International Law - Jan Klabbers - summary
Part I - The Structure of International Law
1 The Setting of International Law
International law:
- not just the law that deals with war and peace, or with genocide and human rights;
- also encompasses rules on trade, on protection of the environment, on 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 in 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 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 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; 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.
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, - 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 astatue observers.
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 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 an 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.
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, 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 a humanitarian intervention or an exercise in self-defense.
- International law delivers the framework and vocabulary that helps make
international politics possible.
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.
2 The Making of International Law
Lotus-case:
- The main question asked of the Court was whether Turkey had acted in conflict with
principles of international law.
‘’International law governs relations between independent States. The rules of law
binding upon States, therefore, emanate from their own free will as expressed in
conventions or by usages generally accepted as expressing principles of law and
established to regulate the relations between these co-existing independent
communities or with a view to the achievement of common aims. Restrictions upon
the independence of States cannot, therefore, be presumed.’’
The two cases, Lotus and Wimbledon, together establish that in a horizontal order of
sovereign equals international law is by no means impossible; indeed, it is precisely because
states are sovereign that they can make international law. But the same sovereignty entails
that rules can only be made on the basis of consent; the rules of international law emanate
from the freely expressed will of sovereign states.
Jus cogens: peremptory rules from which no derogation is permitted, and examples often
mentioned include the prohibitions of genocide, torture, slavery, and aggression.
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, Article 38 ICJ Statute:
‘’The Court, whose function is to decide in accordance with international law such disputes
as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules expressly
recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teaching of the most
highly qualified publicists of the various nations, as subsidiary means for the
determination of rules of law.’’
Two elements of hierarchy can be seen in article 38.
1. Judicial decisions and the writings of the most highly qualified publicists are listed as
subsidiary means only, and the reference to article 59 further makes it clear that
judicial decisions have no precedent effect in international law; decisions of the Court
can only bind the parties to the dispute.
2. There is also general agreement among international lawyers that general principles of
law have as their main function the filling of gaps.
Treaties come in all forms and sizes. They can be bilateral but also multilateral; they can be
highly solemn and cast in language with biblical overtones, but also highly informal. What
matters is that states express their consent to be bound; in this way, being bound by treaty can
be reconciled with the starting point of state sovereignty.
Customary law has the advantage that precisely because it is based on social practices, it is
usually deeply engrained in the everyday life of that society. In international law, customary
law has traditionally played a very important role, and continues to do so.
- There must be general practice, and this general practice must be accepted as law or
the general practice must be accompanied by opinio juris.
- Opinio juris = a sense of legal obligation.
- It is generally accepted that the material acts of states count as elements of
state practice. It is also generally accepted that the legislative acts of states,
and their legal practices, may qualify as state practice.
- The requirement of opinio juris plays the useful role of separating law from
other normative systems or of separating legally warranted behavior from
merely politically expedient behavior. The evidences of opinio juris are often
identical to those of state practice. In addition, it is generally acknowledged
that resolutions adopted by international organizations or at international
conferences may reflect opinio juris.
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