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Summary ILHR Concepts
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explanations of the concepts from the lectures for international law and human rights with links to their relevance for international law. this is an important part of the exam.
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International law and human rights conceptsInternational law = the body of rules that states consider binding in their mutual relations.
Compared to municipal law, international law has many distinctive features; therefore many
lawyers have traditionally rejected the idea that international law is really law. Traditionally
international law is said to be: based on voluntary adhesion, in most cases; weak or no
enforcement mechanisms, although there is increasing legalisation; the rules are few in
number and vague. International laws functions are constraint; legitimising force; enabler; fig
leave; mutually constitutive; all of the above. IL is almost completely decentralised law,
within 3 basic functions: legislation; adjudication; enforcement. Legislative function in IL has
decentralised character; problem with codification (when national interests of nations are
involved codification quite impossible, contrary to the field of private international law);
problem with interpretation and binding force. Generally in states their interests to honour
their obligations under IL. Origins of IL traced back to rise of modern sovereign state in
Europe around 16th century. According to Simmons IL can be a source of legitimacy and
constraint on state behaviour.
Compulsory jurisdiction = the sole source of the jurisdiction of international courts is the will
of the states submitting disputes for adjudication, international courts can’t take jurisdiction
over international disputes without consent of the states involved. Consent can be given
through isolated arbitration (dispute submitted after it occurred) and institutional arbitration
(whole class of disputes submitted before they occurred). In the optional clause states decide
whether or not they accept the compulsory jurisdiction of an international court. With
reciprocity, compulsory jurisdiction is operative only if both parties to the disputes have
accepted it. States can also make additional reservations under which they accept
compulsory jurisdiction. The acceptance of compulsory jurisdiction by states enhances the
authority and legitimacy of international legal institutions such as the ICJ. Compulsory
jurisdiction plays a critical role in promoting the peaceful resolution of international disputes.
By providing a clear and structured legal framework, it encourages states to resolve their
conflicts through legal means rather than through unilateral or coercive actions.
International court of justice = the most famous and important international court,
sometimes called ‘world court’. Created in 1920 as part of the LoN as the Permanent Court of
International Justice (PCIJ) given its current name after the creation of the UN, but essentially
same court. The ICJ only deals with states (and UN) as parties, though the specific suit may
have arisen as a result of something done by an individual. It is based in the Hague in the
same building as PCA. The ICJ is part of one of the six principle organs of the UN. It is a
permanent court with public proceedings. It has 15 permanent judges, each country can only
have one judge of their nationality. Elected for 9 years by the UN General Assembly and the
Security Council from a list of candidates nominated by national groups within the PCA.
Candidates need absolute majority in both to be elected. Judges are expected to rule
independently of their country of origin and have to represent the main forms of civilization
and of the principal legal systems of the world. If a party in a case has no judge from his
nationality they can appoint ad hoc judge. ICJ has 3 types of jurisdiction; contentious issues,
incidental jurisdiction, advisory opinions. States must have consented to the ICJ’s jurisdiction
and decisions are final and binding. According to Simmons this court plays an important role
,in promoting compliance with IL by providing a forum for states to resolve disputes and by
holding individuals accountable for violations of IL
Treaties of guaranty = connected to enforcement of international law. Group of nations
pledge themselves (severally or collectively) to enforce legal provisions which they have
guaranteed against whomever tries to infringe upon them. Two prerequisites are: must be
effective in their execution and execution must be automatic. The obligation to guarantee
compliance with international law through enforcement actions is no more stringent than
the obligation to submit disputes to adjudication by an international court (the obligation is
rendered virtually valueless by qualifications, reservations, and exceptions, covering all
possible contingencies).
Treaties = according to Shaw treaties are the primary source of IL. They are formal
agreements between states and can cover a wide range of issues, from territorial disputes to
human rights, and can be bilateral or multilateral. According to Shaw a treaty is an
international agreement between states or other international legal persons that is governed
by IL. The process to treaty-making consists of negotiation, signatures and ratification. The
Vienna convention on the law of treaties is the primary instrument governing the law of
treaties. Pacta sunt servanda requires states to uphold their treaty obligations. Reservations
to treaties allow states to modify their obligations under a treaty. A breach of a treaty can
occur when a state fails to fulfil its obligations under a treaty. Treaties can be terminated by
mutual agreement, expiration or occurrence of a specified event or suspended. Treaties are
indispensable to international law, providing a structured and consensual basis for governing
international relations. They facilitate cooperation, codify and develop legal norms, promote
peace and security, protect human rights, and address global challenges. Through their
binding nature, treaties contribute significantly to the stability, predictability, and order of
the international legal system.
Collective security = most far-reaching attempt to overcome the deficiencies of a completely
decentralised system of law enforcement. This would mean that the enforcement of IL would
be done by all the members of the community of nations whether or not they have suffered
injury in the particular case. Two attempts that attempted to create this fell short on doing
so: article 16 of Covenant of LoN and chapter VII of the charter of the UN. Current system of
IL leaves enforcement of its rules to the injured states.
Kellogg-Briandt Pact = pact from 1928 that outlawed war. Unsuccessful since IL proved to be
ineffective in preventing war (WW2) due to the lack of enforcement and undefined legal
terms. The Kellogg-Briand Pact is relevant to international law as a pioneering effort to
outlaw war and promote peaceful dispute resolution. its influence on subsequent
international agreements and its role in shaping the normative framework against the use of
force are enduring. The Pact's legacy is seen in the development of collective security
principles and the ongoing efforts to uphold international peace and security through legal
means.
Compliance = effect of IL. Is behaviour that is or comes into relative conformity with
prescribed or proscribed behaviour. First-order compliance refers to compliance with the
substantive provisions of a rule. Second-order compliance refers to actions in accordance
, with the ruling of an authorative body charged with the interpretation or adjudication of a
primary rule. Unless international agreements are self-enforcing they are doomed to fail.
Compliance with international agreements is more likely through enforcement and coercion.
Compliance is a cornerstone of international law, essential for its effectiveness and
legitimacy. It ensures that international norms are respected and that the international legal
system functions smoothly. While there are challenges to achieving full compliance, various
mechanisms and strategies are in place to promote adherence to international obligations.
The continuous effort to enhance compliance is vital for the stability, predictability, and
justice of the international order.
Realism in IL = Of the “traditional” theories of international relations, realism is the most
critical of international law’s potential to constrain state behaviour. insistence on compliance
of legal rules without great power buy-in may even make war more likely. International law is
epiphenomenal as it is a product of state self-interest. Law has a moderating function within
states, as there is a hierarchy of authority and enforcement. But no such hierarchy or
institutions exist, ergo law cannot deliver what it promises to deliver. State compliance with
international law does not prove that international law is effective. Classical realists were still
willing to talk about IL, if only to disparage it: Keenan and Morgenthau. Structural
realists/neorealists like Waltz don’t even bother: states are like units existing under
structural anarchy; nothing else really matters, and certainly not law. Many realists are willing
to acknowledge that international law can have important functions, but still not that
international law has autonomous explanatory power as to state behaviour. According to
Scicluna realists view IL as tool of powerful states to advance their interests.
Rationalist/functionalist theories = finds expression principally in the writing on neoliberal
institutionalism. Agrees with realism’s premise of the state as the primary unit of analysis
and the state of anarchy in the international system. But Reimagines politics as a form of
utility-maximising strategic action, with states portrayed as rational egoists, seeking the most
effective and efficient means available to realise their individual and collective interests.
International law is the most innovative theoretical contribution to the understanding of
international regimes; Idea that the “demand for international regimes” could largely be
theorised to result from a broad understanding of the need for rules in order to enjoy the
fruits of cooperation over time. Rationalists try to answer why international law exists at all.
The answer is that law tends to solve cooperation problems that states would have difficulty
solving in other ways; While rationalist approaches to international law and institutions have
spawned a fruitful research agenda, the functionalist logic underlying this approach has not
been without serious criticism. Costs of committing are, in expectation, lower than the
benefits to be gained.
Liberal institutionalism = Broadly shares most of the assumptions of realism when it comes
down to the nature of the international space. But liberals try to explain the “why bother?”
question by pointing to the role law/institutions have in facilitating collaboration (prevention
of cheating, share information, lower transaction costs, etc.). Still very rationalist, and views
state behaviour vis-à-vis IL in interest maximalizing terms. But: Law in this view has no
creative or generative power in the social life of states; State interests are viewed as
exogenous to the argument; Law can explain variations in outcomes within the context of
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