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Principles and Foundations of International Law - complete summary
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A complete summary of all the readings for the course 'Principles and Foundations of International Law', including the case law.
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Weekly readings - Principles and Foundations of International LawLecture 1.1
1 The Setting of International Law (Klabbers)
International law:
- not just the law that deals with war and peace, or with genocide and human rights;
- also encompasses rules on trade, protection of the environment, shipping, and on the
protection of refugees.
Public international law: said to regulate relations between states.
- Many rules of international law have an effect on states, but also on other entities (companies,
individuals, minority groups). Many of the rules are shaped not just between states but also
involve representatives of international organizations, or civil society organizations.
The history of modern international law is usually said to have started in the seventeenth century.
1. For much time preceding the seventeenth century, much of Europe tended to be organized
into large empires. And since Europe was thought to be congruent with the world at large, the
result was that people did not think too much in terms of there being different political entities
requiring a specific legal system to organize their relations. Instead, they tended to think of
their empires as single entities, with the consequence that law was largely conceptualized as
internal.
2. The publication in 1625 of Hugo Grotius’ On the Law of War and Peace. It is sometimes
suggested that Grotius is the ‘founding father’ of international law, but such a claim is
untenable. (1) International law was not invented by a single person but grew out of the
interactions of states and the commentaries of learned observers. (2) If there were a single
creator, then there are a few other serious contenders.
- Grotius’ significance resides in two circumstances. First, he forms a bridge between
the classic naturalist way of looking at the law and later positivist theorizing.
- Natural law thinking typically suggests that law is not made but found; it
exists somehow in nature and can be recognized by the proper method of
analysis or by those of the right faith.
- Positivism typically suggests that law is not given, but man-made; the law is
whatever states decide or agree that it is.
- Second, Grotius may well have been the first to present a synthetic, comprehensive
vision of international law.
3. International law has been closely connected with imperialism and colonialism. The
emergence of early modern international law is comprehensible in light of the struggle
between European powers for influence elsewhere in the world.
- For purposes of establishing sovereignty, the local population was often ignored, but
their consent was deemed vital, at least as an argument to convince competing
European powers.
- International law also played a marked role when it came to slavery, first by
facilitating it and, later by gradually arriving at a prohibition.
- International law is also still trying to come to terms with the effects of
decolonization. The subsequent emergence of newly independent states in various
waves, mostly during the 1950s and 1960s, gave rise not only to questions of
succession but also to questions of representation and substantive justice, as was
recognized early on by some statue observers.
1
,Faced with the possibility of economic profit, states have been less than fully obedient to the classic
non-intervention principle. As it could be economically beneficial to have friendly governments in
place in states boasting oil reserves, so Western states made sure to help to put such friendly
governments in place.
- Much of international law is related to the global economy. International law is the legal
system regulating the global economy, in much the same way as it has been observed that
domestic legal systems and law school curricula from the late-nineteenth century onwards
were set up so as to facilitate the capitalist economy.
- In international criminal law, the central actors are not states, but individuals. This helps to
perpetuate the idea that the legal order remains based on sovereign states; states cannot be
imprisoned, but there is no obstacle to sending individuals acting in the name of the state to
prison.
International law can be seen as ‘positive morality’: it is more or less binding on states, but as a matter
of morality, not as a matter of law.
- Since states themselves make international law, they have little incentive to break it.
- The implementation and application of the law is very much a matter of habit and routine, and
this is not different in international law.
- A rule that is generally perceived as useful and that has been created in the proper manner
may be seen as legitimate and thereby exercise a ‘compliance pull’. States need to be
reminded that they should adhere to such a rule; instead, they would want to adhere to it.
Since international law can be seen to continue political debate instead of settling it, it is no surprise
that legal arguments have come to be invoked as political tools - a phenomenon sometimes referred to
as ‘lawfare’.
- If a state was deprived of entitlement, it would try to find a legal argument to back up its
claim.
- If international law often continues political debate, then what often matters in addition to the
precise rules and principles of international law are the identity and mindset of the people
taking decisions and the conditions under which this political debate can take place.
Whether or not one thinks that international law is useful often depends on the view one has of
international politics generally, and it is common to distinguish three approaches.
1. Self-proclaimed realists tend to view international law as largely irrelevant. For them, the
international system is characterized by a struggle for power between states, and states will do
anything to further their own interests.
2. The liberal institutionalist approach to international affairs is not quite as ready to dismiss
international law. Adherents to this approach tend to think that international law can be of
relevance, at least if properly designed to take states’ lust for power into account.
3. The so-called constructive approach is less state-centric, and more geared towards seeing the
law as helping to construct society. International law allows states to conclude alliances, and
it helps to channel political dialogue; it makes a lot of difference whether an incursion by one
state into a neighboring state is discussed as an invasion, or as humanitarian intervention or an
exercise in self-defense.
- International law delivers the framework and vocabulary that helps make
international politics possible.
2
,The emergence of globalization has only strengthened the connection between law and economics.
Globalization affects more than the economy alone; it also affects cultural and social relations, it has
given religious sentiments a new boost, and because globalization is often considered to make people
feel insecure and alienated, it may also have sparked nationalist and regional feelings.
- Globalization has also come to be accompanied by what is sometimes referred to as global
governance: the exercise of authority, on the global level, outside regular legal structures.
Introduction and Overview: the Ambit of International Law (Lowe)
The national security of each State depends upon an acceptance by other States of restrictions upon
the right to use force to achieve their aims. Those restrictions are given their definitive expression in
international law.
Co-operation is necessary; and cooperation needs a framework. In order even to begin to attempt to
co-operate, States must contact each other and know who is competent to give binding undertakings
that will be respected by the government, the courts, and other public authorities of the other State.
The central core of international law may be described as the body of rules and principles that
determine the rights and duties of States, primarily in respect of their dealings with other States and
the citizens of other States, and that determines what is a State.
The crucial difference between international law and municipal laws is one fundamental principle.
National laws are invariably based upon some notion of sovereignty. The fact that the exercise of a
right under national law may violate international law will not entitle national courts to deny the
existence of that right.
- The principle of sovereignty underpins national legal systems. It affirms the right of each
State to be different.
- International law is based upon the principle that all States are subject to international law and
must comply with it. We might say that international law governs the relationship between
one particular level of distinct political communities. International law does not generally
concern itself with relations between provinces or towns or whatever. It leaves those
questions to the authorities within the State concerned. It concerns itself essentially with
relations between States.
It is often asserted that international law in its modern form dates from the Treaty of Westphalia
(1648), which is said to have created the system of modern nation-States. The primacy of territorial
units as the basis of social organization was evident in the Peace of Augsburg (1555), and the notion
of sovereignty was developed in the 16th century (by J. Bodin).
- The strength and continuity of international law flow not from its conceptual basis but from
its routine incorporation within the daily life of governments.
The first development is the massive expansion in the scope and sophistication of international law.
The creation of the European Empires demanded explanations of the differences between the various
kinds of States and of how they emerged and how one replaces another.
- Classical international law was based on the supposition that it dealt with relations between
States, and that each State could and should look after the interests of its own citizens.
- The development of international law is a continuing process.
3
, The great expansion in the scope of international law was accompanied by a second major
development: the growth of international institutions.
- At the end of the 19th century, international judicial bodies appeared.
A third development in the international legal system was more radical. In the 19th century,
international law was primarily the concern of independent States in their dealings with one another.
They applied their own imperial legal systems to deal with their colonies and dependencies, but even
those imperial systems mirrored the basic mechanisms and institutions of international law.
- As international organizations became more familiar features of the international scene, and
particularly after the establishment of the League of Nations (1920), the question of their legal
status arose.
- Just as companies make contracts in the same way as people do in domestic legal
systems, and are, therefore ‘persons’ recognized by those systems, so too are
international organizations recognized as persons within the international legal
system.
Why do States comply with international law?
- International law is not imposed on States against their will by an external legislature. Rules
of international law mostly arise either from treaties or customary international law. If a State
considers that a particular treaty will confer on it more benefit than harm, it may decide to
become a party to the treaty. Treaties are commitments that States have already decided that it
is in their interest to comply with.
- Rules of customary international law are simply those international rules that are
discerned as having this obligatory force. And again, because the customary practices
are rooted in what States habitually do, it is no surprise that States should habitually
comply with customary international law.
Why should States comply with international law?
- Positivists say that a State is bound by the rules of international law because it has signed up
to them.
- The rules of international law are those regularities in international behavior that are regarded
by the community of States as being so important that they do not accept that each State is
entitled to decide freely for itself whether or not to comply with the rule.
Most law is complied with as a matter of choice, not through fear of sanctions. International law does
have a range of sanctions, many of which do not depend upon action through international courts and
organizations. States may respond to violations of international law by imposing economic or other
sanctions on the wrongdoer, which may have a much greater impact than any judgment that a court
might hand down.
The law is not an end in itself. It is an instrument for achieving certain social goals. There is no
particular merit inherent in complete compliance with the law. The law succeeds if it secures enough
compliance to enable civilized social life to proceed and its enforcement is sufficiently effective,
impartial, and non-discriminatory to satisfy the basic demands of justice. That is as true
internationally as it is within any national society.
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