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Part II Overview of the Process of International Law

Part II Overview of the Process of International Law

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Pau Duman’s Notes II.

Overview of the Process of International Law Policy Science and Contemporary International Law Classical Theories: Natural Law and Positivism

Policy Science

"Classical" theories of international law generally fall into one of two categories. The first, which is Natural Law, is based on the premise that there are certain normative principles or postulates that are true or "selfevident" and which exist independently of their codification or enforcement by human beings. Natural law theories build upon the Aristotelian scholasticism espoused by medieval and renaissance Roman Catholic legal scholars. The other major category is Positivism, which holds that norms are valid only insofar as they have been created according to a definite and discernible rule. All norms can be traced back to an "ultimate rule", "...according to which the norms of this order are established and annulled, receive or lose their validity." Positivists arrange all norms hierarchically in their relation to the "ultimate rule." For positivists, law is independent of morality. Its principle proponents have derived their inspiration from influential Protestant philosophers of the enlightenment, including Vattel, Kant and Hegel, and during the 20th century, legal scholars such as Kelsen, Dworkin, and Hart. Positivism has had a major impact on the development of the current state-centric system of international law and its supporting legal structures. In particular, positivism has promoted the dominant view that international law consists only of "subjects" (nation-states) and "objects" (everything else), and that objects can be subjects of international law only pursuant to some enabling rule. The dichotomy between nation states and everything else, which will be discussed further below, has constrained the ability of international law and law making processes to accommodate input from a wider group of participants. It has likewise circumscribed the responsivity of existing legal structures to a diversity of interests that often arise and operate independently of nation-states and the governments that regulate and serve them.

An alternative perspective for understanding the nature of law and the processes by which norms and laws are created and amended has developed out of the writings of Lasswell, McDougal, Reisman and others during the past 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 who are politically relevant, more concisely, a process of authoritative decision." Policy scientists aspire to make law and jurisprudence more relevant to contemporary politico- economic realities. Unlike Natural Law or Positivism, policy science does not rely upon theological or other abstract sources such as an "ultimate rule" for its validity. Instead, it criticizes Positivism's "disastrous neglect of how rules are made, as well as of other important aspects of the comprehensive process of authoritative decision." Likewise, it finds Natural Law theories deficient in failing to relate decisions to the events "...in social process to which they are a response and, in turn effect." In stark contrast with Natural Law and Positivist legal theories, Policy Science discovers authority in the "perspectives of living community members- their demands for values, their identifications with others , and their expectations about the requirements of decision for securing their demanded values in all their communities..." This understanding of "law as a process" for decision-making has influenced the writings of leading legal scholars including Judge Rosalyn Higgins of the International Court of Justice ("ICJ"). Leading policy scientists, such McDougal and Lasswell, and Higgins, also assert that there are no neat distinctions between international law and national law (known too as "domestic" or "municipal" law). In seeking to understand law as a product of a normative system reflecting social values in an ongoing process of decision-making, policy science provides a methodological basis for identifying and appraising existing and emerging standards, including those related to the environment, human rights and economic development. Policy Science is particularly useful for identifying and evaluating new 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 development of contemporary international law and in strategic efforts to amend it. For example, policy science assists in identifying and analyzing non-state actors and their increasing impacts on the development and implementation of international legal norms and instruments. "Objects and Subjects" or "Participants" International law and the institutions created to administer it are largely the products of classical statist theories. Contemporary international society, however, is not comprised exclusively of nation states. A wide range of non-state actors or non-state personalities are increasingly important and effective participants in the international system. These non-state international actors include not only international organizations, some of which have now been accorded many of the rights and privileges of states under international law, but also individuals, nongovernmental organizations, indigenous peoples and other local communities, research institutions, technology experts, natural and social scientists, transnational business enterprises, and other groups interested in and/or advocating on behalf of various issues and constituencies. This reality was acknowledged in Agenda 21, which recognized that the achievement of sustainable development requires the participation of a spectrum of players. That text identified nine major categories of non-state actors as fundamental for this process. The Classical Statist Approach

The classical view is deeply embedded among the dominant political and economic attitudes of those who head nation-states, and in the international legal structures and institutions which they have created and maintained. It is premised on ideas regarding the "sovereign equality of states," a duty of non-intervention on the part of states in the internal affairs of other states, and state consent to international obligations. It effectively excludes the direct and official participation of other types of actors with expertise and concerns that can help make the international system more broad- based, democratic, fair, and responsive to concerns arising outside of the official purview of nation states and national governments. For example, the classical view would deny indigenous and other tribal societies an official forum for seeking redress even when their respective national governments refuse to recognize their legal rights to natural resources such as tropical forests which they may have occupied for many generations and continue to utilize for their survival. The rationale for this denial is that these communities do not qualify under the law of nations as "states." It is increasingly obvious that global society is not the exclusive domain of nation states. Since the end of the Second World War, international organizations namely, the organs of the United Nations system, as well as regional political and economic entities such as the Organization of American States ("OAS"), the European Communities (now "European Union") and military/security bodies such as NATO ("North Atlantic Treaty Organization") have emerged as supra-national personalities on the international plane. International organizations, in particular the multilateral financial development institutions, as well as transnational commercial enterprises, religious movements, and nongovernmental organizations ("NGOs") also play a major role in shaping international society and the attitudes and behaviors of states. For example, much global economic activity, and many resulting environmental and human rights controversies involve transnational commercial enterprises, both legal and illegal, which have a major impact on global stability and security. Additionally, as stressed in Agenda 21, other non- state personalities are increasingly acknowledged as having an important role to play in facilitating international legal and political objectives.

The "classical" view of international law, a view wherein states are the only recognized subjects, arguably still predominates. It is reflected in the writings of important publicists such as Brownlie and Bowett. One of the early proponents of this view was the 18th century Swiss legal theorist Vattel who in his The Law of Nations espoused the idea of a separate body of law concerned exclusively with nationstates. Accordingly, states are the legitimate subjects of international law. Out of this approach developed the notion that everything else is considered an "object" of international law. Because states are the only players in this paradigm, only states can create and employ international law. Individuals and or other nonstate actors which suffer harm from another state or the citizens of the other state must rely upon their own state to employ international law on their behalf.

Still, the classical "state-centric" view endures and continues to predominate. The only parties which are recognized for purposes of bringing an action before the International Court of Justice are nation states. Also, all members of the United Nations Organization must be nation states. Furthermore, according to the classical view, although a state may owe a duty to its own citizens and those of neighboring states which may be harmed by its activities, arguably it does not yet formally owe any duty to international society as a whole. Such a viewpoint imposes serious handicaps on efforts to create legal incentives for promoting the sustainable management of natural resources. Challenges to the "Classical" Approach

for political action [from a European-western perspective]..." were considered to be territorium nullius. This view was partially eroded in international jurisprudence in the 1975 Western Sahara Case where the ICJ noted that at the time of its occupation by Spain in the 19th century, the region now known as the Western Sahara was inhabited by peoples who, although "...nomadic, were socially and politically organized in tribes and under chiefs competent to represent them..." In the light of Western Sahara, W.M. Reisman has called attention to serious limitations on the aptitude of the ICJ to come to terms with the deeper implications of views held by indigenous and other non-western, non-statist approaches to self-determination and legal legitimacy. According to Reisman "[Judges of the International Court of Justice]...have often said some of the politically correct things, but the Court has carefully avoided giving any meaningful effect to territorial claims based on indigenous theories of law..." Increased demands -- and increased success -by indigenous peoples advocating for rights to self- determination, including the right to be recognized as distinct autonomous actors in international law, are reflected in international instruments such as the Convention on Biological Diversity, and Agenda 21 as well as in documents expressly concerning their interests, namely the 1994 Draft United Nations Declaration on the Rights of Indigenous Peoples, and the Inter-American Commission on Human Rights draft Declaration on the Rights of Indigenous Peoples. The struggle of indigenous peoples and other minorities for recognition of their rights and interests, includes acknowledgement of their right to self-determination. These documents reflect an awareness by human rights advocates that securing the rights of indigenous communities includes protection of their cultural values and knowledge, and in particular local knowledge related to biodiversity conservation and sustainable use. For example, the 1994 U.N. Draft Declaration on Indigenous Peoples states that "Indigenous peoples have the right...to their traditional medicines and health practices, including the right to the protection of vital medicinal plants, animals and minerals [Art. 24]...[and] ... to special measures to control, develop and protect their sciences, technologies and cultural manifestations,

Prevailing notions of international law also appear ill-suited to finding adequate solutions for the myriad problems that are transnational in scope. Among these are global warming, ozone depletion, over-fishing, deforestation, marine pollution, narcotics and contraband armaments traffic, illegal trade in endangered species of flora and fauna, and unregulated financial transfers. These phenomena exceed the capacities of any individual state or even any bloc of states to control effectively. The current seemingly futile attempts by the United States and the European Union to control cross-border drugs-trafficking provide telling examples. The Chernobyl nuclear power plant accident in 1986 is an example in which no states brought legal actions against the Soviet Union or a successor state for damages wrought by nuclear contamination. Counsel P. Sands lamented that states have failed to exercise any supposed "right of guardianship" which they may claim over the global environment. There are alternative viewpoints to the perspective that only nation states are subjects in international law. Thomas Aquinas and the influential 16th century Dominican theologian de Vitoria acknowledged that non-state entities such as indigenous peoples were not mere objects, but possessed rights independent of European monarchies. For reasons of economic and political expediency, however, this view was not acceptable to the majority of state governments interested in acquiring colonial territories or to legal writers who recognized only foreign entities with the characteristics of European states as legitimate participants in international law and the international system. Instead much of the world, including areas inhabited by peoples not "permanently united

including human and other genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literature, designs and visual and performing arts [Art 29]. The emergence of international institutions, including the United Nations Organization and its political organs such as the FAO, UNESCO, UNDP, UNEP, ILO, and UNICEF, and the multilateral development institutions of the Bretton Woods system, constitute another major inroad into the classical approach to international law, including still prevailing notions about subjects and objects. The political organs of the United Nations, for example, have recognized international legal personalities, i.e, are deemed to be subjects, and the laws which govern their operations are part of the corpus of international law. Organizations such as UNEP and the ILO have also played a major role in developing treaties and other international legal instruments. Through its Regional Seas Programme, UNEP has facilitated the creation of several important environmental protection conventions for protecting marine bodies of water. The ILO is responsible for the drafting of two major international conventions concerning the rights and interests of indigenous and tribal peoples. See 328 UNTS 247. NGOs too are playing an increasingly significant role in the development of international law. International NGOs have been characterized as "actual international actors" based on their transnational focus and membership. Some NGOs, such as IUCN and WWF, have participated in drafting recent international conventions, including the Convention on Biological Diversity. IUCN also has drafted a proposed International Covenant on Environment and Development, which is intended to be "a major effort at the progressive development of international environmental law." This IUCN draft document incorporates a diverse body of international norms concerning environmental protection, human rights, and economic development for facilitating sustainable development. It thereby is contributing to the establishment of equitable and locally appropriate legal incentives for realizing sustainable development. The position of the majority of G77 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 guided largely by the "World Court Project", an NGO umbrella organization. In that opinion,

NGOs substantially influenced the arguments and subject matter before the Court, even though the ICJ's Statute does not recognize their existence as parties to cases. Higgins and others have even gone so far as to argue that individuals are international actors as well, and that existing international legal structures must be reevaluated in order to accommodate this reality. In Higgins' opinion "...[I]nternational law is not only ‘rules'; moreover, its norms are not fixed indefinitely and are thus wholly responsive to the needs of the system...[T]he notion of ‘subjects' and ‘objects' has no credible reality and ...no functional purpose...It is more helpful, and closer to perceived reality , to return to the view of international law as a particular decision-making process. Within that process (which is a dynamic and not a static one) there are a variety of participants, making claims across state lines, with the object of maximizing various values...[I]n this model, there are no ‘subjects' and ‘objects', but only participants. Individuals are participants, along with states, international organizations...multinational corporations, and indeed non-governmental groups." Higgins' theoretical and practical justifications are especially relevant in the context of international adjudication. As previously noted, states are the only entities recognized to appear as Parties before the ICJ. The arguments of recognized state parties to a controversy, however, may not reflect the "full range of issues" arising from a dispute. This may particularly be the case where a controversy involves the rights and interests of minority and/or marginalized constituencies that maintain positions at variance with those of the nation states where they are located. Non-state actors often also have important additional information that should be considered when disputes are being addressed, yet they are not authorized to intervene in proceedings. Their exclusion can inhibit realistic and effective resolution of complex controversies such as those where environmental, economic and human rights interests clash. The Emerging Order

An alternative perspective is emerging that reflects contemporary international realities more accurately. It calls for recognition of nonstate entities as legitimate participants in

international law and policy making. This new perspective on international law as a process requiring the input of a variety of participants is particularly useful for the ECO, which will be called upon to address the disputes of a broad range of actors, both governmental and nongovernmental. Nevertheless, non- state actors still suffer under a "procedural disability" in protecting their rights and interests and in contributing to the development of the international legal order. Allott contends that current structures are impediments to the progressive development of an international legal system, what he refers to as the "international public realm." Hard Law vs. Soft Law Positivist approaches to law generally define a norm as a law if its breach is followed by some sanction or other means of enforcement. The generally accepted categories of international law are treaties, "general principles of law", and customary international law. Article 38 (1) of the Statute of the International Court of Justice identifies the above three categories as sources of international law and also adds "...judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law." Treaties and other conventions are obligatory upon the states signing them. By their nature, they are intended to be agreements governing the legal relations between the signatories, and in theory Parties can enforce their noncompliance through arbitration, an action before the International Court of Justice or other institutionalized dispute resolution mechanisms. During the last 40 years, a new range of international commitments has developed and has been confirmed by a range of instruments that do not fall into the traditional categories of "treaty" or "custom" or "general principles." The legal status of these instruments, which are often referred to as "soft law," has been a major subject of discussion among legal scholars. Dupuy has fittingly described soft law as "...either not yet or not only law." The instruments include declarations, codes of conduct, guidelines and other promulgations of the political organs of the United Nations system, operational directives of the multilateral development institutions, and resolutions and other statements by nongovernmental organizations. Although they do not possess the strict characteristic of

recognized enforceability as commonly understood for law, depending on the circumstances, they may possess significant normative weight. Additionally, there has appeared a host of nonjudicial dispute resolution mechanisms outside the scope of institutionalized court structures. Examples of this include the GATT panel dispute resolution procedure which has developed a body of its own case law, and the recently formed World Bank Inspection Panel. Many "soft law" instruments are the product of international meetings organized under the auspices of international organizations, such as the United Nations Conference on Environment and Development, Rio de Janeiro ("UNCED") in 1992, the World Conference on Human Rights in Vienna in 1993, the World Summit for Social Development in Copenhagen in 1995, and the Fourth World Conference on Women in Beijing in 1995. These meetings typically conclude with the issuance of instruments entitled "declaration", "programme of action", or "platform for action." The instruments are the product of long and often contentious negotiations, and are perhaps the most important work products of conferences attended by representatives of almost all nations of the world. They are not drafted in the form of legally enforceable instruments, however, and can best be understood as political pronouncements; that at least to some degree represent official decisions of the states which drafted and signed them. They also may record the content of existing customary international law on particular matters, such as the international legal principle articulated in Principle 21 of the Stockholm Declaration. As such, although they are not "hard law," they evince official governmental positions on particular issues, may articulate the substance of existing legal norms and/or create expectations for the future development of international law in the areas being addressed. Often they are at the beginning of a continuum emphasizing increasingly higher degrees of normative specificity that eventually may culminate in conventional binding treaty obligations. "Soft law" documents, including some U.N. General Assembly resolutions, also provide evidence of the legal practice of nation states. Soft law documents espousing sustainable development include the Rio Declaration, and the UNCED Statement of Forest Principles. At present, much international treaty law is the

result of a process that leads to the development of standards of behavior for nation states and which generates expectations regarding future behavior. This process, which covers a wide spectrum of norms from aspirational statements to rules and principles contained in draft conventions, constitutes "soft law". Kratochwil provides a useful definition of the normative materials encompassed by "soft law." "[I]t... represents a weak institutionalization of the norm-creation process by prodding the parties to seek more specific law-solutions within the space laid out in the declarations of intent...[B]y legitimizing conduct which might diverge from the existing practices, soft law provides an alternative which can become legally relevant crystallization for newly emerging customs or more explicit norms." In contemporary international environmental law as well as human rights law, there appears to be a blurring between "soft" law and formal "hard" law legal sources. This may be a characteristic of international law regarding environmental and human rights issues or a general trend emerging in international law. Current state practice manifests this tendency in the context of issues concerning environmental protection. For example, in its pleadings before the ICJ in Nuclear Tests 1995, the Government of New Zealand referred in its argument on customary international law, without drawing distinctions regarding the enforceability or normative status of any of the instruments, to the Rio Declaration, a World Bank Operational Directive of 1989, UNEP draft principles of conduct, as well as formal binding treaties such as the Convention on Biological Diversity and the Noumea Convention. Although an individual declaration or resolution may not be sufficient to constitute state practice, in the light of the above discussion, it should be clear that the normative expressions contained in soft law materials establish international norms and provide persuasive evidence of state practice. Additionally, "soft law" statements such as the Forest Stewardship Council Principles and Criteria for Natural Forest Management, the Baguio Declaration, and the Charter of the IndigenousTribal Peoples of the Tropical Forests, are normative statements that express the beliefs, aspirations and commitments of constituencies directly dependent on important environmental resources and their allies. Although these documents are not "law" at present, they testify to the increased presence of non-state

participants in the international arena, and to the success of non-state actors in promoting new legal standards which represent their views and values. Distinctions Between Rules, Principles and Rights The above discussion has sought to describe the current parameters of international law and law- making processes. It is expected that the ECO will rely upon both "hard" and "soft" law materials in making its determinations. It is furthermore presumed that the ECO will utilize other normative standards which may not constitute "law", but which nevertheless will guide the ECO's investigatory and decisionmaking activities. This section briefly outlines aspects of the normative order that merit consideration. It relies on the policy science perspective, but also employs useful views from other perspectives. A dictionary definition of a "norm" is "a standard model or pattern regarded as typical". Kratochwil characterizes norms as "guidance devices" and means which allow actors to "pursue goals, share meanings, communicate, criticize assertions and justify actions." Kratochwil's paradigm further conceptualizes norms as devices for finding solutions to problems by regulating both conflict and cooperation. The normative order according to Kratochwil suggests a spectrum extending from morality to traditional "hard" law. Within this scheme are values, principles and rights. To achieve its ordering function, a normative order must be accepted as binding. Not all elements of the normative order, however, are necessarily binding; only the core element -the rules of law -- is normally considered as binding. Non-binding elements are made up of political rules, rules of morality, usage or some other kind of rules of conduct. Values are normative components that "inform the attitudes of actors" and in this sense, from a policy science perspective, values impact significantly on the shaping of law and policy. Values have a major role in influencing the development of principles and in the recognition of rights, but they too may not necessarily be binding. Rights have been defined as interests that are recognized by law and judicially protected. This

definition, however, does not give due recognition to rights whose origin is not law. Philosophers in both common law and civil law traditions distinguish between moral and legal rights. Positivists hold that legal rights, by definition, derive from the legal system, that is, the Constitution, legislative enactments, case law, executive orders and other legal texts. The legal rules derived from these sources constitute standards by which to judge official practice. Rights are always associated with a duty or obligation. If a person has a right, he/she has an interest that is sufficient grounds for holding another subject to a duty. Rights also suppose a correlative obligation on the part of some person or other legal entity. It is a basic legal maxim that each right is accompanied by a corresponding duty, although typically the right and the duty are held by different persons or entities. This does not mean that a right being claimed does not exist unless the holder of the duty is clearly defined; rather it merely highlights the importance of ensuring that there is an effective remedy for preventing any violation of the right and for ensuring recognition of it. Inadequacies in the legal arrangements for providing remedies do not remove the right itself, as the presence or other possibility of recourse to third party judicial procedures is not the test of whether the right exists or not. In international law, if not in municipal law, the existence of a legal right is tested by reference to the sources of law, rather than by the presence of efficacious judicial remedies. Indeed, in the international legal arena, enforcement of rights is often problematic. Human rights are an example of rights whose origin and existence are not perceived as 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

on others. Principles, however, possess different normative characteristics and serve a different function. As suggested by Dworkin in Taking Rights Seriously, principles are standards that are adhered to, on the basis of justice, fairness or other moral dimension. They do not demand a particular outcome, but are important factors to be taken into consideration when decision-making occurs. Using Dworkin's definition, legal principles are distinguishable from legal rules in that they do not mandate a specific decision. A principle, however, must be taken into consideration whenever it is relevant. Rules, by contrast, which Dworkin equated with law, must be observed. The failure to observe a rule can result automatically in legal consequences, including sanctions. "Rules" may form the core of legal rights but they are supported, elaborated and backed up by the whole normative order going beyond rules to include policies, principles and goals. Rules, principles, and rights all are normative in nature and serve a social ordering function. Where rules (law) differ from the other normative elements is in the methods invoked to fulfil its function. Non-compliance with rules can result in sanctions that will help ensure future compliance in given situations. Most of the time rules formalizes other aspects of the normative order, like policy, and make them binding. For positivists, the non-law elements of the normative order are "soft law." But even most positivits acknowledge that soft law can have substantial legal effects, particularly in practice. Indeed, in international law, soft law sometimes plays a more prominent role than in municipal (state) legal systems, and its role is likely to continue to grow in the future.

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