental—have intensified their transnational interac-tions, generating ever-increasing and interpenetrating transnational effects

xxiv Preface to the Second Edition

Since the publication of the first edition in 1989, there have been many changes in the world, and so many significant events have happened in the field of international law Just to name a few: the fall of the Berlin Wall and the end of the Cold War; the disinte-gration of the Soviet Union and the formation of the Commonwealth of Independent States; the breakup of Yugoslavia and the conflicts in the Balkans; the establishment of the International Criminal Tribunals for the former Yugoslavia and for Rwanda; the transition from apartheid government to a nonracial democracy in South Africa; the Rio Earth Summit and the adoption of Agenda 21, a comprehensive plan for global action

in all areas of sustainable development; the entering into force of the U.N Convention

on the Law of the Sea and the concomitant establishment of the International Seabed Authority and the International Tribunal for the Law of the Sea; the establishment of the World Trade Organization to replace the General Agreement on Tariffs and Trade (GATT) as the only international body overseeing international trade; the creation

of the office of the U.N High Commissioner for Human Rights and the operation of the U.N Convention on the Rights of the Child; the adoption of the Rome Statute

of the International Criminal Court; and U.N. and U.S. responses to the Iraqi sion of Kuwait and the continuing struggle with Iraq over enforcing the U.N. ceasefire resolutions

inva-All these and other developments are reflected in this edition In updating and paring the second edition, I benefited a great deal from the comments and suggestions received from many people who have used the first edition of the book and from the assistance and support rendered by many My deep appreciation to all of them

pre-The inspiration of my mentors—Myres S. McDougal and Harold D. Lasswell—was

as present for this edition as for the original edition The recent passing of Professor McDougal meant the loss of a great mentor, counselor, and friend to me It also meant the loss of one of the great international legal scholars of all time, but his legacy to humankind will live forever Both Mac and Harold will be missed dearly

W Michael Reisman was wonderful and helpful in many ways Jordan J. Paust was thorough in reviewing an early draft of the entire revised manuscript and was generous

in offering numerous and invaluable suggestions and comments

Throughout the years my students at New York Law School have been, in the practical sense, participants in the ongoing enterprise and have offered many helpful suggestions

I especially wish to thank Maria-Alana Recine and Stephanie McQueen for outstanding research assistance Thanks also go to Ken Ayers, Susan Hennigan, Celena Mayo, and Cliff Scott for their assistance

At New  York Law School I  am indebted to Dean Harry H.  Wellington and Associate Dean Ellen Ryerson for their strong and continued support, including summer research grants Professor Joyce Saltalamachia and her library staff were consistent and efficient in rendering profession service; Reference Librarian Marta Kiszely, my faculty library liaison, was ever cheerful, diligent, and efficient in meet-ing a flow of requests for assistance

At Yale Law School, I am grateful to Dean Anthony T. Kronman for encouragement and support At Yale University Press, Jane Zanichkowsky was excellent in her role as copy editor.

In Taiwan, I wish to thank Law Professor Chao-Yuan Huang of Taiwan University and Dr. Yann-huei Song of Academia Sinica for their invaluable suggestions and assis-tance At the Taiwan New Century Foundation, my thanks go to En Wei Lin, Hsueh Chin Chen, Su Mei Chiu, and Chien Shou Lu for their assistance

For this edition, as for the first, the affection, patience, and support of Judy and our family were a constant source of comfort and strength

International law is perhaps the most dynamic area of law today and one of the most important, as global interdependence deepens and the transnational movement of people, ideas, goods, and services continues to grow It is an ongoing process of decision through which the members of the world community identify, clarify, and secure their common interests—both minimum world order (in the sense of minimizing unauthor-ized coercion and violence) and optimum world order (in the sense of fostering the wid-est possible shaping and sharing of all values) In this process, nation-states have played and continue to play the dominant role But non-state participants—international gov-ernmental organizations, nongovernmental organizations, and private associations—are playing increasingly significant roles The individual, in particular, acting both alone and as a group representative, is the ultimate participant, performing all the functions relevant to making and applying law

As one who is identified with the policy-oriented approach developed by Myres

S. McDougal and Harold D. Lasswell and their associates (dubbed by some the New Haven School), I have sought as author to bring the essence and insights of the approach

to bear on major international legal problems in the rapidly changing context of the earth-space arena

Unlike conventional works in international law, this book is organized and tured in terms of the process of decision by reference to participants (nation-states, inter-national governmental organizations, nongovernmental organizations and associations, and the individual), perspectives (minimum world order and optimum world order), arenas of decision (establishment and access), bases of power (authority and effective

struc-xxviii Preface to the First Edition

control over people, resources, institutions, and events), strategies (diplomatic, cal, economic, and military), outcomes, and effects

ideologi-As humankind grapples with a host of transnational problems—armed conflicts and the control of armaments, trade and investment, the use and control of the sea and outer space, global environment, illicit drug trafficking, transnational flows of information, technology transfer, human rights, refugees, religious warfare, and so on—it becomes evident that international law is too important to be left to international lawyers and decision makers alone Individual citizens must rise to the challenge of contemporary international law in the search for a world public order of human dignity They must:

interdetermination

value sectors of social interaction

problem-solving skills and resources in the pursuit of both minimum and mum order

opti-I hope that not only students of international law but other citizens concerned with law and world affairs will find this book helpful As an introductory treatise, it seeks to

be comprehensive in scope yet selective in emphasis; and the notes are kept to an absolute minimum

My debts to Professors McDougal and Lasswell, long proponents of an international law of human dignity, are enormous and apparent—the book is dedicated to them As a member of the New Haven School, I have drawn freely on prior collaborative work with

Press in 1980) and also, in the words of McDougal, “on a great variety of past tions, jointly planned, discussed, and written by members of a large group who regard their work as common property.” I am most grateful to Mac, who, with his character-istic generosity, has read the entire manuscript and made many valuable criticisms and suggestions

contribu-I am also deeply grateful to Professors Richard A.  Falk of Princeton University, Rosalyn Higgins of the London School of Economics and Political Science, and Jordan

J. Paust of the University of Houston Law Center for having read the entire manuscript and offered numerous valuable criticisms and suggestions for improvement My thanks also go to Professor Gunther F.  Handl of Wayne State University Law School and Siegfried Wiessner of St Thomas University School of Law for helpful comments and suggestions in connection with chapters 27 and 11, respectively

Thanks are also due my students at New York Law School, especially my ing research assistants Raymund Johansen and Gary Gross The assistance of Frances

outstand-Civardi, Carmen Giordano, Sylvia Ospina, Christopher Portelli, and Erik Strangeways

at an earlier stage is also gratefully acknowledged

Esther J. Chen, the fourteen-year-old in-house word processing expert of my family, has been indispensible throughout the preparation of various drafts and the final manu-script Words are inadequate to express professional appreciation and parental pride

At New York Law School I am indebted to Dean James F. Simon and Associate Dean Randolph N. Jonakait for strong and consistent support (financial and other) Professor Joyce Saltalamachia and her library staff were instrumental in maintaining a flow of books and other documentation My appreciation for support and encouragement also goes to colleagues E. Donald Shapiro, B. James George, Jr., Arnold H. Graham, Jane

P. Helm, Gerald Korngold, and Edward B. Samuels

I thank the Dana Fund for International and Comparative Legal Studies for a mer research grant at an early stage of this project, for which I especially thank Professor Richard W. Edwards, Jr., of the University of Toledo College of Law A grant from the Ernst C. Stiefel Fund, for which I wish to thank Dr. Ernst Stiefel, was helpful in seeing the book through the press

sum-At Yale Law School I am grateful to Deans Guido Calabresi and Harry H. Wellington for continued support Professor Morris L. Cohen and his library staff were immensely helpful

The officers of Yale University Press have been generous in encouragement and port I owe a special debt of gratitude to Marian N. Ash and John G. Ryden Laura

sup-J. Dooley was perceptive, understanding, and skillful in her role as manuscript editor.Finally, I wish to thank my parents, parents-in-law, and extended family for all their encouragement and support My wife, Judy, and children, Ellie, Harold, and Esther, cheerfully bore the brunt of my absorption in this work and lovingly endured the pres-sure Without their affection, patience, and support this book would never have been completed

I Delimitation of the Task

1 Perspective

Every citizen of the world should have some basic understanding of international law, whatever his or her station or profession may be In the contemporary world of increasingly complex interdependencies, almost all social problems are transnational in nature, requiring a global or regional solution These problems include armed conflicts and control of armaments; civil strifes; energy crises; trade, investment, and capital flows; exploration of ocean resources and the use of outer space; environmental problems (for example, radioactive fallout, acid rain, air and marine pollution); control of epidemics and of illicit traffic in narcotics and persons; flows of information and data technology transfer; deprivations of human rights (apartheid, discrimination, genocide, and so on); religious warfare and strife; flows and resettlements of refugees; and reunions of families broken by oppression, conflicts, or disasters—just to name a few One cannot deal with local and national problems effectively without adequate orientation to the global con-text Particular legal problems must be approached in light of the whole

International law is developing at an ever greater pace as the world community becomes increasingly interdependent, owing in part to the growing movement of people, ideas, goods, and services across national boundaries This area of law has become recognizably much broader than law governing the relationships between governments, although such law has regulated individuals and groups in the past Individual human beings, the ulti-mate participants in any legal process, interact with increasing frequency and intensity

4 Delimitation of the Task

across nation-state lines in a host of group forms But nation-states have historically played, and continue to play, a predominant role as actors at the international level International governmental organizations, proliferating rapidly in recent years and manifesting varying degrees of comprehensiveness and specialization, also participate in decision making and help to shape attitudes and behavior Nongovernmental associations and organizations of all kinds, such as multinational corporations and human rights organizations, are increas-ingly transnational in membership, goals, areas of activity, and impacts

Although the particular aspects of international law may appear to be quite stable, it

is perhaps the most dynamic area of law today, as well as one of the most important It

is made through international agreements (multilateral and bilateral) and through tomary behavior and expectations Compared to national legal systems, international law is decentralized; yet without international law, a basic stability in world order would not be possible International law and national law sometimes conflict, and in general

cus-it is international law that should prevail States (and the individuals who compose the state) ought to be held to international standards This is the essence of the supremacy of international law that is so indispensable to maintaining world order For hundreds of years the relations between international and national law have been intimate and inter-penetrating, and those relations continue to grow and become more evident

International law, like all law, is a continuing process through which the common interests of the members of the world community are clarified and secured It seeks

to attain a minimum order, in the sense of minimizing unauthorized coercion, and to achieve an optimum order, in the sense of the widest possible shaping and sharing of all values (respect, power, enlightenment, well-being, wealth, skill, affection, and rectitude)

As global interdependencies deepen, what happens in one country increasingly affects others, and communities must take one another into account when making choices and decisions International law brings a distinct and vital dimension to citizenship educa-tion Citizens of the world must be taught to think globally, to think contextually, and

to think creatively for the common interest The ultimate goal should be the ment of a world community of human dignity Toward this goal, education in the broad-est sense is crucial We cannot be content with the status quo We must think about new ways to build a better world

establish-Myths and Realities about International Law

In spite of the profound importance of international law, misconceptions abound Sometimes it is not taken seriously Those who do this exhibit a range of perceptions about international law:

where naked power counts

political doctrine

• International law is a sham, a political facade used to justify the expediency of national policy; international law provides a convenient justification or pretext for certain conduct of states.

sovereign state are involved

and law enforcement (that is, there is no world legislature, no world police or jails)

International law undeniably has not always functioned as effectively and perfectly as desired, but this may also be said of national laws No social process is free from the law violator The difference is a matter of degree Gross violations of international law do occur—and often with seeming impunity But on the whole, compliance with norms of international law is a cardinal fact of contemporary life in our world community of inter-determination and reciprocity International law does matter Otherwise, nation-state offi-cials would not take pains to justify the “lawfulness” of their conduct by recourse to norms

of international law

For instance, after Korean Airlines Flight 007 was shot down by the Soviet Union in September 1983, killing all 269 people on board, the Soviet government, although it gave evasive, inconsistent accounts, did not flatly assert: “Yes, we shot down the airplane and violated international law So what?” On the contrary, it sought to justify the lawfulness

of its action by asserting that the Korean airliner had intruded into Soviet airspace and was engaged in a spy mission, even though it was leaving Soviet territory A nation-state does not lightly dismiss the relevance of international law

Take the Iranian hostage seizure case This episode, which involved the seizure of American diplomats and the takeover of the American embassy in Tehran in 1979 and related efforts to secure the hostages’ release, raised a staggering range of international legal issues For example, what international legal norms were violated by the hostage takers when they seized the embassy? Just who in Iran was responsible for these events—the Iranian government or the militant students? Did the United States act lawfully when President Carter froze all Iranian assets in American banks, cut off oil imports from Iran, and collectively deported Iranian students unlawfully present in the United States? What role did the United Nations play in freeing the hostages? Was the United States’ abortive military attempt to rescue the hostages lawful, or did it violate the ter-ritorial integrity of Iran? Did the International Court of Justice have jurisdiction over the case, and how did the contending parties react to its decision? Was the agreement

of settlement achieved through Algeria’s mediation valid, or was the agreement made under duress?

Or consider a more recent example There were scores of issues raised for international law following the terrorist attacks of September 11, 2001 The September 11 attacks were carried out by Al Qaeda, a non-state actor Do the laws of war apply to a conflict with a

6 Delimitation of the Task

non-state actor? What are the responsibilities of states with respect to non-state actors operating within their borders? Can a state be held responsible for the actions of non-state actors that it allows to operate within its borders? If so, how should this be done? Is a state that has been injured by a non-state actor justified in using force against the state that has harbored the non-state actor?

The U.S. invasion of Afghanistan and the toppling of the Taliban government lowing the September 11 attacks raised even more questions about the use of force by a state to overthrow a repressive government When, if ever, is the use of force for such a purpose as regime change justifiable? If the use of force is ever justifiable, who decides whether it is justified in a certain instance? By what criteria are such determinations made? Is there a limiting principle? What distinguishes one repressive government from another and makes that government subject to the will of outside actors?

fol-The overthrow of the Taliban also raised questions about the responsibility of a state

to its own people What are these responsibilities? Are these responsibilities absolute or culturally relative? What is the appropriate response when a state is not fulfilling these obligations? Does this call for sanctions? The use of force?

The “War on Terror” that followed the September 11 attacks raised yet more tions for international law Are the United States’ actions in prosecuting its War on Terror justified as a matter of self-defense? What about the use of waterboarding and other so-called “enhanced” interrogation techniques by the United States? What should the ramifications be when a state is found to have tortured? Where is the appropriate forum for resolving such claims? More fundamentally, who makes international law, and who applies it? Who decides whether activities are lawful? Who reviews such deci-sions, and how? What role is there for the news media in the making of international law? International law experts? Nongovernmental organizations and associations? Concerned citizens of the world? Does international law mean anything at all if power-ful states such as the United States can violate it with impunity? Or alternatively, are we still operating under a system in which “might makes right” and international law is just

ques-a fques-açques-ade to be discques-arded by the weques-althy ques-and the powerful?

The U.S.-led invasion of Iraq, which was initially justified in part by the 9/11 attacks, raised many more questions Before invading Iraq, the United States unsuccessfully sought authorization from the U.N Security Council Should nation-states be bound

by the decisions of the Security Council? Or, because the U.N Charter is not a “suicide pact,” do nation states retain the right to act unilaterally (or, in the case of Iraq, with a

“coalition of the willing”) to protect their interests?

The invasion raised the issue of the preemptive use of force At what point, if any, does

an external threat become sufficiently concrete to justify the preemptive use of force

in the name of self-defense? How imminent must the threat be? Is there a minimum threshold of proof that must be satisfied?

One might inquire as to the criteria used to determine whether the activities involved are lawful For example, what international legal norms were violated? The nonviolation

of territorial integrity? Norms governing state responsibility to protect its own citizens? Norms governing the use of force for self-defense? Perhaps others?

Regardless of whether the initial invasion was justified or legal under international law, these events raise questions about what obligations, if any, are imposed on an occu-pying force Is there an obligation to rebuild? If so, to what extent? How long can an occupying force justify its continued presence? By what criteria can we determine that

an occupation is no longer justified?

This array of legal questions underscores how prominently and pervasively tional law figures into the entire episode The aftermath of the September 11 attacks offers an excellent example through which many of the major aspects of international law can be explored and studied

interna-Globalization is another issue that raises a plenitude of issues One of the most tant trends in recent human history has been the increasingly free movement of people, goods, services, capital, information, and ideas across national boundaries Along with this freer movement across borders has been a corresponding increase in interdepen-dence across national borders Greater interdependence, in turn, has led decision makers

impor-to expand the scope of their asserted authority so as impor-to account for those beyond their own borders The trends towards a more globalized world raises many international legal questions

Are current institutions sufficient to meet the demands of our increasingly ized world? What are the consequences of the global financial crisis that erupted

global-in 2008 and whose disruptive impacts contglobal-inue? Given the global-increasglobal-ingly free flow

of capital across borders, and the interconnectedness of national economies, should there be greater international financial regulation? If so, are the current regulatory bodies sufficient or are new agencies necessary? Given the impact that one national economy can have on others, can a voluntary regulatory system be sufficient, or should there be some requirement that all states participate? What if some states refuse to do so?

With the rise of globalization, there has also been a corresponding shift in the types of participants in international law No longer are state actors the exclusive makers of international law; multinational corporations, intergovernmental and nongovernmental organizations, and other such actors play an increasingly impor-tant function in the shaping of international law These actors are increasingly international in the scope of their concern This shift, however, raises some funda-mental questions If the state monopoly on authoritative decision making is over, how should this power be shared with non-state actors? Should non-state actors be afforded greater participation in formal decision making, or should their influence

be limited to an informal role?

Free trade in goods and services across borders has brought prominence, as well as some criticism, to institutions such as the International Monetary Fund, the World Bank, and the World Trade Organization Are these institutions doing enough to promote

8 Delimitation of the Task

the free exchange of goods and services? Are they doing too much at the expense of people and the environment? Is enough being done to protect the interests of developing economies? Would regional organizations be more effective at achieving the objectives

of international trade law?

Technological advances in recent decades have revolutionized the movement of information across borders Advances have greatly increased the speed of interac-tion across borders, with both positive effects (e.g., the free flow of information) and negative ones (e.g., the spread of the financial downturn) Technology was instru-mental in organizing and disseminating information about political uprisings dur-ing the Arab Spring that began in 2011 Social networking sites and mobile phones were used to organize demonstrations and to share information among protesters

as well as a global audience People around the world were able to view images and receive updates from within countries in North Africa and the Middle East includ-ing Tunisia, Egypt, Libya, Bahrain, Syria, and Yemen almost instantaneously as the protests unfolded These events demonstrate the power of individuals every-where to use new means to demand greater participation in decisions affecting their well-being

Advances in information and communication technology have also resulted in a

“digital divide.” In many parts of the developing world, especially in rural areas, access

to technology such as the Internet and mobile communications is sparse or prohibitively expensive for many These barriers make it difficult, if not impossible, for people to par-ticipate in the sharing of knowledge and the economic development that technology promises The United Nations has played an integral role in promoting efforts to bridge the digital divide in countries around the world What role can or should international law play in addressing this disparity?

Globalization raises numerous questions about the movement of people As nesses and jobs cross borders, so too must people Restrictions on movement, which invite restrictive measures from other states, prevent the free flow of people across bor-ders Are these matters of domestic or international concern, or both? How do we dis-tinguish between the two in an increasingly interconnected world?

busi-In the aftermath of the Cold War and in response to conflicts such as those in the former Yugoslavia, Iraq, Rwanda, Sudan, and Côte d’Ivoire, the U.N Security Council has taken an increasingly active role in global peacekeeping and peacemak-ing, raising even further questions for international law How relevant and effective

is the policy of prohibiting the use of force proclaimed by Article 2(4) of the U.N Charter? Should U.N. member states provide the Security Council with increased peacekeeping or peacemaking powers? Should a standby peacekeeping fund be estab-lished, or should national troops be earmarked for call-up by the Security Council? Should the Security Council have a small, multinational force on standby, ready for dispatch to hot spots? What about joint training exercises between designated national forces?