1. Introduction and background - The nature and development of international law

2. Summary of this lecture What is law? What is law? What is international law? What is international law? Law and politics Law and politics Domestic law v international law Domestic law v international law The role of force The role of force The international system The international system Historical development (continued in next presentation) Historical development (continued in next presentation) 2

3. What is law? “ In the long march of mankind from the cave to the computer a central role has always been played by the idea of law – the idea that order is necessary and chaos inimical to a just and stable existence ” Malcolm Shaw, International Shaw 6 th ed, 1 Malcolm Shaw, International Shaw 6 th ed, 1 3

4. What is law? cont’d… “Law” – a series of rules regulating behaviour, and reflecting, to some extent, the ideas and preoccupations of the society within which is functions (see Shaw, 1) “Law” – a series of rules regulating behaviour, and reflecting, to some extent, the ideas and preoccupations of the society within which is functions (see Shaw, 1) Law is both permissive (that means it allows people to do things) and coercive (that means it punishes those who infringe) Law is both permissive (that means it allows people to do things) and coercive (that means it punishes those who infringe) Question: Within a state who are the subjects of the law? Question: Within a state who are the subjects of the law? Answer: individual citizens Answer: individual citizens 4

5. What is international law ? It’s a set of rules, principles regulating behaviour BUT… It’s a set of rules, principles regulating behaviour BUT… Question: who are the subjects of international law? Question: who are the subjects of international law? Answer: Nation-states – not individuals Answer: Nation-states – not individuals 5

6. Types of international law There are two types of international law: There are two types of international law: Private international law Private international law This is also known as “conflict of laws” This is also known as “conflict of laws” Public international law Public international law This is sometimes called just “international law” This is sometimes called just “international law” 6

7. Two types of international law Two main branches of international law: Two main branches of international law: Private international law (aka “conflict of laws”) Private international law (aka “conflict of laws”) Private international law deals with cases within particular legal systems which involve foreign elements Private international law deals with cases within particular legal systems which involve foreign elements Revolves around issues of which country’s law applies or which country should hear the case Revolves around issues of which country’s law applies or which country should hear the case Domestic law Domestic law Public international law Public international law Also called “international law” – we’re talking about this type of law in this course Also called “international law” – we’re talking about this type of law in this course Not concerned with questions of law within a state Not concerned with questions of law within a state Covers relations between states** Covers relations between states** Regulates international institutions Regulates international institutions 7

8. A question to think about Is “international law” really law? Is “international law” really law? Why do we consider international law to be “law” at all? Why do we consider international law to be “law” at all? Think about this question during the rest of the class/course Think about this question during the rest of the class/course 8

9. Law and politics Law and politics are closely related Law and politics are closely related For example – how is law made? By a legislative body (eg a Parliament). For example – how is law made? By a legislative body (eg a Parliament). How is that Parliament created? Usually by elections (sometimes by appointment) How is that Parliament created? Usually by elections (sometimes by appointment) Politics plays a role - how do people get elected to Parliament? Politics plays a role - how do people get elected to Parliament? Discuss elections Discuss elections How are elections won and lost? How are elections won and lost? Discuss parties and policies Discuss parties and policies So…there’s a close and inseparable relationship between law and politics So…there’s a close and inseparable relationship between law and politics 9

10. Domestic v international law Domestic (also known as “municipal”) law Domestic (also known as “municipal”) law What do you remember from your Constitutional Law courses? What do you remember from your Constitutional Law courses? There is a recognised body to legislate (create laws) There is a recognised body to legislate (create laws) There is a hierarchy of courts: There is a hierarchy of courts: first instance, appeal courts first instance, appeal courts There is an accepted system of settling disputes and enforcing the laws – punishing the transgressors There is an accepted system of settling disputes and enforcing the laws – punishing the transgressors There is a “Separation of powers” There is a “Separation of powers” judiciary, executive, legislature judiciary, executive, legislature eg. The UK: “Parliament legislates, courts adjudicate” eg. The UK: “Parliament legislates, courts adjudicate” 10

11. Domestic v international law Domestic legal system Legislature (a body that makes laws) Executive (a body that executes or carries out the laws including govt depts) Judiciary (a hierarchy of courts that has compulsory jurisdiction to hear cases and settle disputes) International legal system No Legislature The UN General Assembly passes resolutions but they’re not binding – Art 17(1) UN Charter No Executive The UN Security Council is supposed to fill that role BUT the veto power of the P5 (UK, USA, Russia, China and France) means it fails to fulfil it No Judiciary The ICJ in The Hague can hear cases BUT only when both sides agree – and there’s no way to enforce its judgments 11

12. Domestic v international law cont’d… Domestic System is hierarchical Authority is vertical - police force has authority over individuals Authority exists above and beyond every individual Individuals only choose whether to obey the law or not – they don’t create it (there are institutions who have this job) “the law of subordination”* International System is not hierarchical Authority is horizontal ie. 190 or so states with ‘equal’ legal authority (no international police force) There is no authority that is recognised above and beyond all states – the law only exists as between states States choose whether to obey the law BUT they also are the ones that create it “the law of co-ordination”* 12

13. So…Is international law really “law”? If there’s no institution to create laws, to clarify laws or to enforce laws, is it a legal system at all? If there’s no institution to create laws, to clarify laws or to enforce laws, is it a legal system at all? Is it even fair to compare the domestic with the international? Is it even fair to compare the domestic with the international? John Austin (English legal philosopher): Law is “commands backed by the threat of sanctions” so his answer would be “No, international law is not “law”, it’s merely “positive morality” John Austin (English legal philosopher): Law is “commands backed by the threat of sanctions” so his answer would be “No, international law is not “law”, it’s merely “positive morality” Talking point: how important is coercion (force) in shaping a legal system? Would people obey the laws/commands even without sanctions? Talking point: how important is coercion (force) in shaping a legal system? Would people obey the laws/commands even without sanctions? 13

14. The use of force There is no unified system of sanctions in international law There is no unified system of sanctions in international law But there are situations where the use of force is justified and legal: But there are situations where the use of force is justified and legal: 1. Security Council: can impose measures if there’s a “threat to the peace, breach of the peace or an act of aggression” (Chapter VII of the UN Charter) 2. Individual states: can use force in self-defence (Article 51 of the UN Charter) 14

15. Use of force cont’d… 1. Security Council Coercive action within the framework of the UN is rare. Why? Coercive action within the framework of the UN is rare. Why? Because it requires the agreement of the Security Council – and the permanent five (“P5”) members have the veto Because it requires the agreement of the Security Council – and the permanent five (“P5”) members have the veto When an issue affects the vital interests of one of the P5, they’ll use their veto When an issue affects the vital interests of one of the P5, they’ll use their veto Examples: Examples: force against Korea in 1950 only possible because USSR was absent; force against Korea in 1950 only possible because USSR was absent; economic sanctions against apartheid in South Africa economic sanctions against apartheid in South Africa Recently - Syria (China and Russia using their veto power) Recently - Syria (China and Russia using their veto power) 15

16. Use of force cont’d… 2. Individual states States can and do resort to force in “self-defence” States can and do resort to force in “self-defence” There are unclear rules around this There are unclear rules around this A lot of academic writing in this area A lot of academic writing in this area Rules about reasonableness and proportionality Rules about reasonableness and proportionality BUT there’s no supreme body to rule on the legality of the state’s actions BUT there’s no supreme body to rule on the legality of the state’s actions This right has been used and abused by states This right has been used and abused by states Examples: Examples: Israel - historically against its neighbours Israel - historically against its neighbours Israel against Iraq (pre-emptive strike against “Osirak” nuclear reactor in 1981) Israel against Iraq (pre-emptive strike against “Osirak” nuclear reactor in 1981) US and NATO allies against Afghanistan in 2001? US and NATO allies against Afghanistan in 2001? Current trend : to limit the resort to force as much as possible Current trend : to limit the resort to force as much as possible 16

17. The international system So, if our definition of law depends on the existence of sanctions (ie. punishment for breaking the rules) international law doesn’t ‘fit the bill’ – it’s not a legal system So, if our definition of law depends on the existence of sanctions (ie. punishment for breaking the rules) international law doesn’t ‘fit the bill’ – it’s not a legal system What is the answer? What is the answer? What is the international order based upon? What is the international order based upon? Do states feel obliged to adhere to laws? If so, why and to what extent? Do states feel obliged to adhere to laws? If so, why and to what extent? 17

18. The international system cont’d… What is international all about? What is international all about? It’s mainly based on international agreements (ie binding between the states that sign them) and customary rules (state practices recognised by the community at large as laying down patterns of conduct) It’s mainly based on international agreements (ie binding between the states that sign them) and customary rules (state practices recognised by the community at large as laying down patterns of conduct) States do usually adhere to the rules States do usually adhere to the rules States do not generally ignore international law States do not generally ignore international law Occasional lawlessness occurs (eg armed attacks) but it does not undermine the whole system Occasional lawlessness occurs (eg armed attacks) but it does not undermine the whole system Analogy with domestic law: laws are sometimes broken but the overall system remains in place Analogy with domestic law: laws are sometimes broken but the overall system remains in place 18

19. Why do states obey international law? QUESTION: If international law has no set of sanctions (ie. No international police force, no judicial system), why do states generally obey the law? ANSWER: Predictability Predictability Stability Stability A shared set of rules A shared set of rules Common language Common language Reciprocity* Reciprocity* The individuals involved accept and respect the law** (an “international legal habit”) The individuals involved accept and respect the law** (an “international legal habit”) Consent – states consent to or accept the system of international laws Consent – states consent to or accept the system of international laws 19

20. Back to politics…and law In domestic jurisdictions, there’s a close connection between law and politics In domestic jurisdictions, there’s a close connection between law and politics This is even closer in the international sphere This is even closer in the international sphere International law aims for harmony & the regulation of disputes International law aims for harmony & the regulation of disputes It tries to create a framework – a sort of ‘shock-absorber’ to clarify and moderate claims It tries to create a framework – a sort of ‘shock-absorber’ to clarify and moderate claims It sets out a series of values and principles which cannot be perfectly attained It sets out a series of values and principles which cannot be perfectly attained International law is not a source of instant solutions to problems of conflict and confrontation International law is not a source of instant solutions to problems of conflict and confrontation 20

21. Historical development International law (a.k.a. the law of nations) has long history - especially within the Western culture and political history International law (a.k.a. the law of nations) has long history - especially within the Western culture and political history European notions of ‘sovereignty’ and the nation- state are at the heart of the current system European notions of ‘sovereignty’ and the nation- state are at the heart of the current system But the origins of the current Euro-centric system have much older roots… But the origins of the current Euro-centric system have much older roots… 21

22. Historical development cont’d… Ancient origins Ancient origins Mesopotamia – a treaty from 2100BC between Lagash and Umma (city-states) regarding a shared border Mesopotamia – a treaty from 2100BC between Lagash and Umma (city-states) regarding a shared border Even older? Ebla (modern Syria) has evidence of a treaty between Ebla and another city – this civilisations is at least 4500 years old Even older? Ebla (modern Syria) has evidence of a treaty between Ebla and another city – this civilisations is at least 4500 years old Ancient Israel Ancient Israel Prophet Isaiah: sworn agreements, even with the enemy, must be upheld Prophet Isaiah: sworn agreements, even with the enemy, must be upheld India, China India, China Greece – 6 th century BC onwards – Greece – 6 th century BC onwards – limited mainly to their own city-states and colonies (foreigners were “barbarians”) limited mainly to their own city-states and colonies (foreigners were “barbarians”) Some rules about the sanctity of diplomatic envoys Some rules about the sanctity of diplomatic envoys A sense of a universal community? No, probably not A sense of a universal community? No, probably not Rome… to be continued… Rome… to be continued… 22