Is International Human Rights Law Really A Law?? Civil/political rights & economic/social rights have been treated differently in

INTERNATIONAL LAW FOR INTERNATIONAL RELATIONS

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1

INTERNATIONAL LAW FOR INTERNATIONAL

RELATIONS

Baş ak Çalı

3 Great Clarendon Street, Oxford ox2 6dp

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British Library Cataloguing in Publication Data Data available

Library of Congress Cataloging in Publication Data

International law for international relations / Başak Çali. p. cm. ISBN 978-0-19-955842-1 1. International law. 2. International relations. I. Çali, Başak, 1974– KZ3410.I5794 2010 341–dc22

2009042108

Typeset by MPS Limited, A Macmillan Company Printed in Great Britain on acid-free paper by

CPI Antony Rowe

ISBN 978–0–19–955842–1

1 3 5 7 9 10 8 6 4 2

Contents—Summary

Preface xvi

Guided tour of Learning Features xviii

Guided tour of the Online Resource Centre xx

Contributors xxii

Abbreviations xxv

List of boxes xxviii

List of tables xxxi

List of case studies xxxii

PART I STUDYING INTERNATIONAL LAW

1 International law and international relations: foundations for interdisciplinary study 3

Başak Çalı

2 Perspectives on international law in international relations 25

Fiona B. Adamson and Chandra Lekha Sriram

3 Basic principles of international law: a historical perspective 46

Antony Anghie

4 Perspectives on international relations in international law 71

Başak Çalı

PART II IDENTIFYING INTERNATIONAL LAW

5 International treaties 99

Emmanuel Voyiakis

6 Customary international law 122

Jason Beckett

7 Non- governmental organizations and international law 141

Meghna Abraham

8 International courts and tribunals 165

Juan M. Amaya-Castro

vi Contents

PART III TOPIC S IN INTERNATIONAL LAW

9 States and international law: the problems of self- determination, secession, and recognition 191

Christopher J. Borgen

10 Use of force in international law 213

Nigel Rodley and Başak Çalı

11 International humanitarian law 234

Elizabeth Griffi n and Başak Çalı

12 International criminal law 258

Paola Gaeta

13 International human rights law 281

Başak Çalı

14 International law for environmental protection 306

David M. Ong

15 World trade and international law 330

Thomas Sebastian

16 Global social justice and international law 351

Saladin Meckled-Garcia

CONCLUSION

17 International law in international relations: what are the prospects for the future? 379

Başak Çalı

Table of cases 395

Table of major multilateral international treaties and documents 397

Glossary 399

References 409

Index 421

Detailed contents

Preface xvi

Guided tour of Learning Features xviii

Guided tour of the Online Resource Centre xx

Contributors xxii

Abbreviations xxv

List of boxes xxviii

List of tables xxxi

List of case studies xxxii

PART I STUDYING INTERNATIONAL LAW

1 International law and international relations: foundations for interdisciplinary study 3

Introduction 4

What is international law? 5

The relationship between international law and international relations 7

Are international relations and international law two separate disciplines? 7

How does the knowledge produced in international relations and international law overlap, confl ict, and co-depend? 12

At what point and in what way does international law enter into international relations research? 16

Why study international law? 20

Conclusion 23

2 Perspectives on international law in international relations 25

Introduction 26

Realism 27

Theory 27

Actors 28

Processes 29

Liberalism 30

Theory 30

Actors 32

Processes 33

viii Detailed contents

Institutionalism 34

Theory 34

Actors 34

Processes 36

Constructivism 37

Theory 37

Actors 38

Processes 39

Marxism, Feminism, and Critical Theory 41

Theory 41

Actors 42

Processes 42

Conclusion 43

3 Basic principles of international law: a historical perspective 46

Introduction 47

The subject matter of a history of international law 47

The birth of modern international law: the sixteenth century 50

The beginnings of Empire 50

The Peace of Westphalia and Westphalian sovereignty: 1648 52

The Congress of Vienna: international law from 1815–1914 54

The League of Nations: international law from 1919–1939 57

The United Nations: 1945 to the present 60

The end of the Cold War: international law from 1989 64

Conclusion 68

4 Perspectives on international relations in international law 71

Introduction 71

What is international law? 73

Positivism about international law 74

Natural law descriptions of international law 77

International law as a process 79

Critical legal studies and international law 80

The purpose of international law 82

The relevance of theories of international law in international relations 86

The empirical relevance of international law 87

Detailed contents ix

The relevance of international law in the contemporary world 88

Conclusion 89

PART II IDENTIFYING INTERNATIONAL LAW

5 International treaties 99

Introduction 100

Why do states make treaties? 101

The relationship between treaties, customary international law, and the concept of ius cogens 103

Is there a hierarchy of sources in international law? 103

The concept of ius cogens in the Vienna Convention on the Law of the Treaties 104

The making of treaties 105

Negotiation 106

Representation and ‘full powers’ 107

Adoption, authentication, and expression of consent to be bound 107

Entry into force 108

Universality or integrity? Reservations to treaties 108

What are reservations? 110

Application, interpretation, and the position of third states 112

Third states 113

Temporal and territorial application of treaties 113

The interpretation of treaties 114

Amending a treaty 114

Ending international treaties 115

Invalidity 116

Termination and suspension 117

Settling disputes 118

Conclusion 119

6 Customary international law 122

Introduction 122

What rules govern the formation of CIL? The conduct- centred model 124

The CIL approach to state behaviour: states as agents with legal motivations 125

What are the material sources of CIL? 129

x Detailed contents

State actions 129

United Nations General Assembly Resolutions 130

Treaties and other texts 131

Identifying particular rules of CIL: the tipping point 132

CIL in the real world 134

The compatibility of CIL with ius cogens norms 135

(Why) do states comply with CIL? 136

Factors contributing to compliance with CIL: state identity and systemic benefi ts 136

Conclusion 138

7 Non- governmental organizations and international law 141

Introduction: non- governmental organizations in a terrain occupied by states 142

Motivations for NGO involvement in international law 143

Overcoming domestic politics or barriers 144

Economies of scale 145

Better forum for negotiations 145

Opportunities to gradually increase the scope or level of the commitment 145

Enhancing the legitimacy of NGOs 145

Mechanisms for international enforcement 146

NGOs and sources of international law 146

NGO participation in intergovernmental organizations and processes 149

The role of NGOs in the development of international law 151

Initiating new standards 151

NGO participation in negotiations, drafting, and entry into force of treaties 154

How can we explain NGOs’ ability to infl uence the process? 156

The role of NGOs in the enforcement of international law 157

Publicize non-compliance 158

Clarifi cation of what is non-compliance 158

Lobby for action in response to non-compliance 159

Evaluating NGO involvement in the development of international law 159

Redressing a democratic defi cit? 159

How do we gauge how effective NGOs have been? 161

Conclusion 161

Detailed contents xi

8 International courts and tribunals 165

Introduction: international courts in contemporary life 166

What are international courts? 166 Types of international courts 167

How international courts are formed 171

Who can bring a case to an international court? 171

What is the effect of international judicial decisions? 176

What are the functions of international courts? 178

Dispute settlement 178

Enforcing international law 179

Identifying and developing international law 180

When are international courts successful? 182

The future of international courts and tribunals 183

Conclusion 184

PART III TOPIC S IN INTERNATIONAL LAW

9 States and international law: the problems of self- determination, secession, and recognition 191

Introduction 192

International law and statehood 193

Statehood and sovereignty 193

What is the recognition of statehood? 195

International law of self-determination 197

Self- determination: from political rhetoric to legal right 197

Applying self- determination to international relations: who or what has a right of self-determination? 199

Applying self- determination to international relations: the territorial integrity of states 200

The problem of secession in international law and international relations 200

The majority view: no right of secession 201

The reply: the ‘extreme cases’ argument 203

Secession and state practice 204

Recognition and secession 205

Conclusion 207

xii Detailed contents

10 Use of force in international law 213

Introduction 213

The general framework on the use of force in international law 215

Self-defence 217

When can states resort to the right of self-defence? 218

What circumstances justify self-defence? 219

The conduct question 220

The use of force, self- defence, and non- state actors 221

Unilateral humanitarian intervention? 222

The collective security system under the United Nations Charter 224

The power of international law on the use of force: rhetoric or controlling? 228

Conclusion 231

11 International humanitarian law 234

Introduction 234

What is international humanitarian law and how is it made? 236

IHL treaties 238

Customary IHL 239

The nature of international humanitarian law 240

IHL and actor-centricism 240

International and internal armed confl icts 241

IHL and the International Committee of the Red Cross (ICRC) 242

Purposes of international humanitarian law and its basic principles 242

Compliance with international humanitarian law 249

Motivations of states and IHL: why do states agree to rules that govern armed confl ict? 249

Indicators of compliance 251

Non- compliance and accountability 252

Non- state actors and compliance with international humanitarian law 253

Conclusion 254

12 International criminal law 258

Introduction 258

The birth and evolution of international criminal law 260

The fi rst phase: the Nuremberg and Tokyo Tribunals 260

The second phase: the adoption of treaties for the repression of international crimes by states 262

Detailed contents xiii

The turning point: the establishment of international criminal courts 263

The core crimes and the rationale behind their international criminalization 265

War crimes 265

Crimes against humanity and genocide 267

The reasons for the different path of the international criminalization of war crimes with respect to crimes against humanity and genocide 270

The enforcement of international criminal law at the international level 271

The ad hoc criminal tribunals and the ICC: an overview 271

The United Nations Security Council and the International Criminal Court 272

The pros and cons of international criminal proceedings 274

The relationship between international criminal courts and national courts: primacy versus complementarity 275

Conclusion 278

13 International human rights law 281

Introduction 282

What makes up international human rights law and where do we fi nd it? 282

The origins of international human rights law 284

International human rights law institutions 287

The relevance of international human rights law in international relations 290

IHRL and intervention in the internal affairs of other states 291

IHRL and state sovereignty 293

Compliance with international human rights law 298

New international actors and international human rights law 300

Conclusion 302

14 International law for environmental protection 306

Introduction 307

International treaties for environmental protection 308

International environmental principles and the sustainable development paradigm 310

The integration principle 311

The preventive and precautionary principles 312

The polluter pays principle 313

The principle of environmental impact assessment (EIA) 314

xiv Detailed contents

The principles of access to environmental information, public participation in the environmental decision- making process, and access to environmental justice 315

Status of environmental principles in international law 317

Environmental treaty non- compliance mechanisms 319

Non- state actors and environmental protection 321

Self- regulation by TNCs in the fi eld of environment: the Equator Principles 323

A mixed regime for international environmental law? 324

Conclusion 326

15 World trade and international law 330

Introduction 331

The rationale for trade treaties 331

Types of trade treaties 334

The WTO: negotiating forum and monitoring institution 336

Facilitating bargains 337

Monitoring compliance 337

Basic disciplines: limiting protectionism 340

Limits on the forms of protection 340

Non-discrimination 341

Advanced disciplines: constraints on regulatory freedom 343

Loopholes and exceptions 345

Criticisms of the WTO: a biased forum? 347

Conclusion 348

16 Global social justice and international law 351

Introduction 352

What kinds of problems does social justice address? 352

What is justice and where does it apply? 355

Does international law have the right profi le for social justice to apply to it? 358

Can international law be used to advance the cause of social justice? 368

What standards of justice are applicable to international affairs? 372

Conclusion 373

Detailed contents xv

CONCLUSION

17 International law in international relations: what are the prospects for the future? 379

Introduction 380

The political (in)stability of international law 381

The international law respecting state: an idealist category? 383

Institution- building for international law 385

The creation of international organizations, courts, tribunals, and expert bodies 385

Domestic courts and international law 386

The breadth of international law 388

Complexity and differentiation in international law regimes 389

Non- state actors and international law 390

Non- state actors as potential law-makers? 390

Non- state actors as subjects of regulation 391

Non- state actors as threats to international law 392

Conclusion 393

Table of cases 395

Table of major multilateral international treaties and documents 397

Glossary 399

References 409

Index 421

Preface

International law has become a key element of any politics and international rela- tions degree. The existing range of international law textbooks for the student of law, while excellent, is inadequate for the student of international relations who has no prior legal background and comes to the fi eld with more knowledge and understanding of how states behave rather than what rules regulate state behaviour. The breadth of international law and institutions in contemporary global politics means that it is no longer possible to make sense of international politics without understanding international law and the complex regulatory frameworks that exist in international relations. This textbook gives the student that understanding for use in the real world or in further academic study.

This textbook provides the international relations student with what he or she needs to understand about international law in three ways. It maps out the different ways to approach the study of international law, explains the main sources of inter- national law- making, and identifi es the key topics of international law. Throughout, the book balances the technical, legal knowledge necessary to understand the nuances of international law with the broader political processes that shape both the content and effectiveness of international law. The intricacies of international law are presented accessibly to animate both the learning of international law and its evaluation. With this approach, International Law for International Relations aims to introduce the student to the international law perspective of international relations and how this perspective differs from other approaches in international relations.

This book has been lucky to have benefi ted from submissions from an excep- tional group of academics and practitioners in the fi elds of international law and international relations. For their hard work and effort I thank them. Every author is an expert in his or her fi eld and has either experience teaching international law to politics students or using international law in real- world political situations. The contributors have made the subject matter accessible and have refl ected carefully on the bearing international law has on the international issues it addresses. This means that the book draws a very rich and diverse picture of international law and enables the student to see the different patterns of interaction between law and politics in each topic.

Finally, thanks have to be given to Sabina Appelt. Everything the contribu- tors wrote was reviewed by Sabina and what started out as a student perspective soon turned into full- blown editing. It is a credit to Sabina that every chapter has

Preface xvii

substantively improved throughout the editorial process. Her speed, hard work, and sense of humour kept the process on track. I would also like to thank Elizabeth Griffin and the editors at OUP for their help and support and, of course, Sam for casting a layman’s eye over the text and making the coffee.

Başak Çalı

xviii Running heading

Guided Tour of Learning Features

This book is enriched with a range of learning tools to help you navigate the text and reinforce your knowledge of International Law. This guided tour shows you how to get the most out of your textbook package.

Chapter Overviews

Brief overviews at the beginning of every chapter set the scene for upcoming themes and issues to be discussed, and indicate the scope of coverage within each chapter.

Boxes, Tables and Case Studies

Throughout the book boxes, tables, and case studies provide you with extra information on particular topics that complement your understanding of the main chapter text.

Glossary Terms

Key terms appear in bold in the text and are defi ned in a glossary at the end of the book to aid you in exam revision.

Running heading xix

Questions

A set of carefully devised questions has been provided to help you assess your understanding of core themes, and may also be used as the basis of seminar discussion or coursework.

Further Reading

Reading lists have been provided as a guide to fi nding out more about the issues raised within each chapter and to help you locate the key academic literature in the fi eld.

Important Websites

At the end most chapters you will fi nd an annotated summary of useful websites, which will be instrumental in further research.

Guided Tour of Learning Features xix

xx Running heading

Guided Tour of the Online Resource Centre

www.oxfordtextbooks.co.uk/orc/cali/

The Online Resource Centre that accompanies this book provides students and instructors with ready-to-use teaching and learning materials. These resources are free of charge and designed to maximize the learning experience.

FOR STUDENTS:

Flashcard Glossary

A series of interactive fl ashcards containing key terms and concepts have been provided to test your understanding of the terminology of International Law.

Running heading xxi

Problem-solving Questions

For each International Law topic a problem- question is posed, together with a list of key considerations and a guide to sources of information to help you go about solving it.

Revision Tips

A checklist of the key points from each chapter is provided to help you to focus your revision.

Web Links

A series of annotated web links have been provided to point you in the direction of different theoretical debates, important treaties, working papers, articles and other relevant sources of information.

FOR INSTRUCTORS:

PowerPoint Presentations

These complement each chapter of the book and are a useful resource for preparing lectures and handouts. They allow lecturers to guide students through the key concepts and can be fully customized to meet the needs of the course.

Guided Tour of the Online Resource Centre xxi

Meghna Abraham is the Head of the Economic, Social and Cultural Rights Team at the International Secretariat of Amnesty International. She has previously worked with a number of NGOs and academic centres in India, Switzerland, and the United Kingdom.

Fiona B. Adamson is a Senior Lecturer (Associate Professor) of International Relations in the Department of Politics and International Studies at SOAS, University of London. Her work has appeared in International Security, European Journal of International Relations, International Studies Review, Cambridge Review of International Affairs, and a number of edited volumes.

Juan M. Amaya-Castro is Assistant Professor and Academic Head of the Depart- ment of International Law and Human Rights at the United Nations Mandated University for Peace in Costa Rica.

Antony Anghie is the Samuel D. Thurman Professor of International Law at the S.J. Quinney School of Law, University of Utah. He is the author of Imperialism, Sovereignty and the Making of International Law (2005).

Jason Beckett is a Lecturer in the Law School of the University of Leicester, where he teaches and researches in the fi elds of legal method, legal theory, political theory, critical theory, and Public International Law. His work has appeared in the European Journal of International Law, German Law Journal, and a number of edited volumes.

Christopher J. Borgen is Associate Dean for International Studies and Professor of Law at St. John’s University School of Law in New York City. He is the principle author of Thawing a Frozen Confl ict: Legal Aspects of the Separatist Crisis in Moldova, a report issued by the Special Committee on European Affairs of the New York City Bar, and he is the co- founder of Opinio Juris, a website devoted to debate and discussion on issues of international law and politics.

Başak Çalı is Lecturer of International Law and Human Rights at the Department of Political Science, University College London. Her work has appeared in the Human Rights Quarterly, European Journal of International Law, and a number of edited volumes.

Contributors

Contributors xxiii

Paola Gaeta is Professor in International Law at Florence University, Professor of International Criminal Law at the Law Faculty of the University of Geneva and the Director of the LLM Programme of the Geneva Academy of International Humani- tarian Law and Human Rights. Her most recent book is The UN Convention on Genocide: a Commentary (ed.) (2009).

Elizabeth Griffi n is an academic and practitioner with a specialization in interna- tional humanitarian and human rights law applicable in confl ict and post- confl ict situations. She is Adjunct Professor, George Washington University and Director of the Human Rights Center, UN Mandated University for Peace. Elizabeth serves as a consultant to Amnesty International and the UN Offi ce for the High Commis- sioner for Human Rights. She has extensive fi eld experience working for NGOs and the UN in Kosovo, Afghanistan, Bosnia Herzegovina, and Central America.

Saladin Meckled- Garcia is Lecturer in Human Rights and Political Theory and Director of the Human Rights Programme at the Department of Political Science, University College London. He has published a number of works in the fi eld of political philosophy, including works on justice theory, political authority, and human rights.

David M. Ong is Reader in International and Environmental Law at the Univer- sity of Essex, Law School. His work has appeared in the American Journal of International Law, the European Journal of International Law, the Irish Yearbook of International Law, and the Yearbook of International Environmental Law.

Sir Nigel Rodley KBE is Professor of Law and Chair of the Human Rights Centre, University of Essex. He is a Member (since 2001) and Vice- Chair (2003–2004, 2009–2010) of the UN Human Rights Committee and was UN Commission on Human Rights Special Rapporteur on Torture (1993–2001). Several of his articles and book chapters have dealt with aspects of the use of force in international law. He is the author of The Treatment of Prisoners in International Law (1999).

Thomas Sebastian is Counsel at the Advisory Centre on WTO Law in Geneva. In that capacity he represents developing and least developed countries in proceedings before the WTO dispute settlement system and provides advice on issues of WTO law.

Chandra Lekha Sriram is Professor of Human Rights and Director of the Centre on Human Rights in Confl ict at the University of East London School of Law. Her most recent book is Peace as Governance: Power- sharing, Armed Groups, and Contemporary Peace Negotiations (2008).

xxiv Contributors

Emmanuel Voyiakis is a Lecturer at Brunel Law School, UK. His research focuses on the theory and sources of international law and the theory of private law. His work has appeared in International and Comparative Law Quarterly, and in a number of edited volumes.

AI Amnesty International

ASEAN Association of South East Asian Nations

BYBIL British Year Book of International Law

CACJ Central American Court of Justice

CAN Computer Network Attack

CEDAW Committee on the Elimination of Discrimination against Women

CERCLA Comprehensive Environmental Response, Compensation and Liability Act

CIL Customary International Law

CLS Critical Legal Studies

CoE Council of Europe

CSCE Conference for Security and Cooperation in Europe

ECE Economic Commission for Europe

ECJ European Court of Justice

ECOSOC Economic and Social Council

ECOWAS Economic Community of West African States

EEZ Exclusive Economic Zones

EFTA European Free Trade Association

EHS Environmental, Health and Safety

EIA Environmental Impact Assessment

EU European Union

GATS General Agreement on Trade in Services

GATT General Agreement on Tariffs and Trade

HGA Host Government Agreement

ICC International Criminal Court

ICCPR International Covenant on Civil and Political Rights

ICESCR International Covenant on Economic, Social and Cultural Rights

ICJ International Court of Justice

ICRC International Committee of the Red Cross

ICTR International Criminal Tribunal for Rwanda

ICTY International Criminal Tribunal for the Former Yugoslavia

IFC International Finance Corporation

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