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KAREN J. ALTER: Hello.My name is Karen Alter.I'm a professor of political science and lawat Northwestern University.My research studies the influenceof international courts on international relationsand domestic politics, and I teach courseson international law and international relations,international organizations, and ethicsin international affairs.Today, I'm going to talk to you about international law
KAREN J. ALTER [continued]: as it affects international relations.Conversations about international lawseem overwhelmingly negative.I have a Google Alert that I have for international law,and most of the articles that come across my plateare articles saying this policy violates international law.And sometimes, the policies that supposedlyviolate international are policies that I actually thinkare good.
KAREN J. ALTER [continued]: And sometimes, they're really bad policies thatjust seem to continue anyway.And so you get this perception from this newspaper coveragethat there are all kinds of violationsof international law going on.But there's a very famous quote by a professorof international law, Louis Henkin whosaid, "Almost all nations observealmost all principles of international law almostall of the time."
KAREN J. ALTER [continued]: And no scholars contest this.No diplomats contest this, neither international relationscholars nor international law scholars.So we want to investigate this idea.Why would it be that Henkin is right? "Almostall nations observe almost all principles of international lawalmost all of the time."Today, I'm going to talk about-- what is international law?Where does this international law come from?
KAREN J. ALTER [continued]: And how does international law influenceinternational relations?So first, what is international law,and why is this law almost always obeyed?There's an official answer, and this answer peopleget from the Article 38 of the Statute of the International
KAREN J. ALTER [continued]: Court of Justice.The International Court of Justiceis the court associated with the United Nations.And its statute says that the sources of international lawinclude treaties-- bilateral treaties,multilateral treaties-- international custom,general principles of law, and judicial decisionsand juristic writings.But let me say-- what does this actually mean?So this international court statute is from 1945,
KAREN J. ALTER [continued]: but actually, these have been the foursources of international law for a very long time.This was European practice, this was American practice in our USSupreme Court before we had the United Nations,and I recently saw a study that sawthese four sources going all the way back to 1500 BCE in Egypt.So these four sources have alwaysbeen the sources of international law.
KAREN J. ALTER [continued]: And they're a little bit different than the sourcesof domestic laws, so they take a bit of unpacking.So if you think about it, treatiesare agreements that are negotiated by heads of states.They are signed.And today, they are ratified.And that seems like an obvious source of international law.That's like legislation.Custom is what is shown by practicebecause not all international law was historically written
KAREN J. ALTER [continued]: down or is even now written down.So we then look to the practices of governments,that maybe they didn't write down, and seethat these are sources of international law practices,such as you should not kill envoys.The general principles of law comefrom domestic legal practices because we haven't yetwritten down these principles, but the best practices
KAREN J. ALTER [continued]: in domestic law-- like due process, good faith-- we justincorporate them into international lawunder the general principles of international law.But then how do we know what is customand what are general principles of law?Well, the way we know is by lookingat judicial decisions, how this law has been applied over time,and by the writings of scholars who tell you what practices
KAREN J. ALTER [continued]: and what sources of international law exist.So we have these four sources of international law.Some are clearer than others.We still have to ask this question of-- where doesinternational law come from?When we use these four sources, where do they come from?
KAREN J. ALTER [continued]: Well, treaties are about what governments can agree to.So they are privileging governmentsin the making of international law.Custom was also what the heads of states did,what kings did historically, and what the practicesof great powers were.The general principles were good practicesthat we take from rule of law statesand primarily Western rule of law states,
KAREN J. ALTER [continued]: and the legal writings tend to be elite and Western and paidfor by traders.So a lot of people in the developing worldsay we had no say in this international lawthat you're now saying we're accountable to.On the one hand, if international lawis what the powerful states agreed to,then it's unsurprising-- Louis Henkin's quote--that "Almost all nations obey almost all principlesof international law almost all of the time."
KAREN J. ALTER [continued]: Yet, Henkin means a lot more thanthat the powerful write the rules that they then follow.What he means is that international lawis followed because it defines the rules of the road.States write down the negotiated practices,and these practices are about how to achieve mutual goalsand how to avoid accidents.So we want to avoid air traffic accidents,
KAREN J. ALTER [continued]: so we write down rules for the air.We want to protect endangered species that cross borders,so we write down rules for endangered species.And we've even written down rules for war,and we have rules for the oceans.So these are the rules that help states get along and avoidtraffic accidents.And states agree to these rules of the road,
KAREN J. ALTER [continued]: and, therefore, it's not surprisingthat they would then follow these rules of the road.So one way to think about Henkin's claim--"Almost all nations observe almost all principles almostall of the time"-- is that most people almost always followthe rules of the road most of the time,especially if these are the rules that they helped craft.But this answer appears to be breaking downbecause the newspaper articles are always
KAREN J. ALTER [continued]: reminding us of the times that international law is notbeing followed.So one reason why we see these newspaper articles moreand more is that international law has actually moved.It's moved the goalposts well beyond what governmentsused to agree to and rules that are about directing traffic.And you see this change most acutelyin human rights treaties and in new international criminal
KAREN J. ALTER [continued]: accountability.So human rights treaties limit what governmentscan do at home to their own citizens,so they seem deeply intrusive.And international criminal law, whichis codified in the Rome Statute, holds heads of statesaccountable to rules of war.In defining how governments treat their citizensand in saying that political leaders are
KAREN J. ALTER [continued]: directly accountable, international lawhas moved the goalpost.And my research discusses these changesand discusses the rise of international courts, whichare really part of these changes,but it's the law itself that moved.And what I argue is that we've moved international lawfrom this idea that it's really a contract between governmentsto the idea that we expect the law to be followed,
KAREN J. ALTER [continued]: that there should be a rule of international law.And I want to explain this for a secondbecause it's really important.So when we see law as a contract,the basic idea of contracts is pay or perform.And you might have a cell phone contract,and you agreed for two years maybeto go with this cell phone carrier.
KAREN J. ALTER [continued]: And as long as you pay your cell phone bill,they will provide you cell phone service.If you stop paying your cell phone bill,they will stop providing you cell phone service,but you also retain the right to change carriers.They usually have an exit clause.So you could pay some fine, and thenyou could exit from the contract and that would notmean that you were some violator of the rule of law.
KAREN J. ALTER [continued]: This was an agreement worked out between the United Statesand the Soviet Union at the time, both of whichagreed not to develop anti-ballistic missiles.These could strike down missiles that wouldbe delivering nuclear weapons.So why wouldn't you want this defensive weapon?And the reason is that we have this principleof mutually-assured destruction for nuclear weapons.
KAREN J. ALTER [continued]: And we wanted to make sure that, if one country firedone nuclear weapon on the other country,that the other country could retaliate.And that prospect of retaliation waswhy you never would actually use nuclear weapons,and so we agreed to this Anti-Ballistic Missile Treaty.Neither side would develop weaponsthat could undermine this mutually-assured destruction.Now, this treaty had a withdrawal clause.
KAREN J. ALTER [continued]: You could give six months of notification to withdraw,and that's precisely what President Bushdid in 2001 when he said the world context has changed.We now want to be able to improve our missiles,update our missiles, and we want to end this Anti-BallisticMissile Convention with the six-month notification.So that was a perfectly legal partof this contract of the treaty.
KAREN J. ALTER [continued]: And so there are treaties that work exactly like contracts.But increasingly, as the goalpost of international lawhas moved, it doesn't work anymore like a treaty.It works a lot more like a rule of law.Now, this part has always been present in international law.A founding principle of international lawis pacta sunt servanda.It's a Latin word which means that treatiesare meant to be obeyed, which basically means you're
KAREN J. ALTER [continued]: supposed to keep your promises.So this idea of pacta sunt servandareflects the notion that legitimate governmentsrespect the rule of law.There are laws that are passed by legislaturesor maybe embodied in constitutions,and just because the current governmentdoesn't like it doesn't mean that they can say,"I'm no longer bound by this law."So just like the current president can't say,"I'm going to ban assault weapons,
KAREN J. ALTER [continued]: and I'm going to ban all guns," because it'sembedded in our constitution, the ideais that no leader is above the lawand each leader has to follow the rules thathave been adopted legitimately.Much international law today reflectsthis rule of law understanding rather thana contract understanding, which meansthat states can be bound by some international laws
KAREN J. ALTER [continued]: even if they have not opted in.And of course, this makes sense because governments change.So you can't require that international law constantlybe re-upped every time there's a new government,but also, the categories of custom and of jus cogensreflect this idea that you can be bound by international laweven if you didn't explicitly opt in.And in reality, no country can withdraw from certain laws.
KAREN J. ALTER [continued]: You can't withdraw from the United Nations Charternor can you withdraw from certain legal obligationslike the Genocide Convention.You can't say, "I want to now commit genocide and war crimes,so I'm withdrawing."And one country's violation of the contractdoes not break the contract for others.So just because an authoritarian regimeviolates human rights, that does notmean that your own country can violate human rights.
KAREN J. ALTER [continued]: So we've had this shift of mentality of this ideathat international law is a contract between governmentsto a set of ideas that international law isa body of law that binds both governments and their peoplesand militias within the state.This is part of a larger trend that'soccurred since World War II.We see it in the creation of international courts.We see it in the creation of the International Criminal Court
KAREN J. ALTER [continued]: and in the rising trend of litigating violationsof international law.So what is international law today?It's a set of legal rules that are crafted in consultationwith others.These rules are crafted in advanceof any particular dispute so that you can't just changethe law whenever convenient.They reflect the insights learned over many, many years,
KAREN J. ALTER [continued]: and they reflect our hopes as much as they reflect realities.So international law is a very good first cuton what state's thought were rulesthat made sense for the international political systemtoday.And because they're a smart set of jointly-crafted and shareguidelines, it's only prudent that almost all nationswould follow almost all international law almost
KAREN J. ALTER [continued]: all the time.Yet, it's still the case that international law reflectswhat powerful actors-- primarily states-- would agree toand that, as we move the goalpost to human rightsand to war crimes, it looks more and more aspirational.International law looks more and more aspirational.And the further we aim, the larger
KAREN J. ALTER [continued]: the gap between expectations and realities.Let me end by talking about-- howdoes international law influence international relations?And I want to talk about four ways in which international lawshapes international relations.It defines what's normal and what
KAREN J. ALTER [continued]: is expected of legitimate governments.It's the method we use to craft global goals.Thirdly, it's how we change policy in other countries.And fourthly, it's how we define our collective aspirations.So international law defines what is normal and expected.There are thousands of treaties, and these treatiescreate focal expectations.For example, every legal boat that we find in the high seas
KAREN J. ALTER [continued]: needs to have a registered flag.And if it doesn't have a registered flag,then you can assume it's a pirate boat.And so we expect that, if you are a boat without a flag,it must mean you're probably a pirate.It also express-- international law alsoexpresses good practices that we expect others to follow.We expect, when a new diplomatic arrives,
KAREN J. ALTER [continued]: they will present their papers, and these paperswill be recognized.So to not follow international lawis to act like a rude and uncouth foreigner--that you don't know what you're doing.And international law violations attract attention,and they set you apart.That doesn't mean you don't ever do them.Sometimes, you want to attract attention and be set apart.
KAREN J. ALTER [continued]: But if you want to follow the rulesof international relations, international lawdefines what is normal.International law is also the methodwe use to craft global goals.If we want to create a new policy,address a new issue, how we do this is by creating a treatyand creating international law.So when we want to stop the flow of money going to terrorists,
KAREN J. ALTER [continued]: when we want to stop overfishing in the oceans, when we wantto address transborder environmental problems,we do this through international law.And international law is actually a very flexible toolto do this.An important distinction for lawyersis this idea that there are soft law and there's hard law.And soft law are non-binding aspirations,and hard law are binding legal agreements.
KAREN J. ALTER [continued]: These are difficult categories, and itcan be hard to tell what is hard law and what is soft law--although every lawyer and diplomat knowsthat a declaration of the United Nations General Assemblyis soft law, it's never binding, and that decisionsof the United Nations Security Council and ratified treatiesare hard law.That is binding although they can have soft law provisions.
KAREN J. ALTER [continued]: So it can be complicated.But let me give you an example.Let me tell you about the CITES Convention, whichis the Convention on InternationalTrade in Endangered Species of Wild Fauna and Flora,because this is an example of how stateshave used international law to craft and achievecollective goals.What the CITES Convention does isit creates a process for recognizing endangered species
KAREN J. ALTER [continued]: and for regulating interstate trade in endangered species.So it also has some soft law provisions,but it has hard law provisions thatlimit trade between states.It's been ratified by almost every government in the world,and it's a treaty that is what governmentsthought they could do.The commitments are sincere.This agreement is a lot better than what we had before.
KAREN J. ALTER [continued]: And thus, you could see, almost all governments, almostall nations observe almost all principlesof the CITES Convention almost all of the time.It is what governments want to do.International law is also how we changethe policy in other countries.So when a treaty is negotiated, the next stepsare domestic steps that involve ratification,
KAREN J. ALTER [continued]: which is the domestic legislature agreeingto be bound by this treaty and incorporatingthis treaty into domestic law.And the legal obligations, therefore, of a treatyoften include implementation and even reporting processes.And so states will report on how they're implementingthe treaty, and then these implementation reportswill be monitored by others.
KAREN J. ALTER [continued]: And this is actually how the International Criminal Court'sRome Statute works.You signed on to the Rome Statute,and you agree that the court willhave authority and jurisdiction over war crimes.But it also requires signatory statesto create domestic legislation thatallows them to prosecute war crimes at home
KAREN J. ALTER [continued]: and to prosecute these crimes regardlessof where they occurred.Because the primary idea would bethat states would prosecute their own war criminalsor they would prosecute war criminalsthat end up in their country.And this is reflected in the complementarity principleof the International Criminal Court.It will only take jurisdiction if no other court is
KAREN J. ALTER [continued]: willing or able to prosecute.So this Rome Statute actually changes domestic practiceson international criminal law.The United States has not signed onor ratified the Rome Statute, but we actuallyhave implemented this requirement--that we change our domestic laws to allow the United States
KAREN J. ALTER [continued]: actors to prosecute war criminals,and we have prosecuted war criminals in this country.So the fourth way that international law changesand affects international politicsis how we define our collective aspirations.So global problems-- when we have global problems,we see international law as part of the solution.We see it as a way to help promote respect
KAREN J. ALTER [continued]: for human rights.We see it as a way to address mass atrocities.We see it as a way to help clean up the global environment,and we use both soft law and hard lawto achieve these objectives.So to recap, what is international law?Formally speaking, it's treaties; accepted practices,
KAREN J. ALTER [continued]: which is international custom; good ruleof law procedures, which is general principles of law;and judicial decisions and juristic writingsare a subsidiary source.How does international lost shape international relations?It identifies what behavior is expected.It is the language and the methodthrough which governments coordinate their policies
KAREN J. ALTER [continued]: across borders.It's a tool that can actually shift the law and practicesin many countries, and it's the way that countries in the worldcollectively express humanity's aspirations.So if you want to learn more about international law,I would recommend that you read Lewis Henkin's famous book,How Nations Behave.And if you want to see about the changes in international law,
KAREN J. ALTER [continued]: read my book, The New Terrain of International Law:Courts, Politics, and Rights.That describes the growing creationof international courts, the switchfrom a contract to a rule of law,and it has 18 case studies of international courtsand international law shaping state behavior.[MUSIC PLAYING]
International Law and International Relations
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Professor Karen J. Alter provides a detailed analysis of International Law and diplomatic polices. Her explanations offer examples from various treaties and pacts throughout history.
Professor Karen J. Alter provides a detailed analysis of International Law and diplomatic polices. Her explanations offer examples from various treaties and pacts throughout history.