Introduction to International Law (Chapters 1 + 2)

definition of international law

the body of principles, customs and rules, recognized bas effectively binding obligations by sovereign states and such other entities as have been granted international personality

principles

• foundational to the system - determine the basic system structure

• overarching - above all other laws, rules, and regulations

• define the boundaries of a system

customs

• patterns of behavior

• tradition

rules

• explicit

• govern specific behavior within an issue area

law

• system of rules and regulations that sets the framework in an issue area

public international law

law that governs relations between states in the international system

private international law

law that governs conflict between citizens of two or more states

state

• a country with legal political entity

• must possess a permanent population, a defined territory, government, sovereignty, recognition, and the capacity to enter into relations with the other states

recognition of a state

• full recognition - majority of UN and full agreement of the 5 permanent members of the security council

• if one of those 5 disagrees and uses their veto power, then the area can not be recognized as a state

5 permanent members of UN security council

• China

• France

• Russia

• The United Kingdom

• The United States

sovereignty

• absolute authority over a specific territory and population

• authority - power backed by legitimacy

Article 2(7) of the Chapter of the United Nations

all members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any manner inconsistent with the purpsoes of the United Nations

non state actors with international personality

• intergovernmental organizations - members of these organizations are all states

• non governmental organizations

• corporations

international

• relations between sovereign states and entities in which sovereign states are primary actors

• bilateral and multilateral interactions

• interactions involving governmental organizations

transnational

• involving interactions of all actors outside the boundaries of sovereign states

• governmental and non governmental organizations

• corporations

West International Law

• traced back to the Egyptians, the Babylonians, and The Greeks

The Romans

• Jus civile - the body of law that applied to Roman citizens

• Jus gentium - the body of law that applied to non roman citizens who were part of the Roman Empire

Asia

India

• Dharmashastra and Arthashastra travced back to 4th century BC and Kautilya

China

• LI (confucianism)

• FA (legalism)

More development

• Christian Europe international law developed from canon law

• just war (right of conquest with the sanction of the Church)

• Treaty of Tordesillas a treaty signed by Spain & Portugal to divide any new discoveries (Spain had access to the west of the line, while Portugal had access to unclaimed territory east of the line)

Question of Res Nullius

• fall of Constantinople in 1453 and closing of land bridge in Asia led to European empires to use the sea as their primary means of trade

• sea routes led to the discovery of “new” lands

• the doctrine that emerged classified these lands as those without owners and hence available for taking

The Treaty of Westphalia

• 1648

• marked the end of the 30 year war and the beginning of the secularization of European politics

trade

• with the increase in the demand for raw materials and the search for enw markets, international transactions increased

• laws against piracy

• mare liberum - the doctrine of the freedom of the seas

war

• restrictions on the use of force transcend sovereignty

• Hague conventions

Marten’s Clause

Until there is more guidance regarding laws centered around law, populations and combatants are protected by existing international law, the laws of humanity, and public conscience

League of nations

• post WWI organization that was created to end all wars

• had no independent “enforcement” capability such as enacting collective sanctions or sending troops

• ultimately failed due to its members lacking the will to stand against persistent aggression

United Nations

• post WWII organization created to protect and advance international space and security

• legitimized the state as a necessary form of political organization for participation in international society

• dependent upon a plan to centralize the sue of force in service of maintaining order (collective security)

• force would only be used as a an authorized sanction taken after collective deliberation

post WWII

• transnational activity increased and new challenges emerged

• social welfare and justice issues emerged as points of discussion (ex post colonialism, racial justice, and economic inequality)

• challenges of state sovereignty such as limits on use of force, prohibition of genocide, demands for human rights, and transnational economic transactions also appeared

collapse of USSR in the early 1990s

after this collapse and the rise of neo-liberal capitalism, globalization emerged as a force for both unification and defragmentation regarding environmental issues, common heritage, human rights and identity, and terrorism

challenges to international law today

• erosion of sovereignty and consequent lack of respect for the state

• increasing use of force in international and transnational interactions

natural law

based either on the divine or human reason

Thomas Aquinas (1225-1274)

• believed natural law constituted the basic principles of practical rationality and that all human beings possess a basic knowledge of the principles of natural law

• good is to be done and evil is to be avoided

Francisco de Vitoria (1480-1546)

• primarily focused on the question what made war a just one, but he also examined Spanish authority in the Americas

• he was concerned for the rights and treatment of indigenous peoples

Francisco Suarez (1548-1617)

• believed that jus gentium differed from natural law because it formed a body of law that applied between independent states rather than as a common law to all states

• this argument laid the foundation for the idea of consent as the basis for a distinct set of rules voluntarily established by men)

Hugo Grotius (1583-1645)

• modern analysts see him as the father of international law

• believed jus gentium represented law that was both human (not divine in origin) and volitional (a body of rules deliberately created by human beings to serve human needs)

• urged moderation in warfare

• also believed that superiors were not the sole individuals entitled to inflict punishment, but also equals (ex war)

Samuel Pufendorf (1632-1694)

• the world’s first professor of international law

• believed in the existence of a state and law of nature that was binding by all men

• that kind of law rather than state consent could establish legally binding principles and hence be regarded as the sole source of international law

positivism

• law must be written down and agreed upon

• focuses on the precision in the meaning of the word

• enlightenment traditions

• the centrality of human beinga

• customs and practice

• social contracts

• sovereignty and self limitation

• consent (states as creators and subjects of law)

• right of self defense

• aggression

feminist approaches

• critical of patriarchy systems

• the public private dichotomy - the convention on torture

torture

• article 1 of the UN treaty defines the term torture as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity

• does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions

• this definition does not cover the same behavior when the perpetrator is not acting in an official capacity

tension between universal rights and cultural mediation

• are there some rights that are universally applicable or are all rights to be modified by the culture to which they are applied?

• can or should the International community determine what the cultural practices are appropriate?

critical approach

• study of the history behind the language of law

• opposed to positivism and the scientific rationality

• study of the context of the law (colonial heritage and western traditions)

soft law

• include hortatory, rather than legally binding obligations

• aspirational principles

louis henkin states

• law establishes and maintains order in society

• enhances the reliability of expectations

• protects person and property and promotes the welfare of individuals and the values of a society

why do states obey law

• fear of punishment

• credibility

• habit

• enlightened self interest

• enables peaceful interaction between states

• leads to civilization and civilized states

is international law really law?

• interplay of law and politics (ex does consent to international law nullify sovereignty? + implicit acceptance of the constitution)

• not uniformly universal

• is it simply morality?

• the objective standard argument

• obedience (do violations mean that law does not exist)

• enforcement (does lack of consistent enforcement mean that law does not exist?)