By Eric Vandenbroeck and co-workers

The U.S., U.K., Australia and India each fall under the umbrella of the common law family, although the legal tradition of each maintains unique aspects. Each of these four states has also been active in the past several decades in participating in UN actions and sending its troops to various areas, whether as part of a peace-keeping team or as another type of force.1 Moreover, each of these states has been engaged in armed conflict with another state in the last half century. This means that each of these four states has had to consider the issue of whether their personnel could be accused of a crime and brought before the ICC. These similarities provide for a common background from which to examine the interpretations made by the four states, and given their similarities in historical legal development and current contemporary actions, isolating the effect of the various attributes of legal tradition should be possible.

The legal traditions of both the United States and Australia have been discussed in part three and four, respectively.  
 

Universal Jurisdiction

Universal jurisdiction provides entities (in this case the ICC) with the authority to try persons for crimes, whether or not the person is a national of a particular state or the crime was committed in or against a particular state or its citizens. Universal jurisdiction is applicable to those crimes which are considered an affront to the international community as a whole, such as genocide, war crimes, and crimes against humanity. While long recognized in international law, particularly in relation to states’ right to combat piracy, the current conception of universal jurisdiction has only been considered an international legal principle since the Nuremburg trials at the end of WWII.2 It has been re-codified in each of the treaties establishing the international criminal tribunals and special tribunals over the past several decades and is the core component of the International Criminal Court.

Historically, the idea of a universal principle of jurisdiction was limited to states’ ability to prosecute pirates, whatever their nationality happened to be3. More modern understandings of this legal principle attach primarily to human rights violations4; those crimes that are so universally condemned that any nation in the world has the authority to exercise jurisdiction over suspects and perpetrators, without the consent of that individual’s state of nationality.5 As with the other legal principles examined in part 3 and 4 , the United States played a key role in the development of universal jurisdiction, serving as a leading proponent of the Nuremburg trials, as well as the Security Council resolutions authorizing the international criminal tribunals for Rwanda and the former Yugoslavia. The U.S. has even recognized the veracity of this principle within its domestic law, with both the Second Circuit Court of Appeals and the Sixth Circuit Court of Appeals identifying human rights violations as acceptable bases for a state to maintain universal jurisdiction over an individual when neither the persons involved, nor the crime itself, have any direct relation to the state6. Rather the jurisdiction stems from the harm to all mankind, as well as international peace and security.

Currently, the concept of universal jurisdiction has been expanded somewhat, largely through the efforts of individual states. The desire has been to allow for the prosecution of any individual accused of committing any crime which offends the sense of global humanity. Some of the best known recent examples of this expansion include the British High Court’s decision to allow the extradition of Augusto Pinochet to Spain to stand trial for actions committed while he was head of Chile, and Belgium’s 1993 law which allows Belgium to prosecute persons for genocide, war crimes, and crimes against humanity on the basis of universal jurisdiction in absentia.7

Specifically in the context of the International Criminal Court, the concept of universal jurisdiction provides for prosecution of individuals accused of crimes of genocide, war crimes, and crimes against humanity committed after July 1, 2002, the date the Rome Statute entered into effect.8 One caveat, however, is that the crimes committed must of such a grave nature as to rise to the level of crimes which are of concern to the international community as a whole.9 It is this conception of universal jurisdiction which states evaluated when determining their position on the ICC.

Traditional theories of international relations focused on power and interests would hypothesize that no state would accede to the Rome Statute of the International Criminal Court unless it would improve its power position within the international community by doing so, or in some other way improve or protect its interests. Given the obligations undertaken by a state party to the ICC, and the relinquishment of a certain sense of sovereignty to become a party, it is likely these theories would posit no state would sign on to the ICC statute unless the most powerful states also agreed to do so.

Upon closer examination, however, these traditional theories fall short of being able to explain state participation in the ICC.10 For example, for the realists, an international legal institution such as the ICC is unlikely to be created in the first place because it is
contrary to the fundamental notions of state sovereignty, and the freedom of states to act as they see fit to protect their interests. Yet created it was; and even though they all did not ultimately sign on, most members of the United Nations participated in the sessions drafting the Rome Statute.

Moreover, realist theory would contend that if an international criminal court was Created, it would only be created by powerful states to further their own purposes. Yet, in the case of the ICC, many of the most powerful states – the United States, China, India, and Russia among them – are all opposed to the Rome State. Despite this opposition by the powerful states, however, the Rome Statute entered into force and presently has 139 parties, even though none of the four states listed above has changed its mind. Neo-liberal institutionalist theory as well faces some problems in adequately trying to explain state acceptance of the Rome Statute. According to Wippman:

[A] neo-liberal institutionalist analysis, which sees states as rational actors in pursuit of efficient means to realize individual and collective interests, captures only part of what transpired at Rome. To some extent, the Rome treaty was motivated by a desire to solve collective action problems and to reduce the transaction costs inherent in establishing ad hoc tribunals. But the Rome treaty was driven even more fundamentally by a desire on the part of many participants in the negotiations to develop and stabilize norms of legitimate behavior by states and non-state actors. … [R]ationalist analysis works best in areas where states can plausibly be seen to have clear, pre-existing material interests; it does not work well in explaining the creation of international organizations such as the ICC that are driven in significant part by normative as well as material impulses.11

Because the primary function of the ICC is normative in its foundations, the organization does not function they way institutionalists might argue it should in order to garner the support of states.

The incongruency of the establishment and entry into force of the Rome Statue of the International Criminal Court with traditional international relations theory calls therefore for new explanations for state behavior. Given the normative component of the ICC, and the fact that it does require relinquishment of sovereignty as well as put normative constraints on state behavior in terms of what is the appropriate course of action, an explanation devoted to understanding the cultural and normative reasons behind state action – such as that concerning legal tradition – is necessary. In particular such an explanation “requires consideration of how actors’ interests and identities interacted to produce positions on particular contested issues.”12

Two forthcoming works which do consider legal tradition address some of these concerns. In her forthcoming work on human, Beth Simmons examines the differences between common law states and civil law states in their adherence to international human rights treaties.13 She suggests that, due to variation between the common and civil law, civil law countries are more likely than their common law counterparts to commit to international human rights treaties. While Professor Simmons includes components of legal tradition in her analysis, focusing in particular on the fact that the use of precedent and the power of the judiciary present in the common law systems is absent in the civil law system. However, in the her final analysis she retains the common law/civil law division, grouping states generally in one of two categories. While this may provide initial evidence as to the differing behavior of the two types of legal traditions, I suggest that this will not fully explain state behavior. Within the civil law tradition, there are state from Europe, Africa, Asia, and South America, each of which adhere to the general tenets of civil law outlined by Simmons – adherence to a code-style of law and the integration of the judiciary within the government – but which are significantly different in the overall attributes of their legal traditions, and which behave very different in terms of international law. The same, this chapter seeks to demonstrate is true for the common law nations, even though there are many fewer of them.

A second piece by Sara McLaughlin Mitchell and Emilia Powell, forthcoming in the Journal of Politics, also makes an argument incorporating legal tradition. Mitchell and Powell examine state acceptance of the jurisdiction of the International Court of Justice and seek to understand the characteristics which make a state likely to accept the absolute jurisdiction of the ICJ versus an acceptance of jurisdiction with reservations.

Mitchell and Powell look at three different legal traditions – the common law, the civil law, and Islamic law – but like Simmons, lump state’s under these general headings without delving into the differences among them. As stated in the previous paragraph, we suggest that this general categorization does indeed improve on earlier work which does not consider legal tradition at all, but it still leaves much room for improvement because it fails to explain the frequent differences which occur within the general legal families.

 

(A)    United States

As discussed in chapter four, the legal tradition of the United States is very closely tied to the revolutionary ideals which prompted the creation of the United States Constitution, and country’s subsequent political and legal structure. This includes a foundational institutionalization of the separation of powers and a significant role for the judiciary, as well as subsequent actions including the creation of a Bill of Rights and the focus on an entrepreneurial spirit. These influences have resulted in the U.S. legal tradition possessing the following attributes: a purpose of law focused on the individual; the primary responsibility for the creation and amendment of law found in the judicial branch; a dualist approach to international law; and a hierarchy of sources of law which places the U.S. Constitution as the apex, and the decisions of the judiciary – as the final arbiters of the Constitution – second.

As described in P. 3 of this investigation, these attributes of the U.S. legal tradition hinder the relationship between domestic law and international law within the U.S. tradition. Given the focus on individual rights and freedoms and the underlying belief that law should be used as a mechanism by which to punish actions which have infringed on individual liberties, not to prevent individuals from acting in the first place, the idea that international law could affect these protections is one that is an anathema to the understanding of the role of law in the United States. Again, this is not to say the United States does not respect the rule of law, including the rule of international law, because indeed it does. The United States, as demonstrated, is often a leader in terms of pushing for new concepts of international law, offering expanded protections. Moreover, the U.S. couches much of its diplomacy in the language of international law, and always has. The issue is not with the U.S. belief in the value of international law over the broad course of the country’s history. The issue is that due to the way the U.S. legal tradition has developed over the past 250 years, there is an extreme reluctance to accept any outside interference with the foundational legal principles of the state, as well as a penchant to view international law as being as changeable and immutable as the law of the United States.

 

(B) Australia

Australia, like the United States, has the historical origins of its legal tradition in the common law of England. As described in chapter five, however, the development of the legal tradition from these origins has been influenced by different factors and taken a slightly different track in Australia than in the United States. With a much longer period as a British colony, with its history as a penal colony run by an authoritarian governor, and with independence not grounded in a revolutionary movement, but rather stemming from an Act of the British Parliament, the foundations of Australia’s tradition do not maintain the same sacred aura as that of the United States. Moreover, whereas the Australian tradition does share similarities to that of the U.S. in terms of the respect for individual freedoms and entrepreneurship, the translation of these freedoms into a sacred respect for individual rights enshrined in a constitution, does not exist in Australia.

This history has led to the development of the following attributes in the Australian legal tradition: a focus on the individual in terms of the purpose of the law, but a focus centered on individual freedoms along, rather than individual rights and freedoms as in the U.S.; a system of judge-made law, but also a system in which more power is left to the states vis-a-vis the federal government; a dualist approach to international law; and, a hierarchy of sources centered on judicial decision and parliamentary statute. The Australian Constitution plays a much less significant role in the Australian legal system than does the U.S., largely due to the absence of a Bill of Rights. As with the U.S., these attributes can hinder the relationship between international law and domestic law within the Australian legal system. This, in turn, can influence the method of interpretation a state adopts towards a principle of international law. In the Australian case, there also appears to be a general reluctance to too completely accept the binding effect of international law, largely due to the country’s colonial history and its independent nature.

 

(C) United Kingdom

As discussed before in this investigation, the origins of the common law tradition come from England. It was in England in 1066, that William the Conqueror planted the seeds for the common law system by centralizing judicial authority at Westminster14. In order to reign in the chaos that numerous local systems of law can have on a unified legal system, the first judges began collecting the laws common to the majority of the people and applying those uniformly to all court cases15. It is from this – the identification and application of the law common to all – that we get the name for the common law tradition. From this starting point, many of the attributes most closely associated with the common law tradition developed, including: the supremacy of judicial decision as the primary source of law and as the source of the creation and amendment of law beyond the sovereign16, the focus on the individual case, as opposed to the communal well-being, through the disposition of judicial proceedings; and the separation between domestic law and foreign affairs17.

Despite these common origins, however, as is evident from the cases of the United States and Australia described above, subsequent developments in each state’s legal tradition have resulted in slightly different attributed among the four states – even though they all have the same foundations. In England this legal development included three primary factors which have had a subsequent influence on what today is the legal tradition of the United Kingdom. The first of these is the emergence of Parliament as the primary force for creating and amending law in the U.K. No longer are the courts responsible for this task. In fact, in a complete opposite trajectory of development from that of the United States (where courts have steadily gained power over the years), the courts in the U.K. have steadily lost power. This is due to a number of factors, including reactions to the authoritarianism of the monarchy and the desire to have the government better represent the people18; the creation of the United Kingdom, which joined together the common law system of England, with the Roman law system of Scotland, and the customary legal system of Wales; and, the lack of a written constitution in England to dictate the separation of powers and the authority of the Court. Not only does this latter omission mean that no constitutional power is specifically dictated to the judicial branch, but it also means there is no document upon which the justices can base an attempt to gain more power (as the Marshall Court did in Marbury v. Madison)19.

The second factor which has pushed England in a different direction than its common law heirs, is, as mentioned in the previous paragraph, the lack of a written constitution and the impact that has on all manner of political and legal structures. Much of what gives the United States its unique legal tradition is the foundational nature of the U.S. Constitution, and the close relationship between the fight for independence in the U.S. and how people understand the Constitution as a continuation of those ideals20. The United Kingdom, on the contrary, lacks both a similarly significant foundational moment in terms of its own perceptions of itself, as well as any core written text outlining the institutions of the country. The “constitution” of the United Kingdom is rather composed of a series of documents that span both time and type of law21, and includes the Magna Carta (1215)22, the Petition of Right (1628), the Bill of Rights Act (1689) 23, the Act of Union with Scotland (1707), the European Communities Act (1972)24, and the Human Rights Act (1998). Coupled with this, the institutions of the U.K. have developed over time, and in a relatively non-confrontational manner. Much of this, we suggest, is due to the continuous overarching presence of the monarchy which, even when it itself was the object of complaint, maintained a certain institutional structure within the state. This has resulted in an interrelated set of institutions that have developed over time, not by the dictates of a foundational legal document such as a constitution, but rather by the practicalities of the changing nature of society as a whole. This creates very different perceptions of law in the U.K. than in the U.S. or Australia25.

The third influence that has shaped the legal tradition of the U.K. over the past 50 years, and is the dominant force responsible for the shift in the U.K.’s interpretation of international law, is the U.K.’s membership in the European Union. Up to the point of World War II, the attributes of the British legal tradition fairly closely mirrored those of the United States, save for the decreased power of the U.K. courts compared to their American brethren. Both states largely focused on the individual in terms of the purpose of their laws, and the judiciary played a significant role in each states legal system.

Moreover, both the U.K. and U.S. were largely dualist in their approach to international law, preferring to ‘go it alone’ or work in a specific, negotiated international framework rather than under the rubric of binding international law. With the end of the war, however, and the realization by the European states that preventing another war on the continent had to be a top priority resulted ultimately in the creation of the European Coal and Steel Community, which ultimately morphed into the European Union, a regional organization with its own legal personality, to which member states surrender of good deal of sovereignty. Upon becoming a member of the EU in 1973, the United Kingdom became subject to the same limits on its sovereignty. Moreover, as the EU continued to grow, expanding its authority over areas such as human rights and social issues, the attributes of the British legal system began to change to fulfil its obligations as a member of the EU. These changes resulted in somewhat different attributes of the British legal tradition today than were seen prior to the 20th century.

 

(1)     Purpose of Law

Due to the historical importance of conflict being solved through the court system, the purpose of law in the United Kingdom is largely still viewed as one which provides protections for individuals in making their claims26. However, this focus on the individual, rather than creating a strong sense of law promoting what is best for the community, has been eroded somewhat over the past century, both by an emerging socialist trend “attempting to create a new social order”27, and by the U.K.’s membership in the European Union. The EU, given its focus as a regional organization, is communal in nature. The entire idea behind the European Union was that the creation of closer cooperation between European states would lessen the likelihood of states engaging in conflict with each other over their individual interests. Rather, closer cooperation would cause states to think of what is best for the community. This has become reflected to some extent in the British legal tradition. For example, the U.K. has signed on to the European Convention on Human Rights and has accepted both European Court of Human Rights and European Court of Justice jurisdiction over the disposition of cases. This treaty, as well as the workings of these courts, focus on the communal purpose of law rather than the individual.

There has not been a complete shift in the view by the British of the purpose of law. The U.K. still retains sovereignty over certain areas, such as a number of social issues, rather than relinquish sovereignty to the EU. The U.K. also maintains its independence in terms of monetary policy, immigration policy, and national security and defense. In these areas, the U.K. is still reluctant to accept outside interference with its sovereignty as an individual state. In the same way, the purpose of law in the United Kingdom is still viewed in many areas as protecting the rights of the individual, rather than fostering the good of community28. Outside interference with individual freedom of action is still often frowned upon, but is viewed with less suspicion that, for example, in the United States.

 

(2) Legal Institutions

The British institutional structure is much more similar to that of Australia than it is to the United States. Britain maintains a parliamentary system with a monarch as the head of state and a prime minister as the head of government. Without a written constitution, the relationships between the branches of government have developed by custom over time. While a democracy with a modern government, the concepts of separation of powers and checks and balances that dominate the perception of institutional structure in the United States do not exist29. This is most evident in the interrelationship between the executive and legislative branches in which the Prime Minister, the principle member of the executive branch, survives only at the favor of Parliament30. The interrelationship does not end there, however, for the House of Lords, the highest judicial body in the United Kingdom, is also composed of members of the upper house of Parliament. Despite this, however, the judiciary in the United Kingdom does retain its independence from the other branches of government, although it does not hold the power of checks and balances the U.S. Supreme Court does.

Moreover, within the English tradition it has become the purview of parliament to create and amend the laws, not the judiciary. While historically it was the judiciary which was responsible for such actions, this changed in the 18th and early 19th centuries when the people revolted over the dominance held by the monarchy and upper classes over all branches of government31. As in France, the judiciary were seen as being a part of the upper class and under the influence of the monarch.32 In the latter half of the 19th century these beliefs came to be codified in the perceptions of “almost all politicians, lawyers, and political theorists … that Parliament possessed a legally unlimited legislative authority within Britain” and by 1871 it was held that the courts had no authority “to act as regents over what is done by parliament.”33 These laws gave the preponderance of power to the parliament, as representatives of the people, as opposed to the courts overseen by the aristocracy. This set-up remains to this day. Today, the legal system in the U.K. is such that parliament is the only institution which can make and amend laws. This notion of parliamentary sovereignty is “central to English constitutionalism”.34 The courts are responsible for interpreting the law, but may not judge an act of parliament invalid35. This gives a preponderance of the power over legal enactment and amendment to the parliament, which is an attribute more closely aligned with civil law traditions like that of France, than common law traditions like that of the United States.

While the creation and amendment of law may differ in the United Kingdom, however, the U.K.’s approach to international law remains largely similar to that of both the U.S. and Australia in that it is generally dualist in nature.36 As stated by Rosalyn Higgins and quoted in chapter five, the common law countries adhere “resolutely to the dualist approach.”37. However, as mentioned above, the absolute nature of this approach has shifted slightly in the United Kingdom as a result of the country’s membership in the European Union. EU membership automatically requires states to relinquish a modicum amount of sovereignty to an international organization. Moreover, EU membership dictates that member states are responsible for implementing EU regulations into their domestic legal systems. For all EU members, therefore, this has required domestic legal changes authorizing a monist approach to EU legislation. Therefore, the U.K. has become essentially monist in their approach in any areas over which the EU has primary control. However, in those areas in which the U.K. retains national sovereign control, the state remains true to its dualist origins.

 

(2)     Sources of Law

The U.K. differs from the United States in that it has neither a written constitution to serve as the foundational source of law38, nor do judges have the power of judicial review39. As explained in the case of the U.S. in part four, the principle reason the judiciary remain the primary source of law in the United States – even though the amount of statutory law has increased dramatically – is that it is the judiciary which is responsible for the ultimate determination of the meaning of both the U.S. Constitution and any federal law passed by Congress. Because the U.S. retains the power of judicial review, this gives the U.S. judicial branch enormous power and authority. This is not the case in the United Kingdom. While the British judicial branch retains the power of precedent, it does not maintain ultimate authority over the interpretation of law; that right belongs to parliament40. While legislation has traditionally “occupied only a secondary position in English law and was limited to correcting or complementing the work accomplished by judicial decision”, today the relative position of the two sources of law is largely reversed41. Therefore, parliamentary enactments are the primary source of law in the U.K., rather than judicial decisions.42

Given the historical importance of judicial decisions for the development of the British legal tradition, however, judicial decision and case law still holds a pride of place in the conceptions of many British citizens when it comes to sources of law43.

Therefore, even though the power of the judiciary in England may not be what it once was, case law is still seen as the primary foundation of the U.K.’s legal tradition44. This has an important implication for the influence that legal tradition may have on a state’s interpretation of international law. As discussed in chapter four in relation to the United States, a belief in law as primarily a judge-made entity creates a different perspective about the changing nature of law. By its very nature, a legal system based on judicial decision is a bottom-up system, where individual cases come before the court and changes in the law come with new facts in the case. It is a system in which actions happen first and judicial approval or disavowal of those acts happen second. Moreover, while judges may not have the ability in the U.K. to review the constitutionality of parliamentary action, they do maintain authority over interpretation of the law, which can give them considerable power in determining how law actually applies to the community.45 This creates a much more flexible legal system, one which accepts a more malleable nature to the law. This can then translate to international law as well.

The U.K. does retain, however, the historical common law aversion to doctrinal writings being considered as sources of law46. The laws of the U.K. are not laws of the universities47. Given the historical important of the judiciary in the development of the British legal tradition, it was the judges who were considered the legal experts, not scholars48. Therefore, as in the U.S. and Australia, scholarly writings have never taken on the importance they have in other countries such as France and Germany where judges were not long-schooled legal specialists and doctrinal writings provided valuable guidance on the law.

 

(D) India

India, today, is considered part of the common law family. The history of India’s legal tradition, however, is significantly different from that of either the United States or Australia. For one thing, with over one billion people, India has a larger population to govern than any country in the world except China. Moreover, among these one billion are at least seven different major religious groups, eighteen different official languages, and at least three major ethnic groups49, not to mention residual beliefs in the caste system by elements of the population.50 The influences which have shaped the development of the Indian legal tradition are more varied than in the Anglo-Saxon states.

These include the Hindu legal tradition, Islamic law tradition, and tribal or customary law. Moreover, despite the modernity of India’s existing legal system, these ancient, religious and tribal influences remain to some extent within the rule of law. These differences notwithstanding, however, since Indian independence in 1950 India has been considered part of the common law family of states51. The underlying structure of India’s legal system, as well as the general operation of the rule of law in contemporary times, does place India in the company of the other states discussed in this chapter52. India, therefore, provides an interesting comparison to the U.K., U.S., and Australia as a modern common law country, with ancient roots.

The three major influences on the development of the Indian legal tradition are Hinduism, Islam, and the British colonial presence. Each of these has its own individual legal tradition, and the mixing of the three has shaped the nature of the India tradition. Hinduism is the oldest influence on the Indian legal tradition, and indeed, even today forms part of the core of the Indian legal system. The laws of Hindu India can be traced as far back as 2500 BC. The Hindu tradition is based on Dharma, which is the belief “that there exists a universal order inherent in the nature of things, necessary for the preservation of the world, and of which the gods themselves are merely the custodians.”53

Like the Shari’a in the Islamic legal tradition, Dharma in the Hindu tradition encompasses the “whole of man’s behavior” and does not distinguish between religious duties and legal obligations.54 Any concept of individual rights is foreign to the Hindu tradition which, like the Islamic religious tradition, focuses on maintaining balance and harmony within the community, and the principles that each person must follow if they wish to be a good person and reach the desired place in the afterworld55.

One belief that distinguishes the Hindu tradition from that of the other religious legal traditions, however, is that within the tradition the duties and obligations each individual must carry out to be a good person and achieve their desired place in the afterworld, varies according to each person’s status.56 The Hindu tradition divides people into four primary social groups, each with its own rules and obligations57. This division is necessary in the Hindu tradition to ensure the proper balance within nature. This division is also the origin of the Indian caste system, which has had a significant influence on the development of the legal tradition of India, and continues to play a role in the legal system of modern India, despite the abolishment of the caste system in the Indian Constitution.

In the historical Hindu legal system, rules were primarily enacted, implemented, and enforced at the local community level58. The village panchayat was largely responsible for hearing and deciding legal disputes on the basis of religious laws and existing local custom59. Given the diversity which existed throughout the Indian subcontinent60, there could be a significant difference between the laws as applied in the local communities.

In the 16th century, the Mongols invaded India and brought with them elements of the Islamic law tradition61. While similar to the Hindu tradition in terms of general structure – for example, in that laws could only be created by the gods and law covered both religious and secular behavior – Islamic law is much more rigid in its tenets than the Hindu tradition. Perhaps recognizing these differences, the Islamic rulers did not impose Shari’a on the Hindu population in the territories of India they commanded, but rather allowed Hindus and Muslims to retain their separate traditions and rules of law62. Thus a dual legal system sprang up in which Islamic law and courts applied for Muslims and Hindu law and courts applied to Hindus. Into this situation of dual legal traditions arrived the British. Britain first gained a toehold in the India sub-continent through the East India trading company in the 17th century63. After the decline of Dutch and Spanish naval power, however, India came fully under the authority of the United Kingdom. As was often the case with their colonies, the U.K. did not impose British law on the Indian population at the expense of their traditional legal system64. Rather, both the Hindu and Muslim populations were able to continue to apply their own laws at the local level. British law applied, in theory, only to British citizens and in those circumstances where there was no local law or in which local law offended the British sense of justice65.

Practically, however, the British presence in India had a profound influence on the development of the India legal tradition, both in terms of the recognition of Hindu law and in terms of the growth and development of that law. As to the former, the recognition by the British of both Hindu and Islamic law as equally valid legal systems, moved Hindu law out of the shadows from which it operated while India was under Mongol control.66 At the same time, however, despite the best efforts of British judges to apply traditional law to cases between Hindus, the absence of authoritative English translations of Hindu laws coupled with over-reliance on Hindu “legal specialists” led to a distortion of the traditional Hindu law67. The results of this, as well, were both positive and negative. Positive in that the centralized nature of the British system allowed for the unification and clarification of the extremely diverse legal rules which were found throughout India68. This ultimately led to the creation of a national legal system69.

Negative in that the historical extent to which Hindu law applied to govern all situations in the lives of Hindus was dramatically reduced. Under the British rule, Hindu law (and Muslim law as well) came to apply solely to those cases involving personal status, such as marriage, birth, and death70.

The legal tradition of India today has retained elements of each of these three primary influences. While the majority of legal institutions are based on the British (or other common law) system(s), at the local level, the use of religious laws still exists, and is in fact recognized as valid by the federal law.

 

(1)     Purpose of Law

The purpose of law in India is centered on the community, rather than the individual. This draws both on the historical religious influences on the legal tradition, as well as the modern goals of the state’s post-independence legal system. As described in part four in relation to Islamic law, religious legal traditions, by their very nature, focus on a communal purpose of law. The goals of such legal traditions are to ensure the well-being of the community as a whole, and that everyone is able to achieve the best life possible in this world to attain the rewards of the next. The Hindu tradition reflects that notion as well, focusing on the harmony of the community and the balance of man and nature.

Modern developments of the Indian tradition have furthered this focus of law on the community, as opposed to the individual. First, resulting from the nationalist pride that developed during the movement to gain independence from Britain, and later stemming from the Indian government’s desire to protect the good of all members of Indian society71. First, the development of Indian nationalism, as was the case in Turkey and Egypt described in chapter four, created a greater awareness of the need for a unified, continually-developed Indian community72. Given the widespread divergence in economic and social status within the country, only through a concentrated effort of protecting all members of Indian society was it perceived possible for India to develop.

Second, despite the abolition of the caste system in the Indian Constitution, there was still a great deal of discrimination against those perceived to be of the lower classes. One of the early goals of the post-independence Indian legal system was to ensure the equality of everyone, even if that meant favoring the lower classes at the expense of the privileged73.

This is reflected in constitutional rules, not only abolishing untouchability, but allowing the reservation of a certain number of seats for former untouchables in educational institutions and places of public employment.74

This concept of a communal purpose of law is further reflected in the Indian Constitution, which defines the nation in the Preamble as a “sovereign socialist democratic republic”.75 The Constitution also focuses on creating a unified society by prohibiting discrimination based on social class. This is an effort to undo thousands of years of history in which, as described above, Indian society was divided by religious belief, into social classes, each of which was believed to have its own place in Hindu society. Article 15 of the Indian Constitution prohibits any form of discrimination based on caste.76 Moreover, the Indian Constitution does not uphold ideas of equal protection in the same manner as the United States, recognizing instead that “certain castes, tribes or economically weak social groups should possess a special status.”77

Furthermore, the governmental institutions of India are all guided by a separate series of fundamental principles outlined in Part 4 of the Constitution, which call upon them to frame every policy, piece of legislation, and judicial decision in such a way as to establish and maintain a new social order in which justice – whether social, economic, and political – shall inform all the institutions of national life.78 These principles include such community-oriented tenets as ensuring that ownership and control of the material resources of the community are distributed to best achieve the common good, and the assurance that the operation of the economic system does not lead to the concentration of wealth and the means of production in the hands of the few to the detriment of the common good.79

 

(2) Legal Institutions

The legal institutional structure of India is a cross between that of the U.K., the US, Ireland, and Australia. The drafters of the Indian Constitution drew from the legal and political structures of all four of these common law countries when they were setting up their postindependence system. Today, Indian maintains a mixed presidential parliamentary system with the addition of a relatively powerful President as well as a Prime Minister appointed by the President from the legislative body.80 The preponderance of the authority lies with the lower house of parliament, the 552-member Lok Sabha, which has the authority to enact legislation, as well as dismantle the government through a vote of no confidence.81 India does maintain an independent judiciary, and the judicial branch possesses a level of power that is a cross between that of the U.K. and that of the U.S. For example, while the Supreme Court of India does possess the power of judicial review of legislation for conformance with the principles of the Constitution, the ease with which Parliament can amend the Constitution makes this a much less powerful tool in India than in the United States82. However, given the view of the Indian population that the Supreme Court is the most uncorrupt branch of the government and one of the most respected83, politically it can be damaging for Parliament to amend the Constitution to thwart a Supreme Court ruling.

The institution primarily responsible for creating and amending law in India is the parliament. As in England, the judicial branch is very active in creating a system of case law based on the concepts of precedent and stare decisis84, but because there is limited judicial review of the constitutionality of acts of the other branches of government, the courts are without the primary power they possess in the United States. The judiciary in India is consistently viewed by the Indian public, however, as the most trustworthy of all of the government bodies, which does give added weight to the authority of Indian judicial decisions as a source of law (see below), but the judiciary is not primarily responsible for making or amending law.

Following more closely in the common law tradition, however, India maintains a clear dualist position towards international law. With respect to international treaties to which India becomes a party, separate action is required by parliament in order for the treaty provisions to become binding law.

 

(2)     Sources of Law

Historically, the primary sources of law in India were the religious sastras and sustras, and the accepted interpretations of these works (Vedas) by religious scholars. Legislation and judicial decisions were not held to be sources of law under the Hindu tradition85. The prince was able to legislate as necessary in order to order the community, but this legislation was recognized only as a temporary need and was not able to conflict with or supersede the tenets of Dharma86.

One important criteria of the Hindu tradition, however, has always been its flexibility in terms of the recognition of new laws. Unlike some other religious traditions, in which change to the laws is very difficult to achieve, the Hindu tradition accepts change as a natural part of life. The Dharma has “never purported to be more than a body of ideal rules intended to guide men in their dealings.”87 Due to its very nature, therefore, Dharma has always accepted that new laws will have to be made by men to govern their current situations. Whether the laws are created by custom, legislation, or judicial decision, the Hindu tradition has always accepted manmade law as an essentially component of a functioning social order, while at the same time recognizing the transient nature of this law and the fact that it will continue to change and circumstances and societal needs change88. This underlying attributed of the religious legal foundations of Indian society has a profound influence on the perceptions of law held within the country (and is indeed reflected in the malleable nature of the state’s own constitution)89.

Today, the primary source of law in India is the Constitution, followed by legislation90. India’s Constitution entered into effect on January 26, 1950.91 While drawing on the constitutional experiences of other common law countries, the Indian Constitution is, however, very much unlike those of the other common law countries in that, rather than serving as a relatively brief guide to government structure and constitutionally-protected rights, it serves as a more all-encompassing guide to government practice and individual behavior within the state92. In fact, with its articles, is more akin to the Constitutions of countries like Germany and Egypt, where the founding documents read more like comprehensive codes than, for example, the U.S. Constitution93. The primary objective of the Constitution is to ensure “social, economic, and political justice to all citizens”.94

Because the Indian Constitution is fairly easy to amend by parliament, and because the power of judicial review of the Indian courts is minimal, judicial decisions do not maintain the importance of place they possess in other common law countries. The judiciary in modern India has, however, developed some authority on its own as the most trusted branch of the Indian government.

Scholarly doctrine may be considered a source of law in India, but largely within the realm of the personal cases which may still be heard before religious-based tribunals. In the same way, customary law still maintains a place in the Indian legal tradition, but only through the local panchayat (meeting of the elders), which is able to hear community and personal issues95.

One of the overarching features of the modern Indian legal tradition, is the retention of the influence of the ancient religious laws96. While practically speaking Hindu or Islamic law is only applied by a few specific courts, in relatively few cases, the influence of the religious traditions does continue to play a part in the understanding of law within India. You see this reflected in the continued understanding of the purpose of law as a communal endeavor. This influence notwithstanding, however, the modern Indian legal tradition is one closely related to its common law brethren, particularly in terms of institutional structures such as the creation of law and approach to international law. The latter attributes are sufficient for India to be generally classified today as a member of the common law family. However, the historical, religious attributes are enough to raise suspicions that India might not approach international law in the same way as other common law countries.

 

(E) Expectations

Given the fact that each of the four countries examined has the origins of its modern tradition in the English common law, many of the attributes of these countries are the similar. In each of the four states the judiciary plays a greater role in the creation and amendment of law than is seen in countries with foundations in the civil law tradition. While none of the countries examined has a judiciary with as extensive a power as that of the U.S. Supreme Court, judges do maintain a special pride of place in the United Kingdom, Australia, and India. Moreover, in each of the four states the use of the doctrinal writings of scholars as authoritative sources of law is minimal in the creation, amendment, and interpretation of law. Each of the four states, as well, generally adopts a dualist position towards international law. Each of these attributes, as described throughout the project, impedes the relationship between domestic and international law.

This creates a sense among policy-makers that international legal principles are not absolutely binding in their existing form. This allows for the interpretation of international law in new and different ways (although, again, as each of these countries does generally adhere to the rule of law, including international law, even new interpretations are firmly grounded in international legal discourse).

Based on the general categorization of these four states as members of the common law family, it therefore could be expected that each of them would adopt a liberal interpretation of international law: an interpretation grounded in the law, but one which also allows for the consideration of state interests, changed circumstances, and modern context. Indeed, this is the approach that is taken by the existing work in the field which has dealt specifically with the influence of legal tradition on state treatment of international law. These studies have come to the conclusion that all common law countries, such as the four examined here, would come to the same interpretation of international law. To do so, however, would miss some of the very nuances that make the study of legal tradition as an influential component of state policy-making a valuable addition to the study of international law and international relations. The very reason that such general classifications as common law and civil law do not provide adequate explanations of state behavior is that each state maintains slight differences in the underlying attributes which make up their legal traditions and depending on the combination of these attributes the state may or may not approach international law in the same way as other common law states.

Based on more traditional international relations theories focused on power and interests, it would also likely be expected that each of these states would adopt a liberal interpretation of international law, as it is the liberal interpretation which gives a state the most freedom to consider its interests in formulation its policies (again, none of these states will adopt an unrestricted interpretation as they all adhere to the rule of law).

Given that each of the four states has been active over the past decade in contributing troops to United Nations missions, as well as regional missions, such as NATO in Bosnia; and, given the fact the U.S., U.K., and Australia have been involved in conflicts in Afghanistan and Iraq97, and India has been involved in continual skirmishes with Pakistan98, there is a logical reason to expect each of the four to approach the ICC in the same way. All four face also the potential that members of their military or leadership will be indicted by the ICC. All four also face the possibility of malicious or political cases being brought against their citizens due to the unpopular nature of some of their actions. Based on these similarities as well, under theories of power and interest it would also be expected each of the states would interpret the international legal principle of universal jurisdiction in the same way.

We believe however, that these expectations are incorrect, and that, in fact, all four common law states would not be expected to interpret the international law of universal jurisdiction outlined in the Rome Statute of the ICC in the same way. The slight variation among the states in terms of certain of their attributes, coupled with the historical influences on the development of each countries legal tradition, produces expectations that each of these four states might interpret the international law of universal jurisdiction in a different way.

Table 1 summarizes the attributes of the legal traditions of each of the four states examined above. Both the United Kingdom and India have two columns. In the case of the U.K., one identifies what the state’s attributes were before membership in the European Union, and the corresponding expectation. The second identifies the attributes and expectations since the U.K. became a member of the EU. For purposes of India, the historical classification identifies attributes and expectations prior to the imprint of the British tradition. The modern classification highlights the attributes of the Indian legal tradition post-independence.

The attributes of both the United States and Australia, would lead to the expectation of a liberal interpretation of international law. As discussed in the earlier parts of his investigation, the attributes of the legal traditions of these states – identical in all respects – lead to a disconnect between the recognition of the binding authority of existing international law and the interpretation that state decision-makers adopt.

An examination of the pre-EU legal tradition of the United Kingdom would lead to the same expectation. Prior to joining the European Union, the attributed of the U.K.’s legal tradition were the same as those found in the U.S. and Australia. Again, obviously, the historical development which led to these attributes differed from that of the two other states, but the resulting attributes were similar enough to produce an expectation of a liberal interpretation of international law. However, the United Kingdom’s membership in the European Union has a caused a shift in some of the attributes of the legal tradition. This is particularly noticeable in the slight shift from an individual purpose of law to a communal purpose of law, a movement from a strict dualist stance to a mixed monist/dualist stance, and the increased recognition of statutory law as the primary source of law. These shifts would be expected to create a closer relationship between British domestic law and international law. This is because, as discussed in chapters two and three, certain attributes facilitate the internalization of international law, which creates a more binding sense of obligation among decision-makers. Given this, expectations on Britain’s interpretation would shift as well, and I would suggest the state could be expected to adopt a traditional, rather than liberal, approach to the international law of universal jurisdiction.

Finally, in the case of India, what we might expect in terms of the pre-independence Indian legal tradition differs from what would be expected from the post-independence tradition. Prior to the arrival of the British, when India was still a country dominated by religious legal traditions, it would be expected the state would adopt a hierarchical interpretation of international law, just as Egypt does due to the influence of the Islamic tradition. Post-independence, however, after the common law influence of the British legal tradition has been super-imposed over the historical religious origins, expectations change. The shift from a religious tradition to a secular tradition has shifted some of the attributes of the Indian tradition. While still largely focused on a communal purpose of law, the secularization of the Indian tradition has shifted the communal recognition from one based on religion to one based on nationalism. It is possible this has a less profound effect on the societal understanding of law.

Moreover, with the creation of British style legal institutions, there has been a shift in the creation and amendment of law as well, from the religious based legal system, to one in which a representative parliament is responsible for creating and amending law.

There is also a much greater role for the judiciary. In fact, the only attribute of the Indian legal tradition which has not significantly changed over the course of the country’s history is its strongly dualist approach to international law. There has never existed an extremely close relationship between international law and Indian domestic law. Again, this does not mean that India does not abide by or accept international law, on the contrary, India like the U.S., the U.K., and Australia is a country founded on the rule of law. What it does mean, however, is that the relationship between domestic law and international law is less likely to be absolute, and therefore, Indian decision-makers are less likely to feel bound by existing international law, and more likely to therefore make liberal interpretations of such law.

To summarize, therefore, general expectations based on simple categorization of common law countries would indicate all four states – the U.S., U.K., Australia, and India – would adopt liberal interpretations of international law. Moreover, traditional IR explanations focused on power and interests would hypothesize that these states would similarly adopt an interpretation not requiring adherence to the Rome Statute due to perceived dangers to state troops serving abroad, and the relinquishment of state sovereign required to be a part of the treaty. Our expectations, founded on the various attributes of legal tradition rather than general categorizations, would be that the U.S., Australia, and India would indeed adopt liberal interpretations of the international law of universal jurisdiction – although for slightly different reasons – and the U.K., largely due to its membership in the European Union, would adopt a traditional interpretation. After examining the statements made by the four states, it is clear that my expectations were met in three of the four cases. The U.S., U.K., and India each adopted the method of interpretation expected. Australia, on the other hand, rather than adopting a liberal interpretation as they did in the case of the international norms of sic utere adopted a traditional interpretation and signed on to the Rome Statute. While Australia therefore did not meet expectations based on its attributes, an explanation of Australia’s position in this instance can be found in a closer examination of the historical development of its legal tradition. The position adopted and justifications provided for each state in turn now.

First, the United States was expected to adopt a liberal interpretation, and did in fact adopt such as interpretation. As discussed in earlier chapters, the United States recognized the legal principle at issue – indeed as in earlier cases was instrumental in creating the legal principle at issue – but disagreed with the existing interpretation of this principle as outlined in the Rome Statute of the ICC. The United States provided a number of justifications for its position on the Rome Statute. First, there is concern that adherence to the Statute of the ICC would infringe upon the sovereignty of the United States in that it would violate of the protections of due process provided by the United States Constitution99. This would be contrary to the very foundation upon which the U.S. legal tradition is built: the United States Constitution.100 The U.S. has long been a supporter of the concept of universal jurisdiction. However, the protections provided in the Statute of the ICC are not as stringent as those provided in the U.S. Constitution. The U.S. cannot accept an international legal principle which would be contrary to the Constitution.

Second, the United States argued that, as the “world’s greatest military and economic power, more than any other country the United States is expected to intervene to halt humanitarian catastrophe around the world.”101 This unique position of the U.S., government officials argued, makes U.S. personnel around the globe “uniquely vulnerable” to malicious prosecutions by the ICC Prosecutor.102 Third, the U.S. was not satisfied with the language concerning the specific reach of universal jurisdiction as outlined in the Rome Statute. The statute allows for the ICC to have jurisdiction over any person, whether or not that individual’s state is a member of the Court. The position of the U.S. is that this is too broad a definition of universal jurisdiction, one that infringes illegally according to international law on the sovereignty of those states which choose not to become party to the ICC103.

India was also expected to adopt a liberal interpretation and India did indeed adopt a liberal interpretation, recognizing the existence of the international legal principle of universal jurisdiction, but disagreeing with the interpretation of this principle as laid out by the Rome Statute to the International Court of Justice. Like the U.S., India had a number of specific justifications for its disagreement with the Rome Statute. First, India seemed to express the sentiment that it felt its concerns were not taken seriously enough during the drafting of the Rome Statute.104 India believed that the expression of universal jurisdiction in the Rome Statute was too broad in delineating the situations which may be brought before the Court. India thus shared the concerns of the other states that prosecutions may be brought before the Court for political purposes.105 India was further concerned about the ability of the Security Council to refer cases to the ICC in potential contravention of international law.106 Further, India shared the reservations of the U.S. that the Rome Statute’s power to prosecute nationals of non-party states was an acceptable interpretation of the principle of universal jurisdiction.107 Finally, India, despite its own status as a nuclear state, was concerned about the exclusion of the use of nuclear weapons and other weapons of mass destruction as a crime within the jurisdiction of the ICC.108 India’s interpretation of universal jurisdiction encompasses the belief that use of such weapons is a crime abhorrent to the international community as a whole.

In many ways, the situation of India and its interpretation of the international legal principle of universal jurisdiction is similar to the case of Turkey and its interpretation of the international legal principle of anticipatory intervention in self-defense. In both cases you have fairly new democracies with legal institutions largely based on those of other states trying to increase their presence in the international system while at the same time maintaining their sense of national identity and sovereignty after many years under the thumb of others. And just as was the case with Turkey in part four, India has been reluctant to relinquish sovereignty over its laws to the international realm. And while India might be expected to sign on be to demonstrate its recognition of human rights and its desire to move into the top echelon of states in the international power structure (reputational issues, etc.), India has not adopted the traditional interpretation of universal jurisdiction.

India, of the four countries, also has the least to lose by signing on, given its minimal troop presence in UN operations, etc. What India does have, however, is a common law tradition which has developed out of a historical legal tradition comprising customary, Hindu, and Islamic law. These traditional legal influences are still present in the India tradition, even with the development of common law-style institutions and constitution. The historical traditions have on Indian policymakers apparently influences their understanding of the purpose of law, and makes the notion of subjecting Indian citizens to law which is not steeped in these traditions unthinkable.

This theory is also buoyed by the historical caste system in India which, while no longer legally valid, still permeates society. Under this system, those of the upper castes cannot be brought to trial by those of the lower castes. This applies internationally as well.

The United Kingdom also met expectations, adopting a traditional rather than a liberal interpretation of the international legal principle of universal jurisdiction. The United Kingdom ratified the Rome Statute of the International Criminal Court on October 4, 2001.109 While this may seem somewhat surprising given the United Kingdom’s place as the origin of the common law tradition and the fact that the U.K. regularly has troops participating in NATO and other coalition operations110, the membership of the U.K. in the European Union has done much to alter the tradition attributes of the state’s legal tradition.

Moreover, the U.K., for most of its long history, has not had a Bill of Rights, so concerns like those of the U.S. do not apply. Also, the U.K. has already agreed to relinquish its sovereignty over certain human rights issues and international crimes to regional bodies – the ECJ and the ECHR – so its legal tradition is already accustomed to such action. The member states of the European Union, in fact, are “accustomed to external supervision and even adjudication of their human rights practices. … The process of European integration has forced these states to accept to a considerable degree the pooling of their sovereignty.”111 This results in a very different perception of the impact membership in the ICC and adherence to the Rome Statute’s conception of universal jurisdiction would have on the state’s sovereignty. Due to its adherence to the Rome Statute, the U.K. is not less sensitive to the sacrifice of sovereignty than some of its common law counterparts.

Australia is the sole case out of the twelve examined in this project which did not meet expectations. As in chapter five in the case of sic utere, based on the attributes of the Australian tradition, we would have expected Australia to adopt a liberal interpretation of the principle of universal jurisdiction in this case. As with the U.S., we would have expected this to manifest itself in Australia’s not signing on to the Rome State of the International Criminal Court However, Australia did accept the Rome Statute’s interpretation of the principle of universal jurisdiction and ratified the Rome Statute on July 1, 2002.112. This is perhaps the most surprising case because in so many ways the Australia legal tradition and its historical development are similar to that of the U.S.

There is, however, one key difference: Australia does not have a Bill of Rights. In the case of human rights protections outlined by the principle of universal jurisdiction in the Rome Statute to the ICC, given Australia’s somewhat rocky history with the protection of rights, the concerns over misuse of the international legal process by politically-motivated actors was likely minimized when balanced against the desire to demonstrate the country’s adherence to human rights protections. Moreover, the lack of a concrete bill of rights, such as is found in the United States, means that there were no conflicts similar to those found in the U.S. discourse of constitutional protections of due process.113 In fact, in recent years, it has been suggested that precisely because Australia lacks a comprehensive charter of rights, the country’s litigants and lawyers are “turning to international law in the quest for a peg on which to hang arguments designed to persuade Australian courts that part of international jurisprudence has been, or should be, incorporated by judicial decision.”114 This particular attitude towards human rights law originating from the attributes of the Australian legal tradition, and differing from those of the other three states, helps to explain why Australia adopted the method of interpretation they did in the case of the Rome Statute of International Criminal Court, rather than a more liberal interpretation as expected.

 

(B) How this is better than existing theories (both those which focus on more general descriptions (common law/civil law etc.) and the realist and NLI theories.

The subject of this above research – that legal tradition explains the interpretations adopted by states towards international law – correctly predicts the interpretations adopted in three of the four states examined above, and provides an explanation for the missed prediction in the case of the fourth state. This then provides a much more complete picture of the influence of legal tradition on state interpretation of the international legal principle of universal jurisdiction as codified in the Rome Statute of the International Criminal Court than other international relations theories. First, those few works which do focus on legal tradition, but only as the broadest of categories, such as common law, would only have correctly predicted the outcomes for two of the four countries in this chapter. More importantly, by focusing only on the common characteristics among the common law states, these theories would have been unable to provide a satisfactory explanation as to why two of the four states defied expectations.

Performing even worse, would have likely been more traditional international relations explanations, which don’t consider legal tradition at all. Theories centered on power and interests would have suggested, as outlined above, that the concept of universal jurisdiction outlined in the Rome Statute of the ICC would have only succeeded in becoming an accepted definition if supported by the most powerful states. Given many of the most powerful states in the world – the U.S., Russia, China, India, Australia – did not sign on, these theories would predict none of the four states in this study would have joined the ICC. They would have been wrong on all four counts.

Moreover, interest-based theories would have suggested that signing on to an international treaty such as the Rome Statute, which requires states to relinquish a small amount of sovereignty is not in the state’s interests, particular when perceived assistance with some collective action problem is minimal due to the nature of the institution.

Moreover, as described in the context of both part 3 and 4, however, this conception of interests only focuses on the short-term material interests of a state. An examination of the long-term interest of the state would lead to the conclusion that becoming a party to the Rome Statute is actually more beneficial for the state because the state then has the opportunity to participate in the workings of the ICC, including drafting the Court’s procedures, selecting the prosecutor and the justices, and participating in discussion over which cases should be heard115. Particularly once it became clear that the Rome Statute was going to receive the 60 ratifications required to enter into effect, it becomes in the state’s interests to sign on to the Court. States do not tend to think in the long-term, however, and in considering short term interests this theory would not have successful predicted the outcomes either.

Certainly consideration of interests mattered in each of the interpretations states made, but as suggested by the theory of this project, the extent to which the interests can be considered varies depending on the attributes of the legal tradition. In the case of the U.K., for example, while protection of the state’s numerous soldiers engaged in military actions abroad and protection of U.K. citizens from politically-motivated prosecutions was likely as relevant to the decision-makers in the United Kingdom as it was in any of the other three states examined, the influence on its legal tradition and perceptions of the appropriate course of action for the good of the community wielded by the European Union mitigated the extent to which the U.K. policy-makers were able to consider these interests.

Moreover, in this specific case, since each of the four states examined is involved in sending its military personnel to other countries – both on UN peace-keeping missions and in relation to other armed conflicts – each of these states has the potential for concern that its own military will be subject to prosecution by the ICC for acts committed in the course of these actions, as well as a concern over the potential for politically-motivated prosecutions. This is a very real concern, for all four states116, as each has been (or is) involved in situations in which their presence is unpopular. For example, India has troops in Sierra Leone acting as peacekeepers under the auspices of the United Nations.

The Commander in Sierra Leone is an Indian national named Major General Vijay Kumar Jetley, who has come under fire for actions perceived by other states as invalid, despite the highest praise from former UN Secretary General Kofi Annan117. This is exactly the type of situation states fear could lead to malicious prosecution. Yet, as has been demonstrated, two of the states signed on to the Rome Statute of International Criminal Court anyway. Therefore concern over the interests of one’s own military cannot be the primary reason for a state’s interpretation of its obligations under the ICC statute.

Furthermore, arguments that the positions of the four states might be politically motivated, particularly in the case of the United States, are unfounded. Two of the four states have had shifts in party power since the opening for signature of the Statute of the International Criminal Court. However, each has maintained a constant position on its interpretation of its obligations under the Court. For example, the United States participated in negotiations for the Rome Statute largely under the auspices of the Clinton Administration. Indeed the U.S. and its allies worked very hard to come to a compromise that would allow the United States to participate in the new world court118. While Clinton did sign the Rome Statute on behalf of the U.S., however, he warned that neither he, nor his predecessor would be able to ratify the Statute in its existing form.

India too has experienced shifts in political power through the period, with three different major parties or party coalitions heading the government from the 1998 to 2004 period.

None of these have changed the position of India that it cannot sign on to the interpretation of universal jurisdiction as outlined in the Rome Statute. Australia, on the other hand, has had the same party in power since John Howard’s Liberal Party was elected in 1996. And while its ratification took some time (the country signed the Rome Statute on December 9, 1998 and did not ratify it until July 1, 2002, after it had already entered into effect by virtue of receiving 60 ratifications)119,the ultimate support for the becoming a member of the ICC cut across party lines, in the same way agreement not to support the charter cut across party lines in the U.S. Even the Chief of the Australian Defense Force stated that he believed the “creation of the ICC would be no threat to Australian forces, rather the Court’s existence would make Australian soldiers’ jobs easier and safer in peace-keeping situations.”121 This is even in light of many who suggested that Australia’s acceptance of the Rome Statute would “constitute a serious diminution of Australian sovereignty – that Australian nationals, including defence force personnel on international peace operations, could be tried by the court against the will of the Australian Government.”121

Based on the research presented above, expectations were met in three of the four situations examined in this case. In the fourth case, a closer examination of the state’s legal tradition provides a logical explanation for its divergence. As demonstrated this explanatory power is more successful than any of the alternative theories, and provides significant additional support for the importance of consideration of the attributes and historical development of a state’s legal tradition.

 

State Behaviour in the International System P.1

State Behaviour in the International System P.2

State Behaviour in the International System P.3

State Behaviour in the International System P.4

State Behaviour in the International System P.6

 

 

1 Each of the four states has a long history of participating in UN peacekeeping operations. See U.S. Department of State Background Notes for each state, available at http://www.state.gov. For example, India is cited as “having a long tradition of participating in UN peacekeeping operations and most recently contributed personnel to UN operations in Somalia, Cambodia, Mozambique, Kuwait, Bosnia, El Salvador,and Lebanon.”

2 David B. Rivkin, Jr. and Lee A. Casey, “Crimes Outside the World’s Jurisdiction,” New York Times, 2003, http://www.westlaw.com (2003 WLNR 5656698).

3 Mark W. Janis, Introduction to International Law (New York: Aspen Publishers, 2003), 329.

4 Ibid.; Rivkin and Casey, “Crimes Outside the World’s Jurisdiction.”

5 Michael P. Scharf, “Results of the Rome Conference for an International Criminal Court,” ASIL
Insights, August 1998, http://www.asil.org/insights (accessed April 2007).

6 Janis, Introduction to International Law, 329. In Filartiga v. Peña-Irala, the 2nd Circuit stated, “the torturer has become – like the pirate and slave trader before him – hostis humani generis, an enemy of all mankind”. The 6th Circuit, in Demjanjuk v. Petrovsky, seconded this idea five years later when deciding whether Israel had universal jurisdiction over a Nazi war criminal even though his crimes were committed prior to the creation of Israel as a state: “[N]either the nationality of the accused or the victim(s), nor the location of the crime is significant. The underlying assumption is that the crimes are offenses against the law of nations or against humanity and that the prosecuting nation is acting for all nations.”.

7 Stefaan Smis and Kim Van der Borght, “Belgian law concerning The Punishment of Grave Breaches of International Humanitarian Law: A Contested Law with Uncontested Objectives,” ASIL Insights, July 2003, http://www.asil.org/insights (accessed April 2007).

8 Leila Nadya Sadat, “The International Criminal Court Treaty Enters into Force,” ASIL Insights, April 2002, http://www.asil.org/insights (accessed April 2007).

9 Ibid., quoting Rome Statute of the International Criminal Court, United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, July 17, 1998,Annex II, U.N. Doc A/CONF. 183/9 (1998), Preamble & art. 5(1).

10 David Wippman, “The International Criminal Court,” in The Politics of International Law, ed. Christian Reus-Smit (Cambridge: Cambridge University Press, 2004), 152.

11 Ibid., 152-53.

12 Ibid., 153.

13 This refers also to a forthcoming book by Simmons.

14 Rene David and John E.C. Brierley, Major Legal Systems in the World Today, 3rd ed. (London: Stevens & Sons, 1985), 306, 311.

15 Ibid., 312-313.

16 Ibid., 358. “English jurists think of their law as essentially a case law. …”

17 Ibid., 307-335.

18 This notion largely gained traction in England through the work of Jeremy Bentham (1748-1832). David and Brierley, Major Legal Systems, 3rd ed., 330; Glendon, Gordon, and Osakwe, Comparative Legal Traditions, 316. Bentham and his followers “had little respect for tradition and the sanctity of precedent …(and) viewed the common law as inordinately slow in responding to social needs. They urged codification to provide certainty and comprehension to the law, and to avoid a social revolution.”

19 This has changed somewhat, however, with the U.K.’s membership in the European Union and passage of the U.K. Human Rights Act in 1998. These events have increased the power of the British courts to review the acts of parliament for conformance with provisions of these documents. See Glendon, Gordon and Osakwe, Comparative Legal Traditions, 357; “United Kingdom,” in Legal Systems of the World: A Political, Social and Cultural Encyclopedia, ed. Herbert M. Kritzer (Santa Barbara, CA: ABCCLIO, 2002), 1699. K., 1699.

20 David and Brierley, Major Legal Systems, 3rd ed., 439. “Within the body of federal legislation, a special place is quite naturally occupied by the fundamental national law, the Constitution. … For Americans it represents a good deal more than the French Constitution does for Frenchmen. It is not only a political charters but the nation’s founding document, inspired by the ideas of the Natural Law School and one which put into operation the concept of social contract.”

21 Ibid., 383.

22 The Magna Carta, passed in 1215, was a charter enacted between King John and the English barons. The barons were upset over their increasing loss of jurisdiction (and hence revenue) over legal matters. While primarily a document designed to preserve the power and revenue of the barons over certain local judicial issues, the charter also contained some provisions protecting ordinary citizens such as habeas corpus and due process provisions such as the right to a jury trial. See Glendon, Gordon and Osakwe, Comparative Legal Traditions, 310; Constitutions of the World, 2nd ed., ed. Robert L. Maddox (Washington, DC: CQ Press, 2001), 368-369.

23 The Bill of Rights of 1689 provided that the monarch could not dispense with the laws, not suspend the laws without the consent of parliament. This bill also established the principle of the freedom of speech in Parliament. See “United Kingdom,” Legal Systems of the World, 1695.

24 The European Communities Act joined the United Kingdom to the European Union (the Community). This added EU law as a new source of law for England, one with which no domestic provision of law could conflict. This is one of the acts that has given the British courts a bit more authority of judicial review in that they may review acts of parliament for conformance with EU law. See Glendon, Gordon and Osakwe, Comparative Legal Traditions, 656.

25 David and Brierley, Major Legal Systems, 3rd ed., 406. “The American attitude towards the law is not that of the English.”

26 Constitutions of the World, 370. “The first generally recognized individual rights in England were those under common law: the right inherent in access to the monarch’s courts for remedies even against feudal lords.”

27 David and Brierley, Major Legal Systems, 3rd ed., 331.

28 Glendon, Gordon and Osakwe, Comparative Legal Traditions, 593. “Paramount is a sensitivity for preserving an individual right to contract freely and to alienate property.”

29 Ibid., 325; Constitutions of the World, 370.

30 Glendon, Gordon and Osakwe, Comparative Legal Traditions, 325.

31 Ibid., 350-351.

32 Ibid., 351. “Some unpopular decisions, widely condemned as unduly partial towards the King’s interests, discredited the idea that Parliament’s authority was limited by judicially enforceable laws… .”

33 Ibid., 352.

34 Ibid., 349.

35 Constitutions of the World, 370. “The one indisputable fact is the supremacy of the British parliament, which in theory precludes judicial review. As Sir William Blackstone quoted in his famous legal commentaries: ‘The power and jurisdiction of parliament … is so transcendent and absolute, that it
cannot be confined either for causes or persons, within any bounds.’”

36 “United Kingdom,” Legal Systems of the World, 1699. “The United Kingdom adopts a dualist approach to international law, which is therefore not a direct source of law within the U.K.”

37 Rosalyn Higgins, Problems and Process: International Law and How We Use It (Oxford: Clarendon Press, 1994), 205; “The Growing Rapprochement Between International Law and National Law”, in Visions of Legal Order in the 21st Century: Essays to Honour His Excellency Judge C.J. Weermantry, ed. G. Sturgess and A. Anghie, http://www.hcourt.gov.au/speeches/kirbyj/kirbyj_weeram.htm (accessed January 8, 2005).

38 David and Brierley, Major Legal Systems, 3rd ed., 383.

39 Ibid., at 439.

40 Glendon, Gordon and Osakwe, Comparative Legal Traditions, 657.

41 David and Brierley, Major Legal Systems, 3rd ed., 366.

42 “United Kingdom,” Legal Systems of the World, 1699. “The absence of a written constitution, coupled with the doctrine of parliamentary supremacy, means that as a general rule, Parliament’s primary legislation may make or unmake any law.”

43 David and Brierley, Major Legal Systems, 3rd ed., 386. “For English jurists, there is no true legal rule except that which is seen through the facts of a case and, therefore, reduced to that principle which is required to resolve that dispute. This traditionalism … prevents English statutes from achieving fully a
status in the hierarchy of sources equivalent to continental European legislation and codes.”

44 David and Brierley, Major Legal Systems, 3rd ed., 366; Glendon, Gordon and Osakwe, Comparative Legal Traditions, 593. “Although there is no dispute that legislation increasingly is assuming a major role as a source of law, the fabric of the common law is its precedent, and the vast number of volumes of such cases is the foremost distinguishing feature of the common law tradition.”

45 Kenneth R. Simmonds, “United Kingdom,” International Encyclopedia of Comparative Law: National Reports, Vol. I, ed. Viktor Knapp (Tübingen: J.C.B. Mohr, 1973), U-69.

46 David and Brierley, Major Legal Systems, 3rd ed., 366. “[T]he influence of legal writing has been less in England than on the continent. …”

47 David and Brierley, Major Legal Systems, 3rd ed., 353.

48 Simmonds, “United Kingdom,” U-71. However, certain works, written for the most part by judges, have become part of a “canon” of British legal literature which are referred to throughout the common law world. Authors include Glanville, Bracton, Littleton, and above all, Coke. David and Brierley, Major Legal Systems, 3rd ed., 394.

49 “India,” Legal Systems of the World: A Political, Social and Cultural Encyclopedia, Vol. II, ed. Herbert M. Kritzer (Santa Barbara, CA: ABC-CLIO, Inc., 2002), 693; CIA World Factbook: India, http://www.cia.gov (accessed April 2007).

50 U.S. Department of State Background Notes: India, December 2006, http://www.state.gov.

51 David and Brierley, Major Legal Systems, 3rd ed., 508-509 (“Indian law, shaped by English lawyers and judges, is necessarily a part of the Common law family.”).

52 David and Brierley, Major Legal Systems, 3rd ed., 508. “The rules of India could not be any but those of English law. They have been shaped by the context of, and make of the concepts derived from, the Common law system.”; “The Legal System of the Republic of India,” Modern Legal Systems Cyclopedia,
Vol. 9, revised ed., ed. Linda L. Schlueter (Buffalo, NY: William S. Hein & Co, 2001), 9.80.25. “The modern judicial system in India had its beginnings under British auspices in the late eighteenth century and was extended and consolidated during the nineteenth and twentieth centuries. Its legal concepts and
procedures resemble those of Anglo-Saxon countries.”

53 David and Brierley, Major Legal Systems, 3rd ed., 486.

54 Ibid, 486.

55 Ibid, 486.

56 Ibid, 486.

57 The four groups are the Brahmin, the Kshatriyas or Vaishayas, the Sudras, and the untouchables. The Brahmin are the scholars and priests of society. The rules for the group are classified in the dharmasastras and dharmasutra. The Kshatriyas and Vaishayas are the warriors and merchants respectively, and are considered those primarily responsible for running the government. The rules for this class are governed by artha, or expediency, and are held in the arthasastras or arthasutras. The Sudras are the artisans and tradesmen of society. The rules for this class are governed by kama, or pleasure, and are
held in the kamasastras or kamasutras. For each of these three classes, it is believed all persons have elements of the dharma, artha, and kama, however, depending on their social class, their lives must be dominated by the rules for that class. This is the only way to preserve the harmonic balance of the
universe. The fourth class, the poor, the untouchables, does not have a body of rules outlined by Hinduism.
For a broader discussion of the Hindu legal tradition, see "India," Legal Systems of the World, at 693; David and Brierley, Major Legal Systems, 3rd ed., 484-515;

58 “India,” Legal Systems of the World, 693.

59 “The Legal System of the Republic of India,” Modern Legal Systems Cyclopedia, 9.80.7.

60 Ibid., 9.80.9.

61 David and Brierley, Major Legal Systems, 3rd ed., 490.

62 Ibid., 490; “India,” Legal Systems of the World, 694.

63 David and Brierley, Major Legal Systems, 3rd ed., 490; P.K. Irani, “India,” in International Encyclopedia of Comparative Law: National Reports, Vol. I., ed. Viktor Knapp, (Tübingen: J.C.B. Mohr, 1973), I-12.

64 David and Brierley, Major Legal Systems, 3rd ed., 491.

65 Glendon, Gordon, and Osakwe, Comparative Legal Traditions, 320. India was a colony “seeded” by Britain. There were three different methods the British used, seeded, settled and conquered. Seeded nations, like India, were those in which elements of British law were introduced into a society which already had a relatively advanced legal system. Settled nations were those in which there was a native population, but one without a sufficient infrastructure to withstand the imposition of the British system. The United States is an example of a settled colony. Conquered nations were those in which an element of force was used to wrest power from another authority. An example of this is South Africa, in which the British took over from the Dutch who had already “settled” the territory.

66 David and Brierley, Major Legal Systems, 3rd ed., 491.

67 Ibid., at 491.

68 Ibid., 493. This “did help to reduce the great diversity of local customs which, even to Hindus, was considered a drawback. Moreover, the contributed to an evolution which many consider beneficial in so far as it modernized Hindu law while respecting its spirit.”

69 Constitutions of the World, 156. “British hegemony was unifying for India, because it imposed a single administrative and court system, improved transportation and communication, and brought education to a new professional class.”

70 David and Brierley, Major Legal Systems, 3rd ed., 491; “India,” Legal Systems of the World, 694.

71 David and Brierley, Major Legal Systems, 3rd ed., 513. “Having been subject to foreign ruling powers for centuries, Indians today are deeply united by, and are justly proud of, the independence they gained through the non-violent means required by their religious beliefs.”

72 Constitutions of the World, 156-157.

73 Glendon, Gordon, and Osakwe, Comparative Legal Traditions, 39.

74 “India,” Legal Systems of the World, 696.

75 Constitution of India (1950), as amended, Preamble, http://indiacode.nic.in/coiweb/welcome.html.

76 Ibid., Article 15.

77 David and Brierley, Major Legal Systems, 3rd ed., 513

78 “The Legal System of the Republic of India,” Modern Legal Systems Cyclopedia, 9.80.24; Constitutions of the World, 157. “Part 4 contains … principles … for securing a social order and promoting the welfare of the people.”

79 “The Legal System of the Republic of India,” Modern Legal Systems Cyclopedia, 9.80.24.

80 Ibid., 9.80.16.

81 “India,” Legal Systems of the World, 696.

82 David and Brierley, Major Legal Systems, 3rd ed., 513.

83 “India,” Legal Systems of the World, 696

84 Irani, “India,” I-11. “Judicial decisions in India have the force of precedent. Judgments of the Supreme Court are binding on all courts in India and judgments of the High Court are binding on all subordinate courts in the State.”

85 David and Brierley, Major Legal Systems, 3rd ed., 488.

86 Ibid., 489.

87 Ibid., 498.

88 Ibid.

89 Ibid. Hindu law … retains its place as one of the fundamental notions of the social order in the modern world.”

90 “The Legal System of the Republic of India,” Modern Legal Systems Cyclopedia, 9.80.29; “India,” Legal Systems of the World, 697.

91 David and Brierley, Major Legal Systems, 3rd ed., 511-512; “The Legal System of the Republic of India,” Modern Legal Systems Cyclopedia, 9.80.21

92 Constitutions of the World, 156. “The Indian constitution, a long and detailed document, attempts to maintain democracy while transforming a rigid, hierarchical social order into an egalitarian state.”

97 U.S. Department of State Background Note: United Kingdom, February 2007, http://www.state.gov. “The U.K. was the United States’ main coalition partner in Operation Iraqi Freedom and continues to have more than 8,000 troops deployed in Iraq to help stabilize and rebuild the country.”; “Australia was one of the earliest participants in Operation Enduring Freedom. Australian Defense Forces participated in coalition military action against Iraq in Operation Iraqi Freedom. Australian military and civilian specialists are participating in the training of Iraqi security forces and the reconstruction of Iraq. Australian Special Forces redeployed to Afghanistan to help provide security for the country's September 18, 2005 elections.”

98 CIA World Factbook: India, http://www.cia.gov, (accessed April 2007).

99 Barbara Crossette, “U.S. Pushes to Weaken World Court on Atrocities,” New York Times, June 12, 2000, http://www.westlaw.com (2000 WLNR 3234890). “Critics of the court object to what they say is the legal authority it would have without an acceptable constitutional base. John Bolton, a former assistant secretary of state for international organizations in the Bush administration, calls the establishment of the court “a stealth approach to eroding our constitutionalism”… .””

100 U.S. Senator Rod Grams, “Is a UN International Criminal Court in the U.S. National Interest?,” Committee on Foreign Relations, United States Senate, 105th Congress, 2nd Session, July 23, 1998, 8. “When Congressional and other ICC critics complain that ‘this Court strikes at the heart of sovereignty’, they are not spouting empty rhetoric; instead, at some level, they are appealing to deeply held conceptions of national identity and the proper relationship between law and self government.”, as quoted in Wippman, “The International Criminal Court,” 163.

101 Scharf, “Results of the Rome Conference.”

102 Ibid.

103 Ibid. quoting David Scheffer, U.S. Ambassador-at-Large for War Crimes Issues speaking to the Senate Foreign Relations Committee, “Out position is clear: Official actions of a non-party state should not be subject to the court’s jurisdiction if that country does not join the treaty, except by means of Security Council action under the U.N. Charter.”

104 Dilip Lahiri, Explanation of vote on the adoption of the Statute of the International Criminal Court, 1998, http://www.indianembassy.org (accessed April 2007). Statement by Mr. Lahiri, Additional Secretary to the United Nations: “As the world’s largest democracy, which is fortunate to have in addition one of the most independent and far-sighted judiciaries in the world, whose contribution to the jurisprudence on the rights of individuals is almost unmatched, we would have wanted to be one of the first signatories of the ICC; equally, it should have been in the interests of the ICC to have a country like India on board.”

105 Ibid.

106 Ibid.

107 Ibid. Statement by Mr. Lahiri, Additional Secretary to the United Nations: “But while we tried, unsuccessfully, to ensure that the Court would be free from political influence, and its Statute in full conformity with the Law of Treaties, on the penultimate day of the Conference, the purists resurrected and forces into the Statute the concept of universal or inherent jurisdiction, which too makes a mockery of the distinction between States Parties and those who choose not to be bound by a treaty.” It is truly unfortunate that a Statute drafted for an institution to defend the law should start out straying so sharply from established international law.”

108 Ibid.

109 International Criminal Court website, http://www.icc-cpi.int (accessed April 2007).

110 U.S. Department of State Background Note: United Kingdom, http://www.state.gov.

111 Wippman, “The Original Criminal Court,” 161.

112 Hon. Alexander Downer, Minister for Foreign Affairs, Australia, “Australia Ratifies International Criminal Court: News Release”, 2002, http://www.foreignminister.gov.au/releases.

113 Constitutions of the World, 19-20. An attempt was made to enact a Bill of Rights in Australia in 1988. It was defeated in a national referendum.

114 The Hon. Justice Michael Kirby, “Domestic Implementation of International Human Rights in Australia,” Australian National University Faculty of Law, Conference on Implementing International Human Rights, Saturday December 6, 1997, http://www.hcourt.gov.au (accessed February 2005).

115 Sir Ninian Stephen, “Australia must ratify the international court”. The Age, 2002, http://www.theage.com.au (accessed April 2007). Sir Ninian Stephen, former governor-general of Australia, High Court judge, and Justice of the International Criminal Tribunals for Rwanda and the former Yugoslavia, summarizes this position for Australia: “Perhaps even more significantly, if we choose not to ratify the statute … we will forfeit the opportunity to be involved in the critically important process of selecting a prosecutor for the court and we will be unable to have Australians employed by the court.”; Scharf, “Results of the Rome Conference.” Professor Michael Scharf speaking to the Senate Foreign Relations Committee: "Within five years the world will have a permanent international criminal court even without U.S. support. As a non-party, the U.S. will not be bound to cooperate with the Court. But this does not guarantee complete immunity from the Court. It is important to understand that U.S. citizens, soldiers, and officials could still be indicted by the Court and even arrested and surrendered to the Court while they are present in a foreign country which happens to be a party to the Court's Statute. Moreover, by failing to sign the Statute, the U.S. will be prevented from participating in the preparatory committee which will draft the Court's Rules of Procedure and further define the elements of the crimes within the Court's jurisdiction. Also, by failing to sign the Statute, the U.S. will be prevented from nominating a candidate for the Court's bench, participating in the selection of the Court's Prosecutor and judges, or voting on its funding."

116 Alessandra Stanley, “U.S. Specifies Terms for War Crimes Court,” New York Times, July 10,1998, http://www.westlaw.com (1998 WLNR 2971970). “Washington’s primary objection is thatAmerican soldiers might be vulnerable to politically motivated charges. … We constantly have troops serving abroad on humanitarian missions, rescue operations or missions to destroy weapons of mass destruction. Someone out there isn’t going to like it, but we are the ones who do it.”

117 Crossette, “U.N. Chief Faults Reluctance of U.S. to Help in Africa.”

118 Scharf, “Results of the Rome Conference.”

119 Ratification of the Rome Statute, United Nations Treaty Database, http://www.un.org/law/icc

120 Andrew MacLeod and Greg Barns, “The International Criminal Court will strengthen Australia’s global standing,” On-Line Opinion” Australia’s E-journal of Social and Political Debate, 2002, http://www.onlineopinion.com.au (accessed, April 2007).

121 Ninian, “Australian ratify the international court.”

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