International law is the set of rules generally regarded and accepted as binding in relations between states and nations.^[1] It differs from national legal systems in that it only concerns nations rather than private citizens. National law may become international law when treaties delegate national jurisdiction to supranational tribunals such as the European Court of Human Rights or the International Criminal Court. Treaties such as the Geneva Conventions may require national law to conform.

The term "international law" can refer to three distinct legal disciplines:

• Public international law, which governs the relationship between provinces and international entities. It includes these legal fields: treaty law, law of sea, international criminal law, the laws of war or international humanitarian law and international human rights law.
• Private international law, or conflict of laws, which addresses the questions of (1) which jurisdiction may hear a case, and (2) the law concerning which jurisdiction applies to the issues in the case.
• Supranational law or the law of supranational organizations, which concerns regional agreements where the laws of nation states may be held inapplicable when conflicting with a supranational legal system when that nation has a treaty obligation to a supranational collective.

The two traditional branches of the field are:

• jus gentium — law of nations
• jus inter gentes — agreements between nations

Sources of international law[link]

All sources of international law are from treaties and covenants which regulate relations between nations. They have been influenced by a range of political and legal theories. During the 20th century, it was recognized by legal positivists that a sovereign state could limit its authority to act by consenting to an agreement according to the principle pacta sunt servanda. This consensual view of international law was reflected in the 1920 Statute of the Permanent Court of International Justice, which was succeeded by the United Nations Charter and is preserved in the United Nations Article 7 of the 1946 Statute of the International Court of Justice.

Public international law[link]

Public international law (or international public law) concerns the treaty relationships between the nations and persons which are considered the subjects of international law. Norms of international law have their source in either:

1. custom, or customary international law (consistent provincial practice accompanied by opinio juris),
2. globally accepted standards of behaviour (peremptory norms known as jus cogens or ius cogens), or
3. codifications contained in conventional agreements, generally termed treaties.

Article 13 of the United Nations Charter obligates the UN General Assembly to initiate studies and make recommendations which encourage the progressive development of international law and its codification. Evidence of consensus or state practice can sometimes be derived from intergovernmental resolutions or academic and expert legal opinions (sometimes collectively termed soft law).

International law has existed since the Middle Ages but much of its modern corpus began developing from the mid-19th century.Two sophisticated legal systems developed in the Western World: the codified systems of continental European states (Civil Law) and the judge-made law of England (Common Law). The fall of the Roman civilization did not result in the loss of the concepts of Roman Law. Starting in the later Middle Ages, unlegislated Roman law (ius commune or lex mercatoria) was applied by merchants in northern Italian city states and north-western European countries as the basis for commercial (and other) relationships. In the 20th century, the two World Wars and the formation of the League of Nations (and other international organizations such as the International Labor Organization) all contributed to accelerate this process and established much of the foundations of modern public international law. After the failure of the Treaty of Versailles and World War II, the League of Nations was replaced by the United Nations, founded under the UN Charter. The UN has also been the locus for the development of new advisory (non-binding) standards, such as the Universal Declaration of Human Rights. Other international norms and laws have been established through international agreements, including the Geneva Conventions on the conduct of war or armed conflict, as well as by agreements implemented by other international organizations such as the ILO, the World Health Organization, the World Intellectual Property Organization, the International Telecommunication Union, UNESCO, the World Trade Organization, and the International Monetary Fund. The development and consolidation of such conventions and agreements has proven to be of great importance in the realm of international relations.

Conflict of laws[link]

Conflict of laws, often called "private international law" in civil law jurisdictions, is less international than public international law. It is distinguished from public international law because it governs conflicts between private persons, rather than states (or other international bodies with standing). It concerns the questions of which jurisdiction should be permitted to hear a legal dispute between private parties, and which jurisdiction's law should be applied, therefore raising issues of international law. Today corporations are increasingly capable of shifting capital and labor supply chains across borders, as well as trading with overseas corporations. This increases the number of disputes of an inter-state nature outside a unified legal framework, and raises issues of the enforceability of standard practices. Increasing numbers of businesses use commercial arbitration under the New York Convention 1958.

Supranational law[link]

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The Term "International Law" refers to treaty law made in and between sovereign states. "Law" is defined as "a rule of conduct or action prescribed or formally recognized as binding or enforced by a controlling authority," ^[2] whereas "Sovereign" is defined as "supreme power or authority." Given this contradiction, nations have at times abrogated "International Laws" when they considered doing so in their national interest. The term "World Law" is the evolution of a system of law at the global level representing the sovereignty of the whole. Initial steps have been taken to evolve a system of supra-national laws, but true "World Law" may await the evolution of a legislative body of, by and for the people of the planet.

International courts[link]

There are numerous international bodies created by treaties adjudicating on legal issues where they may have jurisdiction. The only one claiming universal jurisdiction is the United Nations Security Council. Others are: the United Nations International Court of Justice, and the International Criminal Court (when national systems have totally failed and the Treaty of Rome is applicable) and the Court of Arbitration for Sport

East Africa Community[link]

There were ambitions to make the East African Community, consisting of Kenya, Tanzania, Uganda, Burundi and Rwanda, a political federation with its own form of binding supranational law but this effort has not been completed.

Union of South American Nations[link]

The Union of South American Nations is for the South American continent. It intends to establish a framework akin to the European Union by the end of 2019. It is envisaged to have its own passport and currency, and limit barriers to trade.

Andean Community of Nations[link]

The Andean Community of Nations is the first attempt the countries around the Andes Mountains in South America. It started with the Cartagena Agreement of 26 May 1969, and nowadays consists in four countries: Bolivia, Colombia, Ecuador and Peru. It does have a supranational law, called Agreements, which are mandatory for these countries.

See also[link]

• Centre for International Law (CIL)
• Commissions of the Danube River
• Global administrative law
• Graduate Institute of International and Development Studies
• Internationalization of the Danube River
• International legal theory
• International litigation
• Law of war and International humanitarian law
• List of International Court of Justice cases
• Martens Clause
• Roerich Pact
• Rule of Law in Armed Conflicts Project (RULAC)
• Sources of international law

Notes[link]

References[link]

• I Brownlie, Principles of Public International Law (OUP 2008)

External links[link]

Wikiquote has a collection of quotations related to: International law

• UN International Law
• United Nations Rule of Law, the United Nations' centralised website on the rule of law.
• Centre for International Law (CIL), Singapore
• Internation law overview
• International & Foreign Law Community
• Department of International Law, Graduate Institute of International and Development Studies, Geneva

Wikimedia Commons has media related to: International law

Stephen Breyer
Associate Justice of the Supreme Court of the United States
Incumbent
Assumed office August 3, 1994
Appointed by	Bill Clinton
Preceded by	Harry Blackmun
Chief Judge of the United States Court of Appeals for the First Circuit
In office 1990–1994
Preceded by	Levin Campbell
Succeeded by	Juan Torruella
Judge of the United States Court of Appeals for the First Circuit
In office December 10, 1980 – August 3, 1994
Appointed by	Jimmy Carter
Preceded by	Position established
Succeeded by	Sandra Lynch
Personal details
Born	Stephen Gerald Breyer (1938-08-15) August 15, 1938 (age 73) San Francisco, California, U.S.
Political party	Democratic Party[1]
Spouse(s)	Joanna Hare
Children	3
Alma mater	Stanford University Magdalen College, Oxford Harvard University

Stephen Gerald Breyer ( /ˈbraɪər/; born August 15, 1938) is an Associate Justice of the U.S. Supreme Court. Appointed by President Bill Clinton in 1994, and known for his pragmatic approach to constitutional law, Breyer is generally associated with the more liberal side of the Court.^[2]

Following a clerkship with Supreme Court Associate Justice Arthur Goldberg in 1964, Breyer became well known as a law professor and lecturer at Harvard Law School, starting in 1967. There he specialized in administrative law, writing a number of influential textbooks that remain in use today. He held other prominent positions before being nominated for the Supreme Court, including special assistant to the United States Assistant Attorney General for Antitrust and assistant special prosecutor on the Watergate Special Prosecution Force in 1973.

In his 2005 book Active Liberty, Breyer made his first attempt to systematically lay out his views on legal theory, arguing that the judiciary should seek to resolve issues to encourage popular participation in governmental decisions.

Early life and education[link]

Breyer was born in San Francisco, the son of Anne A. (née Roberts) and Irving Gerald Breyer,^[3] and raised in a middle-class Jewish family. Breyer's father was legal counsel for the San Francisco Board of Education.^[4] Both Breyer and his younger brother, Charles, who is a federal district judge, are Eagle Scouts of San Francisco's Troop 14.^[5][6] In 2007, Breyer was honored with the Distinguished Eagle Scout Award by the Boy Scouts of America.^[7] In 1955, Breyer graduated from Lowell High School. At Lowell, he was a member of the Lowell Forensic Society and debated regularly in high school debate tournaments, including against future California governor Jerry Brown and future Harvard Law School professor Laurence Tribe.^[8]

Breyer received a Bachelor of Arts in philosophy from Stanford University, a Bachelor of Arts from Magdalen College at Oxford University as a Marshall Scholar, and a Bachelor of Laws (LL.B) from Harvard Law School. Breyer is also fluent in French.^[9]

In 1967, he married The Hon. Joanna Freda Hare, a psychologist and member of the British aristocracy (the youngest daughter of John Hare, 1st Viscount Blakenham). The Breyers have three adult children, Chloe (an Episcopal priest, and author of The Close), Nell, and Michael.^[10]

Legal career[link]

Breyer served as a law clerk to Associate Justice Arthur Goldberg during the 1964 term (list). He was a special assistant to the United States Assistant Attorney General for Antitrust from 1965 to 1967 and an assistant special prosecutor on the Watergate Special Prosecution Force in 1973. Breyer was a special counsel to the U.S. Senate Committee on the Judiciary from 1974 to 1975 and served as chief counsel of the committee from 1979 to 1980.^[10] He worked closely with the chairman of the committee, Senator Edward M. Kennedy, to pass the Airline Deregulation Act that closed the Civil Aeronautics Board.^[8][11]

Breyer became an assistant professor, law professor, and lecturer at Harvard Law School starting in 1967. Breyer taught at Harvard Law School until 1994, also serving as a professor at Harvard's Kennedy School of Government from 1977 to 1980. At Harvard, Breyer was known as a leading expert on administrative law.^[12] While there, he wrote two highly influential books on deregulation: Breaking the Vicious Circle: Toward Effective Risk Regulation and Regulation and Its Reform. In 1970, Breyer wrote "The Uneasy Case for Copyright", one of the most widely cited skeptical examinations of copyright. Breyer was a visiting professor at the College of Law in Sydney, Australia, the University of Rome,^[10] and the Tulane University Law School.^[13]

Judicial career[link]

Stephen Breyer

From 1980 to 1994, Breyer was a judge on the United States Court of Appeals for the First Circuit; he was the court's Chief Judge from 1990 to 1994.^[10] In the last days of President Jimmy Carter's administration, on November 13, 1980, Carter nominated Breyer to the First Circuit, and the U.S. Senate confirmed him on December 9, 1980, by an 80–10 vote.^[14] He served as a member of the Judicial Conference of the United States between 1990 and 1994 and the United States Sentencing Commission between 1985 and 1989.^[10] On the sentencing commission, Breyer played a key role in reforming federal criminal sentencing procedures, producing the Federal Sentencing Guidelines, which were formulated to increase uniformity in sentencing.^[15]

In 1993, President Bill Clinton considered him for the seat vacated by Byron White that ultimately went to Justice Ruth Bader Ginsburg.^[16] Breyer's appointment came shortly thereafter, however, following the retirement of Harry Blackmun in 1994, when Clinton nominated Breyer as an Associate Justice of the Supreme Court on May 13 of that year. Breyer was confirmed by the U.S. Senate in an 87 to 9 vote and took his seat August 3, 1994.^[10] Breyer was the second-longest-serving junior justice in the history of the Court, close to surpassing the record set by Justice Joseph Story of 4,228 days (from February 3, 1812, to September 1, 1823); Breyer fell 29 days short of tying this record, which he would have reached on March 1, 2006, had Justice Samuel Alito not joined the Court on January 31, 2006.

Judicial philosophy[link]

In general[link]

Breyer's pragmatic approach to the law "will tend to make the law more sensible"; according to Cass Sunstein, Breyer's "attack on originalism is powerful and convincing."^[17] In 2006, Breyer said that in assessing a law's constitutionality, while some of his colleagues "emphasize language, a more literal reading of the [Constitution's] text, history and tradition," he looks more closely to the "purpose and consequences."^[18]

Breyer has consistently voted in favor of abortion rights,^[19][20] one of the most controversial areas of the Supreme Court's docket. He has also defended the Supreme Court's use of foreign law and international law as persuasive (but not binding) authority in its decisions.^[21][22][23] However, Breyer is also recognized to be deferential to the interests of law enforcement and to legislative judgments in the Supreme Court's First Amendment rulings. Breyer has also demonstrated a consistent pattern of deference to Congress, voting to overturn congressional legislation at a lower rate than any other Supreme Court justice since 1994.^[24]

Breyer's extensive experience in administrative law is accompanied by his staunch defense of the Federal Sentencing Guidelines. Breyer rejects the strict interpretation of the Sixth Amendment espoused by Justice Scalia that all facts necessary to criminal punishment must be submitted to a jury and proved beyond a reasonable doubt.^[25] In many other areas on the Court, too, Breyer's pragmatism is considered the intellectual counterweight to Scalia's textualist philosophy.^[26]

In describing his interpretive philosophy, Breyer has sometimes noted his use of six interpretive tools: text, history, tradition, precedent, the purpose of a statute, and the consequences of competing interpretations.^[27] Breyer notes that only the last two differentiate him from textualists on the Supreme Court such as Scalia. Breyer argues that these sources are necessary, however, and in the former case (purpose), can in fact provide greater objectivity in legal interpretation than looking merely at what is often ambiguous statutory text.^[28] With the latter (consequences), Breyer argues that considering the impact of legal interpretations is a further way of ensuring consistency with a law's intended purpose.^[29]

[edit] Active Liberty

Breyer expounded on his judicial philosophy in 2005 in Active Liberty: Interpreting Our Democratic Constitution. In it, Breyer urges judges to interpret legal provisions (of the Constitution or of statutes) in light of the purpose of the text and how well the consequences of specific rulings will fit those purposes. The book is considered a response to the 1997 book A Matter of Interpretation, in which Antonin Scalia emphasized adherence to the original meaning of the text alone.^[19][30]

In Active Liberty, Breyer argues that the Framers of the Constitution sought to establish a democratic government involving the maximum liberty for its citizens. Breyer refers to Isaiah Berlin’s Two Concepts of Liberty. The first Berlinian concept, being what most people understand by liberty, is "freedom from government coercion;" Berlin termed this negative liberty and warned against its diminution. Breyer terms this "modern liberty." The second Berlinian concept – to Berlin, "positive liberty" – is the "freedom to participate in the government;" In Breyer's terminology, this is the "active liberty," which the judge should champion. Having established this premise of what liberty is, and having posited the primary importance of this concept over the competing idea of "Negative Liberty" to the Framers, Breyer argues a predominantly utilitarian case for judges making rulings that give effect to the democratic intentions of the Constitution.

Both of the books' historical premises and practical prescriptions have been challenged. For example, according to Prof. Peter Berkowitz,^[31] the reason that "[t]he primarily democratic nature of the Constitution's governmental structure has not always seemed obvious," as Breyer puts it, is "because it’s not true, at least in Breyer's sense that the Constitution elevates active liberty above modern [negative] liberty." Breyer's position "demonstrates not fidelity to the Constitution," Berkowitz argues, "but rather a determination to rewrite the Constitution’s priorities." Berkowitz suggests that Breyer is also inconsistent, in failing to apply this standard to the issue of abortion, instead preferring decisions "that protect women’s modern liberty, which remove controversial issues from democratic discourse." Failing to answer the textualist charge that the Living Documentarian Judge is a law unto himself, Berkowitz argues that Active Liberty "suggests that when necessary, instead of choosing the consequence that serves what he regards as the Constitution’s leading purpose, Breyer will determine the Constitution’s leading purpose on the basis of the consequence that he prefers to vindicate."

Against the last charge, Professor Cass Sunstein has defended Breyer, noting that of the nine justices on the late Rehnquist Court, Breyer showed the highest percentage of votes to uphold acts of Congress and also to defer to the decision of the executive branch.^[32] However, according to Jeffrey Toobin in The New Yorker, "Breyer concedes that a judicial approach based on 'active liberty' will not yield solutions to every constitutional debate," and that, in Breyer's words, "Respecting the democratic process does not mean you abdicate your role of enforcing the limits in the Constitution, whether in the Bill of Rights or in separation of powers."^[33]

To his point, and from a discussion at the New-York Historical Society in March 2006, Breyer has noted that "democratic means" did not bring about an end to slavery, or the concept of "one man, one vote," which allowed corrupt and discriminatory (but democratically inspired) state laws to be overturned in favor of civil rights.^[34]

In 2010, Breyer released a second book, Making Our Democracy Work: A Judge's View (ISBN 978-0307269911).^[35]

Other views[link]

In an interview on Fox News Sunday on December 12, 2010, Breyer stated that based on the values and the historical record, the Founding Fathers never intended guns to go unregulated and that history supports his and the other dissenters' views in District of Columbia v. Heller.^[36]

In the wake of the controversy^[37] over Justice Alito's reaction to President Obama's criticism of the Court's Citizens United v. FEC ruling in his 2010 State of the Union Address, Breyer said he would continue to attend the address:

I think it's very, very, very important – very important – for us to show up at that State of the Union, because people today are more and more visual. What (people) see in front of them at the State of the Union is that federal government. And I would like them to see the judges too, because federal judges are also a part of that government.^[38]

See also[link]

Footnotes[link]

Further reading[link]

• Clinton, Bill (2005). My Life. Vintage. ISBN 1-4000-3003-X.
• Stephen Breyer, The Federal Sentencing Guidelines and Key Compromises on Which They Rest, 17 Hofstra L. Rev. 1 (1988)

External links[link]

• Supreme Court official site with biographies
• Profile at the Biographical Directory of Federal Judges, a public domain publication of the Federal Judicial Center
• Legal resources at the Law Library of Congress
• Biography and writings at the Legal Information Institute
• Profile at the Oyez Project
• Appearances on C-SPAN
• Profile at the Internet Movie Database
• Financial information at OpenSecrets.org
• Collected news and commentary at The New York Times
• Works by or about Stephen Breyer in libraries (WorldCat catalog)
• Profile at Notable Names Database
• C-SPAN Q&A interview with Breyer, December 4, 2005
• C-SPAN Q&A interview with Breyer, October 17, 2010
• Review of Stephen Breyer's Active Liberty: Interpreting our Democratic Constitution
• 'Stephen Breyer, the court's necromancer', a book review of "Active Liberty: Interpreting Our Democratic Constitution" in the New English Review
• 'Active Liberty' from Justice Stephen Breyer, October 20, 2005 NPR's Fresh Air
• "Supreme Court Justice Breyer on 'Active Liberty'" Part 1 of Interview, September 29, 2005 NPR's Morning Edition
• "Justice Breyer: The Case Against 'Originalists'" Part 2 of Interview, September 30, 2005 NPR's Morning Edition
• Justice Breyer's appearance on NPR's quiz show Wait Wait... Don't Tell Me March 24, 2007
• WGBH Forum Network: one and a half hours with US Supreme Court Justice of Law Stephen Breyer September 8, 2003.
• A film clip "The Open Mind - "Active Liberty" by Mr. Justice Breyer, Part I (2005)" is available for free download at the Internet Archive [more]
• A film clip "The Open Mind - "Active Liberty" by Mr. Justice Breyer, Part II (2005)" is available for free download at the Internet Archive [more]

Supreme Court of the United States

The Rehnquist Court Chief Justice: William Hubbs Rehnquist (1986–2005) 1994–2005: J.P. Stevens | S.D. O'Connor | A. Scalia | A. Kennedy | D. Souter | C. Thomas | R.B. Ginsburg | S. Breyer The Roberts Court Chief Justice: John Glover Roberts, Jr. (2005–present) 2005–2006: J.P. Stevens S.D. O'Connor A. Scalia A. Kennedy D. Souter C. Thomas R.B. Ginsburg S. Breyer 2006–2009: J.P. Stevens A. Scalia A. Kennedy D. Souter C. Thomas R.B. Ginsburg S. Breyer S. Alito 2009–2010: J.P. Stevens A. Scalia A. Kennedy C. Thomas R.B. Ginsburg S. Breyer S. Alito S. Sotomayor 2010–present: A. Scalia A. Kennedy C. Thomas R.B. Ginsburg S. Breyer S. Alito S. Sotomayor E. Kagan