GPSolo Magazine - October/November 2005
International Law Frameworks
By David J. Bederman
International Law Frameworks ($30 from Thomson West’s Foundation Press imprint, 2001) is an informative, well-written book that lays out the basic concepts, theories, and organization of international law. The author, David J. Bederman, teaches public international law at Emory University School of Law in Atlanta, Georgia. Despite the fact that its information is current only as of July 2000, the book is still worth reading because it focuses on cases and examples that are still relevant today, such as Paquete Habana (1900) and the Iran-U.S. Claims Tribunal (1981).
International Law Frameworks is organized into four parts. The first is “Sources and Methods of International Law.” Here we learn about the different sources of international law: general principles, custom, and treaties. This section of the book also discusses the conflict in international law between positivism and natural law. Of course, the conflicts between these two schools of thought are also present in current domestic law—think of the slavery debate in the 19th century and even the abortion debate today.
Professor Bederman attempts to dispel some myths about international law. While discussing the myth that “international law is its own, separate and distinct legal system,” he cites a U.S. Supreme Court case, Paquete Habana, from 1900. In that case, two Cuban fishing boats sailing under the Spanish flag were captured by the U.S. Navy as a “prize of war” during the Spanish-American War. In its decision, the Court analyzed international sources of history, tradition, and custom to determine that fishing boats were exempt from capture. At one point, the Court said, “[i]nternational law is part of our law . . . [f]or this purpose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations. . . .”
Because the Paquete Habana case involved the ancient Law of the Sea, referring to international history, tradition, and custom is understandable. However, such reliance on international law is controversial. U.S. Supreme Court Justice Antonin Scalia has objected to the Court’s citing foreign decisions as sources to assist in the interpretation of the U.S. Constitution—specifically when decisions involve U.S. domestic law. Consider Lawrence v. Texas, 539 U.S. 558 (2003). Justice Anthony Kennedy’s majority opinion favorably cited four decisions by the European Court of Human Rights. At the time of this writing, the U.S. Supreme Court nomination hearing for Judge John Roberts has not yet occurred. However, I am willing to bet that at least one curious senator will ask Judge Roberts his opinion on this very topic. It’s become that important and controversial.
Part Two of International Law Frameworks discusses “Subjects and Objects of International Law.” In this section, Professor Bederman makes the distinction between “subjects” of international law (the actors who exercise rights and have duties) and the “objects” of international law. Professor Bederman acknowledges that states are still the preeminent actors in international law, but he recognizes that the “real revolution” in the field is the recognition of individuals as “subjects.” He then discusses the duties of individuals under international law and gives the example of the Nuremberg Trials as the key moment in history when international law duties were imposed on individuals. He finishes Part Two with chapters on “Law of the Sea,” “International Environmental Law,” and “International Economic Law.” These chapters discuss the responsibility of a state to respect the international law rights of other countries, international claims, nationalizations of foreign investments, and human rights. Professor Bederman notes that it’s only been since World War II that international law made the complete transition from protecting state sovereignty to protecting human rights as well. This is where the tension between positivism and natural law comes to the fore.
Part Three deals with the relationship between international law and U.S. law. I found this to be the most informative and interesting part of the book. The author makes the point that the successful enforcement of international law largely depends on domestic legal systems. I am glad Professor Bederman spent some time explaining that neither customary international law nor a provision of a treaty can revoke a right granted under the U.S. Constitution. For example, a treaty cannot revoke a U.S. citizen’s Sixth Amendment right to a jury trial by his or her peers.
Part Four covers war and peace and discusses how international law manages conflict in the world. Professor Bederman dedicates a chapter to the “Control of Armed Conflict.” Naturally, there is a long discussion about the United Nations Charter. There is also a chapter on a subject very familiar to judge advocates in the U.S. military: “Laws of War.” In this chapter, the author examines the rules concerning the conduct of war. Here you’ll find an examination of the Hague Conventions and the Geneva Conventions. The final chapter in the book is about peaceful settlements, which includes a review of the role and organization of the World Court.
Because its material is current only as of July 2000, the book does not discuss some topics of increased importance in our post-9/11 world, such as the responsibility of a state regarding the treatment of illegal (or unlawful) combatants. This issue has certainly risen to prominence with the detention of prisoners at Guantanamo Bay, Cuba.
On the other hand, the book does treat several topics of particular interest since 9/11. One such concept is anticipatory self-defense—an issue Professor Bederman addresses with a discussion of Article 51 of the UN Charter, the self-defense clause. As examples of anticipatory self-defense, he uses the U.S. blockade around Cuba in 1962 and the Israeli attack on Iraqi nuclear facilities in the 1981. Of course, a better (and more controversial) example is the U.S. war with Iraq that started in March 2003—two years after the book was published. Nevertheless, the author’s discussion of anticipatory self-defense in light of Article 51 is still relevant.
International Law Frameworks remains a worthwhile read. It successfully fulfills its main purpose: to provide the reader with a framework for understanding international law.
Captain Timothy J. Rushenberg is an assistant staff judge advocate in the U.S. Air Force, currently stationed with the Fifth Bomb Wing at Minot Air Force Base, North Dakota. Captain Rushenberg is licensed to practice law in the state of Indiana and the District of Columbia. He can be reached at email@example.com. The views expressed in this product review are the views of Captain Rushenberg and are not intended to be an endorsement by the Department of the Air Force, the Department of Defense, or the U.S. government.
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