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University of Waterloo
International Studies
Brian Orend

INTST 101: Introduction to International Studies Brian Orend Unit 2: International Law As mentioned last lecture, the international world tends to be, at any given time, either ordered or disordered. When it is disordered, conflict and war are the norm. When it is ordered, it is often because of the strength and dominance of a global hegemon. But people aren’t stupid, and they have realized that these two options may not be the best way to go. And so you have the attempt to structure a third way—a way to achieve order yet without the over-weaning power and dominance of any given country. This is the way of international law. International Law, defined. International law is precisely the attempt to order relations between nations and countries through rules of law, as opposed to through power, force, threats, money, etc. An attempt to bring relations into regularity, normality, stability, predictability, based on rational rules of conduct as opposed to who has the bigger army, air force, etc. The use of reason to guide conduct in international life, in the hopes that international society can be made as stable and peaceful and productive as domestic or national life is within the developed societies, like Canada. Wouldn’t it be great if, in international life, we could have our disputes settled through negotiation or court systems, instead of through sanctions and war? This is the aim and ambition of international law. Quick History International law only came into being very recently (so to speak). Its birth is often dated at 1648, with the signing of the Treaty of Westphalia between the major powers of Europe. The Treaty of Westphalia ended the Thirty Years War, over religion, within Europe. Until that time, violence had been raging between Protestants and 1 INTST 101: Introduction to International Studies Brian Orend Catholics for dominance, and especially within Germany, which lost 1/3 of its population over the course of the war. The Treaty of Westphalia essentially said this: OK, look, we can’t kill all of you, and you can’t kill all of us. Nor can either of us convert each other to our own religion through brute force and violence. So let’s just stop. You pick your religion in your country, and I’ll respect your choice, and you do the same for me. It was an agreement to live and let live, so to speak, really the first modern affirmation of a value of tolerance for religious and cultural difference in the law. In terms of international law, the idea was that each state could pick its own state religion, and all the other states in Europe would agree not to try to interfere with that choice, or to use force to try to convert other populations. This was the first expression of domestic sovereignty, and it has since grown into one of the two big rights of states or countries: the right of political sovereignty. States have many rights in international law, but the two really big, basic foundational ones are the rights of political sovereignty and territorial integrity: Territorial integrity means that other countries have to acknowledge the right of a government and a people to live within a given territory, and they are not to encroach upon that territory, and certainly not do anything like invade that country and try to take it over. Stay out, and hands off my turf, in other words. Political sovereignty means that, within that territory, the people can make its own laws and system of governance as it best sees fit, provided that system of governance doesn’t have any harming affects on other countries (like that issue of religious choice). 2 INTST 101: Introduction to International Studies Brian Orend Within a clearly-defined territory, people ought to be able to govern themselves as they best see fit, provided they respect the rights of others to do the same. This is probably the most basic premise and value of international law. How does International Law Get Made? Who makes international law—and how does it get enforced and applied? Students tend to be fascinated with this question. International law is like a series of contracts which countries themselves freely enter into, seeking benefits for themselves and trying to make life easier for everyone. So, who makes international law? The answer is national governments. Say these national governments preside over countries which neighbour each other—and there is a lake between them. They say, look, we need an agreement as to how we are each going to deal with this lake, how we are each going to take water out of it, how we are each going to put pollution into it, how we are going to regulate boaters and water safety, etc. These national governments then get together and negotiate the details of all these things. The result is a treaty, in this case, one on the border lake they share. There are two kinds of treaty: bilateral and multilateral. Bilateral means “two-sided”, so that’s a treaty between two countries, whereas multilateral means “many-sided”, i.e. any agreement between three or more countries. Multilateral treaties, in turn, are of two kinds: regional or global. A regional multilateral treaty has been negotiated by at least three countries in a close, coherent geographical region, whereas a global multilateral treaty has been negotiated by all, or almost all, countries in the world. Examples? The Canada-US Free Trade Agreement, of 1989, is an example of a bilateral treaty, dealing with the trade of goods and services across the Canada-US border, between those two countries. 3 INTST 101: Introduction to International Studies Brian Orend The North American Free Trade Agreement, of 1994, is an example of a regional multilateral treaty between Canada, America and Mexico, again on the flow of goods and services between these three countries. Another example would be the treaty founding the European Union, signed by most of the countries of Europe, but no countries outside that region. Global treaties are harder to come by, as there are more differences of opinion. But the UN Charter, the Charter founding the United Nations and detailing its parts and how they would work, is one such example, from 1945. Technical vs. Political treaties A bit more about this “harder to come by” business. There actually are a number of global treaties which have enjoyed great success. But many of them are known as “the technical treaties.” Technical treaties are treaties which deal with practical issues of very little political significance, or perhaps controversy is the better word. Technical treaties include things like: how luggage gets handled on international flights; how radio waves should be distributed; how telephone or (in the past) telegraph lines ought to be laid across the bottom of the oceans; and so on. You can see how it would be pretty easy to get strong, even world-wide consensus on such targeted, precise issues, because they are very detailed, of little political consequences, and everyone has an interest in having things move smoothly and efficiently in that regard. Whereas the so-called “political treaties” are much more controversial, since they have deeper implications for how a society runs itself. So, for example, the international human rights treaties are much more controversial and hard to come by than the telegraph treaties because the human rights treaties are promises by governments about how they are going to treat their own people. There are some global human rights treaties, more below, but they were much harder to come by than the technical treaties. Economic treaties are in-between, regarding level of controversy. On the one hand, they are controversial because they can have implications for how a government collects taxes, and what kinds of goods it allows to be sold to its own people. On the other, if everyone can see that they will benefit in some way from a deal, then rationally they will usually agree to it. It’s easier to show people that they will make more money, whereas it’s harder to show people that they ought to change the way 4 INTST 101: Introduction to International Studies Brian Orend they run their society politically, and so that’s why the political treaties are the most difficult. There are international treaties and laws on just about any topic you can think of, though I suppose issues of trade and commerce are probably the most numerous, whereas those of war and peace probably have the deepest impact, historically. Back to Process So, we have a treaty, the product of negotiation between state governments. What happens then? Well, usually, the heads of state want to take credit for it—great photo opportunity, everyone wins, everyone is smiling, etc.—and so there is a “signing ceremony.” Essentially, when a head of state signs a treaty, that is like a public promise. He or she is saying: “I’m going to take this promise back to my country, and get it passed into law through the domestic procedure for doing so.” And that’s what happens—the government takes the signed treaty back to its national legislature, and then introduces the treaty like it would any other bill it desires become law. Then, the domestic or national procedure takes over. So, in Canada, the government of the day would read the treaty into Parliamentary record, and say it proposes that this bill become law. There is first reading, or introduction, of the bill. If this gets a yes vote, the bill goes to second reading, where it is studied in detailed: what will the consequences be? Can we afford this? Is it good for Canada? Etc. If it passes second reading vote, the big vote in the House of Commons, then it is clear sailing. There is a third vote, in the Senate, and then if it passes that, it goes to the Governor General for signature and then it is the law of the land, and the bureaucracy of the government of Canada has the responsibility for making sure the law becomes realized and enforced throughout the land. 5 INTST 101: Introduction to International Studies Brian Orend This is how the Free Trade Agreement became law in Canada, for example. So, it moves from abstract international negotiating session all the way down to some bureaucrats in Ottawa making sure that the rules agreed upon are actually observed in daily life in the country. International Institutions Now, sometimes, the treaty in question will create a new, international institution—a kind of international bureaucratic department—to aid and assist in the realization and enforcement of the treaty’s rules and laws. In such cases, it’s not just up to the various national departments and bureaucracies. The Free Trade Agreement and NAFTA created panels to help rule on trade disputes between the signing countries, and the European Union Charter, and the UN Charter, obviously created huge new international institutions in this regard, devoted to seeing that the abstract values get translated into actual reality. What I would like to do next is to illustrate this general process using the international human rights treaties and laws. But, before I can do that, I have to say a lot more about the United Nations and its structure, as the human rights law is so grafted onto that structure. The United Nations: Founding and Structure The United Nations is THE major global multilateral organization, created by the UN Charter of 1945, which we saw above was a global multilateral treaty signed by essentially every country on earth following the Second World War’s end in 1945. The UN came into being in 1946. It is an international organization devoted to promoting peace and human rights, as well as to international co-operation on common problems, 6 INTST 101: Introduction to International Studies Brian Orend more generally. There are over 190 members today, and only the national governments of count
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