Abstract
This essay comments on compliance with international law by drawing on Stanley Hoffmann's 1961 landmark article ‘International Systems and International Law’. I start with two generalizations about compliance with international law: Henkin's Law and Democratic Compliance. For each, I will note how Stanley Hoffmann's differentiations within international law presented in ‘International Systems and International Law’ provide a valuable context for better interpretation of the patterns scholars have observed. I conclude with the problem of domestic democracy and the domestic rule of law as foundations for international law. I will suggest that they are less than perfect foundations and are instead rivals against the international rule of law. I will illustrate this with comments on recent US and European jurisprudence.
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Notes
The most careful critical test to date finds that the democratic peace is statistically significant across the nineteenth and twentieth centuries (Farber and Gowa, 1995). But they counter-argue that bipolarity better explains the peace among liberal democracies than liberal mutual respect does during the Cold War after World War II. If bipolarity keeps the peace, though, why does the Soviet bipole not provide peace? Why does it militarily intervene in its pole against fellow communists – East Germany (1953), Hungary (1956), Czechoslovakia (1968) and China (1969)?
On democratic values and international law, see Benhabib (2005). I concentrate on conflicts of laws that have themselves been authorized by national democratic means.
First, that consular advice was immaterial; his lawyers tried to stop him from confessing. Second, that states are not subject to action by foreign countries in federal courts except under rare circumstances that are not applicable here.
In 354 US 1 (1957), ‘This Court has … repeatedly taken the position that an Act of Congress, which must comply with the Constitution, is on a full parity with a treaty, and that when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict renders the treaty null. It would be completely anomalous to say that a treaty need not comply with the Constitution when such an agreement can be overridden by a statute that must conform to that instrument’.
This ruling is itself interesting. Security Council decisions were regarded as definitive and obligatory by the ICJ in the Libya Case with the possibility of review according to international law. This judgment by the CFI affirms that in accord with the Vienna Convention, jus cogens norms such as Art. 2(4) against aggressive war and (contrarily?) the duty to prevent, stop and punish genocide trump SC resolutions.
Also see courtofjustice.blogspot.com/2008/09/joined-cases-c-40205-p-and-c-41505-p-c-.html and eulaw.typepad.com/eulawblog/2008/09/terrorism-the-security-council-and-ec-law-journal.cfm.
Recent UN developments have improved the rights of those accused of terrorist connections. SCR 1730 of 19 December 2006 created a review process that gives individuals a right to submit petitions to, but not participate in, an appeal at the Sanctions Committee. Governments, however, must consent if their nationals are removed from the sanctions list.
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Acknowledgements
I thank David Hambrick of Columbia Law School for research assistance and Kate Cronin-Furman and Olena Jennings for editorial suggestions.
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Doyle, M. Differentiating compliance with international law: Stanley Hoffmann's threefold distinction. Fr Polit 7, 423–431 (2009). https://doi.org/10.1057/fp.2009.23
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DOI: https://doi.org/10.1057/fp.2009.23