L4: the history of IL 2

IL and imperialism

• International law's universalization is inextricably linked with the spread of European empires, both formal and informal, across the world

  • Formal empires: country goes and plants flag

  • Informal empires: sphere of influence

• Non-western entities' sovereignty was recognised in order for them to be able to conclude agreements which either extinguished or limited their sovereignty

  • You were sovereign for the purpose of accepting your colonial status —> to then relinquish your sovereignty

    • Eg Africa

  • Local political leaders gave up their powers

• International law regulated not only the conditions for the takeover of new territories, but also mediated conflicts between colonial powers

  • IL was part of the process of imperialism

  • Used vertical and horizontally

19th century and the Westphalian system

The 19th century saw the rise of the sovereign state/nation-state on the European model, but semi-sovereign and non-sovereign entitles abounded

• Colonizers concerned with external autonomy, did not care much about what they did internally

19th century non-Westphalian systems

1. colonies

2. Protectorates

3. Congo free state

4. Condominiums

5. Suzerian/vassal

6. Dominions

7. Leased territories

Protectorates

Give up sovereignty in exchange for military protection

Ex. Trucial states

‘Congo Free State’

legal imperialism

Condominiums

Colony where two powers or more share sovereignty equally

• Ex. British and French aka Clem

Ex. New Hebrides

Suzerain/Vassal

Hierarchical system —> medieval vocabulary revived

• Used IL to change

• Ex. Tibet recognized as Chinese vassal, but no one knew what this meant

Ex. UK/South African Republic

Dominions

British territories that never achieved sovereign government → both internal and external

• Opposite end of colonies

Ex. Canada and Australia

Leased territories

Still exist

• Territory in Cuba is leased by US

• Pay money, get a degree of control of territory

The standard of civilization

Central idea of 19th century

• a putative set of (objective, empirical) criteria states (usually non-western) had to meet before being admitted to the ‘Family of Nations’

• Was it an objective set of criteria to be achieved (Gong) or a moving goal that could never be achieved (Anghie?)

  •  Move the goal post when non-western nations started getting close to criteria

    • Debatable if this criteria was achievable for non-western states 

• Non-western states which retained their legal sovereignty had an ambiguous position within the international system (japan, China, Siam, Abyssinia, etc)

  • Got recognized as civilized

    • Ex. Japan accepted as civilized bc it was able to defeat Russia

  • Not part of ‘Family of Nations’ but still sovereign countries

  • Brazil part of family of nations and civilized but considered second tier (not a western country)

What ran parallel with the rise of institutions?

The shift from natural law to positivism

• with more state practice to draw on, the positivist approach became more viable

the rise of institutions

• Intergovernmental organization (IGOs): first entities other than states to have a distinct legal personality

  • First IGO: the Central Commission for Navigation on the Rhine (1815)

    • Post napoleon war —> navigation on the Rhine was nationalized

• Other important IGOs: International Telegraph Union; Universal Postal Union — rise of permanent secretariats

• International NGOs too — Red Cross

  • Unique: guardian of multiple treaties

    • Can only be a member of a committee if you are a Swiss citizen since Switzerland is neutral

• Growth in technology an important emperors for the development of IGOs

Rise of institutions: codification treaties

utilitarians like Bentham pushed for the codification of IL, in belief that it would enhance its binding effect

Rise of institutions: some important codification landmarks

• Congress of Vienna (1815): law on diplomatic agents and diplomatic missions

• First Geneva Convention (1864): treatment of wounded combatants and civilians

• Hague Conventions (1899 & 1907): permanent court of Arbitration; laws of war; prohibit action on use of certain weapons (aerial bombardment, gases)

  • Aerial bombardment: banned for 10 years, not renewed —> is now legal

First World War and aftermath

• enormous destruction wrought by the 1st WW fueled demands for a new type of international order with aim to ensure peace

• The League of Nations 1920: created by Treaty of Versailles to maintain world peace through

  • Disarmament

  • Collective security

  • Peaceful settlement of international disputes

1st WW and aftermath: self-determination

the idea that peoples had the right to their own sovereign states and determine own future

• became established after ww1

• Who is people? How are boundaries to be drawn?

  • In practice: did not extend to non-western peoples

    • Especially for the people under the power of the defeated nations

1st WW and aftermath: League of Nations mixed record

• one hand, is solved a number of international disputes, combatted epidemics and slavery, resettled refugees, strengthened IL, concluded disarmament treaties, etc

• On the other hand, the collective security mechanisms never fully functioned bc of political consideration and it was unable to prevent the outbreak of the 2nd WW

League of Nations shortcomings: Japan ex

Japanese’s invasion of Manchuria

• LoN appointed commission of investigation which found against japan

• Reaction: japan withdrew from LoN

League of Nations shortcoming: Italy ex

Italian invasion of Abyssinia

• LoN imposed economic sanctions of Italy

• The sanctions were ineffective, enforced half-heartedly and soon dropped by most powers

League of Nations shortcomings: Soviet ex

soviet invasion of Finland

• in almost its very last act, the LoN expelled the USSR but by then it no longer mattered

What was the post-2nd WW era the birth of?

Birth of modern international criminal justice

2nd WW international criminal system example

defendants in Nuremberg and Tokyo were prosecuted for:

• crimes against humanity

• Crime of aggression

• War crimes

• They were never prosecuted for genocide as it was not a separate crime till later

• Most were convicted —> hanged for crimes

  Contested but they had fair trials

Post 2nd WW new international treaties

• Universal Declaration of Human Rights 1948

• Refugee Convention 1951

• GATT 1947

Key UN components for IL

• General assembly

  • power to pass non-binding resolutions — soft law

• Security council

  • Enforcement organ in cases of major breaches of international law

• International Court of Justice

  • Peaceful settlement of international disputes

• International La Commission

  • Progressive codification of IL

Decolonization/self-determination

• much post-war decolonization took place before the emergence on an international norm against colonialism

• 1960: UN GA Resolution 1514

  • Declaration on the granting of independence to colonial counties and peoples

• UN then became a platform for the Third World to delegitimize colonialism — and sovereign states became the only acceptable mode of self-determination

• Uti possidetis juris (as you possessed) was the guiding principle

  • Colonies achieved independence within existing colonial boundaries

• This principle was meant to avoid civil conflict, but still numerous was were fought within post-colonial states as result

Post-cold war challenges

• end of Cold War was supposed to remove the main remaining obstacle to a new, legalized, international system

  • But quickly fissures began

• Challenges:

  • Sovereignty/non-interference

  • Key institutions in post war era

Post Cold War challenges: sovereignty/non-interference

• increasingly viewed by many western countries as an obstacle to the spread of human rights and democracy

• But remains a core propel of IL prized by non-western countries

Post Cold War challenges: key institutions in post war era

a perception that they have not adjusted to the changes in the international order since their creation