University of Wyoming College of Law Law Archive of Wyoming Scholarship Faculty Book Chapters Faculty Scholarship 5-5-2020 International Law George A. Mocsary University of Wyoming - College of Law, [email protected] Michael P. O'Shea Oklahoma City University - School of Law, [email protected] Nicholas James Johnson Fordham University - School of Law, [email protected] E. Gregory Wallace Campbell University - Norman Adrian Wiggins School of Law, [email protected] Follow this and additional works at: https://scholarship.law.uwyo.edu/book_chapters Recommended Citation Mocsary, George A.; O'Shea, Michael P.; Johnson, Nicholas James; and Wallace, E. Gregory, "International Law" (2020). Faculty Book Chapters. 5. https://scholarship.law.uwyo.edu/book_chapters/5 This Book Chapter is brought to you for free and open access by the Faculty Scholarship at Law Archive of Wyoming Scholarship. It has been accepted for inclusion in Faculty Book Chapters by an authorized administrator of Law Archive of Wyoming Scholarship. 13 1 2 3 International Law 4 5 6 7 8 9 10 11 12 13 14 15 16 This is online Chapter 13 of the second edition of the law school textbook Firearms Law 17 and the Second Amendment: Regulation, Rights, and Policy (2d ed. 2017). The 18 printed book, by Nicholas J. Johnson, David B. Kopel, George A. Mocsary, and Michael P. 19 O’Shea, consists of Chapters 1 through 11. More information and additional materials 20 are available at https://www.wklegaledu.com/johnson-firearms-law-2. The printed book 21 may also be purchased from Amazon.com and Barnes & Noble (bn.com). The companion 22 website for the book is firearmsregulation.org. 23 The online chapters, by Nicholas J. Johnson, David B. Kopel, George A. Mocsary, 24 and E. Gregory Wallace, are available at no charge from either https://www.wklegaledu. 25 com/johnson-firearms-law-2 or from the book’s separate website, firearmsreglation.org. 26 They are: 27 28 12. Firearms Policy and Status. Including race, gender, age, disability, and sexual 29 orientation. 30 13. International Law. Global and regional treaties, self-defense in classical inter- 31 national law, modern human rights issues. (This chapter.) 32 14. Comparative Law. National constitutions, comparative studies of arms issues, 33 case studies of individual nations. 34 15. In-Depth Explanation of Firearms and Ammunition. The different types of fire- 35 arms and ammunition. How they work. Intended to be helpful for readers who 36 have little or no prior experience, and to provide a brief overview of more com- 37 plicated topics. 38 16. Antecedents of the Second Amendment. Self-defense and arms in global histori- 39 cal context. Confucianism, Taoism, Greece, Rome, Judaism, Christianity, Euro- 40 pean political philosophy. 41 42 Note to teachers: Chapter 13, like all of the online chapters (and like the printed 43 Chapters 1 through 11), is copyrighted. You may reproduce this online Chapter 13 without 44 charge for a class, and you may have it printed for students without charge. We ask that 45 you notify the authors of such use via one of the email addresses provided on the public 46 website for this textbook. Of course, you may choose to use only selected pages, and you 47 may supplement this chapter with materials you choose. However, this chapter may not be 48 electronically altered or modified in any way. 49 75 Electronic copy available at: https://ssrn.com/abstract=3524122 WK_FRRP_2020_Ch13.indd 75 Manila Typesetting Company 07/17/2020 11:52AM 76 13. International Law 1 This online chapter covers international-law principles and documents 2 involving self-defense and firearms control. International law traditionally dealt 3 with relations between nations but has expanded to cover interactions between 4 states and individuals.1 5 The Chapter is divided into the following Parts: 6 7 A. United Nations 8 B. Regional Human Rights and Arms Control Conventions 9 C. Classical International Law 10 D. Resistance to Genocide 11 E. International Law and the Second Amendment 12 13 Part A covers the leading international legal conventions on the right of 14 self-defense or gun control: the Universal Declaration of Human Rights, the 15 UN Programme of Action against the illicit trade in small arms, the Firearms 16 Protocol and International Tracing Instrument, the Arms Trade Treaty, and the 17 UN’s International Small Arms Control Standards (ISACS). Part A also covers 18 the work of various UN bodies, such as the Human Rights Council. 19 Part B focuses on major regional firearms agreements. These include the 20 Inter-American Convention Against the Illicit Manufacture of and Trafficking 21 in Firearms, Ammunition, Explosives, and Other Related Materials; the Euro- 22 pean Firearms Directive; and the Nairobi Protocol. 23 Part C steps back from current issues to examine the foundations of inter- 24 national law and the individual and collective rights of self-defense. This Part 25 presents the writings of Suarez, Grotius, Pufendorf, Vattel, and other founders 26 of international law. From the sixteenth through eighteenth centuries, these 27 geniuses created what we today call “classical international law.” 28 Part D addresses the most important international law problem of the last 29 century: genocide. To what extent, if any, does international law provide for 30 forceful resistance to mass murder? For forceful resistance to other violations 31 of human rights? 32 Lastly, Part E presents arguments for whether and how international gun 33 control should be implemented. The Part also examines how “norms entrepre- 34 neurs” use international law in service of gun control or gun rights. 35 First, some basic international-law vocabulary is helpful for understanding 36 the material in this chapter: 37 When an international agreement involves many parties, the agreement is 38 typically called a convention. Defined most narrowly, a treaty is a type of bilateral 39 agreement between nations. Treaty is also sometimes used in a broader sense, 40 as in the U.S. Constitution. The President “shall have Power, by and with the 41 Advice and Consent of the Senate, to make Treaties, provided two thirds of the 42 Senators present concur.” U.S. Const., art. II, § 2. The general rules of treaties 43 44 45 46 47 1. The authors would like to thank Vincent Harinam (M.A. Criminology, U. Toronto 48 2017), who contributed substantially to the second edition of this chapter. 49 Electronic copy available at: https://ssrn.com/abstract=3524122 WK_FRRP_2020_Ch13.indd 76 Manila Typesetting Company 07/17/2020 11:52AM A. The United Nations 77 and conventions are codified in the Vienna Convention on the Law of Treaties, 1 May 23, 1969, 1155 U.N.T.S. 331.2 2 Customary international law emerges from the behavior of nations. When 3 nations consider a custom to be legally binding, then the custom can be said 4 to be part of international law. The classic example of customary international 5 law is ambassadorial immunity. Long before there were any treaties about how 6 ambassadors should be treated, nations considered themselves to be legally 7 obliged not to criminally prosecute ambassadors from foreign countries. 8 Closely related to customary international law are norms. In the interna- 9 tional law context, a norm is an internationally accepted standard of conduct, 10 even if that standard has not yet become a well-established custom. Ordinary 11 customary law can always be changed; for example, a new convention might 12 change the rules for ambassadorial immunity. Peremptory norms, however, are 13 said to be always and everywhere binding and unchangeable. As Part C dis- 14 cusses, the Classical Founders of international law described Natural Law in 15 similar terms. Since the late twentieth century, international policy entrepre- 16 neurs (discussed in Part E) have been attempting to argue that their favorite 17 policies are peremptory norms of international law. 18 Mere custom is not in itself sufficient to create customary international law; 19 the custom must be accompanied by opinio juris sive necessitatis (“an opinion of 20 law or necessity,” commonly shortened to opinio juris). In other words, a nation 21 must be adhering to the custom because the nation believes that it is legally 22 required to do so, or is compelled to by the nature of things, as denoted by 23 “necessity.” 24 Another source of international law is the set of general principles common 25 to the domestic law of many nations. General principles of international law 26 may be drawn from standards that are common to the major legal systems of 27 the world. 28 International organizations play an important role in the development 29 of international law. The United Nations is the most prominent international 30 organization, but there are many others. The United Nations Charter estab- 31 lishes the International Court of Justice (a/k/a “the World Court”) as the orga- 32 nization’s primary judicial mechanism. 33 Section 38(1) of the Statute of the International Court of Justice provides 34 a standard definition of the sources of international law: (a) international con- 35 ventions; (b) customary international law; (c) “the general principles of law 36 recognized by civilized nations”; and (d) “judicial decisions and the teachings 37 of the most highly qualified publicists [legal scholars] of the various nations, as 38 subsidiary means for the determination of rules of law.” So items (a), (b), and 39 (c) are considered formal sources, while (d) lists subsidiary sources. 40 41 42 43 44 45 2. The U.S. has signed but not ratified the Vienna Convention. The State Department 46 considers many of its provisions to constitute customary international law. U.S.