International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law
Fall 2012 Issue
 

In Review: New Publications on International and Comparative Law

 

Humanity’s Law
By Ruti G. Teitel
Oxford University Press. 2011

Humanity’s Law

Reviewed By: James G. Apple, Editor-in-Chief, International Judicial Monitor, and President, International Judicial Academy

Under traditional international law there exists a distinction between international humanitarian law and international human rights law. The first relates to two branches of the law of war: jus ad bellum, that is, what are valid justifications for a nation waging war against another nation, and jus in bello, which covers the limitations that are placed on those belligerents that are already engaged in combat. International human rights law, on the other hand, traditionally relates to fundamental rights of persons as human beings existing in a body politic, without reference to whether that body is a party to armed conflict.

Because armed conflict has increasingly come to involve non-state actors, and with the growing spectacle of mass murder and other atrocities occurring among and between armed groups within a particular nation, rather than between two nations, the aforementioned distinction has become blurred, and perhaps even obsolete, raising the question of whether the whole issue of basic rights of persons needs to be redefined.

Professor Ruti Teitel of New York Law School, in her recent book, has taken a  long look at this situation and answered the question of the need for redefinition with a resounding “yes” and in the process has coined a new phrase “humanity law.”

She writes:

The obsolescence or inadequacy of long-standing devices and doctrines – such as nuclear deterrence, spheres of influence, and “containment” approaches – to effectively manage conflict has become increasingly apparent. From the Balkans to Africa to the Middle East, we see a rising number or weak and failed states and increasing political fragmentation, civil strife, displacement, and migration, and we witness the plight of peoples whose very survival is under threat. Terrorism and religious extremism add to the pervasive sense of volatility and existential insecurity.

This history has created the context for a transformation in the relationship of law to violence in global politics. The normative foundations of the international legal order have shifted from an emphasis on state security - that is, security that is defined by borders, statehood, territory and so on- to a focus on human security: the security of persons and peoples.

  

Actually Professor Teitel argues that the modern world requires a redefinition and merger of three distinct areas of international law: international humanitarian law, international human rights law and international criminal justice. She notes that changes in world politics have resulted in a “changed political consciousness” that is “penetrating the sphere of foreign policy making,” which has resulted in an increasing involvement of courts “as has occurred…in the Balkans, Sierra Leone, Darfur, Lebanon and most recently, Libya.”  This paradigm shift has had a definite effect on concepts of sovereignty. The author acknowledges that sovereignty is not disappearing “but it is losing its traditional status of primacy in the legal ordering that governs matters that occur beyond the level of the individual state.” She emphatically asserts: “Sovereignty is no longer a self-evident foundation for international law.”

What is replacing sovereignty? The author cites a decision of the International Criminal Tribunal for Yugoslavia (ICTY) sitting in The Hague, Prosecutor vs. Dasko Tadic, and language from the opinion of the court in that case:

[A] state-sovereignty approach have [sic] gradually been supplanted by a human-being-oriented approach… Why protect civilians from belligerent violence or ban rape, torture or the wanton destruction of hospitals, churches…as well as proscribe weapons causing unnecessary suffering when two sovereign States are  engaged in war, and yet refrain from enacting the same bans or providing the same protection when armed violence has erupted ‘only’ with the territory of a sovereign State?”

Humanity’s Law is divided into seven definitive chapters (excluding the Introduction and the Conclusion) which refine and elaborate on her concepts of humanity law, the first of which looks at international law history and the concepts that have developed over a period of hundreds of years, from the teachings of Hugo Grotius to the present. Of special interest to judges will be Chapter 4 which, the author states, “discusses the use of tribunals that are convened in the midst of ethnic and political conflict.”

Professor Teitel has written an enlightening persuasive book on a complex subject. But her clear prose and carefully presented arguments definitely support her major thesis that humanity law is replacing the three older traditional areas of international law. Her thesis can be readily understood by judges, lawyers and human rights specialists. She has identified a seismic change going on in the world, one that emphasizes more and more the role that international law is playing and must play in the world order.

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© 2012 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
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