Class notes International Law System (ILS) - Part 1
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Cours
International Law System (ILS)
Établissement
Universitat Pompeu Fabra (UPF)
The first 5 sessions (on 12) of my notes for this course (97 pages).
This course aims at equipping students with the tools to understand and critically appraise today’s international society and the international legal norms that regulate relations at the global level. The aim is for students to...
International Legal System
Evaluation
10% Attendance and in-class participation
40% two activities aimed at discussing documents or practical cases
50% Final exam
*The bona fide (good faith) principle is a key component of most historic and modern legal
orders, and a “general principle of international law ». The principle requires parties “to deal honestly
and fairly with each other (…) and to refrain from taking unfair advantage”
*Opinio Juris is a shortened form of the Latin phrase “opinio juris sive necessitatis,” which means "an
opinion of law or necessity." It essentially means that states must act in compliance with the norm
not merely out of convenience, habit, coincidence, or political expediency, but rather out of a sense of
legal obligation.
*Jus cogens, or compelling law, refers to a category of norms that govern customary international
law. The Latin term is used interchangeably with the English term “peremptory norm”. Jus cogens
norms differ from other norms in two key respects. First, as the translation suggests, jus cogens norms
are mandatory. Laws that are biding. No consent is needed because they are so important
(genocides…).
*In legal terminology, erga omnes rights or obligations are owed toward all. Erga omnes is a Latin
phrase which means "towards all" or "towards everyone". For instance, a property right is an erga
omnes entitlement and therefore enforceable against anybody infringing that right.
*Ex aequo et bono (Latin for "according to the right and good" or "from equity and conscience") is a
Latin phrase that is used as a legal term of art.
*Pacta sunt servanda (“agreements must be kept”) is arguably the oldest principle of international
law. Without such a rule, no international agreement would be binding or enforceable.
*Non liquet translates into English from the Latin as "it is not clear". According to Cicero, the term
was applied during the Roman Republic to a verdict of "not proven" if the guilt or innocence of the
accused was "not clear".
*Prima facie means “at first sight”, “at first view", or "based on first impression." In both civil and
criminal law, the term is used to denote that, upon initial examination, a legal claim has sufficient
evidence to proceed to trial or judgment.
*Ad hoc is a word that originally comes from Latin and means “for this” or "for this situation." In
current American English it is used to describe something that has been formed or used for a special
and immediate purpose, without previous planning.
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,Session 1 - Origins, Evolution and Transformation of International Law
History of international law: From Westfalia to the globalized world. Functions of international law.
Colonialism and its heritage. International community and international society. Principles of
international law. Distinction between general and particular international law.
Antony Anghie, ‘The Evolution of International Law: Colonial and Postcolonial Realities’
(2006) 27 Third World Quarterly 739.
ABSTRACT The colonial and postcolonial realities of international law have been obscured by the analytical frameworks
that governed traditional scholar- ship on the subject. This article sketches out a history of the evolution of international
law that focuses in particular on the manner in which imperialism shaped the discipline. It argues that colonialism, rather
than being a peripheral concern of the discipline, is central to the formation of international law and, in particular, its
founding concept, sovereignty. It argues that international law has always been animated by the civilising mission, the
project of governing and transforming non-European peoples, and that the current war on terror is an extension of this
project.
The author argues that traditional scholarship on international law has obscured and misunderstood the
colonial and postcolonial realities of the discipline. The article aims to provide a history of the evolution of
international law from the 16th century to the present, focusing on how imperialism has shaped the
discipline, particularly its founding concept, sovereignty.
The traditional view asserts that international law is a product of the conscious activity of the European mind
and has drawn its essence from European beliefs. It sees non-European societies as peripheral to the
discipline because international law originated in Europe. The classical concept of sovereignty, developed in
the Treaty of Westphalia in 1648, is seen as emerging from European history and gradually extended to non-
European societies through the mechanism of decolonization: 'Expansion of International Society'.
The article criticizes this traditional perspective for neglecting the central role of colonialism in the formation
of international law. It challenges the notion that international law is exclusively European, arguing that non-
European societies were viewed as non-sovereign and that sovereignty doctrine involved mechanisms of
exclusion. These mechanisms expelled non-European societies from the realm of sovereignty, legitimizing
imperialism, and were later addressed through decolonization.
The author suggests that instead of focusing on the paradigm of 'order among sovereign states,' the evolution
of international law should be understood in terms of the problem of cultural difference. International law is
portrayed as attempting to establish a universal order among entities from different cultural systems, with
a dynamic of difference that distinguishes between the civilised and the uncivilised. Colonialism, rather than
being peripheral, is presented as central to the discipline of international law.
The colonial origins of international law
Some more complex law systems and legal doctrines were developed from the 15-16th century to allow the
Europeans to extend their dominance over the non-Europeans, still with the concept of sovereignty
1. Francisco de Vitoria's Work:
The text discusses Francisco de Vitoria's work, particularly "On the Indians Lately Discovered,"
which addressed legal problems arising from Spanish claims to sovereignty over the Americas.
Vitoria argued that all peoples, including the indigenous Indians, were governed by a basic
'natural law,' acknowledging the humanity of the Indians, at the contrary of many at the time.
Despite recognizing their humanity, Vitoria suggested that the deficient order of Indian
societies required Spanish intervention, framing the Indians as children in need of a guardian.
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, The article highlights the ambiguity of acknowledging the humanity of the Indians, as it binds
them to a natural law derived from an idealized European perspective. “Violence arises, in
Vitoria's system, through the inevitable violation by the Indian of the natural law by which he
is bound. » With the Spanish narrative, if the Indian rebels, that would be considered as an
act of aggression and thus, legitimate a violent answer from the Spanish. This is thanks to this
narrative that the Spaniards were able to conquer more territory and capture rebellious chefs.
2. Positivism in the 19th Century:
The text shifts to the 19th century, a period of imperial expansion and the establishment of
positivism as a major jurisprudence of international law.
Positivism asserts that the state is the exclusive creator of law and cannot be bound by any
law unless it has consented to it.
Positivist jurists used racial and cultural criteria to categorize certain states as civilized and
sovereign, while others were deemed uncivilized and non-sovereign, leading to the expulsion
of non-European societies from the realm of international law.
This legal framework legitimized conquest, treating lands inhabited by perceived inferior and
backward peoples as terra nullius, justifying imperial expansion.
3. Imperial Expansion and Unequal Treaties:
The text discusses how imperial powers claimed sovereignty over non-European territories
through treaties, even though the legal status of non-European societies was paradoxical.
Non-Western states failing to adhere to Western standards were considered lacking in
civilization, justifying intervention and conquest.
The article provides an example of unequal treaties imposed on non-colonized countries like
Siam, illustrating how European standards were imposed on non-European societies.
*Bowring Treaty, (1855), agreement between Siam (Thailand) and Britain that achieved commercial
and political aims that earlier British missions had failed to gain and opened up Siam to Western
influence and trade. The treaty lifted many restrictions imposed by Thai kings on foreign trade.
4. European International Law as Universal:
By the end of the 19th century, European international law had been established globally as
a single system applying to all societies, effectively becoming universal.
The text thus emphasizes how legal doctrines and frameworks developed during this period
shaped international law and its relationship with colonialism.
Decolonisation and the postcolonial state
The continuation of the text explores the consequences of decolonization and the establishment of
postcolonial states. It delves into the efforts of international institutions, such as the League of Nations and
later the United Nations, to address the challenges posed by the transformation of "backward" territories into
modern societies. Additionally, it discusses the Mandate System and its attempt to create sovereignty and
promote self-government in non-European societies, while often serving Western interests.
1. Mandate System and Sovereignty Creation:
The Mandate System, established after World War I (League of Nations and then UN,
controlled by the UN Trusteeship Council), aimed to ensure the well-being and development
of mandate territories, with the possibility of some becoming sovereign states.
While working towards the creation of sovereign states, the sovereignty and government of
non-European societies were shaped to further Western interests.
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, The Mandate System allowed the League of Nations to develop legal, administrative, and
institutional mechanisms for transforming non-European societies.
2. Postcolonial State and Decolonization:
The United Nations responded to sustained nationalist protests by creating mechanisms for
decolonization and extending the doctrine of self-determination to colonial territories.
Newly independent states used their majority in the UN to pass resolutions focused on
creating a New International Economic Order, emphasizing the importance of economic
independence alongside political sovereignty.
The text highlights the significance of the new states using international law and sovereignty
doctrines to protect their sovereignty, outlaw conquest and aggression, and prevent
intervention in Third World affairs.
3. Struggles in International Economic Law:
The decolonized states engaged in struggles within international economic law, particularly
concerning issues like nationalization of foreign entities.
Western states argued that Third World states were bound by older rules authored by the
West, while the new states contended that these rules were created to further Western
interests.
4. Postcolonial Challenges and Neo-Colonialism:
The text argues that the end of formal colonialism did not result in the end of colonial relations
but rather led to neo-colonialism, where Third World states continued to play a subordinate
role in the international system due to economic dependence.
The postcolonial state adopted models of development and the nation-state, often influenced
by earlier Mandate System ideals and Cold War affiliations.
5. Human Rights and Neoliberal Challenges:
The emergence of international human rights law during the United Nations period provided
a mechanism for Third World peoples to seek protection from abuses by postcolonial states.
However, the text notes controversies surrounding human rights law due to its potential to
legitimize Western intervention in Third World affairs, especially after the collapse of the
USSR and the intensification of globalization.
6. Neoliberal Economic Policies and International Institutions:
The ascendancy of neoliberal economic policies and the establishment of institutions like the
World Trade Organization, IMF, and World Bank presented challenges to Third World states.
These international financial institutions played an intrusive role in Third World economies,
using their powers to reform political and social structures under the guise of "good
governance," drawing on human rights law.
7. Comparisons with Historical Practices:
The text draws parallels between the demands of international financial institutions for
reforms and historical practices like the system of capitulations used by European states to
demand reform from non-European states.
Towards the present: the 'war on terror'
The text discusses the aftermath of the 9/11 attacks and the subsequent "war on terror" led by the United
States. It highlights the arguments made by international law and international relations scholars who
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