Ch. 1: The Setting of International Law
The Seventeenth Century
Why the 17th century is seen as the starting point for International Law:
- 1648: Peace of Westphalia → it was agreed to confirm an earlier arrangement
emanating from the 1555Peace of Ausburg, to the effect that Europe would be
divided into a number of territorial units, and that each of these units could decide for
itself which religion to adopt. Cuius regio eius religio.
- What made the state dominant was that it had the authority to live up to its
commitments, precisely by controlling territory.
- 1625: Hugo Grotius’ On the Law of War and Peace. Shaping international law so as
to uphold freedom of the seas.
- Grotius notthe founding father of IL, because:
- international law was not invented by a single person, but grew out of
interactions of states and the commentaries of learned observers.
- If there were a single creator, then there are a few other serious
contenders → Suarez and Vitoria.
- Grotius did form a bridge between classic naturalist way of looking at law and
later positivist theorizing.
- Natural law: law is not made, but found. Ordained by God. It is
recognized by the proper method of analysis or by those of the right
faith.
- Positivism: wary of the subjectivity inherent in such an approach. Law
is man-made.
- Grotius was the first to lay down a specific set of binding international
obligations, mostly inspired by the desire to lay down the limits to proper
statecraft.
Colonialism
- Territories found overseas were to be regarded as not having been subject to
sovereignty - terra nullius.
- For purposes of establishing sovereignty, the local population was often ignored, but
for commercial purposes, their consent was deemed vital, at least as an argument to
convince competing European powers.
- 1493: the pope issued a papal bull (Inter Caetera) drawing a line through the Atlantic
Ocean.
- 1529: Treaty of Saragossa effectively sealed the division of the world.
- 1609: Grotius argued that the high seas were not terra nullius but terra communis
(common property)
- 1635: John Selden’s Mare Clausum → position of the British that they insisted on
exclusive rights to the high seas around the British Isles. Dutch agreed in this year to
this.
International Law and the Global Economy
- International law is related to the economy; international law is, in part, the legal
system regulating the global economy.
- The rule of law: served to create legal and economic certainty
,The International Legal System
International Law can be seen as:
1. IL as positive morality: it is more or less binding on states, but as a matter of morality,
not as a matter of law.
a. Since states themselves make international law, they have little incentive to
break it
2. Bureaucratic inertia: the implementation and application of law is very much a matter
of habit and routine, and this is no different in IL.
3. Considerations of reciprocity: if states A and B are at war, and A starts to mistreat
B’s citizens, then B will be highly tempted to do the same to A’s citizens.
4. Role of legitimacy: steeds need not be reminded that they should adhere to such a
rule; instead, they would want to adhere to it.
5. States are few in number and are attached to their territories.
6. Retorsion: method of expressing dismay with another state’s actions
a. Recalling the ambassador ‘for consultation’
b. Breaking off of diplomatic relations altogether
7. Countermeasures: characterized by their own illegality.
8. Inadimplenti non est adimplendum
a. If A violates a treaty, then B may do the same
b. 1937: Permanent Court of International Justice ruled that it should be part of
international law. Case between Belgium and the Netherlands.
9. Self-defence
10. Collective security action
International Legal Theories
- Earlier thinkers:
- International law was natural law
- Problem: inherently subjective
- Nineteenth century:
- Positivism: law is man-made → contents of law can be discovered by looking
at what states actually do.
- Critical revolution
- 1980s by David Kennedy and Martti Koskenniemi
- Koskenniemi: international law is eventually the continuation of
politics. It offers a framework and a vocabulary for the conduct of
politics, but does not, and cannot, offer any solutions.
- Lawfare: legal arguments invoked as political tools.
International Law in International Relations Theory
3 approaches:
1. Self-proclaimed realists
a. international law is largely irrelevant.
b. international system is characterized by a struggle for power between states,
and states will do anything to further their own interests.
c. International law either reflects state interest or it is violated.
2. Liberal institutionalism
, a. international law can be of relevance, at least if properly designed to take
states’ lust for power into account.
b. If other, non-legal mechanisms could have similar advantages or even be
more beneficial for the users, then law would cease to play a role.
3. Law and Economics approach
a. Variation on both Realism and Liberal Institutionalism
b. Based on microeconomics
c. States are rational actors, those rational actors behave so as to maximize
their profits. States will sometimes be inclined to adopt common rules.
4. Constructivism
a. International law is not just about prohibiting things, but also about facilitating
behaviour
b. Allows states to conclude alliances, it helps to channel political dialogue
c. Delivers framework and vocabulary that helps make international politics
possible.
Globalization, Global Governance and International Law
- Global governance: the exercise of authority, on the global level, outside of regular
legal structures.
- 1919: International Labour Organization was founded.
Ch. 2: The Making of International Law
Two Ships (or perhaps three): Lotus and Wimbledon
- 1927: PCIJ
- Whether Turkey, in instituting proceedings against Lt Demons (French), had
acted in conflict with principles of international law. → whether starting
proceedings was prohibited.
- Since no prohibition could be found in international law, the Court eventually
decided that Turkey had not violated international law.
- behaviour must be considered permitted unless and until it is prohibited.
- 1921: SS Wimbledon, Germany had violated article 380 of the Versailles Treaty.
- Suggested that sovereignty and international law went hand in hand.
- Jus cogens r ules: peremoty rules from which no derogation is permitted.
- E.g. prohibitions of genocide, torture, slavery and aggression.
Article 38 ICJ Statute
- Drafted in 1920
- The Court 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 teachings of
the most highly qualified publicists of the various nations, as subsidiary
means for the determination of rules of law.
- Article 38 does not establish a rigid hierarchy of sources.
, - Two elements of hierarchy in Art. 38:
- judicial decisions and the writings of the most highly qualified
publicists are listed as subsidiary means only
- Art. 59 ICJ reference makes it clear that judicial decisions have
no precedent effect in IL.
- Organizing principle of sovereignty that the Court cannot make
law, only apply it.
- General principles of law have as their main function the filling of gaps.
- It would seem that treaties and custom are the stronger
sources.
Treaties
- Multilateral or bilateral
- States express their consent to be bound
- 1969: Vienna Convention on the Law of Treaties (VCLT) → applies to treaties
concluded between states only.
- 1986: Vienna Convention → address treaties concluded with or between international
organizations. Still has to enter into force.
Customary Law
- Customary law has the advantage that precisely because it is based on social
practises, it is usually deeply ingrained in the everyday life of that society.
- Art. 38 ICJ Statute defines customary law: evidence of a general practice accepted
as law.
- Requirements:
1. There must be a general practice, this genreal practice miust be
accepted as law or;
2. The general practice must be accompanied by opinio juris (sense of
legal obligation)
A General Practice
- 1950: Asylum case → principle of regional customary law.
- 1969: ICJ found that even without the passage of any considerable period in time, a
very widespread and representative [practice] might suffice of itself.
- Those states whose interests are especially affected by customary rule participate in
its making.
Accepted as Law
- Opinio juris: practice accepted as law
- Plays useful role of separating law from other normative control systems
- E.g. enacting a law, concluding a treaty, engaging in a legal practice.
The Method of Custom: The Paquete Habana
- 1900 US Supreme Court: Paquete Habana case
- Arose out of the Spanish-American war in 1898.
