You are on page 1of 7

Pau Duman’s Notes Policy Science

II. Overview of the Process of


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