Introduction to Public
International Law from a Human
Rights Perspective
(HUMR 4100)
“Putting Law into Perspective ”
21 August 2006
Richard Hustad, Assistant Lecturer
Norwegian Centre for Human Rights
University of Oslo, Faculty of Law
What are Human Rights?
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Nature?
Source ?
Origin?
Basis?
Purpose?
What is meant by
”human ” and
”rights ”?
Human Rights Law is Designed
to Protect Human Rights
“Human rights
norms are the
legal expression
of the essential
rights that every
person is
entitled to as a
human being. ”
HRC, GC 24 (4)
What is Law?
What is Law?
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Idea of law
Creation
Interpretation
Re-interpretation (etc.)
Implementation
Legal Schools of Thought:
Legal Dogmatics
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De lega lata ( “what the law is ”)
Traditional method (see VC & ICJ Statute) – —discovery of the
state of the law through research of primary legal
sources. There are correct answers to every legal
question.
Two branches
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Legal Positivism—what the law is at the moment it emerges
from the institutional process (how made and intentions of
legislators irrelevant)
Legal Formalism—what the law is, considering how the legal
system operates after a law is made
Judicial activism undermines the rule of law
Criticism—indifferent to substantive justice
Legal Schools of Thought:
Legal Formalism & Justice Scalia
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”If you are a textualist , you don ’t care
about the intent , and don ’t care if the
framers of the constitution had some
secret meaning in mind when they
adopted its words . ”
”Long live formalism! It is what makes us
a government of laws and not of men. ”
--Amy Guttmed (ed.). A Matter o f Interpretation (1997), p. 25.
Legal Schools of Thought:
Dogmatics—Legal Positivism
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Law is made by human beings
No inherent or necessary connection between
law and ethics —law is not about morality.
Law is selected and validated by the judicial
decision alone —nothing else is required . This is
not arbitrary because positive laws require
reasons and justifications.
Law effects ethics , but ethics is not a factor in
law—every legal rule is ethically relevant
because it effects freedom , which is of obvious
ethical significance (Robert Alexy).
Legal Schools of Thought:
Dogmatics—Legal Positivism
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Oliver Wendell Holmes—law is a science of
observing and giving counsel as to what
governments / courts might do. This could include
well-stated arguments based on cases and
reasoning .
Jeremy Bentham —the philosophy of law is to
explain the real law of the expositors .
( Expositors—explain law in practice . Censors —
criticize the law in practice , what ought to be.)
Riggs v. Palmer, 115 N.Y. 506 (1889)
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A wealthy businessman wrote a testament ( will)
giving small amounts of money to two of his
daughters and the vast amount of the estate to
his grandson ( the son of a third daughter ).
Fearing his grandfather would change his will,
the grandson killed him by poisoning .
Probate law was clear that the will was valid and
there was no provision to invalidate it due to the
murder .
Criminal law provided for punishment of the
grandson for the murder
Riggs v. Palmer: Holding
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Majority Opinion
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Universal law and maximums would be violated by allowing one
to profit from their crimes .
Legislature cannot be expected to address all concerns in
crafting laws .
”When we make use of rational interpretation , sometimes we
restrain the meaning of the writer so as to take in less, and
sometimes we extend or enlarge his meaning so as to take in
more than his words express . ”
Dissenting Opinion
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Punishment was levied in criminal law and adjusting the will
would be an additional punishment not provided in the statute .
Courts cannot create or imagine statutes so as to obtain a
morally pleasing result .
Legal Schools of Thought:
Natural Law
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There is law that exists independently
of positive law
The essential connection between
law and justice
Examples
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Magna Carta
U.S. Decl. of Ind. ( ”inalienable rights ”)
Scotland —civil, criminal, and natural law
Ancient Greece —nature ( physis ) vs. law
or custom ( nomos ). Law varied from
place to place while what was ”by
nature ” was the same everywhere .
Legal Schools of Thought:
Natural Law Methodology
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Natural law is ”found ” or ”discovered , ” but
not made .
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St. Thomas Aquinas—common law must be
viewed through a natural law lense which is
used to both interpret what the common law
says and pass judgment on its moral worth
Thomas Hobbes —natural law is determined
by reason
Legal Schools of Thought:
Legal Realism (1920s-40s)
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The law is more than formal sources
Indeterminacy —Jerome Frank: a judicial decision might
be determined by what a judge had for breakfast
Importance of interdisciplinary approaches
Legal instrumentalism (legal politics) —law is a tool to
achieve social purposes and balance competing societal
interests (to this end, creativity in interpreting legal texts
is justified)
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De lege ferenda (what the law should be)
De sententia ferenda (how to reinterpret presently -existing law)
Methodology: examine the interests, ideologies, politics,
etc. of both the institutions that create law and those
that interpret law
Legal Schools of Thought:
Critical Legal Studies
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Law is politics (continuation of legal realism) —same
arguments made in legislature and judiciary.
Indeterminacy —any holding can by squared by a
judge using legitimate legal arguments. (What then
is the rule of law?)
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Stated purpose of the law is usually not
fulfilled—law tends to serve the interests of the
wealthy and powerful.
Primary legal sources are inherently
contradictory.
Methodology: deconstruction
Legal Schools of Thought:
Beyond Positivism
Legal Methodology:
Comparative Method
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Compare different legal systems/
jurisdictions
Isolate differences and similarities in order
to understand the reasons for them
The issue is why differences exist, not just
a survey of differences
Formulating Legal Analysis: IRAC
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Issue = clearly state the issue
Rule of Law = what is the law to be
applied
Analysis = apply the law to the specific
facts of the case
Conclusion = what should be the outcome
What about International Law?
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Differences between international and
domestic law.
Law making process
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Hard law and soft law
Law interpretation process
Law enforcement
Is International Law Effective?
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Louis Henkin: ”It is probably the case that
almost all nations observe almost all principles of
international law and almost all of their
obligations almost all of the time. ” How Nations
Behave (2nd ed. 1979), p. 47.
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Ian Brownlie: ”Empirically, the argument can be
made that international law is more ’real’ than
domestic law. Transgressions of domestic law
occur continuously , but do not mean that
domestic law does not exist. Common sense
must prevail in assessing the performance of
law. ” The Reality and Efficacy o f IL (1981), pp . 2 -3.
Is International Law Effective?
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James: ”Internationally , as elsewhere , law is a
commitment to ordered relations . Ubi societas ,
ibi ius. ” Law and Order in I n t’l Society (1973), pp . 83 -84.
U.S. Restatement : ”International law is law like
other law, promoting order, guiding, restraining ,
regulating behavior . States treat is as law,
consider themselves bound by it, attend to it
with a sense of legal obligation and with concern
for the consequences of violation. ”
Ancient Concepts of Int’l Law
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14th c. B.C.—Plague prayers of King
Mursili in the realm of the Hittites (eastern
Asia Minor). Cause of a plague believed to
be the breach of an inter -state treaty .
374 B.C.—Rules among Greek city-states ,
but not between Greeks and barbarians
who were ”by nature in a state of war
with each other . ” Plato, The Republic, Book 5,
Section 3.
Modern Legal Roots
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Treaty of Westphalia (24 Oct. 1648) —
international relations organized around
sovereign states
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All parties were obliged to protect provisions of the
treaty from protagonists ”in counsel and force to
repel the injury. ”
1644 —Formation of the Ch’ing dynasty in China
( lasted until 1911).
1650 —Hindu assertion of independence with
organized resistance of Moghul emporers .
Textbook: Cassese, International Law, p. 6
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States have power without duty to other
states —all are acting within their own self
interest .
Is this ”true ”?
Consider the war on terrorism .
Consider the present mid-East hostilities.
Is Sovereignty ’Good’ or ’Bad’?