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Week 2 – Introduction/History of the Discipline

Nature of the discipline

1) What is Public Intl Law?

• prior to 20th C law governing relations between states (states the only subjects of IL)

• 20th C expansion of subjects of IL
• inclusion of IOs, individuals and companies (new legal personalities)
• still clearly dominated by states (only entities with full intl legal personality)

• IL distinguished from Municipal/Domestic law

• Public IL distinguished from Private IL (conflict of laws /lex mercatoria

• ‘IL' almost always refers to PIL

• primarily comprised of:
• customary rules (state practices recognized by intl community as patterns of conduct establishing binding obligations)
• intl agreements (create rules binding upon signatories)
• growing body of codified law formalizing custom & agreements

• premised on equality of states

• Note American Law Institute definition (Akehurst, 1997: 1)

2) Can it be ‘law' at all?

No (Austin; positivists & realists)

• legal systems require sovereign law-making & law-enforcing body
• command theory of law – state law based on command, obedience & enforcement
• characterized by:
1) law-maker (legislature/sovereign)
2) law determination (binding courts and tribunals)
3) law enforcement (administration, police, army)
• these don't exist at the intl level

• failure to observe the rules sanctions by this body

• IL fails Austin's test – lacks such a body (is impotent/ineffectual; simply product of power politics)

• yields an hour-glass vision of intl relations – hierarchical/vertical

• Hobbesian vision of intl community

Yes (Akehurst, Brierly)

• Question confuses legality with effectiveness & enforcement

• legal system does not require sovereign law-making & law-enforcing body

• even the concept of law is contested

• absence of sovereign to enforce compliance with the rules does not condemn IL

• horizontal system based on consensus, consent and reciprocity

• states treat IL as law & act accordingly
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history of the discipline

Basic concepts traceable to Mesopotamia (2100 BC)
• Hebrew laws, Hindu & Chinese civilizations BC, Egypt, etc.

‘Dark Ages' saw the flourishing of Dar al-Islam
• hostile to non-Moslems
• developed humane rules of warfare
• premised on unity of Moslem peoples
• friendlier to ‘people of the book' (Jews & Christians)
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Western origins of IL – foundations traceable to Greek &Roman antiquity
• division of law between jus civile (governing relations between citizens) and jus gentium(governing relations betw citizens/foreigners)
• Jus naturale: ("natural law"), classical Greek and Roman conception of law. Cicero (106-43 B.C.): universal and immutable
• a higher law than the law created by political authorities
• discoverable by reason

Consolidation of Holy Roman Empire (unity of Christian Europe) Petrine mandate – universalist conception of law & humanity – unity of all law, divinely inspired

Crusades (origins of Western Theories of ‘Just War')
Genesis of law governing relations between Christians & infidels
Pinnacle of temporal & spiritual unity in papacy of Innocent IV
(1243-54)
Thomas Aquinas (1225-1274) natural law tradition revived

Struggle between emperor and pope
Gradual demise of papacy's role in temporal matters

Juridical codification of feudalism – pre-eminence of local lords
overlapping jurisdictions and allegiances

Dawn of Renaissance
‘Discovery' of Americas & Aboriginal Peoples
Vitoria (c. 1486?-1546); de las Casas (1474-1566); Suarez (1548-1617)

Reformation, Protestantism, religious wars (16th -17th C)
Jean Bodin (1520-1596): theory of sovereignty
30 Years War – Peace of Westphalia 1648
Hugo Grotius (1583-1645)
Thomas Hobbes (1588-1679) – Leviathan (1651)

18th C – rise of positivism
Bynkershoek (1673-1743)
Vatel (1714-1767)
Austin (1790-1859)

Grotius' De Jure Belli ac Pacis (1625) – On the Law of War and Peace
• brought together natural law, Roman law, and state practice
• condemned war as self-defeating
• accepted sovereign states as basic unit of IL – governments should be left discretion to do what is opportune
• but normative imperatives of law still determinable by reason

Periodization – various ways to divide the history of IL

Akehurst
I. Treaty of Westphalia (1648) to WWI (classical period)
unlimited right of state to use force
states sovereign entities of IL

II. WWI to WWII
League of Nations
Wilson's 14 points – right of peoples to self-determination
division of world into communist & non-communist
attempts to limit use of force

III. WWII to end of Cold War
• United Nations – new drive for intl community – prohibition on use of force
• Cold War – limiting the effectiveness of inl community
• Decolonization – principle of self-determination phase I
• rapid expansion of subjects of IL – many new states & new non-state subjects
• rise of discourse of human rights

IV. Post-Cold War
• demise of polarized globe
• globalization (shrinking world)
• new ethnic-nationalisms (fragmenting world) – principle of self-determination phase II (delayed effects of colonialism – demise of Soviet bloc)
• challenges from 2nd & 3rd World over Western dominance of IL
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Naturalism vs. Positivism

Naturalist School

Aquinas Spanish School Grotius, Gentili, Pufendorf

• natural law is the source of IL
• can be discovered by reason
• originally conceived as law derived from Divine intervention discoverable in workings of nature
Aquinas; Spanish School
• later conceived as discoverable by processes of human reason
Grotius, Gentili, Pufendorf
• all law derived from transcendental conception of justice (law is justice) – metaphysics
• unjust rules are not law
• IL is:
a) superior to law of individual states
b) normative: all states must be governed by its standards because it is ultimately derived from nature which is superior to humanity
• declined in influence in 18th through mid-20th C
• revived with/ inspiration for UN Declaration of Human Rights.

Positivist School

Beginning in 17th c writers began to challenge natural law

• Zouche (1590-1690) & Bynkershoek (1673-1743) argued that states only had to obey IL if they consented to it
• /Hegel (1770-1831) – states, like individuals, have independent wills
• law is what states make – states are the source of all law
• law created by state authorities – IL created by sovereign states acting together through treaties and customary practice
• positivist view IL arising from consent & consensus
• easier to define/identify the law – it's what states say it is – justice law
• but it negates any normative or obligatory underpinnings – law can be cruel and harsh
• facilitates a realist view allowing states to ignore/repudiate their intl obligations/duties
• reaches its most ardent articulation in Austin
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Theory of Sovereignty

Bodin – Six Livres de la Republique (1576)
• ‘the main point of sovereign majesty and absolute power consists of giving the law to subjects in general without their consent' (Bodin, 1992: 23).

Hobbes – Leviathan (1651): state of nature is ‘nasty, poore, brutish & short' (1991: 89)
• intl system of states is in a genuine state of nature, whose individual actors (states) are in a war of all against all:
‘in all times, Kings, and Persons of Soveraigne authority, because of their Independency, are in continuall jealousies, and in the state and posture of Gladiators; having their weapons pointing, and their eyes fixed upon one another; that is, their Forts, Garrisons, and Guns upon the Frontiers of their Kingdomes; and continuall Spyes upon their neighbours' (Hobbes, 1991: 90).
• absolute deference to Leviathan essential if chaos to be averted
• realist theory of IR – billiard ball approach – contiguous sovereigns – no possibility of overlap

Austin – The Province of Jurisprudence Determined (1832)
• for law to exist there must be a determinate superior, above all others and subordinate to none: the sovereign
• sovereignty becomes the cornerstone of legality
• IL impossible

French Revolution (1789)
• ushers in the notion of popular sovereignty, liberal democracy, and the right of peoples to self-determination, turning sovereignty theory (partially) on its head
• still raises the spectre of tyranny of the majority