International law and human rights

4 characteristics of the international system

1. formally anarchical – no international govt with the right to enforce its law

2. less codified, structured, and developed form of law-making/enforcement/implementation

3. adjudication as enforcement is unclear

4. intl law is applied, devised, implemented, and enforced completely differently to domestic law – essentially primary laws about what you can do that have no enforcement

4 subject areas of public international law

1. citizens in the international space – international adoption, transnational interactions, etc

2. international interaction (peace, war, environment)

3. rights and responsibilites w/i intl organizations – EU and other regional organizations as an institution of law

4. domestic affairs (human rights, minorities, democracy ) – usually opt-in and not universally binding, except for UN genocide convention

5 pathways for making international law

1. international treaties

2. international custom

3. UN general assembly resolutions

4. regional organizations – e.g., EU

5. judicial precedent and scholarly interpretation – ICJ, ICC, ECJ

international treaties pathway explained

• governed by idea of pacta sunt servanda

• include all kinds of bilateral and multilateral conventions/agreements

• treaties bind those who've signed them

• certain ones have become so widely accepted they are applied to countries that aren't even signatories

international custom pathway explained

• sometimes leads to treaties

• not really legally binding – like gentleman's agreements

• more like a general principle than a law

UN general assembly resolutions pathway explained

• not binding, more like guidelines

• sometimes if the General Assembly passes several resolutions on the same point, they may be relied upon as instruments of intl law

• unclear boundaries/influence

problems of adherence to intl law

• weak centralized enforcement; UN has no army and principle of respecting state sovereignty makes things difficult

• UN security council can pass all means necessary resolutions but has no means of enforcement

• weak states have less influence + capability of enforcing their rights than weak states

• sometimes states act regardless of/without UN resolutions and they can opt out of applying verdicts of intl/regional courts

is intl law effective?

• overall relatively high rates of compliance – but do they comply bc it's law or because they just weren't going to do the thing anyway?

• argument that intl law is most effective in defined spheres of functional interaction

  • transport, commerce, trade, etc. because it's less invasive of sovereignty

• argument that intl law is least effective in domestic practice e.g. human rights because it’s more invasive

factors benefitting the growth of intl law

• increased international and transnational interaction raises need for law

• increase in number + powers of intl organizations (e.g., EU, ECOWAS)z

factors making it more likely for nations to adhere to intl law willingly

• growing ethical sensitivies – people more likely to adhere due to human rights consierations, especially post WWII and the Holocaust

• spread of democracy and domestic consolidation of the rule of law

• changing rules for heads of state + the ICC – nuremburg trials set precedent that individuals could be held liable for actions taken in office, leading to the ICC which tries individuals for intl crimes