Law: International Law
Preliminary enquiry…
● War is subjected to legal regulation
● How does that change the discourse, the language that we speak?
● What is specific about legal language?
→ In order to make an argument in law, we rely on authority. This makes law a different language
compared to other political disciplines. Outlawing war means talking about war in terms of legal
sources (ie treaties, precedence, etc.)
Rome Statute: the duty of every State to exercise its criminal jurisdiction over those responsible for
international crimes. The International Criminal Court can only intervene where a State is unable or
unwilling to genuinely carry out the investigation and prosecute the perpetrators.
1.1 What is Law?
Law provides a particular outlook upon the world and particular way/lens of narrative history and
conflict
● Thinking in terms of rights and legal sources
● It produces little truths
Grammar of international law
● subjects/personae: Who enjoys a legal status, who enjoys certain legal powers, who is subject
to legal regulation?
● Sources: Where can you ‘find’ international law? What validates an argument as a legal
argument?
Law establishes relationships
A right has a corresponding duty/obligation. What kinds of relationships does the legal regulation of
war create?
● State – State (UN Charter): “states cannot use force against each other”
● International community – State
● Individual – State (e.g. domestic courts, ICC)
● International community – Individual (Criminal Law)
Law provides a language to make sense of the world in specific ways (is it the best way to discuss
certain conflicts?)
● Speaking the language of law highlights certain elements, foregrounds certain relations and
downplays others
○ Law generally has problem to address structural issues, environmental issues because
laws thinks in terms of clear relations
○ Deep-rooted issues like inequality, systemic racism, or colonial legacies often fall
outside law’s immediate scope
○ Broader societal or global power imbalances may not fit neatly into legal frameworks
● Legalising ‘war’ is also discussing what counts as ‘war’, who can lawfully wage a war, who
should be protected against war and against whom
1
,1.2 Pre – 20th century traditions & international law and war
2 traditions:
a. Just war tradition (early modern)
b. War as ‘duel’
Note: the idea of ‘international law’ was very different; there was no doctrine of ‘sources’ → hence,
the boundaries between law, morality and theology were blurry
● The arguments moved from state practice, to morality, to expedience (explains why the Dutch
had the right to colonise Indonesia)
○ State practice: bserving what states did and treating it as a guide for behaviour
○ Morality: using moral arguments to justify actions, often invoking "universal values"
or religious tenets
○ Expedience: justifying actions based on what was practical or beneficial for the state
● Chairs of international law were a rarity
Core problem for early modern thinkers (article Anghi)
● Not only: ‘how is order between sovereigns possible’
● But also, and often more prominently: colonial questions
→ Early modern international law was as much about regulating relations between European
states as it was about justifying and legalising colonialism
1.3 Just war tradition
Related to international law through the question whether it is ‘lawful’ to wage wars in the Americas
(see work Francisco de Vitoria or Grotius)
Elements of ‘just war’ thinking Underlying idea
● Rightful/legitimate authority ● War as the vindication of justice (war is
● Animus (right intent) the answer to an unjust act)
● Res (thing that the conflict is about ○ Introduce vertical, unequal
parties (the law enforcer, the law
and need for foreseeable end) =
breaker)
proportionality & last-resort ● ‘War as substitute for courts’
● Just cause (altruistic cause) ● War as a form of enforcement of
● Personae (who is allowed to subjective rights (e.g., foreign
participate in war)/non-combatant investments) or punishment in the name
immunity of the common good
● No prohibition of annexation as long as it
serves justice
→ No room for law of neutrality
Problem of just war thinking: who determines what counts as a just cause? Absent a world authority,
how to judge the rightness of a cause?
2
,1.4 Gradual transformation
● From just war to war as a sovereign prerogative (shift started late 18th century/early 19th
century)
○ Sovereign prerogative: it is up to the sovereign to decide what counts as a reason to
wage war
● War as ‘duel’ between states (regulated conduct on how to fight, but reason for engaging in
fights is not)
● Annexation as accepted outcome of war
1.5 Positivist European tradition
● War as an affair between equal sovereigns
○ However, who counts as equal was decided by the European powers
● War between European sovereigns was regulated, colonial wars were relatively unregulated
1.6 Attempt to outlaw war
● Constitutes an attempt to break with older just war tradition as well as idea of war as a duel
● Does so in a legal system that is more formalised than before
● Raises new questions about inequalities (Anghie) and how strict rules can be applied to
changing circumstances
3
, Imperial Expansion and Colonial Warfare
The British Empire covered large areas; ‘the sun never sets on the British empire.’ Colonialism and
imperialism is not an exclusive European phenomenon (eg Japan early 1900s) but it is primarily
European.
1.1 Types of colonies
Extraction colonies: set up mainly to extract resources like gold, silver, spices, and later, crops like
sugar and cotton
→ the goal was to gather valuable materials to send back to the home country, often using forced
or cheap local labour
Settler colonies: Europeans came to settle permanently, bringing their families and establishing
communities similar to those in Europe
→ often displaced or marginalised the native populations to make room for European settlers
● The goal: resources, commodities and people
● Modes of expansion: trade, treaty, war, bureaucratisation
● Cooperation, coercion, co-optation
○ In 1900s; could not colonise without cooperation and co-optation
● Colonialism and capitalism as integrating global forces
1.2 Age of ‘high imperialism’, 1870s – 1939
● Rapid territorial expansion of European overseas empires – based on competition between
Europeans, and war in the colonies
● Biological theories of race underpin notions of difference between Europeans and ‘others’
● Liberal forms of imperialism: resource extraction remains the aim of colonialism, but it is
now justified in terms of bringing welfare and civilisation to ‘native’ peoples. French ‘mission
civilisatrice’, English ‘white man’s burden’, Dutch ‘ethical policy’
○ Paradox: Liberal politics compatible with colonial expansion in early 1900s
○ It is the task of Europe to bring other civilisations into modernity (eg exposing them
to european trade)
● Based on stadial theories of civilisation: that for biological, geographical and historical
reasons, some societies are more ‘advanced’ than others
1.3 Colonial War
● Territorial expansion
● Generates colonial forms of knowledge, institutions and collections: anthropology,
ethnography, libraries, museum collections, philology (studies of language and their origins),
religion and philosophy
● Applies new weapons technologies and techniques of warfare (eg expanding bullets, guerilla
warfare)
1
Preliminary enquiry…
● War is subjected to legal regulation
● How does that change the discourse, the language that we speak?
● What is specific about legal language?
→ In order to make an argument in law, we rely on authority. This makes law a different language
compared to other political disciplines. Outlawing war means talking about war in terms of legal
sources (ie treaties, precedence, etc.)
Rome Statute: the duty of every State to exercise its criminal jurisdiction over those responsible for
international crimes. The International Criminal Court can only intervene where a State is unable or
unwilling to genuinely carry out the investigation and prosecute the perpetrators.
1.1 What is Law?
Law provides a particular outlook upon the world and particular way/lens of narrative history and
conflict
● Thinking in terms of rights and legal sources
● It produces little truths
Grammar of international law
● subjects/personae: Who enjoys a legal status, who enjoys certain legal powers, who is subject
to legal regulation?
● Sources: Where can you ‘find’ international law? What validates an argument as a legal
argument?
Law establishes relationships
A right has a corresponding duty/obligation. What kinds of relationships does the legal regulation of
war create?
● State – State (UN Charter): “states cannot use force against each other”
● International community – State
● Individual – State (e.g. domestic courts, ICC)
● International community – Individual (Criminal Law)
Law provides a language to make sense of the world in specific ways (is it the best way to discuss
certain conflicts?)
● Speaking the language of law highlights certain elements, foregrounds certain relations and
downplays others
○ Law generally has problem to address structural issues, environmental issues because
laws thinks in terms of clear relations
○ Deep-rooted issues like inequality, systemic racism, or colonial legacies often fall
outside law’s immediate scope
○ Broader societal or global power imbalances may not fit neatly into legal frameworks
● Legalising ‘war’ is also discussing what counts as ‘war’, who can lawfully wage a war, who
should be protected against war and against whom
1
,1.2 Pre – 20th century traditions & international law and war
2 traditions:
a. Just war tradition (early modern)
b. War as ‘duel’
Note: the idea of ‘international law’ was very different; there was no doctrine of ‘sources’ → hence,
the boundaries between law, morality and theology were blurry
● The arguments moved from state practice, to morality, to expedience (explains why the Dutch
had the right to colonise Indonesia)
○ State practice: bserving what states did and treating it as a guide for behaviour
○ Morality: using moral arguments to justify actions, often invoking "universal values"
or religious tenets
○ Expedience: justifying actions based on what was practical or beneficial for the state
● Chairs of international law were a rarity
Core problem for early modern thinkers (article Anghi)
● Not only: ‘how is order between sovereigns possible’
● But also, and often more prominently: colonial questions
→ Early modern international law was as much about regulating relations between European
states as it was about justifying and legalising colonialism
1.3 Just war tradition
Related to international law through the question whether it is ‘lawful’ to wage wars in the Americas
(see work Francisco de Vitoria or Grotius)
Elements of ‘just war’ thinking Underlying idea
● Rightful/legitimate authority ● War as the vindication of justice (war is
● Animus (right intent) the answer to an unjust act)
● Res (thing that the conflict is about ○ Introduce vertical, unequal
parties (the law enforcer, the law
and need for foreseeable end) =
breaker)
proportionality & last-resort ● ‘War as substitute for courts’
● Just cause (altruistic cause) ● War as a form of enforcement of
● Personae (who is allowed to subjective rights (e.g., foreign
participate in war)/non-combatant investments) or punishment in the name
immunity of the common good
● No prohibition of annexation as long as it
serves justice
→ No room for law of neutrality
Problem of just war thinking: who determines what counts as a just cause? Absent a world authority,
how to judge the rightness of a cause?
2
,1.4 Gradual transformation
● From just war to war as a sovereign prerogative (shift started late 18th century/early 19th
century)
○ Sovereign prerogative: it is up to the sovereign to decide what counts as a reason to
wage war
● War as ‘duel’ between states (regulated conduct on how to fight, but reason for engaging in
fights is not)
● Annexation as accepted outcome of war
1.5 Positivist European tradition
● War as an affair between equal sovereigns
○ However, who counts as equal was decided by the European powers
● War between European sovereigns was regulated, colonial wars were relatively unregulated
1.6 Attempt to outlaw war
● Constitutes an attempt to break with older just war tradition as well as idea of war as a duel
● Does so in a legal system that is more formalised than before
● Raises new questions about inequalities (Anghie) and how strict rules can be applied to
changing circumstances
3
, Imperial Expansion and Colonial Warfare
The British Empire covered large areas; ‘the sun never sets on the British empire.’ Colonialism and
imperialism is not an exclusive European phenomenon (eg Japan early 1900s) but it is primarily
European.
1.1 Types of colonies
Extraction colonies: set up mainly to extract resources like gold, silver, spices, and later, crops like
sugar and cotton
→ the goal was to gather valuable materials to send back to the home country, often using forced
or cheap local labour
Settler colonies: Europeans came to settle permanently, bringing their families and establishing
communities similar to those in Europe
→ often displaced or marginalised the native populations to make room for European settlers
● The goal: resources, commodities and people
● Modes of expansion: trade, treaty, war, bureaucratisation
● Cooperation, coercion, co-optation
○ In 1900s; could not colonise without cooperation and co-optation
● Colonialism and capitalism as integrating global forces
1.2 Age of ‘high imperialism’, 1870s – 1939
● Rapid territorial expansion of European overseas empires – based on competition between
Europeans, and war in the colonies
● Biological theories of race underpin notions of difference between Europeans and ‘others’
● Liberal forms of imperialism: resource extraction remains the aim of colonialism, but it is
now justified in terms of bringing welfare and civilisation to ‘native’ peoples. French ‘mission
civilisatrice’, English ‘white man’s burden’, Dutch ‘ethical policy’
○ Paradox: Liberal politics compatible with colonial expansion in early 1900s
○ It is the task of Europe to bring other civilisations into modernity (eg exposing them
to european trade)
● Based on stadial theories of civilisation: that for biological, geographical and historical
reasons, some societies are more ‘advanced’ than others
1.3 Colonial War
● Territorial expansion
● Generates colonial forms of knowledge, institutions and collections: anthropology,
ethnography, libraries, museum collections, philology (studies of language and their origins),
religion and philosophy
● Applies new weapons technologies and techniques of warfare (eg expanding bullets, guerilla
warfare)
1
