This document contains my complete lecture notes from the course International Law and Human Rights. This course is given in the second year of IRO during the 4th and last block.
International Law and Human Rights (2022-2023)
Lecture notes (Total: 42 pages)
Content:
Lecture 1: International Law and the study of politics
Lecture 2: International Law and international relations theory
Lecture 3: History of the development of international law (I)
Lecture 4: History of the development of international law (II)
Lecture 5: Sources of International Law
Lecture 6: Subjects of International Law
Lecture 7: International Courts
Lecture 8: International Law on the use of force
Lecture 9: International humanitarian law
Lecture 10: International human rights law
Lecture 11: International Criminal law
Extra: Exam briefing + example questions
,Lecture 1: International Law and the study of politics
International Law - the body of rules 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 international law really law? Compared to municipal law (domestic law), international law
has many distinctive features. As a result, many lawyers have traditionally rejected the idea
that international law is really law.
Traditionally, international law is said to have:
● Based on voluntary adhesion (in most cases)
● Weak or no enforcement mechanisms (although increasing legalization?)
● Rules are few in number and vague (again, is this changing?)
If law is…
● Sovereign command backed by the threat of sanctions, international law is probably
not law.
● About a rule identifying which rules are law (Hart’s rule of recognition), international
law is maybe law.
Many IR scholars today will speak of ‘hard law’ (= law as traditionally understood by most
people, usually in the form of legally binding treaties) and ‘soft law’ (= a variety of non-
binding normatively worded instruments used in contemporary international relations by
states and international organizations). But does the expansion of the definition of law dilute
the distinctive nature and authority of legal rules?
The study of politics and international law: an uneasy relationship
International law has always been studied as part of the study of international relations. But
the relationship between the two has often been contentious. From its origins after the end of
the WWI to the WWII, international relations had a strong legalist bent.
● International law was viewed as a key to securing world peace, culminating in the
Kellogg-Briand Pact of 1928 which ‘outlawed’ war.
● But the experience of the WWII provoked a breach between the two disciplines
In the post-war era, international lawyers:
● Emphasized international law’s separation from politics
● Focused on studying specific legal rules and decision-making processes (‘doctrinal
scholarship’)
In the post-war era, international relations scholars:
● Ignored international law, even when it overlapped with their topics of interest
● Spoke of ‘regimes’, ‘norms’ and ‘institutions’ instead of using the dreaded L-word
(law).
,Paradoxically, just as international law’s prestige among IR scholars (and arguably many
practitioners) was at its lowest ebb… International law underwent an explosive growth.
● Key international institutions/treaty/regimes like the UN, GATT, WTO and the EU
were born after WWII.
● Does this prove international law’s resilience? Or its derivative status from power
relations?
Since the end of the Cold War, there has been a partial rapprochement between
international law and international relations. But the study of law qua politics still takes a
distinct approach from the study of international law qua law. Be mindful of the perspective
of the author when you do the readings.
Summary
● International law is a distinct body of rules, practice etc, which in some respects
differs significantly from what people generally think of when they think of law.
● International law and the study of international relations have a long-standing, but
convoluted and ambivalent relationship.
● International relations scholarship approaches the study of international law in a
distinctive manner from the approach generally taken by international law scholars.
, Lecture 2: International law and the international relations theory
Bin Laden example:
According to International Law, you are obliged to accept the surrender of an individual, but
you are not obliged to offer them the chance to surrender. That’s why Bin Laden’s compound
was bombed, so he could not surrender. However, there is a rule that civilian casualties
should be minimized and that the deaths should be righteously buried according to their own
religious standards.
The killing of bin Laden and international law:
● What does this episode tell us about the relationship between international law and
international relations?
● Law’s function as:
- Constraint
- Legitimizing force
- Enabler
- Fig leaf
- Mutually constitutive
- All of the above
● The traditional debate has been about the constraining power of IL
● But some more recent scholarship has sought to move beyond this framing
● Traditional, positivist theories focus on causation
● Newer theories focus instead on mutual constitutiveness
Realism and international law:
● Of the traditional theories of international relations, realism is the most critical of
international law’s potential to constrain state behavior
● Indeed, 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
- Effectiveness implies law can make states act in ways contrary to their self-
interest
- Compliance is mere happenstance, when the cost-benefit calculus is
preferable
● Classical realists were still willing to talk about IL, if only to disparage it:
- Keenan: “an attempt to transpose the Anglo-Saxon concept of individual law
into the international field”
- Morgenthau: “primitive type of law resembling the kind of law which prevails in
certain preliterate societies, such as the Australian aborigines and the Yurok
of Northern California”
● 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
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