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Piracy, Slavery, and the Limits of International Law: the Ag P Between the Rhetoric and Reality of Jus Cogens Stephanie Elizabeth Smith Old Dominion University

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Piracy, Slavery, and the Limits of International Law: the Ag P Between the Rhetoric and Reality of Jus Cogens Stephanie Elizabeth Smith Old Dominion University Old Dominion University ODU Digital Commons Graduate Program in International Studies Theses & Graduate Program in International Studies Dissertations Spring 2013 Piracy, Slavery, and the Limits of International Law: The aG p Between the Rhetoric and Reality of Jus Cogens Stephanie Elizabeth Smith Old Dominion University Follow this and additional works at: https://digitalcommons.odu.edu/gpis_etds Part of the International Law Commons, International Relations Commons, and the Privacy Law Commons Recommended Citation Smith, Stephanie E.. "Piracy, Slavery, and the Limits of International Law: The aG p Between the Rhetoric and Reality of Jus Cogens" (2013). Doctor of Philosophy (PhD), dissertation, International Studies, Old Dominion University, DOI: 10.25777/7560-b191 https://digitalcommons.odu.edu/gpis_etds/100 This Dissertation is brought to you for free and open access by the Graduate Program in International Studies at ODU Digital Commons. It has been accepted for inclusion in Graduate Program in International Studies Theses & Dissertations by an authorized administrator of ODU Digital Commons. For more information, please contact [email protected]. PIRACY. SLAVERY, AND THE LIMITS OF INTERNATIONAL LAW: THE GAP BETWEEN THE RHETORIC AND REALITY OF JUS COGENS by Stephanie Elizabeth Smith B.A. May 1999, University of Central Missouri B.S. May 1999, University of Central Missouri J.D. May 2002, Tulane University, School of Law A Dissertation Submitted to the Faculty of Old Dominion University in Partial Fulfillment of the Requirements for the Degree of DOCTOR OF PHILOSOPHY INTERNATIONAL STUDIES OLD DOMINION UNIVERSITY May 2013 Approved by: Kurt) Taylor Gaubatz, (Director) Member) David R. HagerfMember) ABSTRACT PIRACY, SLAVERY, AND THE LIMITS OF INTERNATIONAL LAW: THE GAP BETWEEN THE RHETORIC AND REALITY OF JUS COGENS Stephanie Elizabeth Smith Old Dominion University, 2013 Director: Dr. Kurt Taylor Gaubatz A gap currently exists between the sources of international law in the canon of jus cogens or peremptory norms. This gap is observed in the comparison of the rhetoric perpetuated by the community of international lawyers and the actions of states. It is especially apparent in the two oldest tenets of jus cogens, the prohibitions against piracy and slavery. The disconnect between rhetoric and reality exposes the limitations and the political nature of international law. The gap is demonstrated by using peremptory norms as a crucial case in the international legal system because of its perceived status as the strongest and most robust set of norms. However, as demonstrated by the prohibitions against piracy and slavery, they fail to meet expectations. To understand the rhetoric of jus cogens, an examination of international legal textbooks is conducted to provide a window into the world view of the community of international lawyers. The other side of the gap is established by both the action and inaction of states concerning these norms. Implications arising from this gap affect the moral basis, purpose, stability, and strength of the international legal system. The disconnect between the sources of international law gives rise to significant issues in international relations theory. In particular, the epistemic community of international lawyers is seen to have a constructed world view that has power over agendas and policies. This is shown to be inaccurate based on the crucial case of the peremptory norms surrounding piracy and slavery. International law is considered to be the paragon of normative systems that significantly influence state behavior. However, this project has shown that the mere existence of strong norms within a particular epistemic community may not have extensive power to modify state behavior. Caution is called for when drawing the international legal system as an example of normative power in world politics. This dissertation is dedicated to those who have inspired and to those who are hopefully inspired. ACKNOWLEDGEMENTS Thank you to all the individuals who have supported me during the completion of this dissertation. I would like to highlight the great appreciation for all the hard work and fruitful guidance that has been provided by my committee. The hours of work and dedication to this project is reflected in the vast improvements resulting from the suggestions and edits from the entire committee. Dr. Peter Schulman provided a steadfast belief in the importance of this work. Dr. David Hager provided challenges that created a highly polished finished product. Most importantly, Dr. Kurt Gaubatz has supported this project and my educational journey as both my advisor and chair that has been irreplaceable. I also acknowledge the never-ending support of my family and friends. My parents, who set me on this path at a young age, taught me not only an unquenchable thirst for knowledge and education, but also an ability to strive for my goals. My partner- in-crime, Colin Watson, who always knew the right thing to say to make the process a little less painful, while providing unconditional love and encouragement. To the individuals who were there for late-night phone calls, crazy editing questions about commas and footnotes, and off-the-wall worries about everything, thank you from the bottom of my heart. I would especially like to thank the following: Pelin Ulrich, Andrew Vincent, Melodee Baines, Emily Ruehe Puckett, Kristina Ohlmeyer, Ryann Hobyak, Alisha Zysko, Amy Stoltz-Pait, Rachel Wintterle, Matthew Hall, Eva Svobodova, Janis Edmon, Kaitlyn Garvey, and Danielle Cronin. vii The support of both the faculty and staff of Old Dominion University and my department have allowed me a chance to grow as a student and an individual. Thank you, in particular, to Dr. Regina Karp, Dr. Phil Langlais, Margo Stambleck, and the individuals at the Interlibrary Loan Service. I am greatly appreciative to one and all. TABLE OF CONTENTS Chapter Page I. INTRODUCTION.............................................................................................................1 DOES INTERNATIONAL LAW MATTER?..........................................................4 INTERNATIONAL LAWYERS AND THE JUS COGENS GAP......................... 9 INTERNATIONAL PRACTICE AND THE JUS COGENS GAP........................10 JUS COGENS: A UNIQUE SET OF NORMS.......................................................11 WHY EXAMINE JUS COGENSJ ............................................................................15 RHETORIC V. REALITY: WHY IS THIS IMPORTANT?.................................16 OVERVIEW OF THE CORE OF JUS COGENS ...................................................17 TEXTBOOKS: THE WRITTEN RECORD OF THE COMMUNITY................. 19 IMPLICATIONS OF THE JUS COGENS GAP.................................................... 21 PREVIEW OF UPCOMING CHAPTERS..............................................................24 CONCLUSION.........................................................................................................27 II. THE HISTORY OF JUS COGENS .............................................................................. 28 HISTORICAL DEVELOPMENT........................................................................... 29 THE MODERN RULE OF JUS COGENS: VIENNA CONVENTION ON THE LAW OF TREATIES (VCLT)................................................................................ 34 THE HIERARCHY AND RESPONSIBILITY OF JUS COGENS ...................... 42 THE UNIQUE STRENGTH OF JUS COGENS NORMS.....................................46 ANTI-JUS COGENS VIEWPOINTS......................................................................47 CONCLUSION......................................................................................................... 50 III. TEXTBOOKS AND RHETORIC................................................................................ 53 THE EPISTEMIC COMMUNITY OF INTERNATIONAL LAWYERS 53 WHY TEXTBOOKS?..............................................................................................55 METHODOLOGY...................................................................................................57 RHETORICAL THEMES....................................................................................... 60 CONTINUITY WITHIN THE RHETORIC...........................................................77 WHAT DOES THE RHETORIC MEAN?..............................................................81 CONCLUSION.........................................................................................................83 IV. PIRACY AND REALITY.............................................................................................85 WHAT IS PIRACY?.................................................................................................87 INTERNATIONAL LEGAL TEXTBOOK RHETORIC......................................94 CONTEMPORARY REALITY............................................................................ 102 RHETORIC/REALITY GAP.................................................................................114 CONCLUSION....................................................................................................... 118 V. SLAVERY AND REALITY.......................................................................................120 WHAT IS SLAVERY?...........................................................................................121 Chapter Page INTERNATIONAL LEGAL TEXTBOOK RHETORIC.................................... 133 CONTEMPORARY REALITY.............................................................................140
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