Lecture 1: The Nature & Development of International Law
Main Topics:
Historical developments
Peace of Westphalia (1648) = basis for the current system of sovereign States
17th, 18th, 19th centuries:
- Feudal and city States nation States
- Imperialism colonialism
- Natural law positive law
- The Congress of Vienna (1815)
- Redrafting of borders
- Laid the basis for great power negotiations
- The Concert system = the idea that the great powers would come together to deal
with issues of peace
20th century:
- WWI
- Treaty of Versailles (1919)
- The League of Nations
- WWII
- The United Nations
- Not great for regional conflicts, better at international conflicts
- Co-existence cooperation
- Co-existence = tenant of Communist ideology
- Co-operation = not just co-exist; especially after WWII, where organizations have
cooperation
- Decolonization
- Most territories once controlled/ruled by European countries now independent
- Result = international law has universalized; not because of ideological reasons, but
geographical expansion
Values and purpose(s) of international law
Purposes of international law
- Regulation of international relations
- Previously, exclusively: relations between States
- Nowadays: regulations of relations between a number of different actors (IOs, individuals
(ICL))
,Substantive goal(s) of international law
- (international) order
- Tries to create a stable order between the States
- (international) peace
- Maintained, as well as domestic peace
- (international) justice
- Human rights
- Democracy
- Free trade / development
The nature of (international) law
Foundation of international law
- Hugo Grotius: On the Law of War and Peace
- Not just natural law, but also actions of states
- “No associations of men can be maintained without law … surely also that association
which binds together the human race, or binds many nations together, has the need
of law”
- Ubi societas, ibi ius (Aristotle): where there is a society, there is law
Foundation of law
- Thomas Hobbes – Leviathan (1668)
- State of nature fictional state where there is no authority, people are left to their own
devices, not relying on some state authority
- Without authority / law, men are in a state of war
- Pessimistic / grim perspective on human society without authority, violence
and death
- No common power no law no injustice
- Now, we know there are rules, and they are violated, and thinking of
enforcement
- John Locke – Second Treatise of Government
- In the state of nature…
- Lack of an established, settled, known law
- Lack of a known and indifferent judge
- Lack of enforcement
The concept of international law
- States: international law
- multiple authorities – horizontal relationship
, - States are sovereign, and don’t recognize higher authority, so all States are equal)
- identity of subjects
- In national systems, central authority that interprets, applies and enforces against
you
- International law, the States make the laws and are also subjects of it; also means
they can change the laws, different dynamic
- Consensual law-making
- Adjudication by consent
- Unilateral enforcement (except: Security Council – for peace and security, technically not
int. law)
International legal positivism
- John Austin, Lectures on Jurisprudence (1869): positive morality
- Why? Because there is no common power/authority; no law, claim of morality if one
State complains against another
- Law depends on a sovereign
- Hans Kelsen, Principles of International Law (1952)
- No sovereign, but when law is violated, States may engage in reprisals (respond with
unlawful act as response to other violation), or war (other states may go to war when
violated)
- International law has enforcement mechanisms, even without sovereign
- H.L.A. Hart, The Concept of Law (1961)
- Legal system has two types of rules
- Primary rules = create obligations and rights for subjects of law
- Secondary rules = who can create/apply/interpret/enforce the law; about officials
(involved in lawmaking, MoP, judges, police, etc.)
- Need secondary rules if you are to be considered a legal system
- International law is law, but not a legal system since not sufficient secondary rules
- Leslie Green and Thomas Adams, Legal positivism, Stanford Encyclopedia of Philosophy
- “Legal positivism is the thesis that the existence and content of law depends on social
facts and not on its merits. ... The positivist thesis does not say that law’s merits are
unintelligible, unimportant, or peripheral to the philosophy of law. It says that they do not
determine whether laws or legal systems exist. ...The fact that a policy would be just,
wise, efficient, or prudent is never sufficient reason for thinking that it is actually the law,
and the fact that it is unjust, unwise, inefficient or imprudent is never sufficient reason for
doubting it. According to positivism, law is a matter of what has been posited (ordered,
decided, practice, tolerated, etc.)”
- Whether or not it is a good law, it is still law
- Separate the merits, the contents moral goodness, from the existence of the law
- Law is made by men, but the law has its origin in social practices which allowed
certain people to make laws
, The development of international law
International peace and security
- 20th century: two world wars
- Technology weapons have become more destructive = more devasting wars
- Peace and security has become more crucial
- The UN
- More effective than League of Nations
- International organizations: subject
- After WWII – to get to cooperation on certain issues
- Have become subjects of international law Rep for Injuries – about the UN
Self-determination of peoples
- Colonials possessions 1945
- Especially of African and Asian States after WWII
- From factual perspective – Art. 1 UN Charter – principle of self-determination (not the
“right”)
- Many European Countries would not sign Treaty that would give colonies right
of determination
- Right developed in 50s and 60s from principle
- Can also be abused – Russia incorporation of provinces in Ukraine is based on a
claim of self-determination; Who has this right of self-determination?
Human Rights
- Individual rights – in principle all human beings have human rights
- Mentioned in Art. 1, 55, 56 Charter – isolated manner, and does not say which human rights
- UDHR (1948) – set out a range of human rights that were considered to exist
- Argument they push Western agenda
- Direct response to atrocities in World Wars = universal
- Not a Treaty GA Resolutions are not binding nor instantaneously create CIL
- ECHR (1950)
- ICCPR and ICESCR (1966)
- Many, many more…
International criminal law
- Individuals: obligations under international law
- War crimes, crimes against humanity, and crime of genocide, crime of aggression
- International precedents
Main Topics:
Historical developments
Peace of Westphalia (1648) = basis for the current system of sovereign States
17th, 18th, 19th centuries:
- Feudal and city States nation States
- Imperialism colonialism
- Natural law positive law
- The Congress of Vienna (1815)
- Redrafting of borders
- Laid the basis for great power negotiations
- The Concert system = the idea that the great powers would come together to deal
with issues of peace
20th century:
- WWI
- Treaty of Versailles (1919)
- The League of Nations
- WWII
- The United Nations
- Not great for regional conflicts, better at international conflicts
- Co-existence cooperation
- Co-existence = tenant of Communist ideology
- Co-operation = not just co-exist; especially after WWII, where organizations have
cooperation
- Decolonization
- Most territories once controlled/ruled by European countries now independent
- Result = international law has universalized; not because of ideological reasons, but
geographical expansion
Values and purpose(s) of international law
Purposes of international law
- Regulation of international relations
- Previously, exclusively: relations between States
- Nowadays: regulations of relations between a number of different actors (IOs, individuals
(ICL))
,Substantive goal(s) of international law
- (international) order
- Tries to create a stable order between the States
- (international) peace
- Maintained, as well as domestic peace
- (international) justice
- Human rights
- Democracy
- Free trade / development
The nature of (international) law
Foundation of international law
- Hugo Grotius: On the Law of War and Peace
- Not just natural law, but also actions of states
- “No associations of men can be maintained without law … surely also that association
which binds together the human race, or binds many nations together, has the need
of law”
- Ubi societas, ibi ius (Aristotle): where there is a society, there is law
Foundation of law
- Thomas Hobbes – Leviathan (1668)
- State of nature fictional state where there is no authority, people are left to their own
devices, not relying on some state authority
- Without authority / law, men are in a state of war
- Pessimistic / grim perspective on human society without authority, violence
and death
- No common power no law no injustice
- Now, we know there are rules, and they are violated, and thinking of
enforcement
- John Locke – Second Treatise of Government
- In the state of nature…
- Lack of an established, settled, known law
- Lack of a known and indifferent judge
- Lack of enforcement
The concept of international law
- States: international law
- multiple authorities – horizontal relationship
, - States are sovereign, and don’t recognize higher authority, so all States are equal)
- identity of subjects
- In national systems, central authority that interprets, applies and enforces against
you
- International law, the States make the laws and are also subjects of it; also means
they can change the laws, different dynamic
- Consensual law-making
- Adjudication by consent
- Unilateral enforcement (except: Security Council – for peace and security, technically not
int. law)
International legal positivism
- John Austin, Lectures on Jurisprudence (1869): positive morality
- Why? Because there is no common power/authority; no law, claim of morality if one
State complains against another
- Law depends on a sovereign
- Hans Kelsen, Principles of International Law (1952)
- No sovereign, but when law is violated, States may engage in reprisals (respond with
unlawful act as response to other violation), or war (other states may go to war when
violated)
- International law has enforcement mechanisms, even without sovereign
- H.L.A. Hart, The Concept of Law (1961)
- Legal system has two types of rules
- Primary rules = create obligations and rights for subjects of law
- Secondary rules = who can create/apply/interpret/enforce the law; about officials
(involved in lawmaking, MoP, judges, police, etc.)
- Need secondary rules if you are to be considered a legal system
- International law is law, but not a legal system since not sufficient secondary rules
- Leslie Green and Thomas Adams, Legal positivism, Stanford Encyclopedia of Philosophy
- “Legal positivism is the thesis that the existence and content of law depends on social
facts and not on its merits. ... The positivist thesis does not say that law’s merits are
unintelligible, unimportant, or peripheral to the philosophy of law. It says that they do not
determine whether laws or legal systems exist. ...The fact that a policy would be just,
wise, efficient, or prudent is never sufficient reason for thinking that it is actually the law,
and the fact that it is unjust, unwise, inefficient or imprudent is never sufficient reason for
doubting it. According to positivism, law is a matter of what has been posited (ordered,
decided, practice, tolerated, etc.)”
- Whether or not it is a good law, it is still law
- Separate the merits, the contents moral goodness, from the existence of the law
- Law is made by men, but the law has its origin in social practices which allowed
certain people to make laws
, The development of international law
International peace and security
- 20th century: two world wars
- Technology weapons have become more destructive = more devasting wars
- Peace and security has become more crucial
- The UN
- More effective than League of Nations
- International organizations: subject
- After WWII – to get to cooperation on certain issues
- Have become subjects of international law Rep for Injuries – about the UN
Self-determination of peoples
- Colonials possessions 1945
- Especially of African and Asian States after WWII
- From factual perspective – Art. 1 UN Charter – principle of self-determination (not the
“right”)
- Many European Countries would not sign Treaty that would give colonies right
of determination
- Right developed in 50s and 60s from principle
- Can also be abused – Russia incorporation of provinces in Ukraine is based on a
claim of self-determination; Who has this right of self-determination?
Human Rights
- Individual rights – in principle all human beings have human rights
- Mentioned in Art. 1, 55, 56 Charter – isolated manner, and does not say which human rights
- UDHR (1948) – set out a range of human rights that were considered to exist
- Argument they push Western agenda
- Direct response to atrocities in World Wars = universal
- Not a Treaty GA Resolutions are not binding nor instantaneously create CIL
- ECHR (1950)
- ICCPR and ICESCR (1966)
- Many, many more…
International criminal law
- Individuals: obligations under international law
- War crimes, crimes against humanity, and crime of genocide, crime of aggression
- International precedents
