International Law Framework

The value criterion is...consistency with international law.

Here are some of the best justifications for an international law framework.

Consent of States (Arend)

NECESSARY LINK: see page Bindingness of Consent

Consent to a system of international law generates an obligation on states to follow international law.

Anthony Arend (Professor of Government and Foreign Service, Georgetown). "International Law and the Preemptive Use of Military Force." The Washington Quarterly. Spring 2003. 92.

As noted earlier, international law is created through the consent of states. Behind this understanding is the assumption that states are sovereign and, accordingly, can be bound by no higher law without their consent. As a consequence, states can lawfully do as they please unless they have consented to a specific rule that restricts their behavior. As the Permanent Court of International Justice, the predecessor of the current ICJ, noted in the Lotus case: International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages [that]generally accepted as expressing principles of law and established in order to regulate relations between these co-existing independent communities or with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed.

Legal Nature of Governments

Individuals are both moral and legal entities, but governments exist solely within the law and thus are only able to accord according to law and not based on intangible moral principles. Thus, the only criterion that can apply to state action is adherence to a system of law.

Public Faith in Government (Feller)

Moral standards of international law are key to worldwide public faith in the state.

A.H. Feller. “In Defense of International Law and Morality.” Annals of the American Academy of Political and Social Science, Vol. 282, (Jul., 1952), pp. 77-83.

At the same time I must state my deep conviction that for the long run, the "legalistic-moralistic approach," awkward as those words sound, applied sincerely and with a realistic regard for its short-term limitations, will perforce remain the highroad of a decent and effective foreign policy. And it is only in this way that we shall preserve our balance and our sense of direction. There are some who would have us believe that by following this road we make ourselves "slaves of the concepts of international law and morality." This is an extraordinary underestimation of the larger aims of foreign policy. The peoples will never believe that true and enduring world peace can be achieved without the eventual creation of a world order based on law and morality. In my view, they are perfectly right in their belief. A foreign policy devoted to the careful adjustment of power interests by professional diplomats may work for a time in a limited sphere, but it will never retain the allegiance of the mass of people who yearn for a better world.

Sole International Governance (Shaw)

States must recognize international law as the only system that exists to guide action in the international arena.

Malcoln N. Shaw (Professor of International Law, University of Leicester). International Law. Cambridge University Press, pp. 43. 2003.

But the raison d’etre of international law and the determining factor in its composition remains the needs and characteristics of the international political system. Where more than one entity exists within a system, there has to be some conception as to how to deal with other such entities, whether it be on the basis of co-existence or hostility. International law as it has developed since the seventeenth century has adopted the same approach and has in general (though with notable exceptions) eschewed the idea of permanent hostility and enmity. Because the state, while internally supreme, wishes to maintain its sovereignty externally and needs to cultivate other states in an increasingly interdependent world, it must acknowledge the rights of others. This acceptance of rights possessed by all states, something unavoidable in a world where none can stand alone, leads inevitably to a system to regulate and define such rights and, of course, obligations.

Supremacy Clause of the Constitution (De La Vega and Leighton)

The Supremacy Clause of the U.S. Constitution binds us to follow international law.

Connie De La Vega and Micelle Leighton (Professors of Law, University of San Francisco). “Sentencing Our Children to Die in Prison: Global Law and Practice.” University of San Francisco Law Review, Volume 42, August 2008.

International law, as expressed through international treaties and other agreements, is the supreme “law of the land” in the United States and should be applied in the context of [to] juvenile sentencing. The Supremacy Clause is the common name given to Article VI Clause 2 of the United States Constitution, which states: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the land; and the Judges in every State shall be bound thereby, any Thing in the Constitution of Laws of any State to the Contrary notwithstanding.

Supreme Court Precedent (Supreme Court)

The Supreme Court has ruled that following international law, including customary law, is a legal obligation in the U.S. 

U.S. Supreme Court. “The Paquete Habana”, 175 U.S. 677 (1900) Nos. 895-896 Argued November 7-8, 1899 Decided January 8, 1900.

International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination. For 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, and, as evidence of these, to the works of jurists and commentators, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.