Evolution of Core Principals

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Part nine of our international law book does a very good job of bringing our study full circle. What are some of the most important ways that core legal principles have evolved.

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PART NINE INTERNATIONAL POLITICAL INTERACTION The Evolution of Core Legal Principles 571 TABLE 27.3 Core Principles of the Classic and Contemporary Eras Erd Classic Contemporary Dates 1648-1945 1945-1999 Core principles Legal positivism Legal positivism State supremacy States & Nonstates Nonintervention Neutrality Free trade Human rights Tiventy-first century 2000- Legal positivism States & Nonstates Humanitarian intervention Free trade Human rights Intervention The failure of the ICJ to fully refute Belgium's Security Council, it leaves ample room for extra- humanitarian intervention justification defense Council authorization for military intervention in the Yugoslavia u NATO case along with the Se in the event that the Security Council fails to ad- curity Council's postwar endorsement of the out- dress the issue. Accordingly, such alternative au- come of that conflict signal that the international thorizations include the General Assembly of the community is in the process of reconsidering the United Nations and authorization from subre- Charter's prohibition on unauthorized interven- gional organizations. The clear implication of tion for humanitarian purposes. the report is that state sovereignty is being fur- Reflecting an interest in endorsing the right ther eroded and the nonintervention principle of states to intervene on humanitarian grounds that constituted a core and defining principle of is the emerging Responsibility to Protect (R2P) the Contemporary legal era is weakening. principle. In September 2000, at the onset of the current international legal era, Canada an- Conclusion nounced the creation of the International Com- mission on Intervention and State Sovereignty As an integral part of world politics, international (ICISS). As discussed in chapter three of this law is a fluid set of principles and rules that are al- volume, R2P acknowledges a primary responsi- tered over the course of time as the legal and po- bility of states to protect their own citizens. In litical disposition of states change. International the event of a failure to do so, the Responsibility law, in its most fundamental sense, provides the to Protect reverts to the international commu- parameters of acceptable, or legal, behavior of nity. The December 2001 ICISS Report em- states and other legal persons. What constitutes a braces three specific responsibilities: legal course of action in one era is considered il- legal in another, as new international rules are de- 1. The responsibility to prevent the root veloped or existing rules erode. By undertaking a causes and direct causes of internal conflict historical evaluation of international law with a and other man-made crises putting popu- primary focus on the key foundational, or core, lations at risk. legal principles identified in three distinct eras, 2. The responsibility to react to situations of this chapter gives the reader a sense of the fluidity compelling human need with appropriate of international law and its continued evolution measures, which may include coercive into the twenty-first century. measures like sanctions and international During the Classic Legal era (1648-1945), prosecution and, in extreme cases, military four core principles of international law were intervention. identified: legal positivism, the centrality of 3. The responsibility to rebuild, particularly states, the doctrine of intervention, and neutral- after a military intervention. 16 ity. By the onset of the Contemporary era (1945–1999), the doctrine of intervention and Although the ICISS Report calls on states to seek the right of neutrality had disappeared as core approval for military intervention from the UN legal principles, and the state-centric system 572 INTERNATIONAL LAW gave way to a legal system in which both states before the current legal era ends and is replaced and nonstate actors were considered subjects of by another remains to be seen. This chapter international law. Additional core principles, in- posits that the most appropriate means of eval- cluding nonintervention, human rights, and free uating the international legal order is through a trade, emerged and became influential founda- focus on the core, or foundational, legal princi- tional principles of the legal order. The twenty- ples that give definition to any era. first-century era, only in its first decade, is characterized by the erosion of the noninterven- tion principle and, with the emergence of the NOTES responsibility to protect, a decline in the legal 1. GERHARD VON GLAHN & JAMES LARRY TAULBEE, sanctity of the state to control its domestic af- LAW AMONG NATIONS: AN INTRODUCTION TO PUBLIC fairs free of outside interference. Because the INTERNATIONAL LAW 3 (9th ed. 2010). 2. Lassa Oppenheim, The Science of International R2P concept bases its legitimacy in promoting Law: Its Task and Method, 2 AM. J. INT'L L. 340 the rights of individuals, the core principle of (1908). human rights remains a defining feature of the 3. See ANTONIO CASSESE, INTERNATIONAL LAW current legal order. It is too soon to tell if the free (2001); MALCOLM N. SHAW, INTERNATIONAL LAW trade principle will be retained in the twenty-first (2008); and VON GLAHN & TAULBEE, supra note I. century; global economic turbulence as wit- TRODUCTION TO INTERNATIONAL LAW (7th ed. 1997). nessed since 2008 may serve to reinforce the 5. Id. at 15. principle or may cause its erosion if leading 6. HUGO GROTIUS, THE LAW OF WAR AND PEACE states abandon open markets and free trade as (Francis W. Kelsey trans., The Bobbs-Merrill Company, strategies for dealing with the implications of 1962) (1625). 7. Supra note 4, at 307. grave levels of indebtedness. 8. LOUIS HENKIN ET AL, INTERNATIONAL LAW: CASES How international law in the twenty-first cen- AND MATERIALS (1980). tury ultimately evolves is a matter of great con- 9. Reparations for Injuries Suffered in the Service of jecture and importance. Based on an evaluation the United Nations, Advisory Opinion, 1948 I.C.J. of the core, or defining, principles of the interna- 174: Lawless u. Ireland, 332/57 Eur. Ct. H.R. 1 (1961). tional legal order since 1648, there has evolved a Rights 3 (2d ed. 1998). 10. JACK DONNELLY, INTERNATIONAL HUMAN struggle between efforts to empower the state, on 11. See Application of Yugoslavia, Legality of Use of the one hand, and attempts to restrict state ac- Force, 1999 1.C.J. Ten individual cases were brought by tion, on the other. During the Classic era (1648- the FRY, one against cach of the ten participating 1945) states increasingly enjoyed the right to NATO states. control both their internal and external affairs 12. Aaron Schwabach, Yugoslavia 1. NATO, Security Council Resolution 1244, and the Law of Humanitarian with only limited legal restrictions found in in- Intervention, 77 SYRACUSE J. INT' L. & Com. 93 ternational law. The rise of human rights, the (2000). principle of nonintervention, and the free trade 13. GROTIUS, supra note 6, at Bks. II, III, XIX, XL. mandate after World War II effectively curtailed 14. MICHAEL WALZER, JUST AND UNJUST WARS (2d what states could legally do at home and abroad. ed. 1992). 15. U.N. Charter, art. 2, para. 7. The twenty-first-century legal order, which dates 16. Report by the International Commission on In- to 1999, appears to be further limiting states by tervention and State Sovereignty (ICISS), Dec. 2001. requiring good governance at home. Accordingly, 17. According to the ICISS Report, the General As- failure to protect one's citizens can result in hu- sembly enjoys the legal capacity to authorize armed in- manitarian intervention justified under the Re- tervention for humanitarian purposes in the event that sponsibility to Protect principle. the Security Council fails to act based upon the 1950 What is certain is that the international legal has no legal validity because the Uniting for Peace Resolution. That resolution, however, powers that it grants to system continues, as it has since its inception, to the General Assembly require a revision of the UN evolve. Where that evolution ultimately arrives Charter. 28 International Law and Politics JAMES LARRY TAULBEE Some Preliminary Thoughts The relationship between international law and politics has always generated much debate. As many have pointed out, positions range from those who regard international law as little more than a form of rhetorical justification for what states wish to do to those who see an evolving world order based on the rule of law at the in- ternational level.' Needless to say, political real- ists, liberal internationalists, Marxists, and constructivists have very different views.? To state an obvious proposition, the evaluation of the "political" nature of international law de- pends on the premises from which the analyst begins. Yet the reader needs to keep this proposition firmly in mind as we explore the relationship between law and politics at the in- ternational level. In this chapter I will discuss the extent to which international law guides statesmen in making decisions. Rather than a systematic discussion and critique of various theoretical approaches, let me begin by stating my assump- tions regarding how analysts have failed to ad- dress critical questions about how politics and law intersect at the international level. Most of these misconceptions involve comparisons of in- ternational law with idealized conceptions of domestic law as it ought to operate within ad- vanced industrial democracies. . First, in the paragraph above, I have delib- erately used the word guide because inter- national law will seldom constitute the sole determining factor in any decision process. Second, most comparisons of interna- tional law with domestic law tend to over- estimate the efficacy of domestic law and underestimate the role and impact of in- ternational law. • Third, comparisons often underestimate or misconstrue the relationship between law and politics because analysts tend to focus on criminal law and procedure as the model, when actually domestic civil (private) law and procedure form a better analog to the legal process at the interna- tional level. • Fourth, comparisons tend to ignore the fact that the international decision-mak- ing process has different participants and goals when compared to the domestic process. • Fifth, comparisons often dismiss areas in which international law seems an impor- tant consideration as merely “low politics." • Sixth, given points four and five, the inter- national legal process does have a higher political content than the ideal domestic process. Seventh, defenders tend to overestimate the coherence of the international legal order. 573 574 INTERNATIONAL LAW Perspectives on Law and Politics speculative utopias of an academic elite. If only the Rule of Law can be fortified to exclude these David Easton's classic definition of politics—the contrasting distortions, then at least the jurist's authoritative allocation of values for a society part in the construction of a just world order provides a useful point of departure. Easton's has been adequately executed. Our inher- definition reminds us that politics involves de ited ideal of a World Order based on the Rule cisions about how values and scarce resources of Law thinly hides from sight the fact that so- are distributed within human societies. Al- cial conflict must still be solved by political though some in particular, structural realists) means and that even though there may exist a may quibble over whether an international "so- common legal rhetoric among international ciety" exists, I will adopt the characterization lawyers, that rhetoric must, for reasons internal used by Hugo Grotius and the English School. to the ideal itself, rely on essentially contested This position has the utility of acknowledging political principles to justify outcomes to inter- and emphasizing the role of sovereignty as a fun- national disputes.? damental element of contemporary interna- tional politics while also acknowledging the From this perspective, the question then be- possibility that rational actors may find and act comes: What role(s) does law play in the on common interests to create binding rules of broader political process? Understanding the re- behavior. lationship between international law and inter- Law may be defined as a mechanism that national political processes requires a brief guides the actions of rational egoists (states/gov- examination of the roles law presumably plays ernments and individuals) toward collective in organizing human society. The content of any goals based on enlightened self-interest rather legal obligation, whether international or do than individual goals based on self-interest nar- mestic, always involves some specified human rowly defined. As such, it constitutes only one action/behavior either in terms of positive re- method of determining the distribution of re- quirements or permissions to perform certain sources and values and only one technique of duties under certain circumstances or in terms dispute resolution within the broader political of prohibitions, that is, a duty to refrain from process. It does not form the sole method, nor certain actions under certain circumstances. does law necessarily provide a solution to all dis- John Locke argued that the principal function putes. Nonetheless, many perceive law as a set of law is to build fences. He identified two es- of techniques superior to politics, ignoring the sential fences—one that defines and governs the fact that the law embodies a set of choices that relationship between the government and its cit- result from political bargaining. Note that "law" izens, and one that defines and governs the rela- in the United States has at one time permitted tionships between individual citizens. Locke's slavery and segregation. Judith Shklar argued dichotomy roughly corresponds to the modern that "those ... adherents who, in their determi- distinction between public and private (civil) nation to preserve law from politics, fail to rec- law. When discussing international law, the ognize that they too have made a choice among tendency is to focus on Locke's first category be- political values." We find this particularly re- cause clearly the lack of an overarching interna- flected in discourses about international law. tional political authority immediately calls into Marti Koskenniemi observed that question the possibility of an international pub- lic law. The simple fact that no set of centralized Throughout the present century, reconstructive institutions exist at the international level has al- doctrines have claimed that what merits criti- ways bedeviled jurisprudence. Indeed, Nicholas cism is the corruption of the Rule of Law either Onuf, noting the problematic sources of au- in the narrow chauvinism of diplomats or the thority at the international level, has character-
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International law has ultimately evolved in the 21st century which has also led to the
evolvement of legal core principles. As the years go by, so many things have happened that has
caused a rise in the need to protect states as well as its citizens. The ways which have created
legal core and principles are of conjecture and importance. The four laws which were present in
the classical era have changed. The four principles which were present wh...

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