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Part I: Theories and Histories of International Law - Coggle Diagram
Part I:
Theories and Histories of International Law
International Law and International Relations
decentralisation
adjudication ((efficient) function of the judiciary)
hierarchy of judicial decisions
The ICJ does not occupy the same role as the US Supreme Court or the Court of Appeals
If states agree on resolving a dispute through a tribunal than that tribunal is unconnected to the ICJ
predictability of decisions by evoking precedent
decisions made by the ICJ are only binding for the parties involved in the conflict in this specific case. They do not form a precedent
This could lead to unpredictability
compulsory jurisdiction
international courts draw legitimacy to adjudicate from the will of the states involved in a dispute
without consent of a state, no legal battle can be forced
most states give consent very vague and reluctantly
international adjudication is unable to impose effective restraints upon the struggle for power in the international scene
enforcement (execution of judgments)
decisions by international courts rely on national governments to enforce their rulings
a small nation must look for the protection of its rights to the assistance of powerful friends which can marshal superior power
legislation (writing and drafting legal rules)
in domestic law:
legislators and courts produce legal rules for an established national community = highly centralised process
in international law:
legislation depends on mutual consent and necessity = they are largely contracts without any third party effects
there is a profound problem with codification in IL -> even if states consent to a rule there are issues of interpretation and "binding force"
AND it is always uncertain if a treaty between two states was signed by a person who had authority to do so
Kellogg-Briand Act (1928): "to renounce war as an instrument of national policy in their relations with one another"
IL allows for this ambiguity to arise and is therefore, realists would say, bad law
International Law in a Political Science Degree
What is law?
Law is the recognized, mostly codified, legitimate standard of behaviour that binds community together
Coercive: transgressions and violations are punished
Open: individuals can establish their own relationships within the law and shape it
Universal: applies to everyone equally
Why have law?
Large societies need formal rules that can be enforces because:
Order
Predictability of outcome
You can make long-term decisions
You can trade with people who are far away
There is someone to enforce the rules when you have a dispute
IR is the study of relations between actors across national borders
International Law
public international law: "a set of rules that states create to regulate and order their own behaviour and that are intended to bind states in their relationships with each other"
WTO
human rights
private international law (conflict of laws): "areas of conflict between national laws and international actors (people, companies/corporations, or legal entities"
focuses on businesses that have contractual obligations in multiple countries and jurisdictions
focuses on legal disagreements between private parties
clash of domestic laws and domestic laws with international law
dispute settlement outside of domestic legal frameworks
theories of international law in IR
functionalist
IL matters!
constructivist
International law is a reflection of social purpose!
realist
IL is inconsequential and only epiphenomenal of power
marxist
critical
Why do states sign international agreements?
functionalism: states want to realize joint future gains
constructivism: states commit because they become persuaded of the appropriateness of such action and to fashion themselves as a legitimate state
realism: cynical reasons, low expectation of compliance
International Law and Foreign policy
Key aim of public policy is to reduce "domestic and foreign relations to system of laws"
President Obama's National Security Strategy (2010)
international law IS NOT domestic law
domestic law
formal rules have some type of enforcement
sovereign makes law and uses force to make people comply
international law
no sovereign -> no legitimate enforcer
force plays a very limited part in enforcement (sanctions instead)
How is international law implemented?
dualism (Heinrich Triepel)
emphasises difference national and international law
IL valid when adopted and translated into national law
prevalent in common law jurisdictions (UK, USA, India)
national law has priority of IL that has not been incorporated
extreme cases: dualists hold IL does not exist as law
monism (Hans Kelsen)
international legal framework and the internal legal system form a unity
IL doesn't need to be translated -> has domestic effect
prevalent in civil jaw jurisdiction (Netherlands, Germany, France, Italy)
extreme cases: monists hold national law is null and void if it contradicts with IL
national law from and IL perspective
Avena Case (Mexico v. US), ICJ 2004
Germany v. Poland (1926), PCIJ
LaGrand Case (Germany v. USA) 2001
Exchange of Greeks and Turkish Populations, PCIJ 1925
Vienna Conventions on the Law of Treaties (1969)
according to VCLT national law if not justification of non-compliance
compliance
formal international mechanisms to enforce IL are notoriously weak
outside of the EU there is hardly any supranational enforcement
second order compliance: actions in accordance with the ruling of an authoritative body charged with the interpretation of adjudications of a primary rule
first order compliance: states complying with the substance provisions of a rule
Is IL effective? Observed by looking at:
actual observance (compliance by states) and validity (binding force of the law)
Are the broader effects of treaties on society/economy beneficial
Birth and Development of International Law
Histories of IL
historical developments
the foundations of modern IL grew out of a Western culture and a system of political organisation
European sovereign states required an acceptable method to conduct inter-state relations according to a commonly accept standard
ancient civilisations
Egypt (c. 1300 BC)
1258 BC: Egyptian - Hittie peace treaty (treaty of Kadesh)
no more costly war campaigns in Syria
military aid to the ruling dynasty in case of internal rebellions
promise of brotherhood between the two empires
extradition of political refugees back to their home country
military aid in case of external invasions
Greece (c. 600 BC)
600 BC the city states gave some philosophical impulses to the international law
mainly in the form of treaties that linked the city states together in a network of commercial and political associations
the notion of diplomatic envoys was developed
warfare was regulated through legal rules
rights were granted to citizens of the states in each other's territories
300 BC the Stoics develop theory of natural law
law of nature = law is an objective (natural) fact that is applicable everywhere
Mesopotamia (c. 2500 BC)
2500-2100 BC: several treaties between the rulers of Lagash and Umma
city states situated in Mesopotamia
India (c. 3000 BC)
beginning of the last phase of Hinduism cyclical notion of time: kaliyuga
different rights and duties were codified to bring the individual and states into accordance with the universal logic of dharma
Mahabharat: about the struggle of power during the Kurukshetra War
China (c. 1200 AD)
conduct during warfare according to Confucian principles
sense of cosmological supremacy hindered China to treat other legal orders as "equal"
sophisticated system of tribunaries during the Atlantic Ocean trade
no real interest and need in exchange: Macartney Mission
Oriental vision of IL: Islam (c. 600-1100 AD)
during the Oriental globalization a great deal of trade and diplomacy was conducted according to the principles laid out in the sharia
these codified rules brought a relative stability amongst the Muslim land-empires (dar-ul-islam)
more humane rules towards warfare (no civilians, animals, and trees were to be harmed during conflict)
Christians, jews, and Hindus were treated as "people of the book", a shariatic legal category that allowed them some legal recourse (although not on par with Muslims)
Romans (c. 100 BC)
jus gentium (law of nations): provided simplified rules to govern relations between foreigners (and foreigners and citizens)
jus gentium gradually overrode the narrow jus civile until the latter ceased to exist
despite the name: jus gentium remained a national law of the roman empire as it did not accept other nations on a basis of equality. It was also mainly civil law and not public law
limitations of early visions
most of these international legall orders were profoundly limited as they remained geographically and culturally restricted
they consisted of broad idealistic principles like the sanctity of treaties, conduct in warfare and trade
there was no clear conception of a universal community with a common vision of ordering the world
there was no conception of an international community of states co-existing within a defined framework
foundational thinkers (Eurocentric IL)
Alberico Gentili (1552-1608)
saw non-Christian regimes as equal actors in legal order of nations
stressed the notion of sovereignty of states (Jean Bodin)
separated jus gentium from theological influence
"silete theologi in munere alieno!" - theologians, keep your silence about matters that are outsied of your expertise!
Hugo Grotius (1583-1645)
De Jure Belli: lays out principles of just war in the framework of natural law
recovery of property
punishment
self defence
writes extensively about...
norms beyond positive law
human capacity for moral progress through the law
rule of law
contemporarily: would be somewhere between Hobbesian anarchy and Kantian cosmopolitanism
Francisco de Vitoria (1483-1546)
concerned with jus gentium (strong proponent of natural law) and just war theory
friendly towards the indigenous population of the Americas (relatively)
founder of the Salamanca School
legitimises the Spanish conquest of the Americas in "De Indis" (1539)
birth of modern IL
development of modern IL
before international law could develop, social/cultural changes were essential
emergence of company states and modern sea empires
industrial revolutions (great divergence)
Rise of European imperial expeditions
birth of modern IL
Modern IL emerges in European centers of learning (Salamanca, Oxford, Leiden)
comes up when these states are undertaking first steps towards colonisation
Modern IL scholars legitimised European intervention in the rest of the world, but also limited them and tried to humanize war
can be credited for moving away from theology and towards rationality as the basis for legitimate governance (key for enlightenment)
Imperialism and Decolonisation
Colonialism not just economic and political domination, but ALSO cultural
Standard of Civilization
other civilizations inferior
legal systems / "rule of law" seen as benchmarks of civilization
"not yet" ready to govern themselves
Europeans need to tutor other races/nations until they can govern themselves
civilizing mission used as a tool to legitimize colonisation
adopted by European lawyers (19th century)
François Guizot
inclusion / exclusion
civilisational standards can never be objective
they are themselves part of a specific cultural background
Gerrit Gong
Aftermath of WWI
loss of European moral superiority
creation of the League of Nations
mandate system
how to deal with the states that were formerly part of those empires
natives should be placed under international tutelage until they are able to govern themselves
the framework of this was to be provided by IL
Article XXII Convent of the League of Nations
1 more item...
spoils of war should not go to the victors
dissolution of several empires. (German, Ottoman)
Sacred Trust of Civilizations
Europe doubles down on moral superiority and civilizational supremacy
European nations are well placed to protect the interest of "backward" people and promote development until they are able to govern themselves
Legitimacy is taken from the "sacred trust of civilization"
Vitoria excluded Indians from jus gentium
they have a limited facility of reason an thus a means of comprehending the universally binding norms (like the jus gentium)
they have social and cultural practices that are at odds with universalism
modern international law (c. 19th)
much of the non-European world was widely considered to be uncivilized
therefore the laws of nations need not apply to them (apparently for their own good)
continued with this exclusion (Ward, Wheaton, Westlake, Wolff, Lorimer, Hall)
after WWII
growing opinion in the international community by postcolonial states that the "standard of civilization" could no longer be upheld as a principle in international law
"Modern international law knows of no distinction, for the purposes of recognition, between civilized and uncivilized states or between states within and outside the international community of civilized states