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Notes on the lectures from the course (2023) International Law and Human Rights. INCLUDES notes
from lectures 1-11 (Total: 32 pages).
International Law and Human Rights Lecture Notes (Lectures 1-11)
Table of Contents
I. History & Theories of IL 1
Lecture 1: International Law & the Study of Politics 1
Lecture 2: IL & IR Theory 2
Lecture 3: The History of IL (I) 4
Lecture 4: The History of IL (II) 7
II. Core Concepts & Institutions of IL 10
Lecture 5: Sources of IL 10
Lecture 6: Subjects of IL 13
Lecture 7: International Courts 16
III. Issues in International Law and Human Rights 20
Lecture 8: IL on the Use of Force 20
Lecture 9: International Humanitarian Law 23
Lecture 10: International Human Rights Law 26
Lecture 11: International Criminal Law 28
, 1
I. History & Theories of IL
Lecture 1: International Law & the Study of Politics
What is international law? Is it law?
International Law (IL): The body of rules/practices that states consider binding in their mutual
relations.
➔ Law can be understood as:
◆ A set of rules.
◆ A professional practice.
◆ An independent social phenomenon.
◆ An epiphenomenal reflection of power.
➔ Is IL really law?
◆ Compared to municipal law (domestic law), IL has many distinctive features →
traditionally rejected the idea that IL is law.
➔ Traditionally, IL:
◆ Is based on voluntary adhesion (in most cases).
◆ Has weak or NO enforcement mechanisms (although increasing legalisation?).
◆ Rules are few & vague (is this changing?).
If Law:
● Sovereign command backed by the threat of sanctions (Austin) → IL is probably NOT law.
● About a rule identifying which rules are law (Hart’s rule of recognition) → IL = law?
Does the expansion of the definition of law dilute the distinctive nature & authority of legal rules? If
the following are ‘law’, what is NOT law?
● “Hard Law”: Law traditionally understood by most people = form of written & legally binding
treaties.
● “Soft Law”: Variety of non-binding normatively worded instruments used in contemporary IR
by States & IOs → can be suggestions.
The Study of Politics & IL: An Uneasy Relationship
IL has always been studied as part of the study IR = uneasy relationship:
● Originating from WWI’s end to WWII, IR had a strong legalist bent.
● IL was viewed as a key to securing world peace → Kellogg–Briand Pact (1928) that
“outlawed” war.
➔ “It is probably the case that almost all nations observe almost all principles of
international law and almost all of their obligations almost all of the time.”
● HOWEVER, the experience of WWII provoked a breach between the 2 disciplines.
In the post-war era, international lawyers: IR scholars, meanwhile:
○ Emphasised IL’s separation from ○ Ignored IL, even when it overlapped
politics. with their topics of interest.
○ Focused on studying specific legal rules ○ Spoke of “regimes”, “norms”,
& decision-making processes “institutions” > discussing “law”.
, 2
(“doctrinal scholarship”).
● Nevertheless, IL underwent explosive growth → key international
institutions/treaties/regimes (e.g., UN, GATT/WTO, EU, etc) were born after WWII.
➔ Does this prove IL’s resilience? Or its derivative status from power relations?
● Post-Cold War, there has been a partial rapprochement between IL & IR.
➔ HOWEVER the study of IL qua politics still takes a distinct approach from the study of
IL qua law.
Lecture 2: IL & IR Theory
1. Realism
Realists: Most critical of IL’s potential to constrain state behaviour = insistence on compliance with
legal rules without great power buy-in may even make war more likely.
➔ IL = epiphenomenal → bad product of state self-interest (instinct of the exercise of power =
NO autonomy).
➔ Law has a moderating function within states = hierarchy of authority & enforcement.
◆ HOWEVER, NO hierarchy/institutions exist outside = law CANNOT deliver promises.
➔ State compliance with IL ≠ prove that it is effective.
◆ Effectiveness = law can make states act in ways contrary to their self-interest.
◆ Compliance = mere happenstance when cost-benefit calculus is preferable.
➔ Realist approaches to IL:
◆ Classical Realists (Keenan, Morgenthau): Still willing to talk about IL, only to
disparage it.
◆ Structural (Neo-) Realists (Waltz): Do NOT bother. States are like units existing under
structural anarchy → nothing else really matters (certainly NOT law).
◆ Most realists are willing to acknowledge that IL can have important functions BUT
NOT that it has autonomous explanatory power for state behaviour:
● Steinberg on IL:
○ “May be Pareto-improving” → make transactions more efficient.
○ “Create incentives and opportunities for weaker states to change [...]
in ways favoured by powerful states.”
○ “Facilitate cooperation among powerful states in their relations with
weaker states.”
○ “Generate information flows for powerful states.”
Questions challenging the REALIST perspective:
● How do we explain the explosive growth of IL (“legalisation” of IR) in numerical terms but also in
terms of scope?
● How do explain instances where strong states are constrained by law/weaker states use law
successfully against strong states?
● What about the role of law within states in terms of shaping foreign policy preferences?
2. Liberal Institutionalism
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