Wednesday, April 21, 2010

The Expanding Reach of International Law: A Historical Evaluation

The expanding reach of international law has been heralded by some and scoffed at by others during the last century. This expansion has not been without atrocity and triumph. To better understand the expanding reach and evolution of international law, it is necessary to understand its evolution from a historical perspective.
    International law, when evaluated through the historical lenses, reveals a transition from "statism" to "positivism", and more recently, "globalism". Understanding each of these concepts individually becomes a critical component when critiquing the application of international law as it applies to matters directly involving the individual.
    Statism became paramount in the nineteenth century following the dissimilation of the concept of nobility and the de facto right and capability of an individual to make decisions. The individual, through this lens, was no longer given consideration, and resulted in a period of reformation and the emergence of the nation-state.
Following the Age of Enlightenment the concept of "sovereignty" changed from Church supremacy to State supremacy. State supremacy and the modern parameters of sovereignty were established by the Treaty of Westphalia in 1648. The concept of statism, therefore, "vested [sovereignty] not in the people but in the national state, and [conceived] that all individuals and associations exist only to enhance the power, the prestige, and the well-being of the state" (Plano, 1973).
This state-centered philosophy gave rise to a positivistic concept of law. This concept of law dominated for more than two-hundred years, resulting in a "subject-based approach" (Huber, 2009). According to Huber (2009), the
"subject-based" approach to international law is firmly founded on the doctrine of inalienable state sovereignty. In this positivistic legal framework, state sovereignty prohibited the imposition of legal obligations on states for the purpose of protecting human rights. In essence, no longer was there any legal or moral authority higher than the state.
The authority of the state was finally challenged following the atrocities of World War II. Grave violations of human rights, during the war, resulted in the Nuremberg trials. The trials resulted in the ability to charge and prosecute individuals under international law.
At the request of the General Assembly of the United Nations, the International Law Commission prepared a formulation of the principles of international law recognized in the Charter and the Judgment of the Nuremberg Tribunal (Nuremberg Principles). The General Assembly unanimously affirmed these principles and in 1947 further requested the International Law Commission to take them into account in preparing the Draft Code of Crimes Against the Peace and Security of Mankind (Draft Code). (Gallmetzer & Klamberg, p. 60)
    The Nuremberg trials ushered in the return of classical political philosophy, as it applied to the individual. Whereas prior reformation had offered protection to the individual by giving supremacy to the state, the Nuremburg tribunal rejected such notions stating that, "'[c]rimes against international law are committed by men, not by abstract entities and only by punishing individuals who commit such crimes can the provisions of international law be enforced'" (Huber, 2009).
    Following the trials at Nuremburg international law further expanded its reach to the individual. This was evidenced by several important cases in international law. One of the first was Liechtenstein v. Guatemala which was held before the International Court of Justice in 1955. The "Nottebohm Case," as it was called, resulted in a decision that defined effective nationality.
    While Liechtensten v. Guatemala could be considered a set-back for the rights of the individual, under international law, later cases returned some protection to the individual's right to be protected under the state.
From or about 1998 the Strasbourg court [ECHR] has further implied or read into article 2, positive obligations on the state to establish and enforce a general framework of laws, regulations and procedures to ensure the due protection of the lives of individuals within their (legal) jurisdiction. (O'Neill, 2009)
    The Nuremberg and later Tokyo International Tribunals established the basis for individual and state liability, under international law, for criminal acts against human rights, global peace, and war crimes.
    The specific responsibilities and guidelines for legal application of these principles were defined by Article 6 of the Charter of the Nuremberg International Military Tribunal, and later affirmed and codified by the International Law Commission, a subsidiary of the United Nations.
    Essentially, Nuremberg was the beginning of many events which would define and recognize, not only individual rights under international law, but also individual responsibilities. This expansion and recognition of the individual forced the decline of statism, the erosion of the concept of nationality as defined by territorial boundaries, and the rise of a new concept known as "globalization".
    Globalization, driven by technology, has resulted in the high-speed sharing of information, ideals and norms between states and individuals. It has challenged the traditional view of sovereignty "by trends toward extraterritoriality, regionalization, and universality of laws" (Huber, 2009).
    The challenges for international law, created by these trends, have resulted in a world that is desperate for guidance. In an attempt to meet these needs many intergovernmental organizations (IGOs) were developed. In 1949 the recognition of IGOs as a "legal personality" by the International Court of Justice essentially transformed international law.
    Today these IGOs, the most important being the United Nations, have played important roles in protecting human rights. Human rights protection has developed and been established through various international tribunals and courts. This too, presents new challenges for international law.
These international courts can suffer from insufficient funding, lack of jurisdiction, and especially impotence in implementing their decisions. Even the International Criminal Court, with its compulsory jurisdiction, must have its jurisdiction originally accepted by parties in treaties. (Huber, 2009)
    Another challenge for the expansion of international law, as argued by many scholars today, is the erosion of the State and the over-empowerment of the individual. If an over emphasis is placed on the individual's rights, national norms and customs will be skewed. Hence the argument emerges that international law should respect and remain "rooted in a transcending moral order, the natural law" (Huber, 2009).
    Globalization has undeniably resulted in the need for structure within international law that can develop and manage mutual respect, reasonable responsibilities, and expectations between and among States, individuals and intergovernmental organizations. The establishment and recognition of human rights has been a great triumph, resulting from this evolutionary process. Nonetheless, a system lacking the power of enforcement struggles, and will likely continue to struggle to find balance.
In conclusion, international law, and the expansion thereof, must be regarded as a malleable science. It should adjust accordingly to the needs of the system, yielding when necessary to the supremacy of the State, and when necessary suppressing that same power for the protection of the individual. It is unlikely that we will see a complete resurrection of prior philosophies. However, historical lenses should be applied when necessary, and the lessons of our ancestors, both "positivists" and "statists" incorporated, in an effort to achieve and maintain this delicate balance.
Effective nationality is a principle critical determining the dual-national citizen's protection under the state. "The application of the 'genuine link' theory, borrowed from the very different context of dual nationality problems, has the unfortunate effect of depriving an individual of a hearing on the merits and the protection by a state willing to espouse his claim in the transnational arena. The net effect is an immense loss of protection of human rights for individuals" (

McCann v. United Kingdom (1996) brought into question Article 2 of the European Convention on Human Rights.

3 "Legal personality" for IGOs was established by the Reparation Case (1949). Prior to this case, international law only applied between States; as States were interpreted as having international personality and were therefore respected to have their claims heard internationally. "The 1949 Reparations of Injuries Advisory Opinion confirmed that IGOs, as well as individuals and multi-national corporations could posses rights and responsibilities as the State may attribute to them" (

Advisory Opinion. (1949). Reparation for injuries suffered in the service of the United Nations:
Advisory opinion of 11 April 1949. Retrieved on April 17, 2010 from
Gallmetzer R., Klamberg, M. (n.d.). Individual responsibility for crimes under international law:
The un ad hoc tribunals and the international criminal court. Retrieved on April 17, 2010 from
Huber, N. (2009). The challenges of expanding the scope of international law. Retrieved on
April 17, 2010 from
O' Neil, A. (2009). The European Court and the duty to investigate deaths. The Journal Online.
Retrieved on April 17, 2010 from
Plano, J. (1973). Statism. In political science dictionary. Dryden Press.
Reviews on the principle. (2004). Reviews on the principle of effective nationality. Retrieved on
April 17, 2010 from

Thursday, April 15, 2010

Ethics in Government Contracting: Time for a Change?

Recent media reports of corruption in government contracting has resulted in a damaged reputation for the profession, government agencies, and government contractors. The problem seems to be the failure to establish clear ethical guidelines. The results of such failure results in ruined reputations, fines, imprisonment, delayed or terminated government programs, and additional costs to taxpayers.

In the April 2010 issue of Contract Management, William Sims Curry, makes several suggestions for the improvement of and development of guidelines for “acceptable limits on gratuities” within the government contracting field.

As a professional in the financial industry for the past three years, I was shocked to learn that current standards for ethical conduct and guidelines for gift giving/ receiving do not exist for contractors and government agencies. Perhaps there are several lessons to be learned from existing FINRA, NASD, and State Department of Insurance regulations which guide and establish annual maximum gift amounts as well as guidelines and reporting standards for “conflicts of interest”.

Sims (2010), concluded that a “zero tolerance gratuity policy” was “impractical,” nonetheless, should be a goal for government contractors, officials, and agencies during the contracting/ subcontracting process. Sims (2010) stated,

“[p]rogress towards zero tolerance with respect to gratuities could be achieved if government agencies would reward contractors that implement effective zero tolerance gratuity practices by providing added consideration with respect to source selection decisions and profit negotiations. Such incentives are presently provided by the federal government by rewarding contractors that establish effective management systems and implement effective social contracting practices [see (FAR) 15.404-4 and (FAR) 15.304” (p. 56-57)

What are your thoughts and feelings on existing ethical guidelines for government contracting as they pertain to “gratuities”? Is it ethical at all or should a “zero-tolerance” policy be implemented? What is your personal experience (good or bad) with the giving and accepting of “gratuities”?

Tuesday, April 6, 2010

International v. Municipal Law

What is International Law

The history of international law has varied over the past four centuries. Origins can be traced back to medieval times, but did not take a prominent place in history until the early Seventeenth Century.

Early international law was based deeply in philosophy and history, focused on the idea that history was driven by nature, and the idea that, that which was right was also divine.

As history progressed through the inter-war period, the study of international law was historically based. However, the end of the Cold War led to a realization that a cosmopolitan idealism was all but perfect. According to Pierick and Werner (2010),

[f]rom ancient philosophy on, the cosmo-polis has been portrayed as a perfect order, guided by divine or natural reason, and contrasted to actual men-ruled polises that were failing ideals of justice and law. Cicero, for example, described true cosmopolitan law as …‘right reason in agreement with nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrongdoing by its prohibitions . . . We cannot be freed from its obligations by senate or people, and we need not look outside ourselves for an expounder or interpreter of it.’(p. 4)

With the collapse of the inter-war period, it became evident that international law, from the perspective of an ideal cosmopolitan approach based in historic reasoning, had failed and was outdated. This thinking was no longer applicable in a functional world where addressing complex problems such as human rights, trade law, and environmental issues were a critical part of international relations.

During the early 1990’s efforts were made to transition the post-Westphalian focus from “national security” to “human security”. Around the world, issues of human security were putting pressure on decision makers to reform international law.

Essentially, the plausibility of post-Westphalian perspectives involved the rise to high visibility of a multidimensional normative agenda: implementation of human rights, accountability for past crimes of state, abridgements of sovereignty, and the rise of humanitarian peacekeeping. (D’Amato & Abbassi, 2006, p. 4)

This agenda combined with social pressures encouraged multilateral approaches to

global security and the willingness of judicial bodies to recognize and apply international standards of law.

These changes, especially those of the judicial bodies, meant that states were now held to standards domestically and internationally. This caused “the rule of law [to be] extended to the foreign policy of governments…” (D’Amato, et al., 2006, p. 5). International institutions emerged as critical actors and therefore the state-centric, Westphalian, world order began to transform and the critical importance of the new international law began to emerge.

Today international law serves a broad range of interests. It is no longer seen as a simple set of rules whose purpose is solely to maintain peace. Recent cases have turned state supremacy upside-down and new actors, such as non-governmental organizations and corporations, have joined the international stage. According to D’Amato and Abbassi (2006), “[l]ocal acts are internationalized, and national boundaries seem more permeable…” (p. 9).

International Law and Municipal Law

How does municipal law become international law? How does international law affect municipal law? Do they affect each other at all? All of these are questions that have been debated by scholars; none of which have a clear answer.

Municipal law, by definition, can be summarized as the law that governs the relationship between individuals and a sovereign state. It can be specified to a certain degree by region: provincial, territorial, regional or local level. Regardless of the degree of specification, municipal law is created by a body of political superiority within the sovereign state, for the observance of the individual.

In contrast to municipal law, international law governs the relationship between and among States. States submit to the governance of international law only to the extent that they accept it as a common rule of actions amongst themselves. The creation of the law and the acceptance therein, is generally formed from the customs and traditions, international political structure, and the treaties that States form. In addition, international law is decentralized, not regularly enforced and does not necessarily have any consistent mode of adjudication.

While the basic purpose of international law, the governance of a system of relationships, is the same as municipal law, there is a difference of opinion as to whether international law and municipal law form a single conception of law. Those that believe that it does form a single conception of law are known as monists. Others, who believe that international law is distinctly separate from municipal law, are known as dualist.

Monism, usually based in natural law, “may arise either out of a unified ethical approach emphasizing universal human rights or out of a formalistic, hierarchical approach positing the existence of one fundamental norm underpinning both international law and municipal law” ( Essentially, whether international or national, both are merely a particular manifestation of the single entity of law.

Monist also believe that, in the event of conflict, international law will prevail. There are several reasons for this thinking. First and foremost, natural law itself is hierarchal. Therefore, natural law would prevail first, followed by international law and then national law, in the event of a conflict.

Another reason was argued by monist-positivist, Hans Kelson. Kelson argued that the

…'state should behave as they customarily have behaved'. As a consequence International Law is representing a higher legal order and as such supreme, because it is derived from the practice of states and national law is derived from the states as established in international law.

Positivist thinking distinctly separates international law from municipal law. (

And finally, Sir Hersch Lauterpacht, a member of the United Nations’ International

Law Commission and a Judge of the International Court of Justice, argued that, “the 'state' itself is seen as a collection of individuals rather than a legal entity in its own. In this view the international law prevails, because it is the guarantor of individual liberty” (

Dualist, strictly deny the operation of international and national law within the same framework. They argue that international law regulates the relationships between states and that national law regulates the relationships of individuals. Because of their separate jurisdictions, and separate subject matter, some extreme dualist views have argued that it is not possible for national law and international law to conflict.

One such thinker was Sir Gerald Gray Fitzmaurice, judge of the International Court of Justice until 1973. He formulated what is now,

know[n] as the 'Fitzmaurice compromise'. He assumed that since the two systems, international and national law, do not operate in common field, they can never come into conflict. Each one of them is supreme in its own domain, thereby 'any apparent conflict in the domestic field is automatically settled by the domestic conflict rules of the forum and any conflict in the international field would be resolved by international law. (

Both, Fitzmaurice and Lauterpacht, held seats on the International Court of Justice’s bench,

though at different times. Nonetheless, this example is a perfect representation of the continuing power struggle that surrounds municipal and international law.

Success Stories

While it is apparent that there is no clear winner in this debate, the current United

Nations appears to support a monist based approach. In the General Assembly’s 2009 Annual Report on Strengthening and Coordinating United Nations Rule of Law Activities (The Report), the Organization acknowledges the, “linkages between the rule of law at the national and international levels [as] substantial and multifaceted” (p. 6).

The current monist view is a departure from a statement contained on the United Nations’ Rule of Law website which states,

[t]he United Nations works to support a rule of law framework at the national level: a Constitution or its equivalent, as the highest law of the land; clear and consistent legal framework, and implementation thereof; strong institutions of justice, governance, security and human rights that are well structured, financed, trained and equipped; transitional justice processes and mechanisms; and a public and civil society that contributes to strengthening the rule of law and holding public officials and institutions accountable. (

This departure is likely the result of globalization which increasingly requires multilateral

cooperation and mutually agreed upon principals between Member States. In fact the United Nations requires that “States fulfill their international obligations, particularly with respect to the Charter, irrespective of their domestic law, and establish effective internal mechanisms, where necessary, in order to ensure compliance”(

The United Nations’ recent efforts to assist states in incorporating international norms and standards in domestic law have had many success stories. The most notable success is in the area of human rights. According to the United Nations (2009),

[s]ignificant legislation on children’s rights was adopted in Egypt, Nigeria, Uruguay, and — after a nearly 12-year consultative process — in South Africa, with United Nations support. New juvenile justice legislation was passed or legislative revisions were made in Albania, Angola, Montenegro, Mozambique and Thailand. (p. 7)

Furthermore, the United Nations is active in gaining support for constitution-building processes that include eliminating discrimination against women. To this end, the Organization had success in “Ecuador in 2008 and in the Plurinational State of Bolivia in 2009” (United Nations, 2009, p. 7); and is currently working on similar efforts in Nepal.

Other areas of concern, and often conflict, include trade and environmental issues. Often, a conflict between municipal and international standards and norms arises. The United Nations has further worked to integrate international standards and norms into domestic law in regards to these issues. In addition, they have attempted to provide a reasonable means by which conflict can be resolved and damages compensated. In 2009, “The Report,” noted the most recent successes in this area.

Action with respect to adoption of international trade law instruments was taken by Albania, Armenia, the Dominican Republic, Guatemala, Lebanon, Mauritius, Peru and Rwanda. Best practices resulted in two recent United Nations draft guidelines for the development of national legislation on access to information, public participation and access to justice in environmental matters, and on liability, response action and compensation for damage caused by activities dangerous to the environment. (United Nations, 2009, p. 7)


The United Nations approach to the “rule of law” both municipal and international has changed throughout history just as the “rule of law” itself has varied between a monist and dualist system. While a “best choice” is not apparent; it is clear that the “rule of law” plays a significant role in international relations, state sovereignty, and global peace. Both nationally and internationally, the “law” provides, and will continue to provide, a framework of expected norms and standards by which states and individuals are called to adhere to.


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Pierik, R. & Werner, W. (2010). Cosmopolitanism in context: Perspectives from international law & political theory. Cambridge University Press. Retrieved April 4, 2010 from

United Nations. (2009). Annual report on strengthening and coordinating United Nations rule of law activities: Report of the Secretary-General (United Nations Publication No. A/64/298). Retrieved April 4, 2010, from http://daccess-dds-