Chapter 1: The setting of international law
> Introduction
> 17th Century
> Colonialism
> International law and the global economy
> International legal system
> International legal theories
> International law in international relations theory
> Globalization, global governance and international law
> Ethics and international law
> Final remarks: a critical respective
International law is not just the law that deals with war and peace, or with genocide and
human rights. It also encompasses rules on trade, on protection of the environment, on
shipping and on the protection of refugees (broader network of rules). The existence of
international relations entails the existence of international law. Wherever there is a society,
there will be law (ubi societas, ibi jus) and the rules regulating contacts within the society are
call international law (influences states and entities like companies, individuals or minority
groups, shaped by states, representatives of international organizations (UN) or civil society
organizations (Greenpeace).
Private international law regulates individual conduct with a transboundary element
(international contracts, international marriages, international traffic accidents, etc).
Public international law regulates relations between states.
All international lawyers utilize some kind of theory of international law:
Pragmatic theory: international law exists to serve peaceful relations between states
and should be regarded as a technical discipline, providing the tools for statesmen
(dominant approach. Cosmopolitan, expect international law to be able to bring
about a better world).
Sophisticated and politically self-conscious theory: international law is the
handmaiden of global capitalism, therewith complicit in oppression, and thus to be
regarded with suspicion and a critical eye (less cosmopolitan, ‘sovereignty’ is actually
a useful shield).
, Viewing international law as a beacon of hope for the poor and oppressed (for those
who specialize in human rights. Cosmopolitan, expect international law to be able to
bring about a better world).
Nationalist theory: starts with national self-interest, in which case international law is
often viewed as an intruder, aiming to undermine national decision-making processes
(not uncommon among social conservatives. Less cosmopolitan, ‘sovereignty’ is
actually a useful shield).
International law is not politically innocent, since it is based on an underlying set of ideas and
assumptions about what its function is.
Start history of modern international law in 17 th century (however, ancient Greeks had
treaties on prisoners of war, Roman Republic system with foreign merchants and middle ages
developed institutions of diplomacy), due to
Much of Europe organized in large empires “no different political entities requiring
a specific legal system to organise their relations”, but empires as single entities with
law conceptualized as internal.
1648, the Peace of Westphalia: end of Thirty Years’ War (Münster and Osnabrück,
secular power of the pope came to a definitive end). Referred to Peace of Augsburg,
1555: divide Europe into territorial units with each deciding their own religion (cuius
region, eius religio). No outside interference was permitted sovereign states
modern state system (states won, since other entities (cities, feudal entities, trading
posts) lacked full territorial control and the capacity to guarantee commitments).
1625, publication of Hugo Grotius’ On the Law of War and Peace (freedom of the
seas: free shipping, all people have the right to trade, and claiming authority over the
high seas prohibited).
Founders international law (no single person): Suarez and Vitoria (justified creation of legal
system that would facilitate spread of global capitalism), Vattel (first to write a
comprehensive on international law for the chancelleries of the world), and Grotius (forms
bridge between classic naturalist way of looking at law, not made but found by analyzing and
faith in existing nature by God (subjective, different conclusions with different religions), and
later positivist theorizing, law is not given but man made by what states decide that it is. First
to present synthetic, comprehensive vision of international law: an interconnected
international community with its own legal system, specific set of binding international
obligations).
Struggle between European powers for influence elsewhere in the world & freedom of the
seas, discovery and trade (imperialism & colonialism) international law (certain rules in
order to regulate relations with ‘the natives’ in America and Asia).
Territories found overseas were to be regarded as not having been subject to
sovereignty – as territory belonging to no one (terra nullius). In other words,
Europeans powers could proclaim Asian or American territory, ignoring the original
inhabitants needed for concluding contracts on trade.
1493, pope issued a papal bull (Inter Caetera) drawing a line through the Atlantic
ocean. West was from Spain, East from Portugal Treaty of Tordesillas. 1494 Treaty
of Saragossa, 1529, sealing the division of the world end 16th century: England and
Holland maritime powers, breaking the Spanish-Portugese domination 1602, VOC,
trading monopoly, governmental authority (administer territory, declare war,
conclude treaties and seize ships 1603: incident Portugal, seized Portuguese vessel
Santa Catharina 1609, Mare Liberum, written by Grotius, part of De jure praedae,
argued that the high seas were not terra nullius but terra communis (common
property), and thus not susceptible to occupation and sovereignty John Selden,
Mare Clausum, English protests for rights to sea around British isles 1635 accepted
by Dutch (Britain too strong to resist).
, International first allowed slavery, and in 19th century started to forbid it (abolition)
colonization of Africa by European powers (French and English) emptied country of
its riches (King Leopold’s personal reign in Congo). Colonialism about trade and
economic gain.
International law connected to economy, it is the legal system that regulates the global
(capitalist) economy, for example World Trade Organisation (WTO) and International
Monetary Fund (IMF), to regulate aspects of the economic life (like the markets for coffee or
cocoa).
Territorial rights or maritime demarcation are also connected to economic concerns, because
of the free trading routes or economic benefit. Second part, 20 th century, ICJ cases involved
the precise limits of territorial ownership (land or sea) caused by the discovery of oil reserves
or natural gas deposits (no precise boundaries before, but now very keen). Faced with the
possibility of economic profit, states have been less obedient to the classic non-intervention
principle (have friendly governments in states boasting oil reserves, help for their own gain)
Max Weber: “The rule of law serves to create legal and economic certainty: contract,
property, civil procedure, torts and criminal law” international law: “private law applied to
public actors: the law of treaties (contract law), the law on responsibility (tort law),
acquisition of territory (property law) and dispute settlement (civil procedure)”. The only
issue is that, in a world of sovereign equals without an overarching authority, criminal law is
difficult international criminal law: the central actors are not states, but individuals (states
cannot be imprisoned, but you can sentence individuals acting in the name of the state).
International law cannot really be law if you insist on it coming from a single, sovereign, state
positivist John Austin: “International law can be seen as ‘positive morality’. Binding on
states as moral, not law”, but referred to as proper ‘law’ nonetheless Louis Henkin: “Almost
all nations observe almost all principles of international law and almost all of their obligations
almost all of the time.”
Explanation state of affairs:
1. States themselves make international law (less tempted to breach their obligations)
2. Bureaucratic inertia: the implementation and application of law is a matter of habit
and routine (states will continue what they’re used to)
3. Lawyers play a prominent role at foreign ministries and other government
departments, and their legal training instils in them a respect for the law and the
professional reflex to accept its authority.
4. Considerations of reciprocity: “If state A starts violating the Convention on prisoners
of War, then state B will start violating the Convention on prisoners of War”. If one
obeys, the other will obey, and if one disobeys, the other will disobey.
5. The role of legitimacy: a ‘compliance pull’. States do not need to be reminded to
adhere to the rule, states would want to adhere to it since it would be the right thing
to do.
6. States are attached to their territories, they cannot escape from each other, they
have to interact and uphold a good reputation,, otherwise social sanctions (don’t
want to be a pariah state), stimulates law-abiding behaviour/international
community.
Retorsion: measures taken within the limits of the law to send a message of
displease (recalling the ambassador for consultation, breaking off diplomatic
relations). Purely political sanctions, no breach of international obligations.
Reprisals/countermeasures: illegal, but ‘lawful’ when done in response to an
earlier wrongful act committed by the other side. Permanent Court of
International Justice (PCIJ), 1937: inadimplenti non est adimplendum (There
is no need to perform for one who has not performed).
Self-defence and collective security action (including individual sanctions).
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