IL

International Law definition

The body of rules that states consider binding in their mutual relations

How can be Law understood as?

- A set of rules
- A professional practice
- An independent social phenomenon
- An epiphenomenal reflection of power.

International Law is said to have traditionally:

- Voluntary adhesion
- Weak or no enforcement mechanisms
- Rules are few in number and vague

International Law and International Relations

Breach between both subjects after the experience of WWII.
--\> International relations scholars approach the study of international law in a distinctive manner from the approach generally taken by international law scholars.

Killing of Ben Laden and international Law

- Debate about the constraining power of IL
- Positivists focus on causation
- new theories focus on mutual constitutiveness.

Realism and international Law

- Most critical of international law's potential to constrain state behaviour.
- Insistence on compliance of legal rules without great power buy-in lay even make war more likely
- International law is epiphenomenal as it is a product of state-interest.
- Law has a function within states, but not between states.

Effectiveness vs. compliance

Effectiveness : law can make states act in ways contrary to their self-interest.
Compliance: mere happenstance, when the cost-benefit calculus is preferable

Structural realists/neorealists (Waltz) and IL

Dont bother: states are like units existing under structural anarchy, nothing else really maters and certainly not law.

Liberal institutionalism and International Law

- shares most of the assumptions of realism when it comes down to the nature of the international space
- Liberals try to explain the 'why bother' question by pointing to the role the law/institutions have in facilitating collaboration
- Still rationalist, views state behaviour in utility/interest maximalizing terms.

International law and states: Liberals

- Law has no creative or generative power in the social life of states
- Law can explain the variations in outcomes within the context of particular institutional arrangements, but has no autonomy

Constructivism and International Law

- Do not take state interests as unchanging but emphasise on their socially constructed nature
- IL is viewed as being in a mutually constitutive relationship with International Politics
- IL ≠ purely an instrument of interests, ≠ a by-product, \= an institution of the international system in its agency.

Critical approaches and IL

- desire to expose what they see as the fundamental failings of international law and to destabilise its core assumptions.
- They are explicit and heavily normative

Critical theory and IL: political view

- Usually associated with the political left
- Historically, origins are right-wing: German critics of the Versailles Peace Agreement.

Examples of critical approaches to IL: Post-colonialism

- Post-colonial: Looks at the role of international Law in the development and expansion of imperialism, both formal and informal
- focuses on the history of international law and its entanglements with imperialism, especially from Grotius onward.

Other example of critical approach to IL: Radical indeterminacy

- Radical indeterminacy: any given course of action is both permitted and prohibited by law
--\> Legal arguments can then be made both for and against any proposal of state conduct

International Law and capitalism

Kate Mills on international investment law and its colonial origins
Ntina Tzouvala on international law as a promoter of capitalist modernity whilst keeping its recipients down.

Legal history tends to be

- Narrative of inevitable progress, from the dark lawless ages to enlightenment.
- 'law-office history': the history of legal developments in reverse chronological order, designed to justify the current state of affairs.
- Can also be: critical, linking current practices to unsavoury histories in the past.

International Law in Antiquity

- Traditionally, its origins have been traced to the 16th century,
- More recent advocates of a relativist approach have emerged

The Romans and the ius gentium.

System which has had a bearing on modern international law
- Covered things such as status of envoys, the making of treaties, taking of war loot and slaves, treatment of aliens, requirements for declaring war...
- Distinguishes ius gentium to ius civile,
- Not the law between states but between groups of human beings.
- NATURAL VIEW OF INTERNATIONAL LAW

Natural Law tradition

- Law is derived from nature and expressed as human reason
- Highly normative and universalist
- Dominant until the 19th century

Positivist Law tradition

- Law's content is determined objectively through legal instruments and state practices
-the moral quality of laws is viewed as being beyond the scope of legal science.
- 19th century onwards.

Key historical thinkers: Grotius, Vitoria and Gentili

Vitoria: the legal status of Amerindians in the Spanish empire
Gentili: the status of diplomats, the laws of war
Grotius: the ownership of the seas, the laws of war.

Francisco de Vitoria

Dominican friar
- influential opponent of the Spanish subjugation of Native Amerindians, as well as of forcible conversion
- Annexation of land could only happen in wartime and as reparation
- Saw law as underpinning a universal society in which independent nations could conduct intercourse

Grotius

- Defender of natural law, attempted to imagine what natural law would look like without god.
--\> "If an action agrees with the rational and social aspects of human nature, it is permissible; if it doesn't, it is impermissible—regardless of the religion of the group, as long as they are rational or social"
- "We obey law not because of divine sanction (necessarily), but because natural law obliges us to perform actions which conduce to our rationality, sociability and need for self-preservation"

De Jure belli ac pacis (1625)

- Just war theory which owed much to Aquinas
- Lays out the just causes for war and rules about how war should be conducted
- Argues rules of war have to be followed regardless of whether the war is legitimate

Mare Liberum (1609)

- A rebuta to the Portuguese mare clausum policy
- Argues that seas are free for all national to use, every nation is free to travel to every other nation, and to trade with it.

Vattel and the transition to positivism

- Peace of westphalia
- Ended the Thirty years war

Emer de Vattel

- Follower of Grotius
- Influential into the 20th century
- States, not individuals are the core of his legal thought.
- states are equal and naturally free, but states are bound by self-preservation, so have broad discretion in determining the rights and wrongs of their behaviour.

Vattel's typology of positive international law

- Conventional law: the result of the express consent of states
- Customary law: the result of states' tacit or implied consent
- Voluntary law: reflects of the will of states in order to preserve the basic principles of the international community, to which consent is presumed.

Conventional Law

the result of the express consent of states

Customary law

the result of states' tacit or implied consent

Voluntary law

reflects of the will of states in order to preserve the basic principles of the international community, to which consent is presumed.

The standard of civilization

- Set of criteria states had to meet before being admitted to the family of nations
- Non-western states which retained their legal sovereignty had an ambiguous position within the international system (Japan, China, Siam, Cambodia...).

When was there the rise of institutions?

- 19th century
- Parallel with the shift from natural law to positivism, more state practice to draw on, the positivist approach became more viable.

Which were the first entities other than states to have a distinct legal personality?

Intergovernmental organisations (IGOs).

First IGO

Commission for the navigation on the Rhine (1815).

What was an important impetus for the development of IGOs?

The growth in technology.

Codification treaties

- Pushed by utilitarians such as Jeremy Bentham: the codification of international law, they thought it would enhance its binding effect.

Important codification landmarks

- Congress of Vienna (1815): law on diplomatic agents and diplomatic missions
- Geneva convention (1864): treatment of wounded combatants and civilians
- Hague Conventions (1899 & 1907): permanent court of arbitration, laws of war, prohibition of the use of certain weapons.

League of Nations

- created by the Treaty of Versailles (1919)

League of Nations 3 main instruments

1- disarmament
2- collective security
3- peaceful settlement of international disputes.

League of Nations main principle

Self-determination: the idea that peoples had the right to their own sovereign states.

Why did the LON suffer a huge blow at the beginning of its existence?

- The US declined to ratify the treaty of Versailles.

Who was part of the LON?

- Members mostly sovereign states, though British dominions joined individually, like British India
- German colonies were taken under international trusteeship through the LON.

Mixed record of the League

- solved a number of international disputes, combatted epidemics and slavery, resettled refugees, strengthened international law, concluded disarmament treaties, etc
- On the other hand, the collective security mechanisms never fully functioned because of political considerations and it was unable to prevent the outbreak of the Second World War

LoN and the Japanese invasion of Manchuria (1931)

- LoN appointed commission of investigation which found against Japan
- In reaction, Japan withdrew from the League.

LoN and the Italian invasion of Abyssinia (1935)

- LoN imposed economic sanctions on Italy
- The sanctions were ineffective, enforced Half-heartly and soon dropped by most powers.

LoN and the Soviet invasion of Finland

- In almost its very last act, the LoN expelled the USSR, buy by then it no longer mattered.

What had arisen after the Second World War in the international Law order?

The rise of international criminal justice.

What were defendants in Nuremberg and Tokyo were prosecuted for?

- Crime against humanity
- Crime of aggression
- War crimes

New International treaties post-WWII

- Universalk declaration of Human rights (1948)
- Refugee convention (1951)
- GATT (1947)
- Treaty of Paris (1951): creation of the European Coal and Steel community

Key UN components for international law

- General assembly (power to pass non-binding resolution: soft law).
- Security council (enforcement organ in cases of major breaches of international law)
- International Court of Justice (peaceful settlement of international disputes)
- International Law Commission (progressive codification of international law).

UN and decolonisation/self-determination

- Took place before the emergence of an international norm against colonialism
- 1960: UNGA Resolution 1954: declaration on the granting of independence to colonial countries and peoples)
- UN became a platform for the Third world to delegitimise colonialism

Uti possidetis juris

Guiding principle in decolonization: colonies achieved independence within existing colonial boundaries (with possibility of partition at the time of independence).
- Meant to avoid civil wars, but still numerous wars were fought within post-colonial states as a result.

Post cold-war challenges

- Sovereignty/non-interference: increasingly viewed by many western countries as an obstacle to the spread of human rights and democracy
-Key institutions of the post-war era: perception that they have not adjusted to the changes in the international order since their creation.

Treaties

International conventions, whether general or particular, establishing rules expressly recognised by the contesting states.
- Also called: agreement, convention, exchange of notes, protocol, pact...

Pacta sunt servanda

--\> Agreements must be kept
- one of most important rule of customary international law
- there are some circumstances in which a treaty can be lawfully breached

What are treaties considered to be within international law?

Hard Law
- Can pretty much do anything, except authorise the violation of a peremptory norm

How are treaties made?

- Are written, made between states, represented by people authorised to do so.
- Treaties are distinguished from other international agreements in that they are LEGALLY BINDING

What are treaties usually made of?

- A preamble,
- Main body
- Signature/signs
- Reservations (but not always possible nor accepted)
- Protocols.

Treaties: signature vs. ratification

Signature is usually not the final step, parties have to ratify the treaties, allowing the principal to endorse what the agent has done.
- Most treaties are not binding on states until they are ratified — but in the meantime the state is not meant to do anything that would defeat the purpose of the treaty.
- Ratification is done according to domestic procedures: either the executive or the legislature.

Treaties: monism vs. dualism

Monism: treaties do not need to be translated into municipal law; they have effect directly

Dualism: domestic legislation is required to translate the treaty obligation into municipal law.

How do treaties end?

- on its own terms (self-determination: expiry, disappearance of essential conditions)
- by withdrawal (denunciation)
- in response to a serious breach by one party.

For a custom to become law, two elements have to exist:

1- the existence of widespread and settled state practice
2- opinion juris: states adhere to the custom because they believe they have a legal duty to do so.

opinion juris

states adhere to the custom because they believe they have a legal duty to do so.
--\> somewhat artificial exercise, as it implies states have a collective mind/intentionality of their own!

State practice and customary law

Not only through the actions of national executives, but also from domestic courts and legislatures, as well as public statements.

General principles 'recognised by civilised nations'

- Principles which are to be found in most of all municipal law systems, but which do not exist as positive international law OR :
- It also includes very basic legal principles such as pacta sunt servanta.

Other sources of Law

Resolutions of the UNGA
Studies produced bu the International Law Commission, even if not adopted
UNSC: does not make law, but rather creates specific obligations, backed by a treaty.

Is there a hierarchy of norms?

Sort of, but not completely:
Ius cogens /preremptory norms are above every thing else.

Ius Cogens

--\> Preremptory norms:
- Wars of aggression
- Genocide/ crimes against humanity / Apartheid
- Slavery / torture / execution of juvenile offenders
- Piracy

Does treaties or customary law prevails the other?

- Treaty prevails customary law as between the parties to the treaty, but not over non-parties.

Lex Specialis derogat generali

The special/specific rule prevails the general rule

Lex posterior derogat priori

- The latter rule overrides the earlier rule.

What do we mean by subjects of law?

- Subjects of international law are those entities that the law regards as possessing rights and duties enforceable at law.

- Humans and corporation, not pigs or trees for example.

What are the two variants of international legal personality?

1- Objective personality

2- Qualified personality

Objective personality

If an entity has objective personality, it is subject to a wide range of international rights and duties and it will be entitled to be accepted as an international person by any other international person with which it is conducting relations (erga omnes)

Qualified personality

If an entity has qualified personality, it only has legal personality insofar another entity with legal personality accepts it as having legal personality

States and international law

--\> The main subjects of international law, as well as by far the most important.

Orthodox positivist doctrine (Lauterpacht)

Affirmation that only states are subject of international law.

--\> No longer true today.

What is the most widely accepted definition of a state? When?

state has:
1- A permanent population
2- A defined territory
3- a government
4- a capacity to enter into relations with other states.

--\> Adopted during the 1933 Montevideo convention.

State: permanent population

- No threshold requirement (Vatican), nor even citizenship requirements.

--\> PERMANENT

State: defined territory

- No size threshold.

- Existence of territorial dispute doesn't affect statehood as long as there is a stable community within a piece of territory which is undeniably controlled by the government of the putative state.

State: government

- Doesn't have to be good/democratic.

- International law takes a broader view of government than the Weberian one.

State: capacity to enter into relations with other states.

--\> Refers to RECOGNITION

- Also refers to a legal capacity: the kingdom of the Netherlands has a capacity to enter in relations with other states, Zuid-Holland not.

State: legitimacy?

--\> A state will not be recognise unless it developed toward statehood in a way consistent with self-determination and ius cogens.

Will a state entity born of an international illegal act be recognised?

No, despite the fullfilement of the other 4 criteria: Northern Cyprus (aggression)

Will an entity seen as a vehicle of self-determination be recognised even if it doesn't fulfil the 4 criteria?

Yes:

- DR Congo had no government
- Guinea-Bissau was still a Portuguese colony.

Constitutive theory of statehood

Theory that recognition by other state is a constitutive element of statehood.

Declaratory theory of statehood

theory that statehood is a fact and that recognition merely acknowledged the fact.

Are diplomatic relations and state recognition the same?

NO

Is state recognition political, legal, both or none of them?

Both political and legal.

Examples of state recognition/diplomatic relations questioned

--\> Taiwan vs. China: ROC is recognised by 13 states, neither PRC nor ROC maintains diplomatic relations with any state that recognises the other.

--\> Kosovo: unilaterally declared its independence in 2008, 101 out of 193 UN members recognise it as a state.

States - Sui Generis cases: SMOM

- Sovereign Military Order of Malta (SMOM)
--\> Roman Catholic order of crusaders expelled from Malta by Napoleon in 1798.

--\> Today, recognised as a subject of international law and sovereign, but not as a state.

International Organisations and IL

- Traditionally, IOs status was contested in IL

- Today the principle that IOs have international legal personality is recognised.

-But not all organisations created through agreements between states are IOs.

How do we know if organisations have a legal personality?

--\> If the treaty says so

--\> If it is indispensable to achieve the purposes of the organisations as established by its governing document 'by inference).

What does having an international legal personality means to IOs?

- They have a legal existence independent of the member-state.

- They can sue to enforce their rights, but also be sued and be held liable for the breaches of international obligations.

-Many IOs have privileges and immunities.

- IOs can conclude international agreements subjects to the limitations of the founding treaties.

The individual in IL for traditional positivists

- States are the only subjects of IL

--\> Individuals are the objects of international law \= no direct rights and obligations arising from IL.

The individual in IL for positivists nowadays

- Individuals are participants

- In some cases, subjects of international law.

Human rights main concept

--\> Principal conduits through which individuals have gained some sort of status in IL.

--\> Traditionally, individuals' rights were wholly at the mercy of the states they belong to.

Human rights history

- After WWI, concept of group rights entered IL, in some cases individuals could assert their right directly to International tribunals if given the permission via treaty.

- After WWII: protection of human rights, whether individually or collectively became an aspect of IL.

Important development: Growing rights for individuals to access international courts.