Lecture 3 Part 1

Announcements and Logistics

The lecturer starts with practical updates relevant to the course schedule and opportunities. Week 7 will not be held in the lecture theatre; the class will relocate to the Lew Edwards Building, closer to the law school, on September 10. The lecturer notes a personal reluctance about the move but confirms the arrangement. At 7 PM the same day, there is an information session about participation in the Philip C. Jessup International Law Moot Court Competition. The lecturer is the national administrator for Jessup and will attend the session; he mentions his long involvement but clarifies he is not coaching this year. Participation in Jessup is presented as a strong way to advance employability in international law, with many professionals in government and overseas organisations having participated. It is also highlighted as excellent for developing legal reasoning skills. The lecturer points out that the high court in Australia hires many associates who have participated in Jessup due to the reasoning abilities developed. He emphasizes that even for students aiming to be associates to high court judges, the Jessup experience translates well to Australian law issues.

He then invites questions about the course and asks if anyone attended the careers information session the previous night; there are no takers.

Today’s Session: Emphasis on History and Theoretical Critique

The lecturer announces a somewhat unusual but important approach for this session: rather than sticking strictly to textbook coverage, he will discuss how international law developed historically and then introduce competing theoretical critiques. He argues that many lectures target aspiring international lawyers and that a practicing international lawyer’s perspective is conservative; thus, it is valuable to understand critiques to be able to critique the traditional view. The upcoming discussion will extend beyond John Bolton’s criticisms (which have been addressed in tutorials) to additional theoretical critiques. The aim is to situate history within theory, showing how both traditional and critical perspectives can inform practice. The lecturer acknowledges his own Western-European historical emphasis but defends the relevance of European historical development for understanding current international law rules, while recognizing that important developments occur elsewhere.

Historical Development of International Law: Scope and Orientation

The lecturer argues that the history of international law spans hundreds of years and many legal systems, which presents a challenge. He concedes his own initial limitations in history but stresses that European history is especially relevant because many contemporary rules emerged there. He does not deny significant developments outside Europe but notes that the rules now called international law largely developed in Western Europe during the Middle Ages. He also stresses that the history of international law is not a whitewashed narrative; it involves coercion, conflict, and the expansion of the international community beyond Europe, which will be addressed alongside its theory.

The Middle Ages: Unified Western Europe and Early International Order

In the Middle Ages, Western Europe was relatively homogeneous in terms of religious conviction (Roman Catholic Church) and political authority (the Holy Roman Empire). The Holy Roman Emperor provided political settlement, while the Church provided religious authority. Over time, religious and political authority faced challenges: Protestant princes emerged and asserted their own authority, challenging Catholic hegemony; politically, princes challenged the Emperor as well. This culminated in warfare beginning with the Thirty Years’ War, which began in 1618 and devastated much of Western Europe.

The Peace of Westphalia (1648): Coexistence and Consent

The Thirty Years’ War ended with the Peace of Westphalia in 1648, comprising treaties at Osnabrück and Münster (the English-language names for the two main peace settlements). The lecturer highlights a translation note: older texts use spellings like “confent” where the text means “consent” due to evolving English orthography. The essential ideas are twofold:

• The parties accepted that opposing groups had an entitlement to exist; the resolution of conflict depended on recognizing the existence of different groups.
• Consent and self-determination mattered: the lingering commitment to respect the will of the principalities, whether Protestant or Catholic, underpins the Westphalian order.

From these elements, Westphalia is presented as an early illustration of how international law can facilitate coexistence among independent entities, with the consent of those entities playing a crucial role.

The Vienna Congress (1815) and Early Collective Security

A few hundred years later, after Napoleon Bonaparte’s defeats, the great powers gathered at Vienna (the Congress of Vienna) in 1815 and created a form of collective security. Although the project faced major difficulties and began to unravel by 1848, the period marks a shift toward structured cooperation among major powers aimed at stabilizing Europe. The lecturer connects this to a broader theme in international law: law can be used to achieve cooperation and coexistence among states, not merely to regulate conflicts.

Natural Law and Legal Positivism: Theoretical Frames

Historically, natural law represented a unified conception of law that connected legal norms to God and universal moral order. In the 1200s, natural law drew on theological foundations (as in Saint Thomas Aquinas). By the time of Grotius (often regarded as the father of international law), natural law could rest on universal reason rather than divine command, and one could argue law based on universal rational principles without requiring belief in God. This created tension with the Westphalian emphasis on state consent and sovereignty.

This tension set the stage for legal positivism, which eventually gained prominence in international law. Two propositions are typically associated with positivism in this sphere:

• First, international law is voluntarist: states have obligations by virtue of their consent; law derives from the will of states (Westphalia as foundational moment).
• Second, states are generally free to do whatever is not prohibited by international law: obligations arise only from consent or treaty or custom, and otherwise there is freedom to act.

A classic case often cited to illustrate positivist claims is the Lotus case (Permanent Court of International Justice). It involved a collision between a French-flagged vessel (the Lotus) and a Turkish vessel in a region considered high seas, with eight Turkish lives lost. After the incident, Turkey arrested a French officer of the watch; France argued that there were no applicable rules prohibiting Turkish jurisdiction over a foreign national aboard a foreign vessel on the high seas. The court sided with Turkey, concluding that unless there is a rule prohibiting a conduct, states are generally free to act. The key statements from the decision were:

• International law governs relations between independent states; the rules binding upon states emanate from their own free will. $ext{International law governs relations between independent states. The rules binding upon states therefore emanate from their own free will.}$
• Restrictions upon state independence cannot be presumed; they arise only where there is a rule prohibiting certain conduct, or where consent has been given.

The Lotus case also illustrates critical points about the reach of international law: (i) non-European actors could participate in international law earlier than might be assumed (the Ottoman Empire had engaged in treaties with Western powers as early as 1649), and (ii) the expansion of the international community continued as colonial powers granted independence to their colonies and non-European states joined the existing framework over time.

The Interwar Era: From Westphalia’s Legacy to Outlawing War

The pre-World War I era was dominated by just war concepts from natural law or a permissive positivist logic that allowed war unless prohibitions existed. This framework contributed to the devastation of World War I. After the war, the Covenant of the League of Nations attempted to regulate warfare and provide a cooling-off mechanism, but it failed to prevent aggressive actions by major powers, notably Japan in Manchuria, Italy in Ethiopia, and Germany in Czechoslovakia. The aftermath demonstrated the limitations of collective security without sufficient enforceable authority.

In response to the failure to prevent war, a movement toward outlawing war emerged in the 1920s. The Kellogg-Briand Pact of 1928 became a landmark treaty in which signatory states renounced war as an instrument of national policy. It is often summarized as a commitment to the peaceful resolution of international disputes. The Pact remains technically in force as a treaty, though its practical effectiveness was limited and later superseded by more robust frameworks. The Pact’s core ideas can be encapsulated as:

• Article I–II (Kellogg-Briand Pact): not to resort to war in settling international controversies; to pursue peaceful means.
• The Pact was invoked in the post-World War II era as a moral and political anchor for restraint in international conflict, and its principles influenced subsequent institutions and trials (e.g., Nuremberg).

The League of Nations and the International Legal Order after World War I

Alongside Kellogg-Briand, the League of Nations institutionalized some aspects of international cooperation. Versailles-era provisions included the creation of the International Labour Organization (ILO) to promote labor standards and employment fairness, and the Permanent Court of International Justice (PCIJ) in The Hague to resolve disputes between states. However, the League’s authority was undermined by its inability to discipline the use of force by major powers, particularly Japan, Italy, and Germany, which contributed to its ultimate failure and replacement by the United Nations system after World War II.

The United Nations Charter (1945) and the Postwar International Order

In the wake of World War II, the Allies negotiated the United Nations Charter (drafted in Washington, D.C. at Dumbarton Oaks and San Francisco). Australia, as mentioned by the lecturer, was a party to the Charter. The UN Charter embodies the following core commitments:

• A mandate to coexistence among states, as reflected in Article 2(4), which prohibits the threat or use of force against the territorial integrity or political independence of any state, or in any manner inconsistent with the purposes of the United Nations. $ext{Article 2(4): All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.}$
• A system of collective security administered by the Security Council; while there is also a right to self-defense, there is a central monopoly on the use of force by the UN system and its member states when acting under the Charter.
• A commitment to cooperation and to social and economic development through specialized agencies, as well as a formal commitment to human rights and fundamental freedoms, later elaborated in the Universal Declaration of Human Rights (UDHR) of 1948 and subsequent treaties.
• The UDHR and related instruments extend and elaborate the Charter’s language on universal values and human rights, creating a normative framework that binds states beyond mere nonuse of force.

Cold War Realities: Deadlock, Korea, and Rapid Growth of the International Community

During the Cold War, the Security Council often faced deadlock due to the veto power of the permanent members, notably the Soviet Union. The Korean War provides a canonical example: Australia participated under UN auspices, with the Security Council passing resolutions authorizing action. The Soviet representative initially absent (to protest the veto mechanism) allowed the council to take action that it would later veto, illustrating how procedural quirks could influence outcomes. The era also witnessed dramatic growth in international participation: in 1945 the UN Security Council and the broader international community comprised about 51 states; by the 1980s, membership had expanded to around 160 states due to decolonization in Africa and Asia and the emergence of new states after the dissolution of empires. The expansion included new states from the former Yugoslavia (Serbia, Montenegro, Croatia, Slovenia, North Macedonia) and from the former Soviet Union (Armenia, Azerbaijan, Georgia, Ukraine, the Central Asian republics such as Uzbekistan, Kyrgyzstan, and Tajikistan).

European Integration and the Purpose of International Law in Regional Contexts

International law has also been used to achieve regional integration, particularly in Europe. Starting with the Coal and Steel Community in the 1950s, which aimed at fostering economic cooperation, Europe evolved into the European Economic Community and then the European Union (EU). The EU now comprises 27 member states and uses international law as a tool to achieve political, social, and economic integration beyond pure trade regulation.

Globalization, Non-State Actors, and Regulatory Liberalization after the Cold War

Post-Cold War global developments have featured a rapid expansion of non-state actors, notably multinational corporations, whose relative power can exceed that of some states. Globalization is described as increasing freedom for the movement of money, goods, ideas, and to a lesser extent people, across borders. This process is associated with liberalization—reducing regulatory autonomy for states—as well as rising challenges such as environmental degradation, disease, civil conflict, terrorism, mass migration, and mass refugee flows. The response includes pushback against globalization, seen in popular politics such as Brexit and the rise of nationalist or populist movements exemplified by recent administrations. The lecturer also notes the ongoing relevance of authoritarian governance in various regions, contrasting it with liberal democracies that marked the immediate post-Cold War era.

Russia’s Use of Force and Contemporary Security Considerations

The lecturer notes that Russia’s aggression against Ukraine is a focal and troubling instance of international conflict, particularly because it involves an attempt to acquire territory through force. He emphasizes that, while other permanent members of the Security Council have previously used force, what makes Russia’s actions distinctive is the explicit objective of territorial acquisition, which signals a profound challenge to the postwar international order based on sovereignty and territorial integrity.

Connections to Practice, Ethics, and Critical Perspectives

Across the historical arc—from Westphalia to the UN Charter, and from the interwar catalytic efforts to the globalization era—international law is shown as a tool for both coexistence and cooperation, as well as a site of critique. The lecture stresses the importance of understanding traditional perspectives (natural law versus positivism) in order to critique them effectively and to recognize the value of competing viewpoints for real-world practice. It also highlights ethical concerns, including the use of force, colonial history and decolonization, human rights protections, and the governance challenges posed by globalization and non-state actors. The material invites reflection on the balance between state consent and universal norms, the legitimacy and effectiveness of international institutions, and the law’s ability to respond to rapid geopolitical and economic changes.

Key Chronological Anchors and Concepts (at-a-glance)

• 1618: Beginning of the Thirty Years’ War. $1618$
• 1648: Peace of Westphalia; Osnabrück and Münster treaties; birth of coexistence and consent concepts. $1648$
• 1649: Ottoman Empire enters into treaties with Western powers, signaling broader inclusion of non-European actors. $1649$
• 1815: Congress of Vienna; early collective security architecture. $1815$
• 1848: End of the Vienna system as it begins to unravel. $1848$
• 1200s–1700s: Natural law foundations; Thomas Aquinas; Grotius as a bridge to universal reason. $1200s$, $17th ext{-}century$
• 1914–1918: World War I and the perceived failure of reliance on Just War and permissive positivism.
• 1928: Kellogg-Briand Pact; renunciation of war as national policy. $1928$
• 1945: United Nations Charter drafted and established; postwar architecture. $1945$
• 1948: Universal Declaration of Human Rights. $1948$
• 1950s: European Coal and Steel Community and early steps toward European integration; later evolved into the EU. $1950s$
• 1980s: Global membership rise to roughly 160 states due to decolonization. $ext{~}160$
• 1990s: Post‑Soviet and post‑Yugoslav state creation and expansion of membership; new actors in the international system. $1990s$
• Post‑1990s: Globalization and rise of non-state actors; regulatory liberalization; pushback via Brexit and populism; contemporary security concerns.

Notes on structure and emphasis for exam preparation

• Focus on the evolution of international law’s legitimacy—from consent-based orders (Westphalia) to universal norms (UN Charter, UDHR).
• Understand the Lotus case as a key positivist authority illustrating the voluntarist premise and the idea that absence of prohibition is not a prohibition in itself.
• Be prepared to discuss how decolonization reshaped the international system in terms of membership expansion and legitimacy of non-European states.
• Be able to connect historical episodes to present-day concerns about sovereignty, humanitarian intervention, and the balance between state autonomy and international obligation.
• Remember the core constitutional-like provisions of the UN framework (Article 2(4), Article 51, Security Council, UDHR) and how they structure modern international law and practice.