Pau duman: theories of international law generally fall into one of two categories. He says one is Natural law, the other is positivism, which holds norms are valid only insofar as they have been created according to a definite and discernible rule. Duman: positivism has had a major impact on the development of the current state-centric system of international law.
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Part II Overview of the Process of International Law
Pau duman: theories of international law generally fall into one of two categories. He says one is Natural law, the other is positivism, which holds norms are valid only insofar as they have been created according to a definite and discernible rule. Duman: positivism has had a major impact on the development of the current state-centric system of international law.
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Pau duman: theories of international law generally fall into one of two categories. He says one is Natural law, the other is positivism, which holds norms are valid only insofar as they have been created according to a definite and discernible rule. Duman: positivism has had a major impact on the development of the current state-centric system of international law.
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International Law An alternative perspective for understanding the nature of law and the processes by which Policy Science and Contemporary norms and laws are created and amended has International Law developed out of the writings of Lasswell, McDougal, Reisman and others during the past Classical Theories: Natural Law and Positivism 40 years at Yale University. This approach, known as "policy science," perceives law as a "process of making decisions in conformity with the expectations of appropriateness of those "Classical" theories of international law who are politically relevant, more concisely, a generally fall into one of two categories. The process of authoritative decision." first, which is Natural Law, is based on the premise that there are certain normative principles or postulates that are true or "self- Policy scientists aspire to make law and evident" and which exist independently of their jurisprudence more relevant to contemporary codification or enforcement by human beings. politico- economic realities. Unlike Natural Law Natural law theories build upon the Aristotelian or Positivism, policy science does not rely upon scholasticism espoused by medieval and theological or other abstract sources such as renaissance Roman Catholic legal scholars. an "ultimate rule" for its validity. Instead, it criticizes Positivism's "disastrous neglect of how rules are made, as well as of other The other major category is Positivism, which important aspects of the comprehensive holds that norms are valid only insofar as they process of authoritative decision." Likewise, it have been created according to a definite and finds Natural Law theories deficient in failing to discernible rule. All norms can be traced back relate decisions to the events "...in social to an "ultimate rule", "...according to which the process to which they are a response and, in norms of this order are established and turn effect." annulled, receive or lose their validity." Positivists arrange all norms hierarchically in their relation to the "ultimate rule." For In stark contrast with Natural Law and Positivist positivists, law is independent of morality. Its legal theories, Policy Science discovers principle proponents have derived their authority in the "perspectives of living inspiration from influential Protestant community members- their demands for philosophers of the enlightenment, including values, their identifications with others , and Vattel, Kant and Hegel, and during the 20th their expectations about the requirements of century, legal scholars such as Kelsen, decision for securing their demanded values in Dworkin, and Hart. all their communities..." This understanding of "law as a process" for decision-making has influenced the writings of leading legal scholars Positivism has had a major impact on the including Judge Rosalyn Higgins of the development of the current state-centric International Court of Justice ("ICJ"). Leading system of international law and its supporting policy scientists, such McDougal and Lasswell, legal structures. In particular, positivism has and Higgins, also assert that there are no neat promoted the dominant view that international distinctions between international law and law consists only of "subjects" (nation-states) national law (known too as "domestic" or and "objects" (everything else), and that "municipal" law). objects can be subjects of international law only pursuant to some enabling rule. The dichotomy between nation states and In seeking to understand law as a product of a everything else, which will be discussed further normative system reflecting social values in an below, has constrained the ability of ongoing process of decision-making, policy international law and law making processes to science provides a methodological basis for accommodate input from a wider group of identifying and appraising existing and participants. It has likewise circumscribed the emerging standards, including those related to responsivity of existing legal structures to a the environment, human rights and economic diversity of interests that often arise and development. Policy Science is particularly operate independently of nation-states and the useful for identifying and evaluating new governments that regulate and serve them. trends in international law such as the appearance of guidelines, recommendations and other "non-enforceable" texts. This so- called "soft law" often plays a significant role in The classical view is deeply embedded among the development of contemporary international the dominant political and economic attitudes law and in strategic efforts to amend it. For of those who head nation-states, and in the example, policy science assists in identifying international legal structures and institutions and analyzing non-state actors and their which they have created and maintained. It is increasing impacts on the development and premised on ideas regarding the "sovereign implementation of international legal norms equality of states," a duty of non-intervention and instruments. on the part of states in the internal affairs of other states, and state consent to international "Objects and Subjects" or "Participants" obligations. It effectively excludes the direct International law and the institutions created to and official participation of other types of administer it are largely the products of actors with expertise and concerns that can classical statist theories. Contemporary help make the international system more international society, however, is not broad- based, democratic, fair, and responsive comprised exclusively of nation states. A wide to concerns arising outside of the official range of non-state actors or non-state purview of nation states and national personalities are increasingly important and governments. For example, the classical view effective participants in the international would deny indigenous and other tribal system. These non-state international actors societies an official forum for seeking redress include not only international organizations, even when their respective national some of which have now been accorded many governments refuse to recognize their legal of the rights and privileges of states under rights to natural resources such as tropical international law, but also individuals, non- forests which they may have occupied for governmental organizations, indigenous many generations and continue to utilize for peoples and other local communities, research their survival. The rationale for this denial is institutions, technology experts, natural and that these communities do not qualify under social scientists, transnational business the law of nations as "states." enterprises, and other groups interested in and/or advocating on behalf of various issues It is increasingly obvious that global society is and constituencies. This reality was not the exclusive domain of nation states. acknowledged in Agenda 21, which recognized Since the end of the Second World War, that the achievement of sustainable international organizations namely, the organs development requires the participation of a of the United Nations system, as well as spectrum of players. That text identified nine regional political and economic entities such as major categories of non-state actors as the Organization of American States ("OAS"), fundamental for this process. the European Communities (now "European Union") and military/security bodies such as The Classical Statist Approach NATO ("North Atlantic Treaty Organization") have emerged as supra-national personalities on the international plane. The "classical" view of international law, a view wherein states are the only recognized International organizations, in particular the subjects, arguably still predominates. It is multilateral financial development institutions, reflected in the writings of important publicists as well as transnational commercial such as Brownlie and Bowett. One of the early enterprises, religious movements, and non- proponents of this view was the 18th century governmental organizations ("NGOs") also play Swiss legal theorist Vattel who in his The Law a major role in shaping international society of Nations espoused the idea of a separate and the attitudes and behaviors of states. For body of law concerned exclusively with nation- example, much global economic activity, and states. Accordingly, states are the legitimate many resulting environmental and human subjects of international law. Out of this rights controversies involve transnational approach developed the notion that everything commercial enterprises, both legal and illegal, else is considered an "object" of international which have a major impact on global stability law. Because states are the only players in this and security. Additionally, as stressed in paradigm, only states can create and employ Agenda 21, other non- state personalities are international law. Individuals and or other non- increasingly acknowledged as having an state actors which suffer harm from another important role to play in facilitating state or the citizens of the other state must international legal and political objectives. rely upon their own state to employ international law on their behalf. Still, the classical "state-centric" view endures for political action [from a European-western and continues to predominate. The only parties perspective]..." were considered to be which are recognized for purposes of bringing territorium nullius. This view was partially an action before the International Court of eroded in international jurisprudence in the Justice are nation states. Also, all members of 1975 Western Sahara Case where the ICJ noted the United Nations Organization must be nation that at the time of its occupation by Spain in states. Furthermore, according to the classical the 19th century, the region now known as the view, although a state may owe a duty to its Western Sahara was inhabited by peoples who, own citizens and those of neighboring states although "...nomadic, were socially and which may be harmed by its activities, politically organized in tribes and under chiefs arguably it does not yet formally owe any duty competent to represent them..." to international society as a whole. Such a viewpoint imposes serious handicaps on efforts In the light of Western Sahara, W.M. Reisman to create legal incentives for promoting the has called attention to serious limitations on sustainable management of natural resources. the aptitude of the ICJ to come to terms with the deeper implications of views held by Challenges to the "Classical" Approach indigenous and other non-western, non-statist approaches to self-determination and legal legitimacy. According to Reisman Prevailing notions of international law also appear ill-suited to finding adequate solutions "[Judges of the International Court of for the myriad problems that are transnational Justice]...have often said some of the politically in scope. Among these are global warming, correct things, but the Court has carefully ozone depletion, over-fishing, deforestation, avoided giving any meaningful effect to marine pollution, narcotics and contraband territorial claims based on indigenous theories armaments traffic, illegal trade in endangered of law..." species of flora and fauna, and unregulated financial transfers. These phenomena exceed Increased demands -- and increased success -- the capacities of any individual state or even by indigenous peoples advocating for rights to any bloc of states to control effectively. The self- determination, including the right to be current seemingly futile attempts by the United recognized as distinct autonomous actors in States and the European Union to control international law, are reflected in international cross-border drugs-trafficking provide telling instruments such as the Convention on examples. The Chernobyl nuclear power plant Biological Diversity, and Agenda 21 as well as accident in 1986 is an example in which no in documents expressly concerning their states brought legal actions against the Soviet interests, namely the 1994 Draft United Union or a successor state for damages Nations Declaration on the Rights of Indigenous wrought by nuclear contamination. Counsel P. Peoples, and the Inter-American Commission Sands lamented that states have failed to on Human Rights draft Declaration on the exercise any supposed "right of guardianship" Rights of Indigenous Peoples. The struggle of which they may claim over the global indigenous peoples and other minorities for environment. recognition of their rights and interests, includes acknowledgement of their right to There are alternative viewpoints to the self-determination. These documents reflect an perspective that only nation states are subjects awareness by human rights advocates that in international law. Thomas Aquinas and the securing the rights of indigenous communities influential 16th century Dominican theologian includes protection of their cultural values and de Vitoria acknowledged that non-state entities knowledge, and in particular local knowledge such as indigenous peoples were not mere related to biodiversity conservation and objects, but possessed rights independent of sustainable use. For example, the 1994 U.N. European monarchies. For reasons of economic Draft Declaration on Indigenous Peoples states and political expediency, however, this view that was not acceptable to the majority of state governments interested in acquiring colonial "Indigenous peoples have the right...to their territories or to legal writers who recognized traditional medicines and health practices, only foreign entities with the characteristics of including the right to the protection of vital European states as legitimate participants in medicinal plants, animals and minerals [Art. international law and the international system. 24]...[and] ... to special measures to control, Instead much of the world, including areas develop and protect their sciences, inhabited by peoples not "permanently united technologies and cultural manifestations, including human and other genetic resources, NGOs substantially influenced the arguments seeds, medicines, knowledge of the properties and subject matter before the Court, even of fauna and flora, oral traditions, literature, though the ICJ's Statute does not recognize designs and visual and performing arts [Art their existence as parties to cases. 29]. Higgins and others have even gone so far as to The emergence of international institutions, argue that individuals are international actors including the United Nations Organization and as well, and that existing international legal its political organs such as the FAO, UNESCO, structures must be reevaluated in order to UNDP, UNEP, ILO, and UNICEF, and the accommodate this reality. In Higgins' opinion multilateral development institutions of the Bretton Woods system, constitute another "...[I]nternational law is not only ‘rules'; major inroad into the classical approach to moreover, its norms are not fixed indefinitely international law, including still prevailing and are thus wholly responsive to the needs of notions about subjects and objects. The the system...[T]he notion of ‘subjects' and political organs of the United Nations, for ‘objects' has no credible reality and ...no example, have recognized international legal functional purpose...It is more helpful, and personalities, i.e, are deemed to be subjects, closer to perceived reality , to return to the and the laws which govern their operations are view of international law as a particular part of the corpus of international law. decision-making process. Within that process (which is a dynamic and not a static one) there Organizations such as UNEP and the ILO have are a variety of participants, making claims also played a major role in developing treaties across state lines, with the object of and other international legal instruments. maximizing various values...[I]n this model, Through its Regional Seas Programme, UNEP there are no ‘subjects' and ‘objects', but only has facilitated the creation of several important participants. Individuals are participants, along environmental protection conventions for with states, international protecting marine bodies of water. The ILO is organizations...multinational corporations, and responsible for the drafting of two major indeed non-governmental groups." international conventions concerning the rights and interests of indigenous and tribal peoples. Higgins' theoretical and practical justifications See 328 UNTS 247. are especially relevant in the context of international adjudication. As previously noted, NGOs too are playing an increasingly states are the only entities recognized to significant role in the development of appear as Parties before the ICJ. The international law. International NGOs have arguments of recognized state parties to a been characterized as "actual international controversy, however, may not reflect the "full actors" based on their transnational focus and range of issues" arising from a dispute. This membership. Some NGOs, such as IUCN and may particularly be the case where a WWF, have participated in drafting recent controversy involves the rights and interests of international conventions, including the minority and/or marginalized constituencies Convention on Biological Diversity. IUCN also that maintain positions at variance with those has drafted a proposed International Covenant of the nation states where they are located. on Environment and Development, which is Non-state actors often also have important intended to be "a major effort at the additional information that should be progressive development of international considered when disputes are being addressed, environmental law." This IUCN draft document yet they are not authorized to intervene in incorporates a diverse body of international proceedings. Their exclusion can inhibit norms concerning environmental protection, realistic and effective resolution of complex human rights, and economic development for controversies such as those where facilitating sustainable development. It thereby environmental, economic and human rights is contributing to the establishment of interests clash. equitable and locally appropriate legal incentives for realizing sustainable The Emerging Order development. The position of the majority of G- 77 countries in the Request for an Advisory Opinion from the ICJ in 1995 on the legality of the use of nuclear weapons, was prepared and An alternative perspective is emerging that guided largely by the "World Court Project", an reflects contemporary international realities NGO umbrella organization. In that opinion, more accurately. It calls for recognition of non- state entities as legitimate participants in international law and policy making. This new recognized enforceability as commonly perspective on international law as a process understood for law, depending on the requiring the input of a variety of participants circumstances, they may possess significant is particularly useful for the ECO, which will be normative weight. called upon to address the disputes of a broad range of actors, both governmental and non- Additionally, there has appeared a host of non- governmental. Nevertheless, non- state actors judicial dispute resolution mechanisms outside still suffer under a "procedural disability" in the scope of institutionalized court structures. protecting their rights and interests and in Examples of this include the GATT panel contributing to the development of the dispute resolution procedure which has international legal order. Allott contends that developed a body of its own case law, and the current structures are impediments to the recently formed World Bank Inspection Panel. progressive development of an international legal system, what he refers to as the "international public realm." Many "soft law" instruments are the product of international meetings organized under the auspices of international organizations, such as Hard Law vs. Soft Law the United Nations Conference on Environment and Development, Rio de Janeiro ("UNCED") in Positivist approaches to law generally define a 1992, the World Conference on Human Rights norm as a law if its breach is followed by some in Vienna in 1993, the World Summit for Social sanction or other means of enforcement. The Development in Copenhagen in 1995, and the generally accepted categories of international Fourth World Conference on Women in Beijing law are treaties, "general principles of law", in 1995. These meetings typically conclude and customary international law. Article 38 (1) with the issuance of instruments entitled of the Statute of the International Court of "declaration", "programme of action", or Justice identifies the above three categories as "platform for action." The instruments are the sources of international law and also adds product of long and often contentious "...judicial decisions and the teachings of the negotiations, and are perhaps the most most highly qualified publicists of the various important work products of conferences nations, as subsidiary means for the attended by representatives of almost all determination of rules of law." nations of the world. They are not drafted in the form of legally enforceable instruments, Treaties and other conventions are obligatory however, and can best be understood as upon the states signing them. By their nature, political pronouncements; that at least to some they are intended to be agreements governing degree represent official decisions of the states the legal relations between the signatories, and which drafted and signed them. in theory Parties can enforce their non- compliance through arbitration, an action They also may record the content of existing before the International Court of Justice or customary international law on particular other institutionalized dispute resolution matters, such as the international legal mechanisms. principle articulated in Principle 21 of the Stockholm Declaration. As such, although they During the last 40 years, a new range of are not "hard law," they evince official international commitments has developed and governmental positions on particular issues, has been confirmed by a range of instruments may articulate the substance of existing legal that do not fall into the traditional categories of norms and/or create expectations for the future "treaty" or "custom" or "general principles." development of international law in the areas The legal status of these instruments, which being addressed. Often they are at the are often referred to as "soft law," has been a beginning of a continuum emphasizing major subject of discussion among legal increasingly higher degrees of normative scholars. Dupuy has fittingly described soft law specificity that eventually may culminate in as "...either not yet or not only law." The conventional binding treaty obligations. instruments include declarations, codes of conduct, guidelines and other promulgations of "Soft law" documents, including some U.N. the political organs of the United Nations General Assembly resolutions, also provide system, operational directives of the evidence of the legal practice of nation states. multilateral development institutions, and Soft law documents espousing sustainable resolutions and other statements by non- development include the Rio Declaration, and governmental organizations. Although they do the UNCED Statement of Forest Principles. At not possess the strict characteristic of present, much international treaty law is the result of a process that leads to the participants in the international arena, and to development of standards of behavior for the success of non-state actors in promoting nation states and which generates new legal standards which represent their expectations regarding future behavior. This views and values. process, which covers a wide spectrum of norms from aspirational statements to rules Distinctions Between Rules, Principles and principles contained in draft conventions, and Rights constitutes "soft law". Kratochwil provides a useful definition of the normative materials encompassed by "soft law." The above discussion has sought to describe the current parameters of international law and law- making processes. It is expected that the "[I]t... represents a weak institutionalization of ECO will rely upon both "hard" and "soft" law the norm-creation process by prodding the materials in making its determinations. It is parties to seek more specific law-solutions furthermore presumed that the ECO will utilize within the space laid out in the declarations of other normative standards which may not intent...[B]y legitimizing conduct which might constitute "law", but which nevertheless will diverge from the existing practices, soft law guide the ECO's investigatory and decision- provides an alternative which can become making activities. This section briefly outlines legally relevant crystallization for newly aspects of the normative order that merit emerging customs or more explicit norms." consideration. It relies on the policy science perspective, but also employs useful views In contemporary international environmental from other perspectives. law as well as human rights law, there appears to be a blurring between "soft" law and formal A dictionary definition of a "norm" is "a "hard" law legal sources. This may be a standard model or pattern regarded as characteristic of international law regarding typical". Kratochwil characterizes norms as environmental and human rights issues or a "guidance devices" and means which allow general trend emerging in international law. actors to "pursue goals, share meanings, Current state practice manifests this tendency communicate, criticize assertions and justify in the context of issues concerning actions." Kratochwil's paradigm further environmental protection. For example, in its conceptualizes norms as devices for finding pleadings before the ICJ in Nuclear Tests 1995, solutions to problems by regulating both the Government of New Zealand referred in its conflict and cooperation. The normative order argument on customary international law, according to Kratochwil suggests a spectrum without drawing distinctions regarding the extending from morality to traditional "hard" enforceability or normative status of any of the law. Within this scheme are values, principles instruments, to the Rio Declaration, a World and rights. Bank Operational Directive of 1989, UNEP draft principles of conduct, as well as formal binding treaties such as the Convention on Biological To achieve its ordering function, a normative Diversity and the Noumea Convention. order must be accepted as binding. Not all elements of the normative order, however, are Although an individual declaration or resolution necessarily binding; only the core element -- may not be sufficient to constitute state the rules of law -- is normally considered as practice, in the light of the above discussion, it binding. Non-binding elements are made up of should be clear that the normative expressions political rules, rules of morality, usage or some contained in soft law materials establish other kind of rules of conduct. Values are international norms and provide persuasive normative components that "inform the evidence of state practice. Additionally, "soft law" statements such as the Forest attitudes of actors" and in this sense, from a Stewardship Council Principles and Criteria for policy science perspective, values impact Natural Forest Management, the Baguio significantly on the shaping of law and policy. Declaration, and the Charter of the Indigenous- Values have a major role in influencing the Tribal Peoples of the Tropical Forests, are development of principles and in the normative statements that express the beliefs, recognition of rights, but they too may not aspirations and commitments of constituencies necessarily be binding. directly dependent on important environmental resources and their allies. Although these documents are not "law" at present, they Rights have been defined as interests that are testify to the increased presence of non-state recognized by law and judicially protected. This definition, however, does not give due on others. Principles, however, possess recognition to rights whose origin is not law. different normative characteristics and serve a Philosophers in both common law and civil law different function. As suggested by Dworkin in traditions distinguish between moral and legal Taking Rights Seriously, principles are rights. Positivists hold that legal rights, by standards that are adhered to, on the basis of definition, derive from the legal system, that is, justice, fairness or other moral dimension. They the Constitution, legislative enactments, case do not demand a particular outcome, but are law, executive orders and other legal texts. The important factors to be taken into legal rules derived from these sources consideration when decision-making occurs. constitute standards by which to judge official practice. Using Dworkin's definition, legal principles are distinguishable from legal rules in that they do Rights are always associated with a duty or not mandate a specific decision. A principle, obligation. If a person has a right, he/she has however, must be taken into consideration an interest that is sufficient grounds for holding whenever it is relevant. Rules, by contrast, another subject to a duty. Rights also suppose which Dworkin equated with law, must be a correlative obligation on the part of some observed. The failure to observe a rule can person or other legal entity. It is a basic legal result automatically in legal consequences, maxim that each right is accompanied by a including sanctions. "Rules" may form the core corresponding duty, although typically the right of legal rights but they are supported, and the duty are held by different persons or elaborated and backed up by the whole entities. normative order going beyond rules to include policies, principles and goals. This does not mean that a right being claimed does not exist unless the holder of the duty is Rules, principles, and rights all are normative clearly defined; rather it merely highlights the in nature and serve a social ordering function. importance of ensuring that there is an Where rules (law) differ from the other effective remedy for preventing any violation normative elements is in the methods invoked of the right and for ensuring recognition of it. to fulfil its function. Non-compliance with rules Inadequacies in the legal arrangements for can result in sanctions that will help ensure providing remedies do not remove the right future compliance in given situations. Most of itself, as the presence or other possibility of the time rules formalizes other aspects of the recourse to third party judicial procedures is normative order, like policy, and make them not the test of whether the right exists or not. binding. In international law, if not in municipal law, the existence of a legal right is tested by reference For positivists, the non-law elements of the to the sources of law, rather than by the normative order are "soft law." But even most presence of efficacious judicial remedies. positivits acknowledge that soft law can have substantial legal effects, particularly in Indeed, in the international legal arena, practice. Indeed, in international law, soft law enforcement of rights is often problematic. sometimes plays a more prominent role than in Human rights are an example of rights whose municipal (state) legal systems, and its role is origin and existence are not perceived as likely to continue to grow in the future. contingent on explicit recognition in a positivist legal system. Human rights are considered as rights held simply by virtue of being a human being. They are part and parcel of the integrity and dignity of the individual. They are thus rights that cannot be given or withdrawn at will by any legal system. And although they are most effectively implemented through a legal system, the system is not the source of the right.
The concept of rights, meanwhile, differs from
the concept of principles, although both are useful for problem solving. The rights discussed above, the human rights such as the right to development, can be properly seen as "entitlements" or "claims" imposing obligations