International law Klabbers
Cato Sluyts
Page 38
1 The Setting of International Law
INTRODUCTION
International law is not just the law (if any) that deals with war and peace, or with
genocide and human rights; it also encompasses rules on trade, on protection of the
environment, on shipping, and on the protection of refugees.
the existence of international relations, of whatever kind, entails the existence of
international law.
international lawyers utilize some kind of theory of international law.
Page 39
exists to serve peaceful relations between states and should be regarded from that
per- spective as a technical discipline, providing the tools for statesmen
handmaiden of global capitalism, therewith complicit in oppression, and thus to be
regarded with suspicion and a critical eye
beacon of hope for the poor and oppressed – such a theory often undergirds the
activities of those who specialize in human rights
national self-interest, in which case international law is often viewed as an intruder,
aiming to undermine national decision-making processes
International law, in other words, cannot be portrayed as politically innocent.
THE SEVENTEENTH CENTURY
Page 40
1648, the Peace of Westphalia was concluded to mark the end of the Thirty Years
War.
Europe would be divided into a number of territorial units, and that each of these
units could decide for itself which religion to adopt: cuius regio eius religio.
No outside interference was permitted, the result being the creation of sovereign
states and, therewith, the birth of the modern state system.
What made the state dominant was that it had the authority to live up to its
commitments, precisely by controlling territory.
1625 of Hugo Grotius’ On the Law of War and Peace.
Grotius’ innovations is his notion that all peo- ples have a right to trade;
,consequently, trading routes, such as the seas, ought to be free as well.
international law was not invented by a single person, but grew out of the
interactions of states and the commentaries of learned observers.
Page 41
First, he forms a bridge between the classic naturalist way of looking at law and later
positivist theorizing.
Natural law thinking typically suggests that law is not made but found; it exists
somehow in nature –
Positivism, by contrast, wary of the subjectivity inherent in such an approach,
typically suggests that law is not given, but man-made
Grotius may well have been the first to present a synthetic, comprehensive vision of
international law.7 On the Law of War and Peace addresses, as its title suggests, not
only the law of armed conflict and aggression, but also such matters as the binding
force of trea- ties
specific set of binding international obligations, mostly inspired by the desire to lay
down the limits to proper statecraft.
COLONIALISM
These freedoms presupposed, how- ever, that certain rules were considered to be
in place in order to regulate relations with ‘the natives’
territories found overseas were to be regarded as not having been subject to
sovereignty – as territory belonging to no one (terra nullius).
Page 42
For purposes of establishing sovereignty, the local population was often ignored,
but, for commercial purposes, their consent was deemed vital, at least as an
argument to convince competing European powers
Grotius argued that the high seas were not terra nullius (as the Spanish and
Portuguese had implicitly presumed), but rather terra communis: common property,
and thus not susceptible to occupation and sovereignty.
British position: John Selden’s Mare Clausum, presented in 1635, was finally
grudgingly accepted.
International law also played a marked role when it came to slavery,
Page 43
Africa had been used as a vast reservoir of slave labour but without being colonized,
once slavery and the slave trade had been legally abolished,12 the European powers
saw fit to conquer the continent in what has become known as the scramble for
Africa.
Ironically perhaps, international law is also still trying to come to terms with the
,effects of decolonization.
newly independent states in various waves, mostly during the 1950s and 1960s,
gave rise not only to questions of succession,15 but also to questions of repre-
sentation and substantive justice
INTERNATIONAL LAW AND THE GLOBAL ECONOMY
international law is in one way or another con- nected to the economy
territorial rights or maritime demarcation owe much to economic concerns as well.
Page 44
faced with the possibility of economic profit, states have been less than fully
obedient to the classic non-intervention principle. As it could be economically
beneficial to have friendly governments in place in states boasting oil reserves
set up so as to facilitate the capitalist economy
The central topics in international law emerging at the end of the nineteenth century
included the law of treaties (still often deemed to be contract law writ large), the law
of responsibility (modelled on tort law), acquisition of territory (the equivalent of
property), and dispute settlement (which mimics civil procedure).
Only criminal law remained missing, a situation often ascribed to the circumstance
that international law does not emanate from a single sovereign authority.
Over recent decades, however, international law has also come to embrace a
version of criminal law, albeit with a twist;
based on sovereign states; states cannot be imprisoned, but there is no obstacle to
send- ing individuals acting in the name of the state to prison.
Page 45
THE INTERNATIONAL LEGAL SYSTEM
The absence of a single overarching authority is perhaps the most noteworthy
character- istic of international law.
John Austin put it, international law can be seen as ‘positive morality’: it is more or
less binding on states, but as a matter of morality, not as a matter of law.2
‘almost all nations observe almost all principles of international law and almost all of
their obligations almost all of the time’.
One is that since states themselves make international law, they have little incentive
to break it;
Related to this is the explanation of bureaucratic inertia.
The implementation and application of law is very much a matter of habit and
routine,
, An important role is also played in international law by considerations of reciprocity.
Page 46
Another suggested explanation focuses on the role of legitimacy. A rule that is gen-
erally perceived as useful and that has been created in the proper manner may be
seen as legitimate and thereby exercise a ‘compliance pull’.
states are few in number and are attached to their territories;
have to interact with each other, and when doing so, it helps to have a good
reputation
This final point suggests that international law is not completely devoid of sanctions.
international law does have some mechanisms to deal with violations, even if not all
of these can prop- erly be called ‘sanctions’, and here, too, reciprocity plays a
prominent role.
A practically relevant method of expressing dismay with another state’s actions is
the so-called retorsion.
‘countermeasures’. These are characterized by their own illegality, but this illegality
is rendered lawful if they are done in response to an earlier wrongful act com-
mitted by the other side.
Page 47
principle of inadimplenti non est adimplendum to be ‘so just, so equitable, so
universally recognized, that it must be applied in international relations also’.
Other measures include self-defence and collective security action
1990s, international law has even been in a position, on occasion, to imprison
individuals who have committed war crimes and related acts;
INTERNATIONAL LEGAL THEORIES
when judging a state’s behaviour, it may matter whether the state was deemed to be
bound by a rule of international law, or whether it merely violated a rule of comity or
some social practice.
But even if it is accepted that international law is binding, the question arises where
that law comes from.
naturalism had by and large been replaced by a more scientific-looking positivist
approach,
law does not hover about in nature but is, instead, man-made.
Page 48
Kennedy and Martti Koskenniemi, has made it clear that international law is in actual
fact constantly in search of a compromise between the naturalist and the positivist
tradi- tions.
Cato Sluyts
Page 38
1 The Setting of International Law
INTRODUCTION
International law is not just the law (if any) that deals with war and peace, or with
genocide and human rights; it also encompasses rules on trade, on protection of the
environment, on shipping, and on the protection of refugees.
the existence of international relations, of whatever kind, entails the existence of
international law.
international lawyers utilize some kind of theory of international law.
Page 39
exists to serve peaceful relations between states and should be regarded from that
per- spective as a technical discipline, providing the tools for statesmen
handmaiden of global capitalism, therewith complicit in oppression, and thus to be
regarded with suspicion and a critical eye
beacon of hope for the poor and oppressed – such a theory often undergirds the
activities of those who specialize in human rights
national self-interest, in which case international law is often viewed as an intruder,
aiming to undermine national decision-making processes
International law, in other words, cannot be portrayed as politically innocent.
THE SEVENTEENTH CENTURY
Page 40
1648, the Peace of Westphalia was concluded to mark the end of the Thirty Years
War.
Europe would be divided into a number of territorial units, and that each of these
units could decide for itself which religion to adopt: cuius regio eius religio.
No outside interference was permitted, the result being the creation of sovereign
states and, therewith, the birth of the modern state system.
What made the state dominant was that it had the authority to live up to its
commitments, precisely by controlling territory.
1625 of Hugo Grotius’ On the Law of War and Peace.
Grotius’ innovations is his notion that all peo- ples have a right to trade;
,consequently, trading routes, such as the seas, ought to be free as well.
international law was not invented by a single person, but grew out of the
interactions of states and the commentaries of learned observers.
Page 41
First, he forms a bridge between the classic naturalist way of looking at law and later
positivist theorizing.
Natural law thinking typically suggests that law is not made but found; it exists
somehow in nature –
Positivism, by contrast, wary of the subjectivity inherent in such an approach,
typically suggests that law is not given, but man-made
Grotius may well have been the first to present a synthetic, comprehensive vision of
international law.7 On the Law of War and Peace addresses, as its title suggests, not
only the law of armed conflict and aggression, but also such matters as the binding
force of trea- ties
specific set of binding international obligations, mostly inspired by the desire to lay
down the limits to proper statecraft.
COLONIALISM
These freedoms presupposed, how- ever, that certain rules were considered to be
in place in order to regulate relations with ‘the natives’
territories found overseas were to be regarded as not having been subject to
sovereignty – as territory belonging to no one (terra nullius).
Page 42
For purposes of establishing sovereignty, the local population was often ignored,
but, for commercial purposes, their consent was deemed vital, at least as an
argument to convince competing European powers
Grotius argued that the high seas were not terra nullius (as the Spanish and
Portuguese had implicitly presumed), but rather terra communis: common property,
and thus not susceptible to occupation and sovereignty.
British position: John Selden’s Mare Clausum, presented in 1635, was finally
grudgingly accepted.
International law also played a marked role when it came to slavery,
Page 43
Africa had been used as a vast reservoir of slave labour but without being colonized,
once slavery and the slave trade had been legally abolished,12 the European powers
saw fit to conquer the continent in what has become known as the scramble for
Africa.
Ironically perhaps, international law is also still trying to come to terms with the
,effects of decolonization.
newly independent states in various waves, mostly during the 1950s and 1960s,
gave rise not only to questions of succession,15 but also to questions of repre-
sentation and substantive justice
INTERNATIONAL LAW AND THE GLOBAL ECONOMY
international law is in one way or another con- nected to the economy
territorial rights or maritime demarcation owe much to economic concerns as well.
Page 44
faced with the possibility of economic profit, states have been less than fully
obedient to the classic non-intervention principle. As it could be economically
beneficial to have friendly governments in place in states boasting oil reserves
set up so as to facilitate the capitalist economy
The central topics in international law emerging at the end of the nineteenth century
included the law of treaties (still often deemed to be contract law writ large), the law
of responsibility (modelled on tort law), acquisition of territory (the equivalent of
property), and dispute settlement (which mimics civil procedure).
Only criminal law remained missing, a situation often ascribed to the circumstance
that international law does not emanate from a single sovereign authority.
Over recent decades, however, international law has also come to embrace a
version of criminal law, albeit with a twist;
based on sovereign states; states cannot be imprisoned, but there is no obstacle to
send- ing individuals acting in the name of the state to prison.
Page 45
THE INTERNATIONAL LEGAL SYSTEM
The absence of a single overarching authority is perhaps the most noteworthy
character- istic of international law.
John Austin put it, international law can be seen as ‘positive morality’: it is more or
less binding on states, but as a matter of morality, not as a matter of law.2
‘almost all nations observe almost all principles of international law and almost all of
their obligations almost all of the time’.
One is that since states themselves make international law, they have little incentive
to break it;
Related to this is the explanation of bureaucratic inertia.
The implementation and application of law is very much a matter of habit and
routine,
, An important role is also played in international law by considerations of reciprocity.
Page 46
Another suggested explanation focuses on the role of legitimacy. A rule that is gen-
erally perceived as useful and that has been created in the proper manner may be
seen as legitimate and thereby exercise a ‘compliance pull’.
states are few in number and are attached to their territories;
have to interact with each other, and when doing so, it helps to have a good
reputation
This final point suggests that international law is not completely devoid of sanctions.
international law does have some mechanisms to deal with violations, even if not all
of these can prop- erly be called ‘sanctions’, and here, too, reciprocity plays a
prominent role.
A practically relevant method of expressing dismay with another state’s actions is
the so-called retorsion.
‘countermeasures’. These are characterized by their own illegality, but this illegality
is rendered lawful if they are done in response to an earlier wrongful act com-
mitted by the other side.
Page 47
principle of inadimplenti non est adimplendum to be ‘so just, so equitable, so
universally recognized, that it must be applied in international relations also’.
Other measures include self-defence and collective security action
1990s, international law has even been in a position, on occasion, to imprison
individuals who have committed war crimes and related acts;
INTERNATIONAL LEGAL THEORIES
when judging a state’s behaviour, it may matter whether the state was deemed to be
bound by a rule of international law, or whether it merely violated a rule of comity or
some social practice.
But even if it is accepted that international law is binding, the question arises where
that law comes from.
naturalism had by and large been replaced by a more scientific-looking positivist
approach,
law does not hover about in nature but is, instead, man-made.
Page 48
Kennedy and Martti Koskenniemi, has made it clear that international law is in actual
fact constantly in search of a compromise between the naturalist and the positivist
tradi- tions.
