Week 2 - Monism and Dualism

How is international politics a prisoner’s dilemma?

Misunderstanding, rational choice theory

Realist perspective of IL

No authority = no enforcement = no certainty, rationality in selfishness

“Donald Trump should embrace a realist foreign policy”

John Mearsheimer

Liberalist perspective of IL

More complex than a prisoner’s dilemma due to repeated interaction reducing transaction costs, monitoring & self-enforcement, makes cooperation rational

Empirical evidence in favour of cooperation

The long peace

Construcitivism

Socialisation of states leads to learning and adoption of values

Bilateral and multilateral treaties

Trade agreements, security pacts

Customary law

International standard that is followed like a law, but is not binding

Opinio juris

Legal obligation

Example of domestic and international customary laws

Indigenous traditional law, diplomatic immunity

Res judicata

A matter judged

Hugo Grotius

‘Father of international law’, laid foundation for many ideas of good faith and equity

Can international organisations carry legal weight?

No, but it can carry political weight

Who gets to decide norms?

Civilised nations

What are the sources of IL?

UN Charter which was developed by custom/general principles, as well as judicial decisions

Paquette Habana

Case study that refers to customary law applying despite no official integration

Nullum crimen sine lege

No crime without law, prevents retroactive application of the law

Lex posterior derogat legi priori

New treaties supersede old treaties

Lex specialis derogat legi generali

Special law supersedes general law

Vienna Convention of the Law of Treaties Year

1980

VCLT Character

Outlined consensual character of the law, the binding intention of treaties, exceptions to consent

Exceptions to consent

Jus cogens and the UNSC

Peremptory norm

Norm accepted by international community, from which no derogation is permitted

How to change a peremptory norm

Subsequent norm

Which article states treaties conflicting with peremptory norms are void?

Article 53 of VCLT

Reservations

Exclusions or modifications of a treaty that a country signs

Examples of reservations

CEDAW, Rome Statute

What countries held reservations with CEDAW

Maldives, Egypt and Jordan

Monism

System of IL in which IL and DL are considered holding the same level of power

Dualism

IL and NL are two different legal systems

Monism in the EU

Established by the 1957 EEC Rome Treaty, binding all regulations to every member state

Van Gend en Loos v Netherlands, 1963

Violation of EEC treaty, invocation of EU treaty before domestic court

Costa v ENEL, 1964

Supremacy of EU law, denied nationalisation of Italy’s electricity sector

Dualism in the US

Treaties must be incorporated via legislation

Paulsen argument

Branches of the US Government determines IL; IL has no authority over the US Constitution

What constraints are then in IL then, according to Paulsen?

Political > Legal

Hathaway challenge to Paulsen

Paquette Habana, Treaty of peace: customary law has jurisdiction in the US. IL is then self-executing. Shift away from historical approach

Why is Hathaway’s challenge important?

US not observing their obligations disincentivises other countries from doing so

Why does the US sign international treaties if it does not plan to follow them?

Political reasons e.g. favour with voters or favour with states

Sanchez-LLamas v Oregon

2006, Mexican nationals denied access to consulate

Vienna Convention of Consular Relations

1963

Chief Justice John Roberts

“Nothing in structure or purpose of the ICJ suggests its interpretations were intended to be conclusive on our courts”

Article 6 of US Constitution

Treaties are the highest law of the land

Can a President terminate or interpret treaties?

Yes, under Article 2 powers

Executive Agreements

How a treaty is overriden

Dames & Moore v Regan

1981, executive overriding domestic law - Iran private claims cases denied under Algiers Accords. Sidestep of constitution

Who interprets IL in the US?

Congress, President and Judiciary

Jus ad bellum

Right to go to war, only with congress

Jus in bello

Law in war, refers to principles that outline war crimes

Goldwater v Carter, 1979

Unilatral termination of Taiwanese defence treaty, set standard of executive agreements