International Law

A Critical Introduction

Wade Mansell, Karen Openshaw

• Publisher: Hart Publishing
• Year: 2019
• Print ISBN: 9781509926725
• eBook ISBN: 9781509926718
• Edition: 2
• Topic: Law
• Subtopic: International Law
• Index: Law

This new edition provides a critical introduction to the concepts, principles and rules of international law through a consideration of contemporary international events. It examines both the possibilities and limitations of the legal method in resolving international disputes, and notes the actual effects of international law upon international disagreements. Such an approach remains sceptical rather than cynical, and is intended to provide the means by which the role of international law may be evaluated. This entails discussion of the legal quality of international law; the relationship between international law and international relations; the Eurocentricity' of international law; and the connection between political power and the ability to use or abuse (or ignore) international law. The new edition explores the impact of the United States' latest direction in foreign policy (arguably an intensification of pre-existing neo-conservative trends); considers in greater depth the issue of economic self-determination in relation to ex-colonial nations; expands the discussion of jurisdiction to cover immunity from jurisdiction; and covers recent developments at the International Criminal Court. Underlying the book is the assertion that international law is political in content (in the sense of being concerned with the exercise of power) but that it draws much of its effectiveness from its self-portrayal as being apolitical, or at least politically neutral.

1

The Distinctive Nature of International Law

I.What is International Law?

There is no absolute consensus as to what is meant by the term ‘international law’, and it is more illuminating to describe the role that international law plays and the tasks it performs (or is intended to perform) than to rely on a dictionary definition. However, one useful attempted definition is provided by Professor Ivan Shearer, in Starke’s International Law:

International law may be defined as that body of law which is composed for its greater part of the principles and rules of conduct which states feel themselves bound to observe, and therefore, do commonly observe in their relations with each other, and which includes also:

1.the rules of law relating to the functioning of international institutions or organisations, their relations with each other, and their relations with states and individuals; and

2.certain rules of law relating to individuals and non-states so far as the rights or duties of such individuals and non-state entities are the concern of the international community.¹

To fully understand such a description or definition, however, depends on some prior knowledge of the subject. In this respect, it is helpful to consider some of the topics with which international law is concerned. These include the questions of how states come into existence; how states may acquire territory; the law relating to the sea and the seabed; laws relating to the international use of force and warfare; the law relating to treaties; the settlement of international disputes; and laws governing human rights, international crimes and the treatment of aliens. Moreover, useful though definitions such as the one above are, they do fail to take account of the dynamic quality of international law, which has led, and is leading, to changes both in the subjects of international law and its content. Although states are still central to the international legal regime, other international organisations, such as the United Nations (UN), the International Labour Organization (ILO) and the World Bank, have increasingly been brought within its remit. Individuals, too, have acquired subject status in some respects, as have private entities, such as corporations.

Since there was a time when only states were considered fit and proper subjects of international law, the sole function of which was to regulate relations between them, it followed that international law had no effect upon states’ domestic arrangements. Furthermore, as each state was said to be sovereign, this implied that each nation was free to conduct itself entirely as it wished within the confines of its own borders (that is, the rulers of states were unconstrained by international law as to how they exercised their authority internally). However, even if such a statement were ever true in practice, it certainly requires modification now. In particular, the rapid development of human rights law from the second half of the twentieth century onwards has increasingly obliged states to conform to international norms in matters of domestic governance.

It should also be observed (but will be considered in more detail in chapter nine) that international law is often claimed not to amount to ‘real’ law, on the ground that there is no supranational authority able to issue sanctions in the event that a state fails to comply with a legal rule or breaches an obligation. Such an objection may be quickly dealt with by observing that sanctions are not a necessary part of a legal regime. Nevertheless, this is a criticism which, while it seems to us misplaced, continues to affect perceptions of international law by some writers and some states.

For certain authors, such as the late Antonio Cassese, international law is still insufficiently evolved, having so far failed to usher in an era of world governance, or perhaps even world government, in which the role played by international law more closely resembles that performed by domestic legislation.² Others, however, believe that such an outcome is to be resisted, and point to the ways in which international law already constrains what states are able to do within their own territories, and warn of the dangers of transferring powers from the elected governments of democratic states to a central and largely unaccountable body. This perspective, too, will be considered more fully in the concluding chapter.

II.How International Law Differs from Domestic Law

It is indisputable that there are distinct differences between international law and domestic or municipal law. In the international realm, there is no supreme – or, indeed, any other sort of – legislature or law-making body capable of promulgating binding legal rules. Instead, the international legal regime is overwhelmingly, but not exclusively, reliant on the consent of those whom it purports to govern. International law can, by and large, be created only through agreement; it can rarely coerce those who refuse to comply. In some ways it is analogous to members of a club making the club rules. It is this that led Cassese to suggest that the international legal regime is best understood as a horizontal system of organisation rather than a vertical one.³ By this, he meant that, whereas in domestic legal systems, laws are passed down to the subjects from the law-making body, in international law it is the parties themselves who make the laws by which they will be bound. Cassese regarded this as unsatisfactory, but it might better be seen as the inevitable result of international law being concerned primarily with rules directed at sovereign states.

Similarly, there is no international court before which states in breach of international law may consistently be forced to appear. The International Court of Justice (ICJ) (considered in chapter seven) is empowered to decide disputes between states (and only states have such standing if the Court is to make an authoritative ruling in a contentious case), but it can do so only if the states in question have consented to this. And, although some states have accepted the compulsory jurisdiction of the Court, this will be effective only if all the states parties to the dispute have accepted that compulsory jurisdiction. At present, only a minority of states have done so. More frequently, the Court will have jurisdiction only where the states parties to a dispute consent to the Court adjudicating in respect of that particular dispute. The Court has no role in punishing states that have contravened their international law obligations, nor can it compel a state to comply with its judgment. Thus, here too, the emphasis remains upon consent.

The importance of such consent rests upon two crucial, but not natural, facts. The first is that each state is said to be sovereign in its own territory. This does not mean that the rulers of a state can govern with utter impunity: as mentioned above, it has been accepted (generally, if not in particular cases) that human rights law places constraints on what states are able to do within their own borders. Notwithstanding this, and although subject to some important qualifications, sovereignty is still regarded as allowing states to exercise full control in their domestic jurisdictions (discussed further in chapter two). This remains true even though a state may willingly accept limits upon its sovereignty, as have, for example, the states of the European Union (EU).

The second fact is that there is universal acceptance of the sovereign equality of states: that is, each state is equal in its sovereignty. Needless to say, and this does have implications for the arguments presented in this book, such sovereignty is formal and legal in its equality rather than actual. The relative power of states does not alter this aspect of equality, however: just as, under the rule of law, each individual has formal equality before the law, so in international law each state is equal. The respect accorded to sovereignty and sovereign equality explains why it is generally unrealistic to expect a greater level of coercion and sanction in international law than is currently the case.

III.The Changing Nature of International Law

Few areas of law have changed as radically as has international law over the last 150 years or so. According to Cassese, it is helpful to think of international law as having evolved over four major periods.⁴ His suggested division reinforces the argument that the development of international law in the modern era is to be found largely in the history of Europe. This is certainly true of his first two stages, and partly true of the third. While there is a history of international law that precedes Cassese’s, this is largely concerned with treaties concluded between ancient states, dealing with such matters as territory, trade and financial obligations, and is probably best viewed as forming the backdrop to the crucial transformation that was ushered in by the Peace of Westphalia, which brought an end to the Thirty Years’ War in 1648 and also instituted the modern system of sovereign states.

What emerged as international law in this first period, from 1648 to the end of the First World War in 1918, consisted almost exclusively of rules governing relations between states. The individuals that resided within those states figured scarcely at all. Of course, in so far as states have always been inanimate entities, the reality was that international law governed the relationships between state governments, which in turn were composed of individuals, albeit acting in an official capacity. This period is normally characterised as one in which international law was primarily descriptive, in that it described how states generally conducted their affairs with one another, but which was hardly normative, meaning that it did not seek to direct states as to how they should behave. In particular, little or no restraint was placed upon the threat or use of force by states powerful enough to do as they wished. Such international law as existed was informed by the mutual interests of those same states (well-exemplified by rules relating to the world of diplomacy and diplomats) and was also reflective of a world of colonies and the colonial powers which ruled over them.

Cassese’s second period runs from the end of the First World War to the end of the Second World War in 1945. The aftermath of the 1914–18 conflict saw the establishment of the League of Nations and the Permanent Court of International Justice (the forerunners of, respectively, the UN and the ICJ), and was the era during which perspectives on world organisation changed significantly. The founding of the League of Nations represented the first real acknowledgement of the need for an institution to assist in regulating relations between states. One of its central goals was to limit the right of states to wage war to a number of stated causes, and also to discourage states from resorting to war at all – by providing for cooling-off periods, by instituting a scheme of disarmament, and by promoting the peaceful settlement of disputes. It was in furtherance of this latter aim that the Permanent Court of International Justice was created in 1922.

The League obviously failed to preserve the peace; however, two aspects of its functioning remain historically important (three if one remembers the contribution to socio-economic progress made particularly by the ILO). The first concerns ‘minority treaties’, the significance of which lay less in any success they achieved in their own right than in the fact that they served as a precursor of human rights protection under international law. Peace treaties negotiated at the end of the First World War insisted that, in return for recognition, certain nation states with significant ethnic minorities entered into agreements to protect the rights of these minority populations. The responsibility for guaranteeing and supervising these minority treaties was allocated to the League, which developed a (rather ineffective) ‘minority petition procedure’, viewed as the process that initiated transnational claims-making. However, although the minority treaties dealt implicitly with human rights issues, they were concerned not with the rights of individuals but with those of groups or collectivities. The other notable development (explored in chapter three) originated with the League’s mandate system, which appeared, at least tacitly, to accept that subjected peoples should be ‘brought towards’ self-government, thereby sowing the seeds for the great wave of decolonisation that was to take place in the two decades following the Second World War.

The transformations that occurred in Cassese’s third period, spanning the end of the Second World War to the end of the Cold War in 1991, encompass, most prominently, the creation of the UN (in place of the League); the holding of the Nuremberg trials, which affirmed that individuals could be held responsible for their conduct under international law; the development of the concept of self-determination (along with the accompanying demise of West European empires); and the debut onto the international stage of a great number of new states, as many colonies gained their independence and were, for the first time, able to contribute towards the formation of international law. Also of great and continuing significance was the drafting and signing of the Universal Declaration of Human Rights in 1948, not least for the emphasis it placed on individual human rights. Most of these developments will be discussed in subsequent chapters, since they continue to occupy an important place in the history of international law.

Cassese’s final period, covering the end of the Cold War to 2005, when his book was published, is still unfolding, although the full significance of the changes brought about by the disintegration of the USSR is still not entirely clear. What is apparent, however, is the dramatic effect that this initially had on the balance of power. Owing to the frequent use of the veto in the Security Council between 1948 and 1990, the ability of the UN to preserve or create peace had been very limited. Many thought that the break-up of the USSR would enable the UN to become much more powerful and active, and certainly the 1990–91 Gulf War (aimed at restoring the sovereignty of Kuwait) offered some hope that this might be the case. In fact, the outcome has been distinctly mixed. Another major consequence of the dissolution of the USSR was the elevation of the US to the status of the world’s only super-power. In 2005, it did seem that the world could be described as ‘unipolar’, so superior was the US in comparison with all its rivals both militarily and in terms of productivity. The other seminal event in this period for the development of international law was of course the terrorist attacks against the US on 11 September 2001, although quite how international law has been affected is still a matter for debate.

Regrettably, Antonio Cassese died in 2011, before he had time to publish his thoughts on events after 2005, when the last edition of his book was issued. Nevertheless, it is perhaps appropriate to consider how significantly the international world of 2019 differs from that of 14 years ago, and how this might alter the Cassese assessment of the place and role of international law. From a Western perspective, the greatest challenge was posed by the financial crisis of 2007–08, the adverse consequences of which are by no means resolved. Whether this event was a cause of current upheavals or merely a catalyst is arguable, but what is certain is that its effects have reverberated throughout the economic, social, political and cultural worlds to an extent that could not have been foreseen in 2005.

It is now clear that the idea that the world is ‘unipolar’, with only one world superpower, requires at least some qualification. The rise of China, and its refusal to accept the world and its borders and divisions as defined by the US and its allies as immutable, is undeniable. Although the US’s military spending continues to greatly exceed t...

Table of contents

• Cover
• Dedication
• Title Page
• Table of Contents
• Table of Cases
• Table of Legislation
• Table of Conventions, Treaties, etc
• Introduction
• 1. The Distinctive Nature of International Law
• 2. The Dynamic Quality of International Law
• 3. Self-determination and Territory in International Law
• 4. The International Obligations of States: Treaties and State Responsibility
• 5. The United Nations, the UN Charter and International Law
• 6. Human Rights in International Law
• 7. The Peaceful Settlement of Disputes in International Law
• 8. Use of Force in International Law
• 9. The Misery and Grandeur of International Law
• Select Bibliography
• Index
• Copyright Page