Why promulgating international law is a key US interest

Political realists tend to be wary of international law, seeing it as an artificial and foreign encroachment on domestic sovereignty. Goldsmith and Posner argue that states’ commitment to international law is illusory; states will only comply with any particular provision of international law as long as their self-interest so warrants, and will abandon it as soon as this ceases to be the case.[1] Such views are especially prominent in the US, where constitutional obstacles and political conservatism have kept the US from playing as active a role in the international legal order as one might expect for a country of its stature. For instance, the US is one of only two countries (along with Somalia) that has not ratified the Convention on the Rights of the Child, and one of only three countries (along with Sudan and Israel) to have withdrawn its signature from the Rome Statute of the International Criminal Court; both are major treaties which the US itself played an active role in drafting. There has even been sporadic (if mostly marginal) talk over the years of withdrawing from the United Nations.

US conservative opposition to international law can best be summarized in the words of John Bolton, former ambassador to the UN:

It is a big mistake for us to grant any validity to international law even when it may seem in our short-term interest

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The Changing Landscape of International Law: Investor-State Arbitration and the Case of Pac Rim Cayman LLC v. El Salvador

Traditionally, the only actors in the realm of public international law were sovereign states. In the late 1940s, the group of actors was widened to include international organizations, which were also deemed to possess legal personality by the International Court of Justice’s (ICJ) ruling in the Reparations Case. [1] With the dawn of investor-state arbitration, the number of claimants able to assert rights based on language contained in international treaties has expanded exponentially.

Investor-state disputes present essentially a hybrid between public international law and traditional fields of private law, such as contract and property. Relationships between investors and sovereign states come into existence when two or more states agree to a bilateral (or multilateral) investment treaty (BIT), or the provisions which are normally included in a BIT form part of a free trade agreement (FTA). Chapter eleven of the North American Free Trade Agreement (NAFTA), for instance, contains the relevant provisions concerning investor-state disputes in the context of North American investors operating in another NAFTA state. [2] The provisions in NAFTA essentially allow an investor to sue a sovereign state through the International Centre for Settlement of Investment Disputes (ICSID), a branch of the World Bank based in Washington D.C., in the event that its property was expropriated. BITs are ostensibly beneficial to both investors and the signatory states. Investors gain from the legal certainty which the BIT provides in…

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Ecuador opens its borders to universal citizenship: a step forward on the way to equality of peoples?

In principle, open borders might tend toward the respect of international equality; but in practice it does not necessarily provide more equality for vulnerable populations. It can actually enable profiteers to benefit from less supervised borders and trick desperate people into leaving their home for the American dream. Opening borders may not be enough: if an immigrant finds himself inside the country but excluded from the local community, like those who do not have papers in Ecuador, he may not be illegal but he is not legal either. Future experiences of open-borders may be more positive, who knows; but the Ecuadorian situation can hardly be called a success.[i]

Borders are quite representative of the current state of international affairs: each state, as the supreme authority, decides who comes in and who gets to stay on its territory. Some countries are lucky, like Canada: being very attractive to most, Canada can pick and choose as it pleases. For immigrants, coming to Canada generally means an important improvement of living conditions and revenue. Thus, Canada has strict immigration policies that allow it to discriminate against immigrants that may not be as “desirable” for the Canadian society.

Now this raises the question: are borders and discriminatory immigration legitimate? Is it possible to administrate a country without borders? Does international equality require open borders? If a country suddenly changes its policy and opens…

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Egypt’s Dilemma: The Price to Pay for The Rule of Law

No other current event has garnered as much press and concern from the international community as the mass popular protests against the Mubarak regime in Egypt. The string of recent uprisings in the Middle East reminds us of the wildfire spread of revolutions across the nations of the Eastern European bloc in 1989. Egyptian protesters, emboldened by the successful overthrow of President Zine El Abidine Ben Ali in Tunisia, have organized massive demonstrations in several key cities in Egypt, demanding reform and President Hosni Mubarak’s immediate and unconditional surrender of power. Many factors have contributed to the recent uprising in Egypt, including the country’s many economic and social ills, yet one of the root causes for public grievance lies with the major shortcomings of Egypt’s legal system itself.

Following the assassination of Egyptian President Anwar Sadat in 1981, Egypt has been under permanent state Emergency Law that has limited political expression and dissent. [1] On May 11, 2011, Egypt’s parliament, dominated by President Mubarak’s National Democratic Party, voted to extend the Emergency Law active since 1981 for two more years. Although the official reason for the extension was to curtail terrorism and drug trafficking, the Emergency Law effectively gives the government the right to arrest “people without charge, detain prisoners indefinitely, limit freedom of expression and assembly, and maintain a special security court .” [2] Michael Scheinin – the UN’s…

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The ICC v. Sudanese Stability: How the results of the South Sudan Referendum might jeopardize the possibility of an international criminal jurisdiction

With the results of the referendum in South Sudan producing an overwhelming vote for independence, the prospect of Omar Hassan al-Bashir being tried at the International Criminal Court (ICC) have become increasingly slim. The indictment and warrant issued by chief prosecutor Luis Moreno-Ocampo in March 2009 (and a subsequent one filed in June 2010) was always going to be hard to enforce; Al-Bashir continued to travel unimpeded to neighboring African countries, some signatories to the Rome Convention with an accompanying obligation to arrest and extradite the President of Sudan for the crimes committed under his watch in Darfur. The international community seemed to  forget the outstanding warrant as the situation in Darfur improved, turning even more of a blind eye  in the run-up to this month’s referendum in the south of the country. The US and its allies were so desperate for the Southern referendum to occur peacefully that it eased its position towards the Sudanese government. The imminent creation of the 193^rd state might further hinder attempts to enforce the warrant, with the distinct possibility that al-Bashir’s indictment gets withdrawn. At the very least, the Khartoum’s government peaceful approval of the south’s secession should ensure that no country will dare jeopardize this momentous occasion by enforcing Moreno-Ocampo’s attempt at justice for the thousands of victims in Darfur. The ICC would indeed then suffer a fatal blow to its…

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Is proselytizing a basic human right?

Former British prime minister Tony Blair addressed McGill students on Friday as part of his Faith and Globalization initiative, asking them, “Does religious faith become a means of providing civilizing values to civilization and thereby be a force of progress, or does religious faith become a badge of identity in opposition to those who aren’t of the same faith?”  That is, is the continuing proliferation of religious identities good, bad, or simply inevitable? He proceeded to say that he sees this as the dominant question of the 21^st century.

Previously, I have attempted to explore the limits of freedom of religion in Canadian and international law; I now return to this subject in order to consider the question of whether freedom of religion encompasses the right to proselytize one’s faith. While an exhaustive examination of the issue would doubtless require a far more detailed analysis than I am able to provide here, I hope to provide at least an overview of the relevant considerations.

Legislative provisions on religious proselytism vary widely from one country to another. Most western countries impose no specific constraints on proselytization, leaving its regulation to social norms of conduct or religious bodies themselves. A number of countries, such as Greece and Nepal, ban the activity outright and threaten transgressors with criminal sanctions. Many countries impose limits on who can proselytize: it is illegal for non-Muslims to…

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Guest Contribution: “It Doesn’t Make you Feel Right”: Failings of Rights-Based Citizenship for Women of Colour in a South African Small Town

Where do women fit in public life in post-apartheid South Africa? In what ways must traditional conceptions of ‘the citizen’ expand to encompass the historically specific circumstances fifteen years into South Africa’s democratic project?  How, if at all, must these expansions consider women?  While South Africa famously has one of the world’s most progressive Constitutions, women of all ‘racial’^[2] groups find themselves caught between the post-apartheid transformation imperative and continuing deeply-entrenched patriarchy.  These values clash to produce a paradoxical relationship between women and South African public space.  As du Toit (2005) and Moffett (2009) argue, South Africa’s epidemic levels of sexual violence illustrate this paradox.

This study explored these tensions, drawing on in-depth, semi-structured interviews conducted with twelve voting-age women of color^[3] in Cradock,^[4] Eastern Cape, South Africa, during the month of July 2009.[5]  

Knowledge of, and Ability to Engage with, Rights

The research design began with a traditional definition – that citizenship rests on both the knowledge of and ability to claim rights. As expected, gender, geographic marginality, and the continuing challenges of post-apartheid transformation do combine to alienate women in Cradock – differentially along ‘race’, ‘class’, and age lines – from both aspects of their democratic rights.  Findings also, as we shall below, showed this approach is insufficient for a full understanding of women’s lived experiences of the transition to a new, democratic South…

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The Symbolic Gesture of the ICJ Decision on Kosovo

Professor Daniel Turp, in his recent article to this blog dealt with the ICJ’s recognition of Kosovo’s unilateral declaration of independence. He states that, “le droit […] l’est parfois pour les individus, un instrument au service de la liberté.” Considering Kosovo’s longstanding struggle for independence, it is likely that many Kosovars would agree. However, I believe that the ICJ judgment points to more limits in international law than liberties, and that the likelihood of this decision to enhance personal or collective [political] liberty is illusory.

Although the ICJ intentionally avoided the issue, it is clear that secession invariably invokes self-determination. This is probably the liberty Professor Turp speaks of. The principle of self-determination was first proposed to the League of Nations by Woodrow Wilson’s in his plans for post-World War I Europe. It was based on a “reinterpretation of the principle of self-determination”, which itself has its roots in American and French revolutions [1]. Some of the biggest limits of this principled notion are its definitional ambiguities and the difficulty in applying a concept built on the foundations of individual liberties to collective rights.

Self-determination can be found in the UN Charter articles 1(2), 55 and 73; The Declaration on the Granting of Independence to Colonial Countries and Peoples (Colonial Declaration) and the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with…

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Winds of Change or Hot Air? Decolonization and the Salt Water Test

Nineteen Sixty is considered a watershed moment for the anti-colonization movement: in this single year, seventeen African States were created or ‘decolonized’, obtaining independence from European colonial regimes. In a public address at the time, British Prime Minister Harold MacMillan noted that ‘winds of change’ were sweeping the African continent. The norms of international law followed suit: Resolutions 1514 (XV) and 1541 (XV) of the United Nations General Assembly were adopted in December 1960. Together, they form a fundamental part of the customary law underpinning the right to self-determination. At this anniversary of fifty years, it is useful to critically reflect upon this episode in the history of international law.

The Declaration on the Granting of Independence to Colonial Countries and Peoples, passed on December 14, 1960, recognized that “the peoples of the world ardently desire the end of colonialism in all its manifestations” and consequently affirmed that, “All peoples have the right to self-determination.” The United Nations resolved to assist Trust and Non-Self-Governing Territories (UN Charter, art. 73, i.e. subjugated colonial States) in their movements for independence by supporting the immediate transfer of all powers to the peoples of those territories. Indeed, the United Nations categorically condemned colonization. But this still begged the question – what exactly was colonialism?

One day after Resolution 1514, Resolution 1541 (XV) was passed – a more substantive document specifically…

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Madrid 1 – Barcelona 0 : Spain’s Constitutional Court stops Catalonian Nationalist Ambitions

The last few decades of European integration have challenged and re-conceptualized the traditional role of nation-states on the European continent. The end of totalitarian dictatorship coupled with the emergence of democracy spurred secessionist movements in various European countries, notably Spain, the former Yugoslavia and other East European countries where large minorities were stuck on what they saw as the wrong side of the post-Soviet state borders. Spain is a particularly interesting case because of the severe repression of Basque and Catalan nationalists during the Franco regime, but also due to the popularity of the EU, particularly in autonomous regions that see the supra-national entity as an alternative to the unpopular nation-state.

This article focuses on the Catalonian plight for greater autonomy and self-government and recent rebukes to the nationalist goal of full independence from Spain. On June 28^th 2010, the Spanish Constitutional Court ruled on the Catalan Statute that had tried to define the scope of self-government in the region. The Court had deliberated for four years after a challenge by the main opposition People’s Party (PP) and several Spanish regions to a reform proposal of the Statute of Autonomy passed in 2005 by the Catalan Parliament and ratified by Catalans in a referendum in June 2006. Controversy erupted this summer when the Court invalidated fourteen articles. The Court went on to provide…

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