Date: Mon, 8 Dec 1997 11:55:31 -0600
Reply-To: H-Net and ASLH Legal History Discussion list
From: "Howard Schweber"
From research on the topic that I did some years ago, my impression is that
in modern usage there are two distinct versions of "international law,"
which might be usefully characterized as a "strong" and a "weak" version.
The strong version builds on ideas such as customary law and other forms of
super-positive authority to argue that certain kinds of conduct are required
or prohibited by common understanding. Sometimes treaties are used as
evidence of common understanding -- so that, for instance, in a war between
the U.S. and a country that is not itself signatory to the Hague and Geneva
Conventions, one might argue that the U.S. is still bound to adhere to
customary norms in the conduct of its war.
The second understanding is that
international law is the body of specific rules to which a nation has bound
itself through a process of entering into treaties and conventions, itself
governed by the Vienna Convention on Treaties. For example, when ethnic
cleansing was at its height in Bosnia some outraged commentators pointed out
that the United States is signatory to a variety of conventions relating to
human rights, national sovereignty, and cases of genocide that arguably
*required* it to intervene in force as a matter of international law.
When one starts trying to lean on this latter, more positive definition of
international law, the issue quickly becomes one of the technical rules
governing the applicability of treaties (Israel is signatory to the treaty
establishing the jurisdiction of the World Court but with a reservation
that, they have argued, keeps the question of Palestinian rights out of that
sphere; the U.S. simply withdrew its recognition of the World Court when
that body began finding that its actions in Nicaragua were illegal).
Actually, the Nicaragua case is an interesting one because the World Court
appealled to customary as well as positive international law. A good
example of positive international law at work would be the
International Covenant on the Sale of Goods, a sort of international UCC
that is increasingly important in determining the outcome of commercial
disputes, or any of a number of multilateral treaties relating to the
determination of marine boundaries. Environmental treaties are other
obvious examples.
Howard Schweber
Copyright by Howard Schweber.
Permission given to Stephen Levitt to upload paragraphs to the
international law home page for use of students.
Cornell University
Dept. of Government