The Functionality of International Law: A Critical Analysis

Part B Analysis #1 - Natural Law + Link to Part C

“The idea that international law is an oppressive, unjust system is outdated. While it may have privileged the needs and desires of Western states historically, today it functions to ensure that global challenges that affect people in all parts of the world are dealt with appropriately”. Discuss the extent to which you agree with this statement. In your answer, make sure you discuss TWAIL as well as material from Part C of the course. You may also draw on material from other Parts of the course if it is helpful for your answer. Please follow exactly the same essay structure as the following. Do not miss out any thing so pls proofhead everything before you deliver the solution back to me. This is the final exam so pls deliver it within the deadline before 2am on 27th June according to Nz zonetime. Example Essay Structure for Part B & C Introduction: Introduce what you are going to talk about. E.g What does the statement mean “Law is unjust and not everyone is equal before the law. Therefore the law is politicized” for example. This could also be your thesis statement Model your intro off the one you did for your mock exam Always say what your essay is going to discuss. In this case you will be referring to theories about the law (part ???? in relation to law in a global context (part C) Part B Analysis #1 - Natural Law + Link to Part C Natural Law and Branches of International Law Introduce your first theory. Natural Law What is natural law? What do some natural law theorists say? (evidence of quotes) Most important part: From a Natural Law perspective how you would analyse the statement. Natural law thinking is an ingrained sense of what is fair and what is not fair. There are two branches of International Law where there is a sense of fairness/informed sense of justice: Human Rights Law and Environmental Law. Discuss International Law: Public international law concerns the legal rights and obligations that states have in respect of each other; citizens are not directly affected by it (hence ‘inter-national’). The subjects (‘legal persons’) of international law are nation states and some intergovernmental organizations. Issues covered by international law (through treaties, custom, and legal principles) include state relationships (peace, diplomacy,etc.), trade, human rights and the environment. International Law is a body of rules established by custom or treaty and recognized as binding in their relations with one another Emergence of fields of International law International Human Rights Law: Human rights recognize the inherent value of each person, regardless of our cultural background, where we live, how we look like, or what we believe in. They are expressed in the 1948 Universal Declaration of Human Rights and 25 global and regional treaties that have entered into force since 1965 (legally recognized) Can make links to morality here International Environmental Law: Does nature deserve rights too? Next to the protection of human rights, the protection of Earth’s ecological systems determines how peaceful, just and sustainable our future will be. States have accepted certain responsibilities, however, the global environment (the ‘earth system’) continues to deteriorate. What are the most pressing environmental issues humanity is facing? Climate Change Loss of biodiversity at an unprecedented rate Pollution Overpopulation Capitalism Key Issue: State Sovereignty Sovereignty is defined in the UN Charter (1945): Article 2(1) UN Charter: Organizations is based on the principle of sovereign equality of all its Members Article 2(7) UN Charter: Nothing in the charter authorizes the UN to intervene with matters which are essentially within the domestic jurisdiction of any state Sovereignty is not an issue for Human Rights Law: Not essentially domestic, they are universal and pre-state law therefore any violation of fundamental human rights would bring a state into breach of international law Sovereignty DOES pose an issue for the Environment: Considered a domestic affair, sovereign decision of the state to protect it Problem: States depend on a functioning ecological system to survive so should be seen as global matter subject to global control CASE STUDIES: Van Gorkom v AG (1977) Tavita vs Minister of Immigration (1994) Both these cases show that some Human Rights obligations are so fundamental that Parliament is not even supreme enough to overrule them Law can be about justice and entrench globally held moral beliefs IF the State elects to do so. Cannot always automatically adhere to what is perceived as what should be globally “moral”. Part B Analysis #2 - Legal Positivism + Link to Part C Legal Positivism and the Relationship between International Law and National Law Introducing Legal Positivism (you did a great job of analysing Legal Positivism in your Statement 3 from your mock exam answer). What is legal positivism? Find a theorist to explain legal positivism (quote evidence etc.) Again, explain from a legal positivists perspective, how they would critique this statement. Critically analyse the statement (this means to assess both sides of the argument but in the end you will come to one conclusion), for example with Legal Positivism, this theory is AMORAL so it is not concerned with justice or morality. Legal Positivism is not concerned with such a statement, Legal Positivism thinks the law is just the law, it disregards morality. Then make your link to Part C. I think a good link for Part B here is to look at Part C topics that talk about how the law functions. For example the Relationship between International Law and National Law. The principle of state sovereignty ensures that a national parliament (usually democratically elected) can decide whether, how, and to what extent international obligations should be incorporated into domestic law. However, some states give priority to international obligations over domestic law more easily than others such as New Zealand. Differences between states result not just from domestic politics, but also from differing constitutional arrangements and associated political philosophies (‘monism vs dualism’). Monism: International and national law as a single legal system Legal regulations as a single legal system binds states and individuals Countries interpret things differently (cultural, legal, historical differences) but they follow a certain consistency International laws automatically applies in National Court Dualism: International and National law are distinct legal systems (they are not parts of a unified whole) Take NZ as an example, due to NZ’s constitutional arrangements, international law is not automatically applicable, it must first be incorporated through an Act of Parliament due to the principle of Parliamentary Supremacy. CASE STUDY: NZ Airlines Pilots’ Association v Attorney General [1997] Advantages of a dualist legal system: National law maintains a democracy, makes sure individual needs/interests are taken care of Autonomy and sovereignty are key to maintain domestic law (international law would allow too much intervention) Benefit of state sovereignty is stop intervention from other countries ? don’t want to be exposed to powers that we cannot control, our law maintains control in our own country Greater clarity,certainty and predictability about knowing what law is A national court may only apply international law when the law has been incorporated into national law or when the court incorporates international law on its own motion Dualist approach clearly follows a positivist approach, it has the strength of pointing to exactly what you follow. The law is made in a more obviously more valid way. Part B Analysis #3 - Critical Legal Studies & TWAIL (Feminist Legal Studies could also be discussed) + Link to Part C Critical Legal Studies, TWAIL, Feminist Legal Theory and International Law Introduce Critical Legal Studies. What is CLS? CLS suggests that the law is unjust and is not neutral (good connection to quote). CLS says that the law is politics. Politics = power, so the law must favour the wealthy and perpetuates inequality. CLS says not everyone is equal before the law. This is also reflected in theory of TWAIL (Third World Approaches to International Law) In theory, all international states should be equal. TWAIL argues that international law was set up in the interests of colonialism in the 15th century. “States” were equal, but generally described European states. Non western style states weren’t recognised. Check the Part B Notes to get info on: The primary aims of TWAIL The development of international law is criticised, as it claims to be universal, but perpetrates a Eurocentric perspective to maintain power imbalance International law universality seems to therefore require that all countries are now equal, but TWAIL says that although it appears to happen, that’s not correct. Although they can participate as equals in the United Nations, the Security Council are charged with keeping peace and security in the world, with a number of powers – 5 permanent members with veto powers – China, Russia, France, US, UK (based on world war 2 victors). Only these 5 countries have nuclear weapons, with most other countries signing a treaty that they will never have nuclear weapons – power imbalance. There is also economic control through the World Bank and IMF, etc – third world countries are required to accept their assistance To make a connection between TWAIL and Part C: You again could discuss how International Human Rights Laws are very Eurocentric Eastern countries opposed to Western views of ‘rights’, favour ‘responsibilities’ instead (RIGHTS vs. RESPONSIBILITIES). This again shows that people's perception of Human Rights is dependent on where they come from. You could further develop on this point by addressing Feminist Legal Theory (from Part ???? to address that International Human Rights Laws are quite patriarchal in nature: The current legal system subordinates women Feminism fits under the CLS umbrella, rejecting the view of law as objective, believing that law reflects and reinforces existing power structures to the detriment of females – it is not objective and neutral. Criticisms of Human Rights from a Feminist perspective: Like TWAIL and Indigenous people, feminists question the universality of Human Rights It has been argued that Men and Women have different relationships with the state; and that Human Rights are grounded on this masculine view Can use CASE STUDY: Van Gorkom v AG (1977) to show that there are some instances where human rights and gender neutrality is able to overrule statutes CLS, TWAIL, and Feminist Legal Theory would all agree that law is about power CLS = Law is politicized TWAIL = Law is designed to recognize European States, UN Security Council also displays a power imbalance Feminist Legal Theory = Law is dominated by men Conclusion Summarise your ideas and explain the main conclusion that you were able to come to ?