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Disputes need not have been “resolved” to be studied. Case studies chosen could involve disputes over the Legitimacy of states, Territorial rule, the Use of Force, Law of the Sea, Environmental Law, Humanitarian Law, International economic law, and many more. The coursebook comprises a list of countless international law case studies.

The final paper should be 8 to 10 pages, in addition to references. Grades will be calculated upon the quality and clarity of the content. The paper assignment will be actively constructed throughout the course with several opportunities to receive feedback from the instructor.

Students need to cite sources using MLA citation style, and provide works cited list at the end of the written assignment.

INTERNATIONAL LAW FOR INTERNATIONAL RELATIONS

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1

INTERNATIONAL LAW
FOR INTERNATIONAL

RELATIONS

Baş ak Çalı

3
Great Clarendon Street, Oxford ox2 6dp

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All rights reserved. No part of this publication may be reproduced,
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without the prior permission in writing of Oxford University Press,
or as expressly permitted by law, or under terms agreed with the appropriate

reprographics rights organization. Enquiries concerning reproduction
outside the scope of the above should be sent to the Rights Department,

Oxford University Press, at the address above

You must not circulate this book in any other binding or cover
and you must impose the same condition on any acquirer

British Library Cataloguing in Publication Data
Data available

Library of Congress Cataloging in Publication Data

International law for international relations / Başak Çali.
p. cm.
ISBN 978-0-19-955842-1
1. International law. 2. International relations. I. Çali, Başak, 1974–
KZ3410.I5794 2010
341–dc22

2009042108

Typeset by MPS Limited, A Macmillan Company
Printed in Great Britain
on acid-free paper by

CPI Antony Rowe

ISBN 978–0–19–955842–1

1 3 5 7 9 10 8 6 4 2

Contents—Summary

Preface xvi

Guided tour of Learning Features xviii

Guided tour of the Online Resource Centre xx

Contributors xxii

Abbreviations xxv

List of boxes xxviii

List of tables xxxi

List of case studies xxxii

PART I STUDYING INTERNATIONAL LAW

1 International law and international relations: foundations
for interdisciplinary study 3

Başak Çalı

2 Perspectives on international law in international relations 25

Fiona B. Adamson and Chandra Lekha Sriram

3 Basic principles of international law: a historical perspective 46

Antony Anghie

4 Perspectives on international relations in international law 71

Başak Çalı

PART II IDENTIFYING INTERNATIONAL LAW

5 International treaties 99

Emmanuel Voyiakis

6 Customary international law 122

Jason Beckett

7 Non- governmental organizations and international law 141

Meghna Abraham

8 International courts and tribunals 165

Juan M. Amaya-Castro

vi Contents

PART III TOPIC S IN INTERNATIONAL LAW

9 States and international law: the problems of self- determination,
secession, and recognition 191

Christopher J. Borgen

10 Use of force in international law 213

Nigel Rodley and Başak Çalı

11 International humanitarian law 234

Elizabeth Griffi n and Başak Çalı

12 International criminal law 258

Paola Gaeta

13 International human rights law 281

Başak Çalı

14 International law for environmental protection 306

David M. Ong

15 World trade and international law 330

Thomas Sebastian

16 Global social justice and international law 351

Saladin Meckled-Garcia

CONCLUSION

17 International law in international relations: what are
the prospects for the future? 379

Başak Çalı

Table of cases 395

Table of major multilateral international treaties and documents 397

Glossary 399

References 409

Index 421

Detailed contents

Preface xvi

Guided tour of Learning Features xviii

Guided tour of the Online Resource Centre xx

Contributors xxii

Abbreviations xxv

List of boxes xxviii

List of tables xxxi

List of case studies xxxii

PART I STUDYING INTERNATIONAL LAW

1 International law and international relations: foundations
for interdisciplinary study 3

Introduction 4

What is international law? 5

The relationship between international law and international relations 7

Are international relations and international law two separate disciplines? 7

How does the knowledge produced in international relations
and international law overlap, confl ict, and co-depend? 12

At what point and in what way does international law enter
into international relations research? 16

Why study international law? 20

Conclusion 23

2 Perspectives on international law in international relations 25

Introduction 26

Realism 27

Theory 27

Actors 28

Processes 29

Liberalism 30

Theory 30

Actors 32

Processes 33

viii Detailed contents

Institutionalism 34

Theory 34

Actors 34

Processes 36

Constructivism 37

Theory 37

Actors 38

Processes 39

Marxism, Feminism, and Critical Theory 41

Theory 41

Actors 42

Processes 42

Conclusion 43

3 Basic principles of international law: a historical perspective 46

Introduction 47

The subject matter of a history of international law 47

The birth of modern international law: the sixteenth century 50

The beginnings of Empire 50

The Peace of Westphalia and Westphalian sovereignty: 1648 52

The Congress of Vienna: international law from 1815–1914 54

The League of Nations: international law from 1919–1939 57

The United Nations: 1945 to the present 60

The end of the Cold War: international law from 1989 64

Conclusion 68

4 Perspectives on international relations in international law 71

Introduction 71

What is international law? 73

Positivism about international law 74

Natural law descriptions of international law 77

International law as a process 79

Critical legal studies and international law 80

The purpose of international law 82

The relevance of theories of international law in international relations 86

The empirical relevance of international law 87

Detailed contents ix

The relevance of international law in the contemporary world 88

Conclusion 89

PART II IDENTIFYING INTERNATIONAL LAW

5 International treaties 99

Introduction 100

Why do states make treaties? 101

The relationship between treaties, customary international law,
and the concept of ius cogens 103

Is there a hierarchy of sources in international law? 103

The concept of ius cogens in the Vienna Convention
on the Law of the Treaties 104

The making of treaties 105

Negotiation 106

Representation and ‘full powers’ 107

Adoption, authentication, and expression of consent to be bound 107

Entry into force 108

Universality or integrity? Reservations to treaties 108

What are reservations? 110

Application, interpretation, and the position of third states 112

Third states 113

Temporal and territorial application of treaties 113

The interpretation of treaties 114

Amending a treaty 114

Ending international treaties 115

Invalidity 116

Termination and suspension 117

Settling disputes 118

Conclusion 119

6 Customary international law 122

Introduction 122

What rules govern the formation of CIL? The conduct- centred model 124

The CIL approach to state behaviour: states as agents with legal motivations 125

What are the material sources of CIL? 129

x Detailed contents

State actions 129

United Nations General Assembly Resolutions 130

Treaties and other texts 131

Identifying particular rules of CIL: the tipping point 132

CIL in the real world 134

The compatibility of CIL with ius cogens norms 135

(Why) do states comply with CIL? 136

Factors contributing to compliance with CIL: state identity
and systemic benefi ts 136

Conclusion 138

7 Non- governmental organizations and international law 141

Introduction: non- governmental organizations
in a terrain occupied by states 142

Motivations for NGO involvement in international law 143

Overcoming domestic politics or barriers 144

Economies of scale 145

Better forum for negotiations 145

Opportunities to gradually increase the scope or level of the commitment 145

Enhancing the legitimacy of NGOs 145

Mechanisms for international enforcement 146

NGOs and sources of international law 146

NGO participation in intergovernmental organizations and processes 149

The role of NGOs in the development of international law 151

Initiating new standards 151

NGO participation in negotiations, drafting, and entry into force of treaties 154

How can we explain NGOs’ ability to infl uence the process? 156

The role of NGOs in the enforcement of international law 157

Publicize non-compliance 158

Clarifi cation of what is non-compliance 158

Lobby for action in response to non-compliance 159

Evaluating NGO involvement in the development of international law 159

Redressing a democratic defi cit? 159

How do we gauge how effective NGOs have been? 161

Conclusion 161

Detailed contents xi

8 International courts and tribunals 165

Introduction: international courts in contemporary life 166

What are international courts? 166
Types of international courts 167

How international courts are formed 171

Who can bring a case to an international court? 171

What is the effect of international judicial decisions? 176

What are the functions of international courts? 178

Dispute settlement 178

Enforcing international law 179

Identifying and developing international law 180

When are international courts successful? 182

The future of international courts and tribunals 183

Conclusion 184

PART III TOPIC S IN INTERNATIONAL LAW

9 States and international law: the problems of self- determination,
secession, and recognition 191

Introduction 192

International law and statehood 193

Statehood and sovereignty 193

What is the recognition of statehood? 195

International law of self-determination 197

Self- determination: from political rhetoric to legal right 197

Applying self- determination to international relations: who or what has
a right of self-determination? 199

Applying self- determination to international relations:
the territorial integrity of states 200

The problem of secession in international law and international relations 200

The majority view: no right of secession 201

The reply: the ‘extreme cases’ argument 203

Secession and state practice 204

Recognition and secession 205

Conclusion 207

xii Detailed contents

10 Use of force in international law 213

Introduction 213

The general framework on the use of force in international law 215

Self-defence 217

When can states resort to the right of self-defence? 218

What circumstances justify self-defence? 219

The conduct question 220

The use of force, self- defence, and non- state actors 221

Unilateral humanitarian intervention? 222

The collective security system under the United Nations Charter 224

The power of international law on the use of force: rhetoric or controlling? 228

Conclusion 231

11 International humanitarian law 234

Introduction 234

What is international humanitarian law and how is it made? 236

IHL treaties 238

Customary IHL 239

The nature of international humanitarian law 240

IHL and actor-centricism 240

International and internal armed confl icts 241

IHL and the International Committee of the Red Cross (ICRC) 242

Purposes of international humanitarian law and its basic principles 242

Compliance with international humanitarian law 249

Motivations of states and IHL: why do states agree to rules
that govern armed confl ict? 249

Indicators of compliance 251

Non- compliance and accountability 252

Non- state actors and compliance with international humanitarian law 253

Conclusion 254

12 International criminal law 258

Introduction 258

The birth and evolution of international criminal law 260

The fi rst phase: the Nuremberg and Tokyo Tribunals 260

The second phase: the adoption of treaties for the repression
of international crimes by states 262

Detailed contents xiii

The turning point: the establishment of international criminal courts 263

The core crimes and the rationale behind their international criminalization 265

War crimes 265

Crimes against humanity and genocide 267

The reasons for the different path of the international criminalization
of war crimes with respect to crimes against humanity and genocide 270

The enforcement of international criminal law at
the international level 271

The ad hoc criminal tribunals and the ICC: an overview 271

The United Nations Security Council and the International
Criminal Court 272

The pros and cons of international criminal proceedings 274

The relationship between international criminal courts
and national courts: primacy versus complementarity 275

Conclusion 278

13 International human rights law 281

Introduction 282

What makes up international human rights law and where do we fi nd it? 282

The origins of international human rights law 284

International human rights law institutions 287

The relevance of international human rights law in international relations 290

IHRL and intervention in the internal affairs of other states 291

IHRL and state sovereignty 293

Compliance with international human rights law 298

New international actors and international human rights law 300

Conclusion 302

14 International law for environmental protection 306

Introduction 307

International treaties for environmental protection 308

International environmental principles and the sustainable
development paradigm 310

The integration principle 311

The preventive and precautionary principles 312

The polluter pays principle 313

The principle of environmental impact assessment (EIA) 314

xiv Detailed contents

The principles of access to environmental information,
public participation in the environmental decision- making process,
and access to environmental justice 315

Status of environmental principles in international law 317

Environmental treaty non- compliance mechanisms 319

Non- state actors and environmental protection 321

Self- regulation by TNCs in the fi eld of environment:
the Equator Principles 323

A mixed regime for international environmental law? 324

Conclusion 326

15 World trade and international law 330

Introduction 331

The rationale for trade treaties 331

Types of trade treaties 334

The WTO: negotiating forum and monitoring institution 336

Facilitating bargains 337

Monitoring compliance 337

Basic disciplines: limiting protectionism 340

Limits on the forms of protection 340

Non-discrimination 341

Advanced disciplines: constraints on regulatory freedom 343

Loopholes and exceptions 345

Criticisms of the WTO: a biased forum? 347

Conclusion 348

16 Global social justice and international law 351

Introduction 352

What kinds of problems does social justice address? 352

What is justice and where does it apply? 355

Does international law have the right profi le
for social justice to apply to it? 358

Can international law be used to advance the cause of social justice? 368

What standards of justice are applicable to international affairs? 372

Conclusion 373

Detailed contents xv

CONCLUSION

17 International law in international relations: what are
the prospects for the future? 379

Introduction 380

The political (in)stability of international law 381

The international law respecting state: an idealist category? 383

Institution- building for international law 385

The creation of international organizations, courts, tribunals,
and expert bodies 385

Domestic courts and international law 386

The breadth of international law 388

Complexity and differentiation in international law regimes 389

Non- state actors and international law 390

Non- state actors as potential law-makers? 390

Non- state actors as subjects of regulation 391

Non- state actors as threats to international law 392

Conclusion 393

Table of cases 395

Table of major multilateral international treaties and documents 397

Glossary 399

References 409

Index 421

Preface

International law has become a key element of any politics and international rela-
tions degree. The existing range of international law textbooks for the student of
law, while excellent, is inadequate for the student of international relations who
has no prior legal background and comes to the fi eld with more knowledge and
understanding of how states behave rather than what rules regulate state behaviour.
The breadth of international law and institutions in contemporary global politics
means that it is no longer possible to make sense of international politics without
understanding international law and the complex regulatory frameworks that exist
in international relations. This textbook gives the student that understanding for
use in the real world or in further academic study.

This textbook provides the international relations student with what he or she
needs to understand about international law in three ways. It maps out the different
ways to approach the study of international law, explains the main sources of inter-
national law- making, and identifi es the key topics of international law. Throughout,
the book balances the technical, legal knowledge necessary to understand the
nuances of international law with the broader political processes that shape both
the content and effectiveness of international law. The intricacies of international
law are presented accessibly to animate both the learning of international law and
its evaluation. With this approach, International Law for International Relations
aims to introduce the student to the international law perspective of international
relations and how this perspective differs from other approaches in international
relations.

This book has been lucky to have benefi ted from submissions from an excep-
tional group of academics and practitioners in the fi elds of international law and
international relations. For their hard work and effort I thank them. Every author
is an expert in his or her fi eld and has either experience teaching international law
to politics students or using international law in real- world political situations. The
contributors have made the subject matter accessible and have refl ected carefully
on the bearing international law has on the international issues it addresses. This
means that the book draws a very rich and diverse picture of international law and
enables the student to see the different patterns of interaction between law and
politics in each topic.

Finally, thanks have to be given to Sabina Appelt. Everything the contribu-
tors wrote was reviewed by Sabina and what started out as a student perspective
soon turned into full- blown editing. It is a credit to Sabina that every chapter has

Preface xvii

substantively improved throughout the editorial process. Her speed, hard work,
and sense of humour kept the process on track. I would also like to thank Elizabeth
Griffin and the editors at OUP for their help and support and, of course, Sam for
casting a layman’s eye over the text and making the coffee.

Başak Çalı

xviii Running heading

Guided Tour of Learning Features

This book is enriched with a range of learning tools to help you navigate the text and
reinforce your knowledge of International Law. This guided tour shows you how to
get the most out of your textbook package.

Chapter Overviews

Brief overviews at the beginning of every
chapter set the scene for upcoming themes
and issues to be discussed, and indicate the
scope of coverage within each chapter.

Boxes, Tables and Case Studies

Throughout the book boxes, tables,
and case studies provide you with extra
information on particular topics that
complement your understanding of the
main chapter text.

Glossary Terms

Key terms appear in bold in the text and
are defi ned in a glossary at the end of the
book to aid you in exam revision.

Running heading xix

Questions

A set of carefully devised questions has
been provided to help you assess your
understanding of core themes, and may
also be used as the basis of seminar
discussion or coursework.

Further Reading

Reading lists have been provided as a
guide to fi nding out more about the issues
raised within each chapter and to help
you locate the key academic literature
in the fi eld.

Important Websites

At the end most chapters you will
fi nd an annotated summary of useful
websites, which will be instrumental
in further research.

Guided Tour of Learning Features xix

xx Running heading

Guided Tour of the
Online Resource Centre

www.oxfordtextbooks.co.uk/orc/cali/

The Online Resource Centre that accompanies this book provides students and
instructors with ready-to-use teaching and learning materials. These resources are
free of charge and designed to maximize the learning experience.

FOR STUDENTS:

Flashcard Glossary

A series of interactive fl ashcards
containing key terms and concepts have
been provided to test your understanding
of the terminology of International Law.

Running heading xxi

Problem-solving Questions

For each International Law topic a problem-
question is posed, together with a list of key
considerations and a guide to sources of
information to help you go about solving it.

Revision Tips

A checklist of the key points from each
chapter is provided to help you to focus
your revision.

Web Links

A series of annotated web links have been
provided to point you in the direction of
different theoretical debates, important
treaties, working papers, articles and other
relevant sources of information.

FOR INSTRUCTORS:

PowerPoint Presentations

These complement each chapter of the book
and are a useful resource for preparing
lectures and handouts. They allow lecturers
to guide students through the key concepts
and can be fully customized to meet the
needs of the course.

Guided Tour of the Online Resource Centre xxi

Meghna Abraham is the Head of the Economic, Social and Cultural Rights Team at
the International Secretariat of Amnesty International. She has previously worked
with a number of NGOs and academic centres in India, Switzerland, and the
United Kingdom.

Fiona B. Adamson is a Senior Lecturer (Associate Professor) of International
Relations in the Department of Politics and International Studies at SOAS, University
of London. Her work has appeared in International Security, European Journal
of International Relations, International Studies Review, Cambridge Review of
International Affairs, and a number of edited volumes.

Juan M. Amaya-Castro is Assistant Professor and Academic Head of the Depart-
ment of International Law and Human Rights at the United Nations Mandated
University for Peace in Costa Rica.

Antony Anghie is the Samuel D. Thurman Professor of International Law at the
S.J. Quinney School of Law, University of Utah. He is the author of Imperialism,
Sovereignty and the Making of International Law (2005).

Jason Beckett is a Lecturer in the Law School of the University of Leicester, where
he teaches and researches in the fi elds of legal method, legal theory, political
theory, critical theory, and Public International Law. His work has appeared in
the European Journal of International Law, German Law Journal, and a number
of edited volumes.

Christopher J. Borgen is Associate Dean for International Studies and Professor of
Law at St. John’s University School of Law in New York City. He is the principle
author of Thawing a Frozen Confl ict: Legal Aspects of the Separatist Crisis in
Moldova, a report issued by the Special Committee on European Affairs of the
New York City Bar, and he is the co- founder of Opinio Juris, a website devoted to
debate and discussion on issues of international law and politics.

Başak Çalı is Lecturer of International Law and Human Rights at the Department
of Political Science, University College London. Her work has appeared in the
Human Rights Quarterly, European Journal of International Law, and a number
of edited volumes.

Contributors

Contributors xxiii

Paola Gaeta is Professor in International Law at Florence University, Professor of
International Criminal Law at the Law Faculty of the University of Geneva and the
Director of the LLM Programme of the Geneva Academy of International Humani-
tarian Law and Human Rights. Her most recent book is The UN Convention on
Genocide: a Commentary (ed.) (2009).

Elizabeth Griffi n is an academic and practitioner with a specialization in interna-
tional humanitarian and human rights law applicable in confl ict and post- confl ict
situations. She is Adjunct Professor, George Washington University and Director
of the Human Rights Center, UN Mandated University for Peace. Elizabeth serves
as a consultant to Amnesty International and the UN Offi ce for the High Commis-
sioner for Human Rights. She has extensive fi eld experience working for NGOs
and the UN in Kosovo, Afghanistan, Bosnia Herzegovina, and Central America.

Saladin Meckled- Garcia is Lecturer in Human Rights and Political Theory and
Director of the Human Rights Programme at the Department of Political Science,
University College London. He has published a number of works in the fi eld of political
philosophy, including works on justice theory, political authority, and human rights.

David M. Ong is Reader in International and Environmental Law at the Univer-
sity of Essex, Law School. His work has appeared in the American Journal of
International Law, the European Journal of International Law, the Irish Yearbook
of International Law, and the Yearbook of International Environmental Law.

Sir Nigel Rodley KBE is Professor of Law and Chair of the Human Rights Centre,
University of Essex. He is a Member (since 2001) and Vice- Chair (2003–2004,
2009–2010) of the UN Human Rights Committee and was UN Commission on
Human Rights Special Rapporteur on Torture (1993–2001). Several of his articles
and book chapters have dealt with aspects of the use of force in international law.
He is the author of The Treatment of Prisoners in International Law (1999).

Thomas Sebastian is Counsel at the Advisory Centre on WTO Law in Geneva. In that
capacity he represents developing and least developed countries in proceedings before
the WTO dispute settlement system and provides advice on issues of WTO law.

Chandra Lekha Sriram is Professor of Human Rights and Director of the Centre
on Human Rights in Confl ict at the University of East London School of Law.
Her most recent book is Peace as Governance: Power- sharing, Armed Groups, and
Contemporary Peace Negotiations (2008).

xxiv Contributors

Emmanuel Voyiakis is a Lecturer at Brunel Law School, UK. His research focuses
on the theory and sources of international law and the theory of private law.
His work has appeared in International and Comparative Law Quarterly, and in
a number of edited volumes.

AI Amnesty International

ASEAN Association of South East Asian Nations

BYBIL British Year Book of International Law

CACJ Central American Court of Justice

CAN Computer Network Attack

CEDAW Committee on the Elimination of Discrimination against Women

CERCLA Comprehensive Environmental Response, Compensation and Liability Act

CIL Customary International Law

CLS Critical Legal Studies

CoE Council of Europe

CSCE Conference for Security and Cooperation in Europe

ECE Economic Commission for Europe

ECJ European Court of Justice

ECOSOC Economic and Social Council

ECOWAS Economic Community of West African States

EEZ Exclusive Economic Zones

EFTA European Free Trade Association

EHS Environmental, Health and Safety

EIA Environmental Impact Assessment

EU European Union

GATS General Agreement on Trade in Services

GATT General Agreement on Tariffs and Trade

HGA Host Government Agreement

ICC International Criminal Court

ICCPR International Covenant on Civil and Political Rights

ICESCR International Covenant on Economic, Social and Cultural Rights

ICJ International Court of Justice

ICRC International Committee of the Red Cross

ICTR International Criminal Tribunal for Rwanda

ICTY International Criminal Tribunal for the Former Yugoslavia

IFC International Finance Corporation

IGO Inter- Governmental Organizations

IHL International Humanitarian Law

Abbreviations

xxvi Abbreviations

IHRL International Human Rights Law

IL International Law

IMF International Monetary Fund

IMO International Maritime Organization

IMT International Military Tribunal at Nuremberg

IO International Organization

IR International Relations

ITLOS International Tribunal for the Law of the Sea

MAI Multilateral Agreement on Investment

MEA Multilateral Environmental Agreement

MFN Most- Favoured Nation

NATO North Atlantic Treaty Organization

NGO Non- Governmental Organization

NPT Nuclear Non- Proliferation Treaty

OAS Organization of American States

ONUB United Nations Operation in Burundi

OSCE Organization for Security and Cooperation in Europe

PCIL Permanent Court of International Justice

PIL Public International Law

PKK Parti Karkerani Kurdistan (Kurdistan Workers’ Party)

PLO Palestinian Liberation Organization

PMC Private Military Company

SACU South African Customs Union

SC Security Council

SCM Agreement Agreement on Subsidies and Countervailing Measures

SEA Strategic Environmental Assessment

SPS Agreement Sanitary and Phytosanitary Agreement

TBT Agreement Technical Barriers to Trade Agreement

TIA Transnational Investment Agreement

TMR Transnistrian Moldovan Republic

TNC Transnational Corporation

TRIPS Trade- Related Aspects of Intellectual Property Rights

TRNC Turkish Republic of Northern Cyprus

TWAIL Third World Approaches to International Law

UDHR Universal Declaration of Human Rights

UKMIL United Kingdom Materials in International Law

UN United Nations

Abbreviations xxvii

UNCHE United Nations Convention on the Human Environment

UNCLOS United Nations Convention on the Law of the Sea

UNDP United Nations Development Programme

UNEF United Nations Emergency Force

UNGA United Nations General Assembly

UNMIK United Nations Mission in Kosovo

USSR Union of Soviet Socialist Republics

VCLT Vienna Convention on the Law of Treaties

WCED World Commission on Environment and Development

WTO World Trade Organization

WWI World War One

WWII World War Two

1.1 The cynic and international law 4

1.2 Areas of contemporary international law 6

2.1 The democratic peace thesis 31

2.2 Game theory and international cooperation 35

2.3 Relative versus absolute gains 35

3.1 Critical approaches to international legal history 49

3.2 Religion and law 51

3.3 Pacta sunt servanda 52

3.4 ‘Westphalian sovereignty’ 53

3.5 Vattel and the development of ‘sovereignty’ 54

3.6 International law and the subordination of non- European
peoples: the Berlin Conference 56

3.7 Collective security 58

3.8 UN institutional structure 60

5.1 What is a ‘treaty’? 100

5.2 Where do we fi nd the law of treaties? 102

5.3 Pinochet and the interpretive function of ius cogens 105

5.4 The stages of treaty-making 106

5.5 What is a ‘reservation’? 109

5.6 Convention on the Law of the Sea: high integrity
versus low ratifi cation 110

5.7 Point of discussion: assessing the VCLT regime on reservations 112

6.1 What makes CIL popular despite theoretical controversy? 124

6.2 CIL and consent: the question of persistent objector 134

6.3 Discussion point: morality and CIL 135

7.1 Defi nitions of NGOs 143

7.2 The earliest NGO attempts to shape international law 143

7.3 Soft law instruments 147

7.4 NGOs as communicators of complex legal issues 154

8.1 International courts and tribunals 168

8.2 Arbitration 170

List of boxes

List of boxes xxix

8.3 Jurisdiction and admissibility 172

8.4 Reforming the European Court of Human Rights 174

8.5 What rules do international courts apply? 175

8.6 Judicial review of Security Council actions 179

8.7 The European Court of Justice and the uniformity of EU law 181

9.1 Recognition of governments 195

9.2 Secession versus succession 196

9.3 Secession versus dissolution 201

9.4 Unsuccessful attempted secessions since 1945 (a partial list) 205

10.1 How many times has the ban on the use of force been violated? 216

10.2 Self- defence, terrorist attacks, armed attacks 222

10.3 Kosovo: unilateral humanitarian intervention
and the mitigating circumstances argument 224

10.4 Responsibility to protect 228

11.1 War and armed confl ict: what is in a name? 236

11.2 What does IHL regulate? 237

11.3 Major IHL treaties 238

11.4 Primary rules applicable in international
and non- international armed confl icts 241

11.5 IHL basic principles: military necessity 243

11.6 IHL basic principles: protection of humanity and the prohibition
of superfl uous injury and unnecessary suffering 244

11.7 Common Article 3 to the four Geneva Conventions 245

11.8 IHL basic principles: the principle of distinction
and proportionality 246

11.9 Collateral damage 247

11.10 Indicators for compliance with IHL 251

12.1 International crimes versus transnational crimes 260

12.2 The Nuremberg and Tokyo military tribunals and trials 261

12.3 Defi nition and classes of war crimes 266

12.4 Defi nition of crimes against humanity 268

12.5 Defi nition of genocide 269

12.6 International political support for the ICC 272

12.7 Universal jurisdiction 277

13.1 What is IHRL? 282

xxx List of boxes

13.2 Core international human rights treaties and monitoring bodies 283

13.3 Regional human rights treaties and implementation mechanisms 285

13.4 Human rights institutions created by the United Nations 286

13.5 Procedural requirements for derogation and non- derogable
human rights provisions under the ICCPR 294

13.6 Human rights cases 295

13.7 IHRL constraints on domestic economic, social,
and cultural policy 296

14.1 Integration principle 311

14.2 Preventive and precautionary principle 312

14.3 International treaties and negotiations on climate change 312

14.4 Polluter pays principle 313

14.5 Environmental impact assessment 314

14.6 Environmental information 315

14.7 Soft law or custom? 317

14.8 The Aarhus Convention non- compliance procedure: a model
for future environmental protection? 321

15.1 Examples of the use of policy instruments to protect
domestic economies 333

15.2 A puzzle for economists 334

15.3 The structure of WTO Agreements 338

16.1 Theories of social justice 353

16.2 Cosmopolitanism and alternatives 354

16.3 Types of jurisdiction 360

17.1 Imagining new forms of cooperation 386

1.1 Approach, methodology, discipline 9

1.2 Interdisciplinary engagement 10

1.3 Disciplinary differences 10

1.4 Disciplinary convergences 11

1.5 The knowledge production chart 16

1.6 Description and evaluation of single events 17

1.7 Common concerns 19

3.1 Timeline 68

4.1 Positivist descriptions of international law 77

4.2 Description of international law 81

4.3 Framework theories and outcome- oriented theories 82

5.1 Types of international treaties 102

10.1 The use of force framework in the United Nations Charter 215

10.2 Proponents and opponents of humanitarian intervention 223

10.3 The UN Charter and the proliferation
of the collective security system 227

14.1 Types of international environmental treaties 308

14.2 Non- state actors and environmental protection 321

16.1 International cooperation and social justice 367

List of tables

6.1 Nuclear weapons through a CIL lens 127

7.1 Standard setting: Amnesty International
and the Convention against Torture 152

9.1 Kosovo 207

9.2 South Ossetia 209

11.1 Internal confl icts and international responses 255

13.1 IHRL and advocacy 303

15.1 The US Shrimp case 346

List of case studies

PART I

STUDYING INTERNATIONAL
LAW

This part of the book provides you with theoretical perspectives on and about inter-
national law and locates international law within the broader world historical con-
text. There are three main aims: fi rst, we want you to think about the relationship
between international relations and international law as two fi elds of inquiry in
order to assess similarities and differences between adopting an international rela-
tions approach and an international law approach to any topic. Our second aim
is to systematically go through international relations theories in order to discuss
how they view the place of international law in international relations. The third
aim is to locate international law and its institutional and theoretical development
within larger processes of world history. We fi nally introduce theories about inter-
national law itself and how international lawyers theorize the complex relationship
between law, politics, and morality. The overview of theoretical perspectives about
international law gives you grounding in the central concepts used to study inter-
national law. It further shows that theoretical perspectives are addressing different
types of inquiries towards the role and nature of international law and enables you
to identify the different ways in which international law is theorized.

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Chapter 1

International law for
international relations:
foundations for
interdisciplinary study
Başak Çalı

CHAPTER CONTENTS

• Introduction

• What is international law?

• The relationship between international law and international relations

• Why study international law?

• Conclusion

CHAPTER OVERVIEW

This chapter is about the relationship between international relations and international law—

and aims to sketch out the most appropriate way to understand this relationship. The two

disciplines are overlapping, but distinct, and this chapter will discuss the ways in which they

converge and diverge in terms of disciplinary commitments and the types of knowledge they

produce. The chapter will explain how international relations and international law can be

interested in the same phenomena—sometimes for the same reasons and sometimes for dif-

ferent reasons. The chapter will then show how international law informs our understanding

of single events in international affairs as well as change and continuity in the international

system. The chapter will conclude by providing six important reasons to study international

law for students of international relations.

4 Part I Studying international law

Introduction

This textbook is intended primarily for the use of international relations and politics
students. Its aim is to give an outline of the most important questions in internation-
al law and the signifi cance of these questions for studying international relations.
The textbook does not assume any background in law or international law. The
book also does not pursue what may be termed a ‘purely legal approach’. It aims
to ground the study of international law within broader international political
concerns and theoretical frameworks. It pays attention to the kinds of aims pursued
by or through international law in international relations. It discusses the extent to
which some international laws are foundations of international political interac-
tions. It asks whether international law is in need of reform to meet the demands of
current and future international politics.

Debates about the roles, functions, and purposes of international law in inter-
national relations are rich and complex. These debates require a clear approach in
order to understand the relationship between international relations and international
law. This introductory chapter aims to develop a methodology for approaching the
relationship between these two disciplines and the focus of their inquiry.

The fi rst question for a student of politics or international relations who sets out
to study international law is ‘What is international law and why study it?’ Students

Box 1.1 The cynic and international law

The cynic regards international law as the enterprise of the naïve, the occupation of the
wishful thinker, or the realm of the fool who does not understand international politics.
For the cynic, all international law does, is offer some intricate language which politicians
use to get their own way. This view cannot be correct. The cynic cannot account for
the continuing existence of international law as an idea and as a practice. If everyone
knows that international law is merely a means of manipulation, why was international
law not abandoned some hundred years ago? Why, after each of the twentieth century’s
world wars, did we build institutions which have further entrenched international law?
The problem with the cynic is that he or she grossly underestimates the intelligence of
everyone who has worked for international institutions and their cooperation. This is not
to say that international law is not used in a manipulative way in everyday politics. How-
ever, the survival of the idea and practice of international law after hundreds of years of
manipulation shows us that there is something more to it than mere rhetoric. The real
disagreement about international law, therefore, must be about how relevant it is in spe-
cifi c contexts and circumstances, not about whether it is relevant at all.

International law for international relations: foundations for interdisciplinary study 5

of international law, we can say, know what international law is—it is the law that
regulates the relations between states—and study it because they see an intrinsic
value in the subject. Students of politics and international relations may fi nd this
defi nition and motivation naïve. Are the relations between states really regulated?
Why study rules, which are disputed and not regularly respected? So, a textbook on
international law has to motivate the very keen international relations student as
well as the very cynical. It has to clarify what international law is and the purpose
of studying it.

What is international law?

The textbook defi nition that international law is the law that regulates relations
between states gives us two important aspects of a defi nition of international
law, namely that it is concerned with interstate regulation and that international
law is different from other types of law. Regulation is an important general
characteristic of all law. Law is prescriptive and it commands how all people
ought to act in their relations with others. It also enables us to predict how
actors may behave towards us. However, this defi nition is misleading in so far
as international law can regulate other forms of relationships that states agree
to regulate.

International law is different from other law such as domestic law and confl ict of
laws (or private international law). The former regulates relationships between natu-
ral and legal persons within a single country and the law that is applied is determined
by the legislation of that country. The latter regulates relationships between natural
and legal persons that happen to be in more than one country, such as relationships
between companies in two different countries or between parents from two differ-
ent countries over the custody of children. In such cases, courts have to decide the
law of which country should be applied. It is for this reason that international law
is sometimes also called public international law. This is to emphasize that its focus
is interstate relations and not relations between private entities and domestic laws
of any country cannot tell us what international laws are. Private entities, such as
companies or individuals, however, can be subjects of international law. For example,
international aviation is governed by international law because there are interna-
tional treaties between states about it. Similarly, individuals can be prosecuted under
international criminal law or claim rights against states under international human
rights law because there are interstate treaties that make these possible. International
law, therefore, regulates more than just interstate relations. It also regulates other

6 Part I Studying international law

forms of relationships that states agree to regulate internationally. International law
regulates the conduct of actors that make up contemporary international society.
International society is primarily made up of states. It is also made up of international
organizations and non- state actors—such as armed groups or business enterprises
and individuals—but only in so far as their status, powers, and responsibilities are
recognized by states through international law.

An essential element of the defi nition of international law, therefore, is not its sub-
ject matter or the type of entities it regulates, but that it is law that is made by states
collectively. No single state acting unilaterally can make international law; neither
can a collection of corporations or individuals. In other words, the authority to make

Box 1.2 Areas of contemporary international law

This list is not exhaustive, but gives us an idea about the diversity of areas that
international law relates to:

Airspace
Development
Bio-diversity
Climate change
Conduct of armed confl icts
Diplomatic and consular relations
Extradition
Finance
Fisheries
Human rights
Indigenous rights
Intellectual property
International crimes
Minority rights
Natural resources
Outer space
Ozone layer
Postal matters
Peace and security
Science and security
Sea
Trade
Use of force
Weapons

International law for international relations: foundations for interdisciplinary study 7

international law rests with states acting together. International organizations, indi-
viduals, and corporations can all become subjects of international law and have lim-
ited powers and international personality recognized under international law. They
can also help clarify what international law is by interpreting it or they can appear in
international courts. But they cannot make international law. This means that there
are no predetermined limits as to what areas international law does or should regu-
late. This can only be determined through collective agreement amongst states.

The relationship between international
law and international relations

International relations is interested in much broader phenomena than just the legal
regulation of international affairs. International relations is interested in under-
standing how and why states and other actors on the international plane behave in
the ways that they do, the nature of the international system, and the role of inter-
national actors, processes and discourses (see Chapter 2). International relations is
more interested in what does in fact happen under certain conditions and how we
can explain interactions and behaviour in international relations (although some
international scholars may also propose how international relations should be con-
ducted and what international institutions we should have).

Given this difference in focus in approaching international affairs, three prelimi-
nary questions are helpful to think about the relationship between international law
and international relations.

These are:

1. Are international relations and international law two separate disciplines
or are they different approaches within a single discipline?

2. How does the knowledge produced in international relations and
international law overlap, confl ict, and co-depend?

3. At what point and in what way does international law enter into
international relations research?

Are international relations and international law
two separate disciplines?

International relations and international law are two separate, but overlapping dis-
ciplines. Disciplines are a collection of a number of ground rules on how a subject

8 Part I Studying international law

matter is identifi ed and there are invariably disagreements among the members of
a discipline about what these ground rules are. How distinct the two disciplines are,
therefore, depends on points of view within each discipline.

International law and international relations have common concerns as well as
key differences. There is not, however, a straightforward answer or defi nitive list of
differences and similarities. Students of both disciplines disagree about the proper
boundaries between international law and international relations. More accurately,
therefore, there are a number of lists (as we shall see in Chapters 2 and 3).

Let’s start with the most basic similarity. International relations and international
law are concerned with international phenomena. They share a curiosity about how
we may identify international phenomena and how such phenomena relate to or
affect domestic affairs and how domestic affairs inform international phenomena.
Consider the following questions:

• How does a new state enter into the international system?

• What guides the behaviour of actors in the everyday life of international
relations?

• Why do international organizations exist?

• Why have states created and signed up to international treaties in virtually
every area of public policy?

• What is the signifi cance of one or a collection of powerful states disregarding
some established rule of international law?

• What are the differences between the powers and capacities of states and
non- state actors in international law?

These questions are all about international phenomena. They focus on the signifi –
cance, the role, the added value, and the future of international organizations, inter-
national cooperation and international regulation in international relations. It is
easy to see why these questions are of interest to both disciplines. International
relations seeks to understand and explain existing arrangements and institutions
at the international level. It also aims to identify patterns or generalizations about
behaviour in international relations. Normative branches of international relations
aim to identify what duties, rights, and obligations states have towards each other
and towards individuals or groups and what principles should govern international
institutions and interactions. It is also necessary for international law to understand
these because they raise important questions of appropriate boundaries of interna-
tional regulation. That the two disciplines share an interest in the same phenomena
does not necessarily mean, however, that the interest is shared for the same reasons.

International law for international relations: foundations for interdisciplinary study 9

Nor does it mean that the two disciplines attempt to address the phenomena in the
same way (Ku et al. 2001).

International relations and international law can differ or overlap in their moti-
vations for asking the questions above. They can also go about answering them
in different, or overlapping ways. International relations and international law
can be interested in the same phenomena for different reasons. They could also
be interested in the same phenomena for the same reasons. Each of these reveals
a different type of disciplinary relationship. The more divergent the reasons for
interest in international phenomena, the more separate the two disciplines become.
Conversely, the more similar the questions about the same phenomenon become,
the more the disciplines overlap. Whether the two disciplines are distinct or not is
dependent on how the research questions are framed.

There are two central independent variables that determine the nature of the
relationship between international relations and international law.

1. Reasons motivating the asking of a question.

2. Reasons motivating the selection of procedures in order to answer a question.

The former indicates differences in terms of approaches. The latter indicates differ-
ences in methodology.

Differences in approach and methodology are key to understanding how different
outcomes in terms of fi ndings, views, and opinions are formulated with respect to
the same subject matter. Approaches and methodologies, in this respect, are broader
concepts than the concept of discipline. There will be, however, a core concentra-
tion of similar approaches and methodologies in every discipline, which will give
the discipline its dominant colour. For example, realism (Chapter 2) in international
relations and legal positivism (Chapter 4) in international law have been regarded
as the most dominant approaches for a long time. International relations and inter-
national law contain a number of approaches and methodologies, which are dis-
cussed in greater detail in Chapters 2 and 4. Proponents of different approaches
and methodologies in each discipline have strong disagreements about how the
discipline should proceed to enhance its understanding of the subject matter. That is

Approach Methodology Discipline

Ideas intended to deal with
a subject

Justifi cation of procedures
to answer a question within
a subject

A branch of knowledge that
hosts a number of approaches
and methodologies

Table 1.1 Approach, methodology, discipline

10 Part I Studying international law

why it is equally possible to have strong alliances between the disciplines of interna-
tional relations and international law as well as a complete lack of interest in what
goes on in the neighbouring discipline.

We can now start to understand what interdisciplinary disagreements are usually
about. They can be between: any approach in international relations against another
approach in international law or any methodology in international relations against
another methodology in international law. This also tells us that it is not necessary
that the relationship between two disciplines will always be about disagreements.
Provided that the approaches or the methodologies overlap, the relationship can be
one of mutual interest in the same type of questions for the same kind of reasons. For
example, students of international relations who study the conditions of internation-
al cooperation may be thought as international lawyers in disguise or vice versa.

What is the most dominant disciplinary characteristic of international relations
and international law? From what we have said so far, it is clear that not everyone
will agree on a particular answer to this question. We may still fi nd a distinction
that most will agree on: international law is primarily interested in the regulation of
international affairs. International relations is more interested in understanding and
explaining them. The legal element has a more signifi cant weight in international
law, while in international relations it is the political element that takes centre stage.
International lawyers ask when we have international law. International relations
scholars ask how international actors behave.

These dominant characteristics guide which questions are viewed as worthy of
higher or priority interest. For the international lawyer, for example, the central
question is: what are the rules and principles that govern international relations
and how do we identify such rules? For the international relations scholar, more

Table 1.3 Disciplinary differences

International relations International law

Understanding and explaining international affairs Regulation of international affairs

Scenario 1 Scenario 2 Scenario 3

Two separate approaches, some
separate methodologies

Two separate approaches, but
a single methodology

Two similar approaches with
similar methodologies

Very different disciplines, hard to
have anything common

Different disciplines, some
common points

Full overlap between research
agendas

Table 1.2 Interdisciplinary engagement

International law for international relations: foundations for interdisciplinary study 11

important is: what makes states support a particular norm in international relations
and how do we know when support for that norm erodes or increases? We can
see that these questions tackle the same type of issues, but have different concerns,
approaches, and methodologies in mind. This may not, however, look as straightfor-
ward after further scrutiny. We can equally say that international relations students
are interested in understanding international affairs and its politics because they are
interested in how best to regulate it. They hope to propose prescriptions based on
the general patterns of behaviour and structural generalizations. Conversely, interna-
tional law cannot successfully regulate international affairs without understanding
how a particular norm came to be accepted in the fi rst place. Each discipline needs to
inform the other in order to be successful. This shows us that international law and
international relations can ask the same questions for different reasons.

In conclusion, it is possible to offer a qualifi ed answer to the question of whether
international law and international relations are two separate disciplines. Easy or
simplistic answers will not do. The answer has more to do with identifying shared
attitudes to international affairs in each discipline.

Final verdict: separate or the same?

1. International relations and international law are concerned with the same
kind of phenomena: relationships, processes, institutions, events that take
place in the international sphere.

2. Whether they are two separate disciplines or not is sensitive to the different
approaches and methodologies that are hosted in these disciplines.

3. The two are not necessarily in fundamental confl ict with each other in terms
of positions they hold about international affairs. They may or may not be in
confl ict.

4. They are dependent on each other given that understanding or explaining
international affairs may take its cue from the very regulation of these affairs
and vice versa.

International relations International law

Understanding and explaining
international affairs with the aim of its
better regulation

Regulation of international affairs based on a grounded
understanding of current international affairs

Table 1.4 Disciplinary convergences

12 Part I Studying international law

5. If there is an overlap in the approaches and methodologies, it is not possible
to differentiate between the two.

6. The relationship between international relations and international law
is generally understood in terms of the positions of the most dominant
approach in both disciplines. This does not mean, however, that there is only
one way of conceiving the relationship.

How does the knowledge produced in international relations
and international law overlap, confl ict, and co-depend?

This is a more concrete and practical kind of question. It can help us appreciate
what use international law knowledge has when we are interested in a particular
subject, such as use of force, nuclear weapons, war crimes tribunals, or international
trade. We need to develop a similar kind of attitude here, as we did to the discipline
question. The added value of international law knowledge in international relations
depends on what kind of knowledge is generated in these disciplines.

Types of knowledge generated by international relations and international law

All forms of academic study concern knowledge generation. Knowledge generation
is both an end in itself and a means of enhancing the practical world. Different types
of knowledge are generated within disciplines. It would not be surprising to note
that the different types of knowledge produced are sensitive to the approaches and
methodologies one adopts.

It is possible to differentiate between four types of knowledge in the fi elds of
international relations and international law. These are factual knowledge, empiri-
cal knowledge, conceptual knowledge, and normative knowledge. The emphasis
placed on these types of knowledge, however, is different in international relations
and international law.

Factual knowledge entails knowing something is the case. The current number of
states, the number of international treaties, which states have signed up to a particu-
lar treaty are all factual types of knowledge. Given the interest of international law
in the regulation of international affairs, accurate information about international
treaties, the mandates and composition of international organizations, the relation-
ship between different organizations at the international level, and the way in which
international institutions operate matters to international law.

A factual statement such as ‘The United Nations protects human rights’ is not
inaccurate for a student of international relations. For a student of international

International law for international relations: foundations for interdisciplinary study 13

law, however, it is not completely accurate as it lacks both detail and appropriate
differentiation. For the international lawyer, a factual statement would be: ‘The
United Nations Charter in its Articles 1, 55, and 56 has provisions for the protec-
tion of human rights. All organs of the UN have the duty to give effect to these
provisions, but the specialized protection mechanism is the Human Rights Council
which reports to the Economic and Social Council.’

The difference between the two statements captures the sensitivity to detail and
precision in international law when talking about institutional arrangements. This
is because different types of arrangements have different kinds of legal signifi cance
and they may point to different types of responsibility. A great advantage of studying
international law in this respect is to acquire detailed knowledge of the workings
of international organizations and their practices. Chapters in Part 3: Topics in
international law provide legal- factual presentations of the most important topics
in international law.

Empirical knowledge comes in qualitative or in quantitative ways. The more
qualitative the knowledge, the more contextual and particular it is about a social
event. The more quantitative it gets the more the knowledge will be subject to
generalization and it will be inferred from a large number of events (Landman
2006). International relations generates both qualitative and quantitative empiri-
cal knowledge. Qualitative approaches utilize techniques such as single case stud-
ies and small comparative case studies. They could focus on how a particular set
of actors understand or perceive the practices they are engaged in. Quantitative
approaches focus on larger sets of data and try to uncover causal relationships or
patterns. There are disagreements between quantitative and qualitative knowledge
producers across the whole spectrum of social sciences (Creswell 2003). Qualita-
tive empiricists think that the aim of producing generalizations does not capture
the deep complexities embedded in each case. Quantitative empiricists think that
qualitative empirical knowledge is unable to capture the big picture.

International law is an outsider to the vocabulary of qualitative and quantitative
research techniques. It does, however, use both techniques to generate international
legal knowledge. Some international lawyers believe that international law should
overlap with the practice of states as much as possible. In order to locate inter-
national law they carry out quantitative analysis of state practice with the aim of
discerning patterns in state behaviour. Some international lawyers see this as futile.
International law can also be a consumer of quantitative knowledge produced in
international relations.

It is also possible to qualify some types of knowledge in international law as
qualitative. International lawyers, for example, focus on single case studies in

14 Part I Studying international law

terms of their signifi cance in clarifying the status of international law (Rodley and
Cali 2007). They also carry out comparative analysis (Crawford 1979). The key
distinction between knowledge produced in international relations and interna-
tional law in the empirical sense is attitude towards data collection and interpreta-
tion. International law is primarily interested in data that is defi ned as having legal
signifi cance (see Chapter 6). When international lawyers carry out case studies
or comparative analyses, they fi lter the information they collect based on some
criteria of legal signifi cance and interpret the data in the light of its coherence
with international law principles. This means that they are interested in empirical
data in terms of its heuristic (interpretative) implications. International relations,
however, has a much broader focus. It uses empirical data to test causal hypotheses
as well as to understand social reality classifi ed as practices, discourses, events, or
processes.

Conceptual knowledge is about understanding the very concepts that are used to
ground a systematic inquiry. It aims to identify the relevant concepts for inquiry as
well as the hierarchy, categorization, and relationship between different concepts.
The generation of conceptual knowledge extends to questioning the adequacy of
existing concepts that ground the inquiry. It revises them and proposes new ones.
Conceptual analysis is not about inquiring into what happens in practice. It is
an inquiry into the very idea of the concepts as abstract categories. This form of
knowledge may, of course, be sensitive to the practical meaning of concepts, but it
nevertheless has to rise above practice for the concept to frame an inquiry. It, there-
fore, concerns itself with logical generalizations, distinctions, and categories that
would help ground all types of queries. Conceptual knowledge is an indispensable
component of any research design.

International relations and international law strongly overlap in the domain of
production of conceptual knowledge. International relations borrows more from
international law at this level of inquiry. Consider some of the central concepts
for international relations such as state, consent, international society, war, peace,
self- defence, self- determination, or humanitarian intervention. International law is
an important resource in understanding the history and practical usage of these
concepts in international affairs. It would be impossible, for example, to talk about
international peace and security without reference to the collective security system
of the United Nations Charter, which, after all, is a piece of international law. And
we all know that Westphalia state system refers to two treaties signed in 1648—
surprisingly neither in Westphalia—between the Holy Roman Emperor Ferdinand
III of the Habsburg Dynasty, the Kingdoms of Spain, France, and Sweden, and the
Dutch Republic (see Chapter 3).

International law for international relations: foundations for interdisciplinary study 15

An important reminder here is that international law is only one source of con-
ceptual knowledge for international relations. International relations, for instance,
also turns to political philosophy (Kratochwill 1989). At times, concepts grounded
in international law will be different from those grounded in a particular strand of
political philosophy ( Meckled- Garcia and Cali 2006). Political philosophers and
international lawyers will point to different defi nitions for the correct use of con-
cepts (Buchanan 2004). But again, such issues are also the domain of conceptual
knowledge to consider and debate.

Normative knowledge is the fourth category of knowledge that is produced in
international relations and international law. It is concerned with what the state
of affairs ought to be. This is generally opposed to factual or empirical knowledge
which is concerned with what the state of affairs is. Normative research gener-
ates knowledge for ‘ought’ or ‘should’ type of questions. Consider, for example,
the question ‘How should we understand the legitimacy of international organiza-
tions?’ This question does not aim to fi nd out whether international organizations
are regarded as legitimate. It instead aims to identify evaluative standards inde-
pendent of any agent’s perception that will ground the legitimacy of international
organizations. Normative knowledge relies heavily on conceptual knowledge and
less on empirical and factual knowledge.

In international relations, specialists in the domain of international ethics or
international political theory generally defi ne themselves as interested in normative
knowledge. Some normative knowledge is purely idealist. It will only concern the
ideal conditions of, for instance, legitimacy in international relations. Some norma-
tive knowledge can also incorporate what must be done to reach a certain state of
desirable normative affairs (Buchanan and Keohane 2006). It will therefore be con-
cerned not only with desirability, but also with feasibility. These types of normative
projects will be more sensitive to factual and empirical knowledge.

One of the central modes of knowledge production in international law is nor-
mative. We could regard international law as producing legal normative knowledge
about international affairs. The very idea of regulation is inevitably interested
in what the content of the rules are and what reasons there are to follow them.
International law is simultaneously interested in desirable and feasible forms of
international conduct and organizational framework. This is because international
lawyers are not concerned with the question of what norms should govern inter-
national affairs, but actually what norms do govern international affairs. Interna-
tional lawyers, therefore, assume that international law provides a distinct legal
reason to act or to refrain from acting in particular ways for all states. For this
reason, international law is a separate discipline from international morality. Most

16 Part I Studying international law

international law scholars think that international law is sandwiched between nor-
mative and factual- empirical type inquiries (Koskenniemi 1989). In other words,
the question of what rules govern international affairs is at once normative, factual,
and empirical.

In this light, it is possible to see why some normative international relations stu-
dents may regard international law as disappointing, conservative and not pro-
gressive enough. They may be disappointed when they fi nd out how international
law addresses some of the most important contemporary challenges such as armed
confl icts, climate change, nuclear proliferation, or human rights. But international
law creates realistic normative knowledge. It would be pointless to have an interna-
tional law that has no chance of being accepted or implemented by states or other
actors. International law, therefore, thinks that it has to be grounded in the practice
of states (the disagreements about what this means will be addressed in Chapters
4 and 6). Therefore, the student of international relations has to be as wary of the
idealist as s/he has to be of the cynic.

At what point and in what way does international law enter
into international relations research?

We have so far looked at what types of knowledge are generated by international
law and international relations and the extent to which these types of knowledge
overlap, differ and co- depend. There is one further element we need to consider:
when does the knowledge produced in international law become relevant in inter-
national relations? There are at least two views. According to the practical view,
international law can enter into international relations analysis with its ability to
offer practical insight into assigning meanings to the events in everyday interna-
tional affairs. Another view, the systemic view, is an argument about the value of
international law knowledge to better understand the international system, how
different parts of the system fi t together and what the bigger picture of international
affairs looks like.

International relations Factual Qualitative
Quantitative

Conceptual Normative
(idealist/
realist)

International law Factual/detailed
in establishing
legal facts

Qualitative
Quantitative

Conceptual Normative
Realist

Table 1.5 The knowledge production chart

International law for international relations: foundations for interdisciplinary study 17

The single event lens

The practical insight of international law comes when we are analysing a single event
in international relations. One of the important aspects of international relations
and international law is the training both disciplines give students on how to best
produce informed commentary about ongoing political affairs. A very important
reason for any student signing up to courses on international relations or interna-
tional law is to learn how to better understand contemporary international affairs
and particular problems within them. For example, how should we approach the
declarations of independence by East Timor and Kosovo? What do these mean? Are
they lawful? Are they desirable? What sorts of effects do they have for other groups?
What role did international law have in facilitating support for the independence?
When faced with a specifi c event, international law differs in approaching it because
it selects and processes facts and evidence in a different way. It focuses on the legal
signifi cance or legal consequences of events. It provides reasons for explaining why
states have acted in a certain way, for example, why they have recognized East
Timor unanimously and why unanimous recognition was not forthcoming in the
case of Kosovo. Through studying international law we are able to better under-
stand the instances when international law is not followed and why.

In everyday life it is common to hear commentators referring to what is called
the ‘international law’ perspective or the ‘international relations’ perspective. When
a military intervention takes place or when a state refuses to extradite a terrorist
suspect to another country it is common to ask ‘what does international law say on
the matter?’ This question tells us that people in general assume that a regulatory
view about international affairs exists. It also tells us that this view is valued as
worth knowing. Experts on international relations are asked to comment on
different aspects of issues. What would be the reactions of other states to a military
intervention? What would the political consequences of this event be? Some
common questions may also be asked of both experts: ‘Would the international law

International relations International law

Political qualifi cation of events, acts, processes Legal qualifi cation of events, acts, processes

Assessment of consequences of events, acts,
processes in terms of their broader political
signifi cance

Assessment of events, acts, processes in terms
of their broader legal signifi cance

Assessment of compliance with regulatory
frameworks

Assessment of compliance with regulatory
frameworks

Table 1.6 Description and evaluation of single events

18 Part I Studying international law

framework be followed on this matter by states? What would happen if states act
contrary to international law?’

International law enables the student of international relations to identify the nor-
mative rules and principles that are thought to govern a particular event in internation-
al affairs. Once this framework is identifi ed, it is possible to analyse the extent to which
states are complying or conforming. In a single event lens, international law gives states
reasons to act or refrain from acting in a certain way. International relations is then
able to analyse why these are strong or weak reasons in particular instances.

International law invites students to process empirical facts in a different way than
international relations. International law enables us: (1) to process the facts in terms
of their international legal signifi cance and (2) to comment on the legal consequences
of acts and events. International relations is able to show: (1) the political signifi cance of
the events or acts and (2) possible consequences of the events or acts for the future in
terms of the actors that are concerned. Both disciplines use descriptive and evaluative
schemes. The same event can be described and evaluated in different ways within each
discipline. Depending on the approach one adopts, international law and international
relations students may pay attention to how an event is classifi ed in the other discipline.
This is, however, not necessary and only approach- sensitive. It is perfectly possible for
a student of international relations to hold that, neither (1) the legal qualifi cation, nor (2)
the legal consequences are relevant or that both are crucial to understanding the political
qualifi cation or consequences. The same holds for a student of international law.

International law, therefore:

1. sets out what the rules governing an event are;

2. gives reasons for actors to act in a certain ways; and

3. evaluates what the legal consequences of acting or refraining from acting in
a certain way are.

Whilst international relations:

1. evaluates the relevance and importance of reasons provided by international
law;

2. explains why they are or not followed in specifi c instances; and

3. evaluates the political consequences of acting or refraining from acting in
a certain way.

The systemic lens

A common concern that runs through both disciplines is identifying the systemic
characteristics of international affairs. This concern comes in many shapes. First,

International law for international relations: foundations for interdisciplinary study 19

who are the central actors in the international system? Is the emphasis on states
as the main players and law- makers adequate? How should we understand the
role of international organizations, global governance regimes, and non- state actors
in international affairs? Focusing on actors beyond the state affects how research
questions are formulated in both disciplines. For example, what is the role of pri-
vate military companies in current confl icts? Do we need to regulate the activities of
these companies in international law? Should we hold non- state actors accountable
in international law?

A second concern is how we go about identifying and understanding the systemic
values of the international system. What are the constitutive values upon which
international relations are based? How do we identify what these values are? Which
discipline is better equipped to understand and expose the value system of interna-
tional affairs? In what ways do international relations and international law differ
in their identifi cation of systemic values?

Third, there is a concern about how we may evaluate the system- wide chang-
es in the international system. What have been the greatest achievements of the
international system? Has there been an increase in international cooperation?
Should international relations be assessed in terms of the expansion of values such
as justice, human rights, self- determination, or democracy? Is there an increase in
cooperation and regulation in the international system over the years? Is it bet-
ter regulated? What has been the contribution of international law to system- wide
changes in international relations? These, as one would expect, are very important
and contested grand debates, within and across the two disciplines.

If we leave aside the sceptic’s objection that international law has nothing to
contribute to understanding the systemic values in international relations, there
are at least two ways in which international law enters into system- wide debates
in international relations. First, international law may represent the ideals of the
international system, such as peaceful coexistence and effective cooperation.
Actors in international affairs may be viewed as under a duty to work towards
these ideals, even though they may not always succeed in everyday politics.

The central role of the state as an
analytical category

Values that underlie the
international system

System- wide changes in
international relations

Institutional design Compliance with
international law

Providing solutions to
common problems

Table 1.7 Common concerns

20 Part I Studying international law

This is an idealist approach to international law. A second view holds that inter-
national law may represent the background values of international politics.
The basic political ideas of the international system, such as non- intervention,
political equality of states, and state sovereignty are embedded in international
law. International law contributes to international relations by hosting its basic
and constitutive ideas. This is a constitutive approach to international law. On
both accounts international law offers starting points and critical tools to the
student of international relations to understand the change and continuity of
system- wide values.

Why study international law?

It is now time to go back to the question we started with: Why study inter-
national law? We have emphasized two main claims in this chapter to lay the
groundwork for this question. First, although international relations and inter-
national law appear to be separate disciplines, their degree of separation very
much depends on how participants in these disciplines defi ne their research
interests and concerns. International law can be studied from any of the perspec-
tives within international relations and different theoretical frameworks will
assign different kinds of signifi cance to international law. Second, we suggested
that the types of knowledge production might overlap in international relations
and international law. What we have found is that there are different ways in
which a student of international relations may be motivated in studying interna-
tional law. Here is a list of six reasons for crossing from international relations
to international law.

1. International law can be appealed to when developing
views within international relations

International law is an institutional practice with a long history and presence in
the international system, as we shall see in Chapter 3. It has undergone a number
of changes, and these changes have increased tremendously since 1945 with the
emergence of international human rights law, international trade law, internation-
al criminal law, and international humanitarian law regimes. International law as
a domain of institutional practice is important and exists as a matter of fact. Con-
temporary theories of international relations have to develop an account of what
these networks and regimes mean for the state of the international system and its
future and how dense they are.

International law for international relations: foundations for interdisciplinary study 21

2. International law can be studied in order to have an understanding
of the operation of international organizations and institutions

All international organizations appeal to basic principles of international law in
their operations. International organizations, in this respect, exist by virtue of
international law. The workings of the United Nations (UN) General Assembly, the
UN Security Council, the UN Peace- building Commission, the UN Human Rights
Council only become clear after a study of the UN Charter and relevant decisions,
declarations, resolutions of these bodies. There are also an increasing number of
institutional arrangements that we cannot analyse without a clear understanding of
their status and mandate in international law. Consider for example, peacekeeping
or peace enforcement missions authorized by the Security Council or the refugee
camps run by the UN High Commission for Refugees or the International Red
Cross and Red Crescent, which is recognized to have a special mandate under inter-
national humanitarian law treaties and domestic laws.

3. International law can be studied to understand the history
of interstate practice over the years

International law has a memory of state practice in a historical context. We can
compare the amount and kinds of cooperation states had in previous centuries with
the current situation by studying the international treaties in a historical perspec-
tive. International law gives us an idea about the acceptable basis of interstate coop-
eration and how states deal with the most pressing issues of their times through
international law. A comparison, for example, between the League of Nations and
the UN offer us an understanding of international affairs in terms of which ideas
have been institutionalized and how effective such institutionalization has proved.
This is also very important when we talk about the reform of the international sys-
tem. International law enables us to have a historically informed attitude towards
what may be feasible for the future of international law.

4. International law can be studied to fi nd out what the distinct international
law position is on any aspect of international affairs

There are a number of views that can be offered on a particular debate in inter-
national affairs. There could be the subjective view, i.e. an account of what any
stakeholder thinks is the case. There could be the normative view, i.e. an account of
what would be the best position to be adopted by anyone. Finally, there could be
the international law view, i.e. an account of what would be the correct conduct or
outcome in international law. For the student of international relations interested in
understanding how international actors conduct themselves, the international law

22 Part I Studying international law

perspective is indispensable as international law aims to offer established standards
of conduct. For the future policy- maker or politician, it is imperative to be able to
critically appraise whether the current rules of international law are worth follow-
ing or supporting or whether they are in need of fundamental revision. Interna-
tional law, therefore, is particularly important for international relations students
who wish to criticize the actual conduct of states or would like to propose changes
to existing arrangements.

5. International law can be studied with the purpose of understanding the
power of its norms and the rise and fall of international legal frameworks

A central reason to engage with international law is to assess the extent to which the
norms embedded in international law guide and control state behaviour. There are
a number of scenarios that may emerge in any area of international relations at any
time. One scenario is that some new development may take place, for example, the
possibility of exploitation of resources on the moon. It would then be necessary to
assess whether there are already a number of norms that govern this area or wheth-
er different norms emerge that are able to address the concerns in a more specifi c
way. Another scenario would be the case of states withdrawing their support from
an international law rule. This would lead us to question what made the rule inad-
equate and what replaces it instead. Yet another scenario is the sphere of contested
norms and how a student of international relations can distinguish between a norm
with weak support and a contested norm. A fi nal systematic issue would be the
circumstances under which a fundamental international legal norm may undergo
change or reform. International law not only provides indicators about where the
most pressing problems lie with respect to the power of norms, it also offers per-
spectives to international relations students about how to assess the rise and demise
of international law.

6. International law is worth studying because it is a site where we can
engage with both ideas and practice about international affairs

The fi nal answer to the Why international law? question is one about developing
a certain kind of attitude to international affairs. International law contributes
to how we think about international relations as a whole and the basic aims
of international society. This is a different orientation of thinking, especially
as opposed to thinking about the basic aims of states. More signifi cantly,
contemporary international law, with its focus stretching beyond interstate
relations to areas such as the environment, human rights, trade, development,
allows students of international relations to engage with questions about a fair

International law for international relations: foundations for interdisciplinary study 23

international system and the possibility of such a system under contemporary
political conditions. International law with one foot in the practice of international
affairs and another one in principles and norms is a perfect location to think
about the future of international relations.

Conclusion

This chapter gave an account of how to approach the relationship between inter-
national relations and international law. It showed that there is no single answer
in conceiving this relationship and that it all depends on the approaches and meth-
odologies adopted in both disciplines. The ways to understand the relationship
between these two disciplines are as many as the approaches and methodologies
hosted in them. One way to distinguish the two is to suggest that international
relations is concerned with explaining and describing international affairs as they
stand whilst international law regulates these affairs by setting standards of con-
duct. But, we have also seen that even this simple distinction has to be accepted
with caution.

A sound way of understanding how international relations and international law
contribute to each other is to become aware of the type of knowledge provided in
these disciplines. Again, we saw that saying that international relations is in the
business of empirical knowledge and international law in normative knowledge
is simplistic. Both disciplines produce factual, empirical, conceptual, and norma-
tive knowledge. They, however, are interested in facts and empirical knowledge
in different ways. We saw that the disciplines come very close to each other in
the production of conceptual knowledge. In the domain of normative knowledge,
international law can be classifi ed as a special branch of normative international
relations theories, as it produces normative knowledge based on realistic and practi-
cally grounded premises.

International law makes a unique contribution to our understanding of day-
to- day international affairs by offering standards of conduct to evaluate the
behaviour of international actors. At the level of system- wide analysis, inter-
national law is an important resource for students of international relations.
Studying international law is an important way to grasp the facts of international
life, as well as the values underpinning it. More importantly, studying interna-
tional law requires disciplinary awareness for a student of international rela-
tions. A systematic study of international law is a way to become a better student
of international relations.

24 Part I Studying international law

Questions

1. What is international law and how is it different from domestic law?

2. What are the areas regulated by international law?

3. What does the sceptic say about international law?

4. What do you think is the most signifi cant difference between international relations
and international law?

5. What is factual knowledge? Can you give an example?

6. What is empirical knowledge? Can you given an example?

7. What is conceptual knowledge? Can you give an example?

8. What is normative knowledge? Can you give an example?

9. How do international relations and international law differ in assessing a single
event?

10. What can international law contribute to international relations in understanding
system- wide changes?

11. Why should a student of international relations study international law?

Further reading

Abbott, K. W., Keohane, R. O., Moravscik, A.,
Slaughter, A.-M., and Snidal, D. (2000) ‘The
Concept of Legalisation’, International
Organization 54/3: 401–19 and compare it to
Finnemore, M. and Toope, J. (2001) ‘Alterna-
tives to “Legalisation”: Richer Views of Law
and Politics’ International Organization 55/3:
741–56. A good example of two groups of
international relations scholars disagreeing
on the defi nition of international law and
international legal frameworks and their
signifi cance in international law.

Buchanan, A. and Keohane, R. (2006) ‘The Legitimacy
of Global Governance Institutions’ Ethics and
International Affairs 20/4: 405–37. An example
of a normative and reform- oriented analysis
of legitimacy in international relations.

Ku, C., Diehl, P. F., Simmons, B., Dallmeyer, D. G.,
and Jacobson, H.K . (2001) ‘Exploring
Inter national Law: Opportunities and
Challenges for Political Science Research: A
Roundtable’ Interna tional Studies Review
3/1: 3–23. Acollection of essays on why
international relations students have
neglected inter national law and how they
can increase the quality and quantity of
research on international law.

Simmons, B. and Steinberg, R. H. (2006) (eds.),
International Law and International Relations
(Cambridge: Cambridge University Press). An
excellent collection of essays on different per-
mutations of the relationship between the dis-
ciplines of international law and international
relations.

Visit the Online Resource Centre that accompanies this book to access more learning resources
www.oxfordtextbooks.co.uk/orc/cali/

Websites

Chapter 2

Perspectives on international
law in international relations
Fiona B. Adamson and Chandra Lekha Sriram

CHAPTER CONTENTS

• Introduction

• Realism

• Liberalism

• Institutionalism

• Constructivism

• Marxism, Feminism, and Critical Theory

• Conclusion

CHAPTER OVERVIEW

This chapter examines how international relations (IR) scholarship perceives international

law (IL). International law often appears to be relatively invisible in theories of IR, and

thus students of IR may question the need to study international law. This chapter argues

nevertheless that much of IR theory engages implicitly, if not explicitly, with international law.

It does so, however, by using very different terminology, language, and approaches. IR schol-

arship which directly engages with international legal agreements and legally constituted

institutions often approaches them through the language of norms, institutions, and regimes,

rather than through the language of law. In this chapter we explore some of the dominant

theoretical paradigms in IR, and consider in turn how each views the role of international law

in international politics. For each paradigm, we present its general theoretical assumptions,

its key actors and processes and how it perceives international law.

26 Part I Studying international law

Introduction

What perspectives on international law (IL) are found in the fi eld of international
relations (IR)? In the previous chapter, we learned that IR and IL can be thought
of as overlapping, yet distinct, disciplines which concern themselves with similar
phenomena. Both IR and IL are interested in questions relating to international
order and state behaviour in world politics. Yet they may ask different types of
questions, employ very different starting assumptions, and use different approaches
and methodologies in their inquiries.

The discipline of international relations is organized into different paradigms.
Paradigms are philosophical and theoretical frameworks that guide intellectual
inquiry by suggesting what subject matter should be focused on and how the
subject matter should be approached and understood. Most students of inter-
national relations are familiar with some of the major paradigms or theoretical
approaches in the fi eld, such as Realism and Liberalism. They will have noticed,
perhaps, that theoretical approaches and debates in international relations rarely
refer to international law, or that when they do, they often treat it as of little or
no signifi cance. It therefore might be easy to conclude that an understanding of
international law would be irrelevant to students of international relations.

This chapter takes a different position. It argues that each of the major paradigms
in IR engages with questions relating to international law. The study of interna-
tional law therefore adds to one’s understanding of international relations. Much
of the engagement with international law by IR theory, however, is implicit rather
than explicit. Many objects of study in international relations are heavily legal in
content, but are described using the language, terminology, and assumptions of IR
theory. In order to understand the ways in which IR and IL address common con-
cerns, it is important to become familiar with the different language and approaches
used in the two disciplines.

IR scholars, for example, speak about institutions, regimes, norms, and organiza-
tions, rather than treaties, conventions, customary law, or legally created institu-
tions. IR scholars, like IL scholars, are concerned with major issues of importance
in global politics, such as human rights and the environment. However, in their
work IR scholars will speak about international human rights or international
environmental regimes, whereas IL scholars will refer to international human rights
law or international environmental law. This may be what Anne- Marie Slaughter
Burley has referred to as IR scholars ‘[re]discovering international law (and refusing
to recognize it)’ (Slaughter Burley 1993: 219).

Perspectives on international law in international relations 27

IR scholars rarely focus on international legal standards per se, but rather on the
shared understandings, agreements, and institutions that make up the international
legal order. IR scholars are thus likely to address international law concerns by stud-
ying the development and maintenance of, and the compliance with international
‘norms, rules and regimes’. Nevertheless, even within IR there is great disagreement
as to the origins and evolution of international legal norms, rules, and institutions.
This disagreement refl ects the different starting assumptions and emphases of the
different theories that defi ne IR.

In this chapter, we address how IR views and studies international law through
a discussion of some of the major paradigms, or theoretical approaches, in the dis-
cipline. We discuss Realism, Liberalism, Institutionalism, Constructivism, Marxism,
Feminism, and Critical Theory—and examine how they each view international law.
As we discuss each theory, we focus on its general view of the international system,
the key actors in it, and key processes related to the creation and maintenance of,
and compliance with, rules and laws. In so doing, we elaborate upon each theory’s
view of the relevance and infl uence of international law in general, as well as sug-
gesting how theories of IR seek to explain rules, institutions, and processes which
are legalized in nature. We provide some concrete examples in each section of issue
areas in which IR engages with IL, such as regulating the use of force, or protecting
human rights. Many of these issues will be discussed in far greater detail in the
individual chapters to come in this volume.

Realism

Theory

Realism is an approach to IR that emphasizes state power, national security,
and the threat or use of force as the most important elements for understanding
world politics. Realists often trace their origins back to classical theorists such as
Thucydides (460 B.C.–395 B.C.), Machiavelli (1469–1527), and Hobbes (1568–
1679) who all emphasized how power and self- interest shape politics.

Realists are arguably the most cynical of IR scholars with respect to the value of
studying IL. Many realists would argue that most of international law is epiphenomenal
to state power, in other words that the contours of international law and its effectiveness
are a product of the interests of powerful states or the balance of power amongst states,
but that international law does not exert an independent effect on states: powerful states

28 Part I Studying international law

will follow international law when it is in their national interest and will ignore it when
it is not; weak states will comply with international law when they are compelled to by
powerful states. This view of international law refl ects the famous dictum proposed by
Thucydides, ‘The strong do what they can, and the weak suffer what they must.’

Realists have traditionally argued that they seek to understand world politics as it
is, rather than as it should be. They have contrasted themselves with ‘Idealists’ who
seek to build a better world through institutions and rule of law. International law is
then viewed by some realists as a type of ‘Idealism’ and is critiqued for its naïve view
of power. Yet, this division is too simplistic. Most approaches to international law
are very sensitive to state power relations and many realists recognize the need for
international law. Early realist IR scholars, such as E.H. Carr (1939), argued that
one needs a good dose of both ‘realism’ and ‘utopianism’ to properly understand
international politics. Some contemporary realists employ realist assumptions and
principles in their critique of international law in order to identify the limits of its
effi cacy such that it might be improved. An example of this is the work of Jack
Snyder and Leslie Vinjamuri (2003/4) on human rights and transitional justice, who
have argued that political stability and strong institutions should take short- term
precedence over legal norms in achieving justice in post- confl ict situations in order
to strengthen the rule of law over the long term.

Actors

Realists view states as the primary actors in the international system. In other
words, states are treated as natural actors in world politics. In fact, IR scholars
often discuss sovereign states interacting in an institutional and legal void that is
described as a ‘state of nature’ or anarchy (meaning a lack of sovereign authority
or government). Kenneth Waltz, in his infl uential book Theory of International
Politics (1979), famously viewed states as the only relevant units for understanding
the structure of world politics. Waltz and other realists argue that state behaviour
is best explained by the balance of power in the international system, as measured
by material factors, such as size of territory and population, and the strength of
the military and economy. If one wishes to understand world politics, according to
this perspective, the important factor is to understand which states have the most
power in the international system. Within this context, international law is largely
irrelevant. States do not respond primarily to legal rules, but rather to practical
considerations determined by the amount of power they have vis-à-vis other states.
Ultimately, the contours of the international system are shaped by power and the
use of force, and not by international law.

Perspectives on international law in international relations 29

Such approaches make it diffi cult for realist IR scholars to analyse developments
in international organizations and international law in which states voluntarily
comply with international law, give up aspects of their sovereignty, or share sov-
ereignty with other actors. It also means that realists have a diffi cult time study-
ing international organizations or international legal orders as anything more than
the outcome of state interests. A key example here would be the emergence of the
European Union as an entity in which states have pooled their authority and have
delegated aspects of their sovereignty to a supranational organization. Such insti-
tutional arrangements are diffi cult to understand from a purely state- centric and
power politics perspective. For example, the introduction of the Euro as a common
currency in many EU states, and the emergence of a European common monetary
policy, poses a puzzle to realists, as it suggests a willingness of EU states to relinquish
national autonomy and sovereignty in a key area of domestic economic policy.

Processes

A realist perspective on the emergence and maintenance of international norms, many
of which are legalized, follows from its understanding of the key actors in international
politics and the nature of the international system. Realists, with their focus on state
power and their scepticism of legal approaches to world politics, would understand
the emergence of legal norms, rules, and institutions as being largely a product of the
interest and infl uence of powerful states. In its most cynical form, international law
and its application can be viewed as a form of victors’ justice that refl ects the interests
of the powerful. In this view, the laws of war codifi ed in the late nineteenth century
represent the interests and views of the powerful Christian states; norms of decoloniza-
tion and self- determination can be viewed as emerging out of the US challenge to the
old order of European empires; the international legal order embedded in the United
Nations can be viewed as a codifi cation of both the power structure (membership
of the UN Security Council) and normative commitments (liberal individualism as
a focus of human rights law) that refl ected US interests at the end of World War II.

Thus a realist would view the creation, maintenance, and frequent compliance by
states with international legal rules regarding, for example, the use of force, as a matter
of power and self- interest. Realists would argue that states create rules limiting use of
force and conduct during armed confl ict for self- interested reasons and will similarly
feel no compunction about violating those rules when they cease to be in their interest.
If a state sees a benefi t in breaking the rules against the use of force, perhaps because
it doesn’t expect any sanction to be imposed and is suffi ciently powerful to use force
successfully, they would argue that it is likely to do so. Similarly, realists argue that

30 Part I Studying international law

states only agree to international humanitarian law (IHL) when it coincides with their
own interests. States agree to the Geneva Conventions (see Chapter 11) (the four
treaties forming the basis of international humanitarian law) in order to avoid having
their own soldiers tortured, or civilians intentionally targeted. However, they would
argue that powerful states are just as quick to violate such rules when they view it as
being in their own self- interest to do so. From a realist perspective, this might explain
why the United States would appear to have ignored international humanitarian law
in its pursuit of the ‘war on terror’ during the years of the Bush administration.

Realists make similar arguments about the creation of international legal
institutions to respond to war crimes and atrocities. For example, they might
explain prosecutions after World War II in the Nuremberg Trials as ‘victors’ justice’.
Similarly, realists could argue that the creation of a tribunal to prosecute crimes in
the former Yugoslavia stemmed primarily from the interests of Western states in
a stable Europe rather than the pursuit of justice. Some realists claim that states only
sign on to human rights obligations when they serve their interests, or impose no
real constraints. For example, simply reporting levels of human rights compliance
to monitoring committees may not be viewed as a particularly onerous obligation
for states and this would explain why it is relatively widespread.

Liberalism

Theory

Liberal and institutionalist arguments in international relations (discussed in the
next section below) are often intertwined, as liberal institutionalism, and have often
been offered by the same IR scholars. However, it is useful to disaggregate the two
and identify elements of liberal IR theory, beyond those linked to institutionalism
(Moravcsik 1997).

Liberal IR theory makes a number of assumptions which contradict at least in part
the realist view of the international system. They disagree, fi rst, that the structure of the
international system (in other words, international anarchy or lack of world govern-
ment, and the balance of power) is the primary determinant of state behaviour. They
instead point to internal facts including the type of government and constitutional
order that states have, as well as other factors such as domestic politics, civil society,
and individual beliefs. Liberals focus on the interests and preferences of actors, and
how preferences are aggregated and negotiated.1 Thus, governments represent the

Perspectives on international law in international relations 31

interests of at least some segment of the domestic polity, even if they are not demo-
cratic. Therefore, their behaviour in the international system refl ects to some degree the
preferences of internal actors. Individual states may each pursue their own self- interest,
but they do not necessarily conceive of that interest identically or behave identically.

A central argument of liberal IR theory is that the nature of the domestic political and
constitutional order matters for understanding state behaviour. Liberal and democratic
states, on this logic, are more likely to comply with international law and to conduct
their relations, at least with other liberal democratic states, in a legally ordered fashion.
This is in part due to the adherence to the rule of law present in the domestic order, and
the constraining effect of a democratically empowered electorate and civil society. This
is related to arguments that some liberals make regarding the democratic peace.

Much as the democratic peace theory argues that democracies fi ght each other
less, for reasons both normative and structural, some liberal IR scholars suggest
that liberal democracies are more likely to adhere to international obligations. This
is again for reasons that are both normative and structural: countries that purport
to adhere to the rule of law domestically may see similar virtues in supporting
it internationally; similarly, domestic legal structures in democratic states may be
better adapted to incorporate international obligations, or may even be shaped
so as to require it. This of course ought not be overstated: the US, as the world’s
most powerful democracy, has not only ‘unsigned’ the ICC treaty, and publicly cam-
paigned against it, but has failed to ratify international legal agreements such as
the Kyoto Protocol or the United Nations Convention on the Rights of the Child.
Moravcsik (2000) suggests that it is not necessarily strong democracies that sign on
to human rights agreements, but rather newly democratizing countries, which use
such agreements as a safeguard against returning to old authoritarian ways.

Box 2.1 The democratic peace thesis

The democratic peace thesis claims that democracies are unlikely to fi ght each other.
Prominent liberal IR scholars who have advanced the democratic peace thesis are Michael
Doyle (1983) and Bruce Russett (1994). A number of different explanations have been
given for the fi nding that democratic states are unlikely to go to war with each other. Some
explanations emphasize the role played by shared liberal norms and values. Other expla-
nations focus on the institutional constraints on war found in democratic systems, the
transparency of information provided by a free press, or other factors such as trade ties
and interdependence.

32 Part I Studying international law

Liberal IR scholars in general are arguably much more sympathetic to the role played
by international law in world politics than realists are. Their focus on the interests of
actors and how those are aggregated by domestic institutions and constitutional struc-
tures resonates with a legal perspective on political order. In other words, both liberal
IR theorists and international legal scholars share a focus on the roles played by institu-
tions and rules in creating political order. An additional characteristic of liberalism that
resonates with an international law perspective is the liberal belief in progress in inter-
national relations. Whereas realists tend to view international politics as an unchanging
and ongoing power struggle amongst states, liberals generally are optimistic about the
role that rules and institutions can play in creating international order, reducing confl ict,
and fostering greater levels of cooperation between states.

Actors

Liberal IR scholars do not reject the realist premise that states are important actors
in the international system, but they do reject the claim that they are the only units
of analysis worth studying. They argue for the need to open the supposed black box
of the state, and understand that states behave differently in the international system
even though they all have a similar interest in survival. This, they argue, is due to vari-
ations in regime type, and the infl uence of domestic actors in international politics.

In addition, liberals give a greater weight than realists do to the role played by inter-
national organizations (IOs) and non- governmental organizations (NGOs) as actors in
world politics. Liberals’ concern with interests and institutions at the domestic level of
states lead them to also pay attention to how interests are articulated and how institu-
tions function at the global level. In addition to the international states system, liberals
are concerned with the functioning of international organizations as political institu-
tions, which act as arenas for state interaction and interest articulation. Just as liberals
are concerned with constitutional orders and the rule of law at the level of the state, they
acknowledge the role that international legal institutions play in international politics,
including regional and international courts. Similarly, liberals place a greater weight on
the importance of non- governmental organizations (NGOs) in world politics than real-
ists do. NGOs are viewed by liberals as being part of a global civil society of non- state
actors and interest groups that exists in parallel to the state system. Thus, NGOs such as
Amnesty International or Greenpeace represent international constituencies with inter-
ests in human rights or the environment, and play an important role in international
politics in placing issues on the international agenda and in lobbying states and interna-
tional organizations. Such dynamics, alongside traditional areas of realist concern, like
interstate competition and power politics, are key aspects of world politics for liberals.

Perspectives on international law in international relations 33

Processes

Liberals would explain the emergence of international legal norms and rules rather
differently than realists. Instead of focusing on international legal norms as the out-
come of power relations in the international system, they might focus on how norms
and rules emerge in domestic contexts (see above) and then spread to the interna-
tional sphere. Liberals, in contrast to realists, argue that states often comply with UN
rules regarding the use of force and with IHL for reasons beyond simple self- interest.
Rather, there may be a set of domestic actors and interest groups which promote
rule- governed behaviour: pressure groups, citizens, political parties, or the judiciary.
As a corollary, some liberals have put forward the notion that liberal states based on
the ‘rule of law’ domestically are more likely to comply with these obligations than
non- liberal states which may be less constrained by judges or civil society.

Liberals also tend to focus on the functional role played by international law—
understanding its emergence as a means for states to reach cooperation in areas
in which they have common interests. International norms and rules create shared
expectations, increased transparency, and the possibilities of iterated interaction—
all of which help states to overcome problems of collective action. Liberals are there-
fore more likely than realists to focus on international regimes as important features
of world politics. International regimes have been classically defi ned by Stephen
Krasner (1983: 1) as ‘principles, norms, rules, and decision- making procedures
around which actor expectations converge in a given issue-area’. Notice that this
defi nition might include, but is not confi ned to, international law. Furthermore, the
defi nition does not explicitly refer to international law, legal norms or institutions,
and nor, for the most part, does the body of IR literature on international regimes.

This is a key difference in the approach, language, and terminology of IR s cholars that
distinguishes it from international legal scholarship. It means that IR scholars interested
in the use of force, humanitarianism, human rights, refugees, trade, and the environment
will refer to the international regime that exists in each of these areas rather than refer-
ring to bodies of international human rights law or international environmental law
as such. There are some exceptions to this, such as the growing international relations
l iterature that explicitly examines the question of legalization in world politics (Goldstein
et al. 2000). However, students of inte rnational relations can gain much from having
an understanding of international legal s cholarship on international human rights law,
international refugee law, international trade law, or international environmental law as
elaborating on key components of the IR literature on the international human rights
regime, the international refugee regime, international trade regime, or international
environmental regime.

34 Part I Studying international law

Institutionalism

Theory

International relations scholars who view themselves as institutionalists have
developed a rational actor, functionalist approach to the development of inter-
national law or institutions that is consistent with both realist and liberal tenets.
Scholars such as Robert Keohane have argued that states create institutions
out of self- interest in order to facilitate cooperation, to help them to achieve
goals and aims which they could not do singly (Keohane and Martin 1995).
Institutions, then, are not created so much to bind and limit states as to enable
them to pursue their interests. Institutionalists combine realist and liberal per-
spectives on international law by focusing on the rational self- interest of states.
The perspective taken by most institutionalists has become known as rational-
ism, which can be contrasted with social constructivism, which is discussed in
the next section.

Actors

For institutionalists, states are still key actors in the international system, but so
too are the institutions which they create, which can come to have an autonomous
agency of their own. Institutionalists recognize that states often create organiza-
tions and regimes in large part for self- interested reasons: states create institutions
that facilitate activities in which they wish to engage, such as trade, or that ease
the risks of interstate negotiations, such as those over arms control. Informal
institutions and regimes can become more deeply institutionalized and formal-
ized over time, eventually resulting in a formal international organization (IO).
Classic examples of this are the General Agreement on Tariffs and Trade (GATT),
which developed into the more formalized World Trade Organization (WTO) in
1995 (see Chapter 15), or the Conference for Security and Cooperation in Europe
(CSCE) which eventually became the Organization for Security and Cooperation
in Europe (OSCE).

Institutionalists argue that because institutions or regimes facilitate transparency,
reduce transactions costs, and reduce the risks of cheating, states will create rules and
abide by them. International institutions foster iterated interactions among states, thus
increasing what game theorists refer to as the shadow of the future. This simply means
that, when states interact repeatedly with one another in institutions, they begin to take

Perspectives on international law in international relations 35

Box 2.2 Game theory and international cooperation

Because of its focus on rational self- interest, institutionalism lends itself to the formal mod-
elling of game theoretic approaches. Game theory uses mathematics to model strategic
interactions based on the preferences of actors. It has been widely used in some branches
of international relations to understand the dynamics of interstate cooperation. Game
theory experiments have shown that actors who interact repeatedly may obtain coopera-
tion over time by using a tit- for- tat strategy of reciprocating their opponent’s behaviour
(Axelrod 1984). Since international institutions help to create stable expectations and
foster long- term interaction, they can, through a similar logic, help to create cooperation
among states.

a long- term rather than short- term perspective on their relationships. This encourages
greater levels of reciprocity, leading to higher levels of cooperation and stability.

Box 2.3 Relative versus absolute gains

The debate over whether states are more concerned with absolute gains (i.e. doing better
than previously) or relative gains (i.e. how they fare compared with other states) when they
cooperate, was an important debate between realists and liberals in the fi eld of international
relations in the 1990s. The debate has converged into a common rationalist perspective on
state behaviour that focuses increasingly on the importance of institutional design in cre-
ating mixes of incentives and constraints that affect states’ rational calculations.

Many institutionalists will also argue that once created, institutions develop an
identity and power of their own, constraining state behaviour even where states
may wish to deviate from agreed rules. Path dependency ensures that institutions
are easier to maintain than they are to create. Institutions and regimes, once created,
may have more enduring power than states initially anticipate. They may be set up
initially because of the self- interested concerns of states, but because of their ability
to reduce transaction costs, increase transparency, and enable regularity and stabil-
ity, they can come to constrain state behaviour even well after they cease to serve
state interests. Regimes therefore serve not just the needs of the powerful but also
the rational calculations of all states. Institutionalists argue that states are usually
more concerned with achieving absolute gains than relative gains, and thus will

36 Part I Studying international law

value the role that institutions play in facilitating collective action and cooperation,
leading all states to be better off over time.

Processes

Institutionalists argue that institutions create stable expectations, facilitate
cooperation and linkages, and help set standards of legitimate behaviour. These
theorists have also come to focus on questions of rational institutional design and
function, and how compliance with international norms—and/or international
law—is achieved. In other words, why do states comply with international norms
and political agreements? Why do states comply with international law? A key
argument here is that even without coercion and central enforcement, legal rules
and procedures can help shape the structure of international politics by creating
incentives for rational self-interested states to engage in sustained cooperation with
one another. By fostering iterated interaction, international institutions help states
to come to value long- term mutual engagement on issues, allowing them to develop
patterns of reciprocity and stable expectations about the behaviour of other states.

Institutionalist theory is, at its core, about explaining the creation and main-
tenance of, and compliance with, more or less formalized rules and institutions
in the international system. They may seldom describe them as legal, but much
of what they discuss are legally created and regulated institutions. This phenom-
enon occurs across a range of issue areas in international politics. States agree
collectively to self- restrain by limiting whaling, or banning trade in endangered
species, because, over the long term, they have individual and shared interests
in the protection of species and the environment. Similarly, over the long term,
states may arguably benefi t by removing restrictions on free trade, allowing for
the free- fl ow of goods across borders, even if particular segments of domes-
tic economies are exposed to the painful consequences of this process in the
short term.

The rationalist perspective used by institutionalists to understand why states
comply with legal obligations in the absence of enforcement mechanisms is not
based on formal legal reasoning but rather focuses on how institutions can be
designed to encourage states to pursue their own self- interest in ways that facili-
tate long- term cooperation over time. This of course may also be a concern in
international law, yet it is rarely addressed so explicitly in the rationalist, stra-
tegic and game- theoretic language and approach that dominates much of the
international relations literature on state compliance with international norms
and legal obligations.

Perspectives on international law in international relations 37

Constructivism

Theory

Constructivism is an approach to international relations that focuses broadly on
the roles that norms, ideas, and culture play in world politics. From a constructivist
perspective, these non- material factors are often more important to understanding
world politics than material factors, such as how many weapons a state has or the
strength of its economy (traditional measures of power for realists). One prominent
constructivist, Alexander Wendt, famously said that international politics is about
‘ideas all the way down’. In other words, we cannot understand world politics
without understanding the identity and self- understanding of the actors that make
up world politics (Wendt 1999). States may not always act out of a concern for
raw power and self-interest—they are social entities that can be ‘other-regarding’
and concerned with what is appropriate behaviour in world politics. They often
make decisions and determine their actions based on the logic of appropriateness
(concern with what is socially appropriate) rather than a rationalist logic of con-
sequences (concern with an instrumental outcome). Constructivism thus provides
a clear contrast to rationalist approaches to international politics.

States’ priorities might be shaped by their own national identity, which is in turn
informed by a unique set of cultural, historical, and institutional traditions. As social
actors, states are infl uenced by international norms that prescribe what is consid-
ered to be appropriate and inappropriate behaviour. States are concerned with sta-
tus and world opinion. They care about the defi nition of what it means to be a ‘good
state’ and their decisions to sign on to international legal instruments and to comply
with international law is based as much or more on normative concerns regarding
the logic of appropriateness as it is on rational concerns of narrow self- interest.

Many social constructivists thus share a number of concerns with IL scholars;
however, they use a different language and approach. Whereas international human
rights lawyers view states as being embedded in an international legal order of human
rights obligations, and focus on the specifi c institutions, conventions, and treaties that
legally oblige states to uphold human rights laws and principles, social constructivists
may focus more on the strength of human rights norms more generally, and would
examine acceptance and implementation of human rights norms as a social process,
rather than simply a legal obligation. Social constructivists also use a different set of
terminology from international legal scholars. While IL scholars are interested in the
‘evolution of international law’, social constructivists are interested in processes of
socialization and in the emergence, spread, and deepening of ‘international norms’.

38 Part I Studying international law

The English School

The IR–IL divide has appeared most distinctly in the United States, although this is
not to say that it isn’t present elsewhere. In the United Kingdom, however, one tradi-
tion of IR theory has continued to view international law as an important part of
international politics: the so- called English School, which shares some features with
constructivist theories. Scholars of the English School embrace the role of law, rules,
and norms in international society, with some describing their work as following in
the ‘Grotian tradition’, referring to Hugo Grotius, a seventeenth- century interna-
tional legal scholar. Writers such as Hedley Bull argue that they can accept realist
premises regarding the nature of power in the international system and nonetheless
identify a place for law and rule- governed behaviour (Bull 1977). Bull argues, for
example, that even though international politics is anarchic, and lacks the hierarchy
and structure of domestic politics, this does not mean that rules and indeed law
cannot govern state behaviour. He argues rather that international society is an
anarchical society, in that there is no single hierarchical supranational power, but
that it is a society nonetheless that is based on shared institutions and conventions.
He identifi es international law as an important institution in world politics, along
with other institutions, such as state sovereignty, international diplomacy, warfare
and the balance of power. The English School perspective on international law can
thus be seen as combining some of the views of both realists and constructivists.

The English School is also an important approach because it is one of the few
approaches in international relations to explicitly examine the origins of interna-
tional society—and, by implication, the origins of the international legal order—in
Europe and its spread to the rest of the world through empire and colonial rule.
Much of realist or liberal theorizing, in contrast, tends to ignore the question of
the origins of the current international order, taking instead a rather ahistorical
approach to international relations.

Actors

Many constructivists and adherents of the English School concur with the realists’
view that states are the primary actors in the international system. Overall, however,
constructivists and English School theorists have a more nuanced and contextual-
ized view of state identities and interests. Rather than viewing state interests as
uniform or fi xed, they view state identities and interests as malleable and subject to
change. State identities and interests evolve over time, and this evolution can occur
due to interaction with other states and processes of learning.

Perspectives on international law in international relations 39

From a constructivist perspective, international institutions are not merely arenas
for states to pursue their self- interests. Rather, they are sites of socialization and
norm- promotion. State identities and interests are changed through their interac-
tion with international institutions. International institutions are promoters of new
norms and identities that can fundamentally reshape the preferences of state actors.
States come to internalize new norms and develop new identities. International
institutions can socialize states to take on new self- understandings and engage in
new practices.

For example, when East European states joined NATO they had to develop new
domestic understandings of civil- military relations (Gheciu 2005) and took on the
identities of ‘liberal democracies’. Similarly, states that become members of the
European Union have to accept the Copenhagen Criteria (EU membership criteria
that include democratic governance, human rights observance, and market econo-
mies) and then incorporate the acquis communitaire, or body of EU accumulated
law, into their domestic legal systems.

Social constructivists would focus less on the legal process through which this occurs,
and more on the effects this process has on the identity and self- understanding of states.
Constructivists, like other IR theorists, rarely speak directly of international law as part
of this process, preferring instead to study socialization processes, norm diffusion and
identity change. Yet the relevance to international law is clear: a focus on the internaliza-
tion of new norms and changing identities suggests that states comply with international
legal obligations not simply out of fear or narrow self- interest, but rather that values,
beliefs, and normative affi nities play an important role in achieving compliance.

In addition to international organizations, such as NATO or the EU, constructivists
pay a great deal of attention to the role of transnational actors who may infl uence the
behaviour of states through their norm promoting activities. These include NGOs,
transnational advocacy networks, or individual ‘norm entrepreneurs’. Constructivists,
like liberals, place a strong emphasis on the role played by international civil society
actors in shaping the normative environment in which states operate.

Processes

Social constructivists are keenly interested in the emergence and evolution of
international norms. Alexander Wendt, for example, argues that international order
is shaped by the shared understanding of states regarding ‘cultures of anarchy’. He
subsumes realist and liberal perspectives on world politics, arguing that particular
cultures of anarchy socialize states into particular forms of behaviour. A realist
‘Hobbesian’ anarchy is based on competing power relations and portrays other

40 Part I Studying international law

states as enemies; an institutionalist ‘Lockean’ anarchy is based on competing inter-
ests and portrays other states as rivals; whereas a ‘Kantian’ anarchy is based on
shared values and portrays other states as friends. Ultimately, international order is
determined by ‘what states make of it’ (Wendt 1999; 1992).

While this dovetails with some concerns of international legal scholars in strength-
ening an international legal order, the language and framework used by a construc-
tivist such as Wendt is very different from the language and framework employed
by a scholar of international law. On the other hand, there are some constructivists
who take a more legalistic approach, such as Christian Reus- Smit (2004), who have
been more sympathetic to explicitly examining the relationship between interna-
tional law and international politics through a refl ection on the feedback effects of
law on politics, rather than just politics on law.

Other social constructivists such as Martha Finnemore and Kathryn Sikkink
(2005) have focused on the role that individual ‘norm entrepreneurs’ play in promot-
ing and institutionalizing new international norms. They argue that international
norms emerge in life cycles that generally begin with norm promotion by individu-
als, and progress to norm institutionalization within international organizations
and institutions, followed by socialization and acceptance of norms by state actors
that begins with a few state actors and then spreads until it reaches a tipping point
and creates a ‘norms cascade’. This can, they argue, lead to a general acceptance,
internalization, and the naturalization and institutionalization of the new norm.
Within this framework, international law plays an important role in promoting
normative change. The signing on to international conventions and treaties marks
an important stage in the ‘norm cascade’ pattern. Whereas states may initially sign
on to international human rights or other conventions for instrumental reasons, this
may initiate a process that eventually leads to a change in behaviour, and internali-
zation of new norms, and perhaps an eventual change in a state’s own self- identity.
Again, the terminology used here is very different from that used by IL scholars,
but parallels processes of state acceptance of and compliance with international
law, and the ways in which international law can insert itself into a state, reshaping
domestic legal practice.

With regard to the creation of and compliance with limitations on resort to the
use of force or conduct of armed confl ict, constructivists point to the normative
power of the UN Charter, International Humanitarian Law and other international
treaties. State leaders may comply with these legal regimes because they believe
them to have value in themselves, and because they conceive of their states to be
law- abiding members of the international community. The social constructivist Nina
Tannenwald, for example, has argued that states have not used nuclear weapons

Perspectives on international law in international relations 41

and largely comply with the Nuclear Non- Proliferation Treaty (NPT) because they
have internalized a strong ‘nuclear taboo’ that makes it normatively unacceptable
to use or openly pursue nuclear weaponry (see also Chapter 6). This is a very dif-
ferent argument from that made by realists who would focus instead on the role of
power, threats, coercive diplomacy, and security guarantees in limiting the use and
spread of nuclear weapons since World War II.

Marxism, Feminism, and Critical Theory

Theory

There are many additional paradigms in international relations that present alter-
native views on world politics. Robert Cox once famously made the distinction
between ‘ problem- solving theories’ and ‘critical theories’, with problem- solving
theories taking the world as it is, and critical theories envisioning the world as it
could be (Cox 1981). There are many varieties of critical approaches to world poli-
tics, which are linked by a focus on critiquing the status quo in world politics and
placing an emphasis on the relationship between theory and praxis.

Marxist approaches to international relations include world systems theory and
neo- Gramscian approaches. World systems theory (Wallerstein 1974; Hobson
2000) emphasizes the role that capitalism has played in shaping a world order
that is divided into powerful core states and less powerful states on the periphery.
It examines the fusion between state and class power, with an emphasis on how
economic elites in both the core and the periphery are linked in a common interest
in maintaining an unequal and exploitative status quo. Neo- Gramscian approaches
to world politics (Cox 1981; Gill 1992) similarly emphasize inequality but point
to the role that the ideas of the powerful, such as neoliberalism, play in maintain-
ing inequality. They would argue that such hegemonic perspectives structure the
international order in subtle ways that benefi t elites. International law is therefore
not a neutral force in world politics, but refl ects the ideologies and interests of
global elites.

Other critical perspectives on world politics would similarly view the interna-
tional legal order as refl ection of particularistic interests. Feminist theorists, many
of whom view the international state system as a refl ection of gendered power rela-
tions which prioritize public institutions over the private sphere, and which trace
many of the institutions of international public life to gendered considerations

42 Part I Studying international law

of power and interest, would similarly view international law as refl ective of a
gendered international order.

Actors

Critical approaches to world politics include a more diverse range of actors as sig-
nifi cant players in international relations; they do not assume the primacy of the
state. Marxist approaches to world politics place an emphasis on the interests of
global capital: the power of multinational corporations, it is argued, often out-
weighs the power of small or weak states. Powerful economic interests converge in
forums such as the World Economic Forum (an annual meeting of business, govern-
ment, and other elites in Davos, Switzerland) and are arguably refl ected in a global
order in which neoliberal ideologies provide a system of meaning in which powerful
states, global economic elites, and international institutions such as the World Bank
and the IMF share common economic interests.

Feminist approaches to international relations would focus on the extent to
which women are often treated as invisible actors in world politics. While realists
focus on the role of US military bases in maintaining US hegemony, or liberals
focus on how United Nations peacekeepers are deployed to resolve collective
security concerns, feminist approaches would examine the gendered nature of
these arrangements and would point to how both military bases and peacekeep-
ing operations are often closely linked to local sex industries or sex traffi cking
(Enloe 1992).

Processes

Marxists will tend to interpret the emergence and maintenance of international legal
agreements and regimes as refl ective of the interests of capital within powerful coun-
tries or across countries. Thus, for example, the self- constraints states create through
free trade agreements are not a puzzle, even in the face of signifi cant domestic opposi-
tion from labour or environmental movements. Rather, they represent the interests of
domestic and multinational corporations in relatively unfettered transfer of goods, cap-
ital, and labour. Feminist critiques of international legal processes have in some ways
also effected change in the functioning of them: while traditionally females were often
overlooked as specifi c subjects of international law, the rapid progressive development
of international humanitarian law and international criminal law has seen increased
recognition of the distinct harms which women may suffer disproportionately. Thus, for

Perspectives on international law in international relations 43

example, the ad hoc criminal tribunals for the former Yugoslavia and Rwanda have
elaborated upon rape as a war crime and as an element of genocide.

Conclusion

In this chapter, we have seen that different theories of international relations have
very different assumptions about the underlying nature of world politics, and the
relevant actors and processes that make up international political life. These in
turn affect their views—implicitly, if not explicitly—of the relevance and function
of international law. Each of these theories: Realism, Liberalism, Institutionalism,
Constructivism, Marxism, Feminism, and Critical Theory, places a different degree
of emphasis on the relative importance of state power, rational self- interest, institu-
tions, and ideas and culture—which shapes the perspectives they bring to under-
standing international law.

We have seen that IR scholars are interested in important IL questions, such as the
origins and evolution of international law, and why states do or don’t comply with
international law. However, their emphasis may be less upon the legal nature of the
object of study than on explaining behaviour in the international system—of states,
institutions and individuals—and where or why these actors create norms, support
and maintain them, or comply with them. We have provided some specifi c examples
of substantive areas in which one fi nds convergence between international relations
and international law—many of which will be explored in much greater detail in
some of the chapters to come.

Many of the theoretical perspectives presented in this chapter will be familiar to
students of international relations; however, often the relationship the various IR
paradigms have to the study of international law is diffi cult to discern. Perspectives
on international law in international relations are often implicit, rather than explicit.
Theories of international relations approach the study of world politics with a dif-
ferent language and terminology from international law. Often there is a great deal
of overlap between the two disciplines in the substantive interests and questions
that are addressed, but the terminology employed and the perspective taken make
it diffi cult for the two disciplines to maintain a sustained dialogue. Nevertheless,
for students of international relations, obtaining an understanding of international
law is not only a valuable exercise in and of itself, but can also ultimately help the
student to have a better understanding of international relations.

44 Part I Studying international law

Questions

1. Why should students of international relations study international law?
2. Why has much of international relations theory historically dismissed the importance

of international law?
3. How do realists understand the place, if any, of law in international politics?
4. How do liberals understand the place of law in international politics?
5. How do institutionalists understand the place of law in international politics?
6. How do constructivists or English School scholars understand the place of law in

international politics?
7. What is meant by the ‘logic of appropriateness’ and the ‘logic of consequences’

and what are the main differences between a rationalist and social constructivist
perspective on international law?

8. How do Marxists, critical theorists, or feminists understand the place of law in
international politics?

9. If the international system is anarchical, what role do you think that institutions,
norms, or law play in constraining state behaviour, if any? If they do play a role, why
and how?

10. Select one of the theoretical paradigms discussed here, identifying the theoretical
explanation, key actors, and processes. Use it to explain a contemporary international
regime (human rights, environmental, or other).

Further reading

Abbott, K. (1989) ‘Modern International Rela-
tions Theory: A Prospectus for International
Lawyers’ Yale Journal of International Law
14/2: 335–411. A helpful summary of relevant
IR theories and their approaches to interna-
tional law.

Biersteker, T., Spiro, P., Sriram, C. L., and Raffo, V.
(2006) (eds.) International Law and Interna-
tional Relations: Bridging Theory and Practice
(London: Routledge). Contributions seek to
examine the relation between international
relations and international law in specifi c
international political challenges .

Franck, T. (1990), The Power of Legitimacy
Among Nations (Oxford: Oxford University
Press). A prominent international lawyer
considers why states might comply with

international legal obligations, focusing upon
their legitimacy.

Goldstein, J., Kahler, M., Keohane, R., and
Slaughter, A . (2000) (eds.) Special issue
devoted to ‘Legalization’ of International
Organization, 54/3. Contributions e xamine
the concept of legalization in international
politics.

Keohane, R. (1984) After Hegemony: Cooperation
and Discord in the World Political Econ-
omy (Princeton, NJ: Princeton University
Press). Leading institutionalist IR scholar
presents his arguments about how regimes
function in the absence of a global hegemon.

Krasner, S. (1983) (ed.) International
Regimes (Ithaca, NY: Cornell University

Perspectives on international law in international relations 45

Press). Contributions consider the concept
and impact of international regimes.

Moravcsik, A. (1997) ‘Taking Preference Seriously:
A Liberal Theory of International Politics’ Inter-
national Organization 51/4: 513–53. A leading
liberal IR scholar makes a case for liberalism
as a distinctive approach to world politics.

Slaughter, A., Tulumello, A., and Wood, S. A. (1998)
‘International Law and International Relations
Theory: A New Generation of Interdisciplinary
Scholarship’ American Journal of International

Law 92/3: 367–97. Developing on Slaughter
Burley’s classic piece, a consideration of schol-
arship engaging both IL and IR.

Waltz, K. (1979) Theory of International Politics
(New York, NY: McGraw-Hill). Leading realist
IR scholar presents his theoretical arguments.

Wight, M. (1992) International Theory: The
Three Traditions (London: Holmes and
Meier). A leading representative of the English
School presents approaches to international
politics.

Websites

http://www.chathamhouse.org.uk The website of the Royal Institute of International Affairs pro-
vides an interesting overview of what—from a UK perspective—are perceived to be the most relevant
and pressing contemporary topics in the area of international relations.

http://www2.etown.edu/vl/ This internet directory brings together over 2,000 annotated links to
sources of information and analysis in a wide range of international affairs, international studies, and
international relations topics.

http://www.g7.utoronto.ca This website offers up- to- date information on meetings, summits,
conferences, and research related to G8 activity.

http://www.iiss.org The International Institute for Strategic Studies conducts research focused on
military and political confl ict and offers publications on a wide range of topics.

http://www.opendemocracy.net This is an open source of view and opinion pieces written by
experts all around the world on democratic, international, and global politics.

Visit the Online Resource Centre that accompanies this book to access more learning resources
www.oxfordtextbooks.co.uk/orc/cali/

Chapter endnote
1. The terms ‘liberal’ and ‘liberalism’ here

refer to both Liberal International Relations
Theory (liberalism, liberal IR scholars) and, in
the context of domestic government, political

systems based on principles of liberalism (i.e.
liberal democracy, constitutional liberalism).
This dual usage is standard in international
relations literature.

Chapter 3

Basic principles of international
law: a historical perspective
Antony Anghie

CHAPTER CONTENTS

• Introduction

• The birth of modern international law: the sixteenth century

• The Congress of Vienna: international law from 1815–1914

• The League of Nations: international law from 1919–1939

• The United Nations: 1945 to the present

• Conclusion

CHAPTER OVERVIEW

This chapter provides an outline of the modern history of international law, commencing

in the sixteenth century and extending to the present. It begins by considering the issues

of the subject matter of the history of international law, the different ways in which this

history has been approached, and the broad question of why an understanding of the

history of international law is important for a study of international law and international

relations. The chapter identifi es some of the basic concerns of international law—such as

the prevention of war—and illustrates the ways in which international law has attempted,

over the centuries, to deal with a rapidly changing international system. The history of

international law is traditionally divided into different phases—usually separated by a major

European war—and this chapter outlines the key developments that occurred in each phase.

It adopts a historical perspective in examining how some of the foundational concepts of

international law, most prominently, sovereignty, have developed over time and suggests

how the history of sovereignty may be approached in very different ways. It covers the role

of imperialism, both in terms of international relations and the development of international

Basic principles of international law: a historical perspective 47

law. It sketches the historical evolution of international institutions such as the League of

Nations and United Nations, and concludes by pointing to some of the major contemporary

issues in international law, and the continuing relevance of an historical approach to the

discipline.

Introduction

International law can be broadly defi ned as the law that regulates relations among
sovereign states. International relations scholars have long been interested in the
question of whether international law has any impact on state behaviour. It is
argued that states—especially powerful states—ignore international law when it
does not correspond with their own interests. Given that the international system
lacks a world police force that punishes states that violate international law, it would
seem that international law is of little use. Despite this, over the centuries, interna-
tional law has been astonishingly adaptable and resilient; it continues to feature
prominently in international relations even though it has been incessantly violated.
International law now regulates a far greater range of issues than was the case even
twenty years ago (see Chapter 1). The basic question then arises as to why states
expend so much effort to create international law—to negotiate treaties in a diverse
range of areas, for instance—if it is so ineffective. In order to address these issues,
careful attention must be paid to the continuously changing relationship between
those two complex entities that might be termed ‘power’—traditionally the major
focus of international relations (see Chapter 2) scholars—and ‘law’.

The subject matter of a history of international law

The study of the history of international law might provide some insights into this
apparent paradox by enabling an overview of the attempts made by international
law to regulate state behaviour in relation to matters ranging from war to the envi-
ronment to human rights to commercial relations, and the strengths and weak-
nesses of the discipline as it has endeavoured to adapt to a complex and rapidly
changing international system.

The history of international law can be approached in a number of different
ways. In the fi rst place, it can be the study of the interaction between states over
time. International law is created by states—whether through treaties or through
a repeated practice which is inspired by a sense of legal obligation and which gives
rise to customary international law. Thus any study of international law, including

48 Part I Studying international law

the history of international law, involves a close study of state behaviour and the
attempts by states to manage international relations among themselves—often
through wars and, on other occasions, through the creation of new institutions
or legal regimes dealing with major issues such as international trade and foreign
investment. Second, the history of international law includes an examination of the
theories about international law—what it is, how it is made, why it is binding on
states. Third, histories of international law are in many ways histories of broader
ideas—about, for example, the nature of man, the essence of international society,
the means of achieving international peace, the relations between diverse peoples.
The ideas of international law propounded by many great scholars cannot be prop-
erly appreciated without considering them in the context of these larger concerns.
Finally, a study of the history of international law raises the question of how a par-
ticular history is written. What is the perspective of the author, what issues are
regarded as more or less important, what peoples and cultures are more or less
important, what values are being advanced, and what assumptions are made? What
follows is an attempt to sketch a history of international law which touches upon
all these different themes and elements.

Any history of international law involves tracing the complex relationships
between events, such as wars, and the legal rules and institutions that are devised
to address the challenges and problems that these events reveal. As we shall see,
many of the most important developments in international legal doctrine and
institutions have occurred following major wars. In many instances, leaders and
statesmen attempt, after such massive catastrophes, to create a better and different
international system, often accompanied by new political principles and appropri-
ate laws and institutions, to make sure that history does not repeat itself and that
instead a new era of peace, stability, and prosperity is ushered in. Developments in
international legal jurisprudence that is, theories about the character and operation
of international law, constitute an equally important dimension of the history of
international law. The international lawyer’s basic task is to identify and apply the
international law that is relevant to a particular dispute or situation, whether it has
to do with title to territory or commercial matters, and assess what actions the law
permits.

These questions are not always easy to answer as the international system lacks
a single, defi ned, legislative body and states may well disagree as to what the
applicable and relevant law is. As a result, these questions inevitably involve deal-
ing with important issues of international legal theory such as: where do we fi nd
international law? How is international law made? What makes international
law binding on states? These questions have preoccupied international lawyers

Basic principles of international law: a historical perspective 49

over the centuries. In attempting to answer them, jurists have developed theories
about the character of sovereignty, the sources of international law, and the nature
of the international system. In many cases, the jurists formulating these theories
were affected by contemporaneous international events, and tried to explain such
events as an illustration of a larger theory about how states behave or about the
character of international law.

Almost invariably, these jurists aspired to act as advisors and to present theories
of international law that would be taken into account by the state—the foreign
policy of the Bush administration, for instance, was signifi cantly infl uenced by neo-
conservative thinkers and their particular vision of the world and the role of the
United States within it.

Thus the history of international law is a history of events and doctrines and
state practices and theories about law (see Chapter 4); but it is also a history of
ideas, the attempts of scholars and jurists over the centuries to present coherent
accounts of how states behave, how international law is made, how the system
works and, sometimes, more ambitiously, how peace, international stability, and
justice are achieved.1 This chapter will discuss how particular problems and events
have contributed to the development of international law. This has been the tradi-
tional approach to studying international law.

Box 3.1 Critical approaches to international legal history

It should be pointed out that the writing of the history of international law has itself been
the subject of controversy. In recent times, attempts have been made to present ‘histo-
ries’ of international law rather than elaborate on one traditional story. Critical scholars of
international law have presented perspectives that involve reinterpreting central histori-
cal events—by questioning and reinterpreting the importance, for instance, of the Peace
of Westphalia, for international law. Critical scholarship seeks to identify and contest the
‘Eurocentric’ character of conventional histories and to focus instead on peoples and soci-
eties that have been profoundly affected by international law, but whose voices and experi-
ences have not been incorporated into the telling of its history.

A history of international law written from the perspective of a powerful European state
such as the United Kingdom, it is argued, would be very different from a history written by
the native peoples of the Americas or Australasia whose dispossession was justifi ed by the
international law of the time.

These are important developments, as a particular vision of the history of any discipline
almost inevitably affects its study because it is the problems and challenges, the values
and attitudes revealed by that history that often inspire further inquiry and the techniques

50 Part I Studying international law

The birth of modern international
law: the sixteenth century

Throughout history, interaction between different entities—whether characterized
as empires or societies or tribes—has resulted in the formulation of principles that
facilitate and regularize such encounters. Seen in this way, a version of international
law has existed for thousands of years. Studies of the history of Mesopotamia,
ancient Greece, the Roman Empire, ancient China, and ancient India reveal the
existence of city- states that formulated rules to govern relations between mem-
bers of their own system—including provisions for the treatment of diplomats, the
making and enforcement of treaties, and principles governing the declaration and
conduct of war (Bederman 2001).

The beginnings of Empire

Whatever these antecedents, the modern discipline of international law, as it is tra-
ditionally presented traces its beginnings to the sixteenth and seventeenth centuries,
and with various developments occurring within Europe, principally those con-
nected with the emergence of the sovereign state, and the particular political and
theoretical problems associated with these developments. The Peace of Westphalia
of 1648 may be seen as the crucial moment which gave rise to the modern system
of international relations based on the sovereign state. But the Westphalian system
itself might be regarded as one response to a much broader and more fundamental

and methods of solving even contemporary problems depend in various ways on what has
already been formulated.

A more complex understanding of international law is emerging as a consequence of this
work, one that suggests that international law cannot be seen only as a gallant attempt to
prevent the ravages of war and protect human beings against depredations of tyrants and
disasters. Rather, these new histories suggest that international law itself has enabled the
suppression and conquest of peoples and can even justify large- scale violence. In short,
international law may not only further the cause of international justice, but even under-
mine it. These critical perspectives on the history of international law may prompt a more
subtle appreciation of the character and uses of international law.

Basic principles of international law: a historical perspective 51

question which scholars and sovereigns had attempted to resolve since ancient times:
how to develop a set of principles that would govern relations between very diverse
peoples. This issue engaged the most prominent European jurists of the sixteenth
century, including Spanish scholars such as Francisco de Vitoria (1486–1546) and
Suarez (1548–1617). It was an issue that emerged in a very powerful form in the
colonial confrontation between European and non- European peoples. This was the
age of discovery for the explorers in Europe who journeyed in search of gold and
trade into the Americas, Africa, and Asia, where they often encountered rich and
complex civilizations. Legal scholars of the time attempted to articulate doctrines
that would account for dealings between European and non- European peoples who
belonged to entirely different cultural systems. What was the law that governed
relations between such disparate societies? How was such a law to be identifi ed
or created? What was the legal status of these non- European territories, and what
rights and responsibilities followed? Much of Vitoria’s jurisprudence grapples with
these fundamental questions as he examines the claims made by the Spanish to
acquire sovereignty over the lands and peoples of the West Indies following the voy-
ages of Columbus. Vitoria’s analysis of the legal issues generated by this encounter
also included a presentation of the intricate relationship between divine law, as
prescribed by the Pope, and secular power, represented by the Emperor. Vitoria also
examined issues such as whether there was one law universally binding on both
Spanish and Indians—despite their very different cultures—and the legal identity of
the Indians in this system. His examination of when it is legal to go to war, and what
rules should be observed in going to war occurs in the particular historical context
of the wars conducted by the Spanish against the Indians.

Box 3.2 Religion and law

Theology was inextricably intertwined with law in this period. It is commonplace for works of
this period to cite scripture—especially from the gospels and letters of St. Paul—as author-
ity for their jurisprudence. Christianity prescribed a set of principles that was universally
applicable both to relations within states and between states and indeed, the distinction
between what we now call ‘domestic’ and ‘international’ law was not very well developed at
this time. All these jurists were preoccupied by a question that had been deeply examined
centuries earlier by the greatest of Catholic political philosophers, Augustine: when was
it legal to go to war and use violence. This issue was especially problematic to these early
scholars because Christianity had repeatedly proclaimed itself to be a religion of peace.

52 Part I Studying international law

The Peace of Westphalia and Westphalian sovereignty: 1648

Within Christian Europe the splitting of the church following the Reformation led
to deep hatred between states on either side of the resulting divide, states that were
each absolutely convinced of the truth and validity of their own position and intent
on converting all non- believers by force, if necessary, in order to establish the uni-
versal validity of the one ‘true’ religion. Wars that were especially ferocious and
bloody resulted because the issue at stake was more than merely territory; it had to
do with God. And, invariably in these wars, the enemy was thought of as less than
human, as an abomination against whom any violence could be legally directed.

The Thirty Years War (1618–1648) resulted in the devastation of much of Europe
from Sweden to the Balkans. It was in the midst of these confl icts that the great
Dutch scholar, Hugo Grotius (1583–1645), often thought of as the founder of mod-
ern international law, wrote his monumental work, The Rights of War and Peace
(fi rst published in 1625). His major achievement lay in shifting the basis of law from
religion to natural law, by arguing that the great principles of law—whether in rela-
tion to war, commerce, or the formation of treaties—could be derived from nature
or reason, rather than God (although, on the whole, he was careful to argue that this
corresponded with God’s law as well). The important point was that natural law
was binding on all people, regardless of their religion.

Box 3.3 Pacta sunt servanda

One of the fundamental principles of this natural law, Grotius further asserted, was the
principle of pacta sunt servanda; treaties must be obeyed—a principle of international law
that is still regarded as a foundation of the modern discipline. In this way, Grotius, like his
great contemporary, Thomas Hobbes (1588–1679) was responding to the alarming prospect
of endless anarchy, a continuous war of all against all that seemed to be exemplifi ed by the
religious wars at the time.

The Thirty Years War was concluded by a peace settlement, the Peace of
Westphalia, which sought to prevent further religious confl ict by prescribing that
each sovereign had absolute power within its own territory, and could therefore
adopt whatever religion and political system it thought fi t. No state was justifi ed
in attacking another state simply because that other state had a different ideology
or religion. International law attempted to regulate relations between states, and it

Basic principles of international law: a historical perspective 53

was only if a state violated its obligations to another state that liability could arise
under international law.

Box 3.4 ‘Westphalian sovereignty’

‘Westphalian sovereignty’, as it is now popularly referred to in the literature, is traditionally
understood to stand for the proposition that a sovereign has absolute legal power within
its own territory. However, the Peace of Westphalia was established through a series of
treaties and in fact included provisions that required states to protect the rights of religious
minorities found within their territories. The disparity between the popular understanding
of Westphalian sovereignty and the provisions of the actual texts provide a good example
of the way in which general understandings may not withstand close historical scrutiny.

The idea that the sovereign was subject to no higher authority in its external rela-
tions has had an enduring signifi cance and was manifested and entrenched in the
practices, policies, institutions, indeed, the very identity of the state. Correspondingly,
at least in Europe the international legal system was understood to comprise equal
and sovereign states. Indeed, the history of international law is in many ways the
history of sovereignty. Only sovereign entities have full standing in the interna-
tional system—to bring claims, to make international law, and to create interna-
tional institutions. A complex and continuously developing set of rules decides the
crucial question of whether or not an entity is sovereign, and what the powers of
the sovereign are. Sovereignty doctrine developed in two somewhat different geo-
graphical realms: fi rst, in relations between European states that, despite their reli-
gious differences, were relatively homogenous culturally; and second, in encounters
between European and non- European states, exemplifi ed by the inaugural encoun-
ter between Europe and the West Indies. The history of sovereignty, then, must take
into account developments in both these arenas.

In this respect it is noteworthy, that Grotius, the father of international law, was
also the lawyer for the Dutch East India Company and wrote some of his earliest
important works in an attempt to justify their expansion against Portuguese compe-
tition in the East Indies. Recent scholarship has pointed out the signifi cant ways in
which this work has infl uenced his masterpiece, The Rights of War and Peace.

The Peace of Westphalia can be seen, then, as the beginning of an historical proc-
ess by which the state became more consolidated, the centre of absolute power, with
its own rationality that was independent of religious considerations and ethics.

54 Part I Studying international law

The Congress of Vienna: international law
from 1815–1914

Napoleon’s defeat at Waterloo was followed by another effort to establish a new
order in Europe. The Congress of Vienna in 1815 inaugurated not only a legal
regime, but a new political order that was based on the concept of the ‘balance of
power’. The basic idea of the balance of power was that states would combine with
each other to neutralize any state that threatened to acquire overwhelming and
decisive power.

The consolidation of the power of the state was furthered in the nineteenth cen-
tury, particularly as a result of the rise of nationalism, the demand by distinctive

Box 3.5 Vattel and the development of ‘sovereignty’

Scholars and jurists continuously refi ned these ideas of sovereignty. The Law of Nations,
the great work of the Swiss jurist, Emer de Vattel (1714–67), was published in 1758. It was
very widely read, not only in Europe, but, in time, in the United States and the Far East.
Vattel acknowledged that states were bound by natural law. But he further argued that
only states could interpret for themselves whether they had in fact breached natural law.
Vattel himself presented this idea as a useful compromise between the theory of natural-
ism and the reality of the increasingly powerful nation state. But it led to a situation where,
in effect, a state judged its own cause and rejected natural law as having any independ-
ent, binding authority. Then, as now, states were prone to assess events and the law in the
light of their own interests and concerns, and like Vattel, scholars before and after him
have attempted to provide solutions to the fundamental problem that the international
system lacks a ‘world government’ which could enforce judgments on disputes between
nations. Equally signifi cantly, Vattel presented very infl uential rationalizations for colonial-
ism. While he was opposed to the conquest of non- European states that had achieved
what he regarded as a certain degree of advancement (which he equated with the practice
of agriculture), he argued that societies that did not engage in agriculture were inferior,
and that their lands could be taken over because they did not properly belong to anyone
else. Vattel’s arguments provided a semblance of legal justifi cation for events such as the
settlement of Australia by Europeans who claimed that the Aboriginal people who had lived
there for thousands of years possessed no real rights to their lands. Once again, questions
of sovereignty played a crucial role in this debate: were the indigenous peoples sovereign?
If they were, on what basis could their lands be taken from them? If they were not sover-
eign, how was this decided?

Basic principles of international law: a historical perspective 55

ethnic groups that they should become sovereign and thus achieve the highest status
permitted by the international system.

The further ascendance of the sovereign state inevitably affected the jurispru-
dence of the nineteenth century. The theory of positivism, which claimed to be sci-
entifi c and based on empirical, observable facts, was adapted by jurists to the fi eld
of international law (see Chapter 4). Naturalist jurisprudence had been severely
criticized as being imprecise and subjective because different jurists and states could
arrive at very different conclusions as to the content of rules dictated by ‘nature’ or
‘reason’. By contrast, the nineteenth century positivists argued that international
law was based on the observable actions of sovereign states—whether they took
the form of treaties or state practice that gave rise to custom. In short, there was no
system, whether based on religion or natural law that transcended and restrained
the state. It was only if the state consented to a rule of international law that it was
considered as bound by that rule. The sovereign state was supreme and could do
as it wished in order to further its own interests. Within this system, it was legal for
a sovereign to go to war whenever he decided to do so. Despite this, the balance
of power system established by the Congress of Vienna succeeded in maintaining
Europe in a relatively peaceful state during much of the nineteenth century. Stability
was largely achieved by the fact that even though a state was legally permitted to
go to war, it ran the risk of facing a formidable enemy made up of several opposing
states intent on re- establishing a stable balance.

It was precisely during this time, also, that European states were engaged in fi erce
competition and rivalry for colonies. France, England, Russia, the Netherlands,
Portugal, Spain, and the newly emergent Germany were intent on expanding their
empires, and this project usually involved fi ghting savage wars against the peoples
of Africa and Asia. The British Empire was the largest and most threatening in this
Age of Empire, and other European states often allied with each other to negate
British infl uence.

It was only in the late nineteenth century that Western international law became
universally applicable, principally because the expansion of European empires
through colonialism in effect imposed European international law on all societies—
whether in the Pacifi c, Asia, Africa, or Latin America. International law played an
important role in justifying the conquest and dispossession of non- European peo-
ples, all this in the name of civilizing the barbarians. Natural law theory broadly
held that all societies, whether in Europe or Asia or Africa, were governed by the
same universal rules. By contrast, the dominant positivist international law of the
nineteenth century decreed that non- European states were ‘uncivilized’ and there-
fore lacked sovereignty. This particular tenet of positivist jurisprudence derived in

56 Part I Studying international law

many ways from the racial theories—heavily infl uenced by Darwinism—that were
emerging in Europe contemporaneously. As a consequence, these states had no legal
standing to use international law against European states. Quite simply, uncivilized
states were not sovereign and, consequently, lacked the legal personality to enable
them to participate in the international system by making claims under interna-
tional law, and indeed, engage themselves in the creation of international law by
which they were still regarded as being bound.

Box 3.6 International law and the subordination of non- European peoples: the
Berlin Conference

The Berlin Conference of 1885 provides one of the most dramatic examples of the role that
international law played in the subordination of non- European peoples. The competition
between European states for the riches of Africa—the scramble for Africa—threatened to
result in war. The great powers of Europe met in Berlin in order to devise a system that would
enable the ‘orderly’ exploitation of Africa without risking war. Africa was in effect carved
up among the European states as a result of this conference and the agreements that fol-
lowed it. Consequently, many African boundaries are straight lines which bear no connec-
tion with the ethnic groups living within them. The Conference established the large area of
the Congo river basin as a ‘free trade’ area over which King Leopold II of Belgium was given
effective administrative control. In addition, the Berlin Conference sought to end slavery
and to ensure the well- being of the natives. Humanitarian sentiment was a prominent
feature of this enterprise. What followed, however, was large- scale atrocity, as Leopold’s
attempts to exploit the riches of the Congo—which included ivory and rubber—caused the
deaths of millions of Africans. The Belgian administrators punished Africans who failed to
meet their quotas for gathering rubber by mutilations, by cutting off hands. The European
powers who saw the Berlin Conference as a new and progressive development eventually
relieved Leopold of his control over the Congo, which was then administered instead by
the Belgian state. Violence and instability has been a constant feature of the region since
at least this time.

One rationale underlying the positivist position that uncivilized states were not
sovereign was that uncivilized states were considered so backward or culturally
different that they were thought incapable of comprehending and adhering to the
rules that had to be observed by members of the ‘family of nations’. Some nations,
such as Japan, were able to win entrance to the exclusive and largely Western fam-
ily of nations by engaging in massive reform projects directed at modernizing their
society and creating a correspondingly ‘advanced’ national legal system based on

Basic principles of international law: a historical perspective 57

Western models. More important, perhaps, was the fact that Japan defeated a major
European power, Russia, in the battle of Tsushima in 1905. Even as Europe and the
rest of the world were becoming more militaristic, states attempted to regulate the
conduct of war. Of particular note in this regard were two conferences held at The
Hague, in the Netherlands, in 1899 and 1907. These were devoted to creating laws
that would operate in times of war. The law of war has been classically divided into
two different categories: the law of war which deals with the question of when it is
legal to go to war (jus ad bello); and the law of war which deals with the question
of laws to be observed once the war has begun (jus in bello). This latter body of law
developed notable principles such as the rule that it was illegal for armed forces to
deliberately target civilians. The International Committee of the Red Cross, formed
in 1863, played a crucial role in these proceedings despite the fact that it was not
a state.

The League of Nations: international
law from 1919–1939

The balance of power system that had succeeded in maintaining relative stability
in nineteenth- century Europe compounded the magnitude and intensity of World
War I, a war of such a massive scale and horror that it was termed ‘The Great War’
and ‘The War to End All Wars’. It was hardly conceivable that another war of such
a scope would take place again. The appalling death and destruction wrought by
the war demonstrated the capabilities of modern weaponry, and made it impera-
tive to create a new system of international order that would seek to prevent such
a catastrophe from ever recurring. The efforts of the statesmen who gathered at
the peace conference in Versailles in 1919 to achieve these ends resulted in the
creation of a new international actor, the League of Nations, the fi rst major inter-
national institution. The League was largely the product of the vision of President
Woodrow Wilson of the United States—although the United States, not for the last
time, refused to become a member of the institution it was instrumental in creating
(see Chapter 12).

The League was established by sovereign states and was correspondingly limited
by the fact that it could do little unless those states agreed among themselves on
a particular course of action. Signifi cantly, however, it was the fi rst major attempt to
coordinate the behaviour of states through an international actor that possessed its
own legal personality and staff and set as its goal the advancement of international
peace and security as opposed to the interests of individual member states.

58 Part I Studying international law

Despite these efforts, the League proved helpless in preventing aggression. Italy
invaded Abyssinia and Japan invaded Manchuria. Germany, which eventually
joined the League became increasingly belligerent, and the League failed to respond
effectively.

The demise of the League, which had been conceived of in terms of a new world
order of peace and prosperity, dealt an enormous blow to the credibility of interna-
tional organizations. Critics of the League argued that it was doomed to fail because
it embodied a vision of international relations conducted according to an idealistic
version of international law far removed from power, the real interests of states, and
their views appeared to be justifi ed by the collapse of the League.

The League’s concern with war obscured its achievements and its large scale
ambitions with regard to a number of other issues—in many respects, the achieve-
ments of the League were indeed considerable. The League, for instance, devised
a set of institutional techniques that had an enduring infl uence on international law.
The League established international committees to study numerous social and eco-
nomic issues. For example, the International Labour Organization, which focused
on questions of monitoring and improving labour standards throughout the world
and was closely affi liated with the League, was created out of the recognition that
world peace could only be achieved through the advancement of social justice.

In addition, the League engaged, in different ways, in the extraordinary project
of creating and maintaining sovereign states, and developed an elaborate set of
techniques for this purpose—some of which are still used by international organiza-
tions as they grapple with problems of governance and sovereignty in societies, such
as Kosovo and East Timor, which have suffered intense confl ict. The great League

Box 3.7 Collective security

The concept of ‘collective security’ was a crucial aspect of the League’s attempts to cre-
ate peace and security. Article 10 of its Covenant broadly required all member states to
respect and preserve the territorial integrity and political independence of states against
external aggression. Disarmament was another major initiative, and Article 8 of the League
Covenant noted that ‘The Members of the League agree that the manufacture by private
enterprise of munitions and implements of war is open to grave objections’ and urged all
member states to reduce their armaments to the extent compatible with their own secu-
rity and international obligations. The Covenant also required member states to submit all
disputes to some form of arbitration or judicial settlement, and to desist from war until
three months after the decision of the body that heard the dispute.

Basic principles of international law: a historical perspective 59

experiments in creating and stabilizing sovereign states occurred in two different
contexts.

First, the problem of nationalism was seen as responsible in many ways for the
outbreak of World War I. President Wilson attempted to resolve this complex issue
by proclaiming the concept of ‘self-determination’, the idea that every nation should
have its own state. Following this principle, new states—such as Poland—were cre-
ated in Eastern Europe, under the auspices of the League. The redrawing of bound-
aries that resulted, however, meant that certain ethnic groups were now minorities
within the newly formed states. The League attempted to protect these minority
groups by means of a new treaty regime, the ‘Minority Protection’ system, which
was unique in providing international guarantees for the rights of minorities. The
Mandate System, created by Article 22 of the League of Nations Covenant, was
an equally bold innovation in international law and institutions. This system was
devised to protect the inhabitants of the territories that had belonged to Germany
and the Ottoman Empire prior to the war. These territories extended from the
Middle East to Africa and the Pacifi c, and included territories such as Palestine,
Ruanda, and New Guinea. Under the old international law of the nineteenth cen-
tury, these territories would have been distributed among the victorious powers.
Wilson, however, insisted that a new international regime should be devised to pro-
tect non- European peoples, through international supervision, rather than subject
them to a system of colonial exploitation. In the words of Article 22, ‘the well- being
and development of such peoples form a sacred trust of civilization’. The ultimate
goal of the Mandate System was to promote self- government in these territories and
indeed, in some cases, to ensure that they became sovereign states. The Mandate
System was one response to events in the non- Western world, where nationalist
movements were confronting the colonial powers. Anti- colonial protests—some-
times outright rebellions—had been launched in Asia and Africa, in India, Vietnam,
Egypt, Iraq, and Kenya. Colonial rule was contested at a number of levels, and the
Mandate System served the purpose of advancing the idea of a moral colonialism,
one directed at protecting the people of the territories through international super-
vision and indeed, guiding them towards independence.

In these quite different regimes—one seeking to address the challenges of nation-
alism and the other the dilemmas of colonial rule—the League articulated a very
rich and complex set of ideas about the character of the sovereign state and the role
that the international community, through international organizations, could play
in creating such states.

An equally important innovation of the League of Nations was the creation of
the Permanent Court of International Justice (PCIJ). For many centuries states had

60 Part I Studying international law

created special tribunals to mediate and settle their disputes. However, the PCIJ was
the fi rst attempt to create a permanent court for the purpose of hearing any dispute
relating to international law. There were strong arguments in favour of creating
a system in which any state that had a grievance against another state could begin
a case in the PCIJ and compel that other state to appear and defend itself. Once
again, however, considerations of sovereignty prevailed. Thus, in the end, it was
only if a state had agreed to appear before a Court by signing a treaty that it could
be required to do so.

The United Nations: 1945 to the present

At the conclusion of World War II an international community that had been trau-
matized by a war that was, for the fi rst time, truly global, attempted once again
to create the laws and institutions necessary to ensure a lasting peace. The failed
League of Nations was replaced by the United Nations, which, however, developed
and elaborated on many of the institutional characteristics of the League.

Box 3.8 UN institutional structure

The UN Charter, in effect the constitution of the United Nations, created several differ-
ent organs and outlined the specifi c powers of each organ. The General Assembly, as the
name suggests, is the meeting place of the whole membership of the United Nations.
While it may pass declarations about international issues, the Assembly has relatively lim-
ited powers. The Security Council, which is made up of fi ve permanent members and ten
non- permanent members who are periodically elected by the Assembly, is in effect the
executive branch of the UN system. The permanent members are the US, France, China,
Russia (formerly the Soviet Union), and France—the victors of World War II. Under the UN
Charter, decisions of the Security Council are legally binding on all member states of the
UN. However, all permanent members have the important power of vetoing any proposed
decision. In this way, the United Nations acknowledges the simple fact that it would be
ineffective in dealing with major issues without the support of the Great Powers, which
have to be given a correspondingly special status in the system. The Council has the power
to authorize the use of force—that is, to wage war. The UN lacks its own army. As a con-
sequence, whenever the Council authorizes the use of force, it is in effect authorizing its
member states to go to war under the auspices of the UN. A further organ, the Secretariat,
supervises the day- to- day running of the UN bureaucracy, and is headed by the Secretary
General. The Permanent Court of International Justice was replaced, in the UN Charter, by
the International Court of Justice.

Basic principles of international law: a historical perspective 61

The preamble of the UN Charter begins with the powerful words ‘to save succeed-
ing generations from the scourge of war, which twice in our lifetime has brought
untold sorrow to mankind’, and towards this end, it declares war illegal except in
two circumstances: fi rst, a state can go to war in the event of self- defence, which is
narrowly defi ned; and second, war can be authorized by the Security Council.

The horrors of World War II and in particular, the Holocaust, prompted the UN
to begin a new and radical initiative—the international promotion of human rights.
The individual had no real standing in international law up to that time. Thus,
even if an individual visiting a foreign territory was harmed by the actions of the
foreign government, she could only seek the protection of international law if her
own government exercised the right of ‘diplomatic protection’ and claimed that the
foreign government had infringed international law in the treatment of that person.
In short, the wrong done to the individual was seen as a wrong done to the state of
which that individual was a citizen. The individual had no independent standing,
under international law, to bring a claim against the offending sovereign govern-
ment. Further, under classical Westphalian ideas of sovereignty, a state could treat its
own citizen in any way it pleased without implicating international law. One of the
central tenets of international human rights law is that the manner in which a state
treats its own citizen is a matter of international and not merely domestic concern.
The relationship between a state and its citizen is now mediated by international
law, in that all individuals within a state, including citizens, enjoy certain funda-
mental human rights that are provided by international law and any state which
violates those rights is guilty of a breach of international law. As such, human rights
law has had a profound impact on existing concepts of sovereignty (see Chapter 13).
The Universal Declaration of Human Rights, adopted by the United Nations in
1948, outlines a variety of rights ranging from the right to ‘life liberty and security
of person’ to ‘the right to a standard of living adequate for the health and well- being
of himself and of his family’. The Declaration was the foundation of a series of
human rights treaties that subsequently came into existence, the most important of
these being the International Covenant on Economic, Social and Cultural Rights
and the International Covenant on Civil and Political Rights (see Chapter 13).

The period following the creation of the United Nations was dominated by two
major international issues. A ‘Cold War’ took place between the Communist coun-
tries, led by the Soviet Union, and the West, led by the United States. UN work was
greatly limited by the fact that these two adversaries played a prominent role in the
UN system and both occupied permanent seats on the Security Council. Although
no direct confl ict occurred between the two great powers, proxy wars took place
between them in various other territories, where the combatants were supported

62 Part I Studying international law

by one state or the other, as in the case of the civil war that broke out in Vietnam.
The second major development was the intensifying campaign of colonized people
to win their independence, as India did in 1947. Thus began a long and sometimes
bloody process as the colonized people of Asia and Africa sought to win their free-
dom from European powers often reluctant to cede control over their possessions.

The United Nations was an important forum in this anti- colonial initiative.
Newly independent states—as they were then called—became members of the
United Nations, and used their numbers in the General Assembly to begin a series of
campaigns directed at ending colonialism. One of the most important Declarations
to be passed by the General Assembly asserted the ‘right of peoples to self-determi-
nation’, that is, to be free of colonial rule (see Chapter 9). Self- determination, which
had been initially articulated as a means of dealing with the nationalist problems
within Europe, was adapted to facilitate decolonization.

The new states confronted two major problems once they achieved independ-
ence. First, they had to consolidate their statehood; many of the new states were
multi- ethnic in character, and had to ensure that the uniting nationalism that had
been so powerful in the struggle for independence could then be harnessed to create
a new and successful state that would be accepted by all its constituent groups.
Secondly, as part of this process, they had to bring about real development to their
populations which were largely impoverished and lacking the most basic living
amenities.

The emergence of these new states profoundly changed the composition of the
international community, and presented a major challenge to the international sys-
tem, as they attributed their condition, in large part, to their experience of colonial-
ism and economic exploitation that had been supported by an international law
made by the colonial powers to further their own interests. The issue these states
confronted was complex: could international law be used to dismantle the colonial
relations it had legitimized in the fi rst instance? The new states, having fi nally won
sovereignty, now became intent on using their status to change this system. The
term ‘Third World’ was sometimes used to describe this group of states—the ‘First
World’ being the developed Western states and the ‘Second World’ the Socialist
states. These states also formed what was termed the ‘ Non- Aligned Movement’ in
order to assert their aspiration to be independent of the Cold War rivalries that were
prominent at the time.

In seeking to change the system by using international law, these states concen-
trated their energies on particular doctrines and areas of law that were of greatest
signifi cance to them: among these were the prevention of the use of force and pro-
hibition of intervention; the creation of a New International Economic Order; and

Basic principles of international law: a historical perspective 63

the Law of the Sea. They perceived their task as being that of reversing the effects
of colonialism. The new states used their large numbers in the General Assembly to
pass a series of wide- ranging resolutions that dealt with these issues. Many of the
Western states either abstained or else opposed these resolutions that were never-
theless passed by large majorities. The Third World attempts to bring about such
change, however, were largely unsuccessful. The developed states argued that they
were not bound by the principles included in the various Declarations. In so doing
they reverted to classical principles of international law, asserting fi rst, that General
Assembly resolutions had no binding power in any event and second, that they
could not be bound by any rule unless they had agreed to be so bound. At the same
time, the developed states argued that developing states were bound by customary
law—relating to issues such as international economic law—even though develop-
ing states had not actively participated in the making of the custom by which they
were ostensibly bound. In this way, the issue of the sources of international law
and the manner in which international law is created and made binding on states
became a crucial issue to the central debates of that time.

Third World attempts to transform international law were also hampered by
changes in the international system. The efforts of many Third World states to
bring about development proved to be failures, and often justifi ed various forms
of oppression by corrupt and authoritarian leaders. Civil wars broke out in many
states, as different ethnic groups competed with each other for control of the state
and all its resources. Although the Third World attempted in principle to remain
independent of the Cold War, they often lacked the resources to do so, and local pol-
iticians sought to enhance their own power by claiming the support of one side or
another, and relying on such support to repress their own people. The African dicta-
tor, Mobutu Sesu Seko of Zaire, is an example of this; he received massive support
from the West despite the enormous suffering he infl icted on his people, as he was
regarded as a key ally in the war against communism. One of the major decisions of
the International Court of Justice during this period, Nicaragua v the United States
was also a product of the Cold War, as the United States mined Nicaragua’s har-
bour, claiming that it was defending other Central American states from subver-
sion by Nicaragua’s socialist government. The Court ruled that America’s actions
were illegal and reinforced the international legal norms of non- intervention and
sovereignty.

The major doctrinal development of this period was the introduction of inter-
national human rights law. The new states strongly advocated the development of
human rights law, and indeed presented the right to self- determination as a human
right. Once again, however, disputes emerged between developed and developing

64 Part I Studying international law

states. Developed states focused principally on civil and political rights, such as the
right to free speech and the right to a fair trial; developing countries, while accept-
ing the importance of such rights, claimed that social and economic rights were
equally important—including the right to health and the right to social welfare.
Indeed, the developing states went further in arguing for a right to development and
a right to peace, rights that the West largely disputed.

The end of the Cold War: international law from 1989

The dramatic and largely unforeseen collapse of the Soviet Union in 1989 promised
to inaugurate ‘A New World Order’. The character of that new order was quickly
evident. Saddam Hussein invaded Kuwait in 1990, and this led to unprecedented
action on the part of the United Nations which was now no longer so divided by
cold war rivalry. Led by the United States, the UN immediately imposed sanctions
on Iraq and took a series of measures that led ultimately to a war that was author-
ized by the United Nations. This action was seen as a model of how the United
Nations was intended to work, although many outstanding and important issues
remained to be resolved, particularly since Saddam Hussein remained in power.

Internal wars

Despite the war begun by Iraq, much of the confl ict that took place in the 1990s
occurred within rather than between states. The confl icts in Yugoslavia and Rwanda,
for instance, were of an internal, ethnic character. These confl icts raised again a com-
plex and controversial set of issues regarding ‘humanitarian intervention’—the use of
force by one state against another state in order, ostensibly, to prevent massive human
rights violations in the latter state (see Chapter 10). Third World states had been
especially suspicious of this idea because it was often used by Western states to justify
the conquest of non- European societies. The international system faced an enormous
challenge: how could it respond to genocide or threatened genocide, the ultimate
atrocity? The United Nations proved especially inept and helpless to prevent the mas-
sacre of tens of thousands of people in Rwanda in 1994. In the case of Yugoslavia,
the North Atlantic Treaty Organization began a bombing campaign to prevent fur-
ther violence against the minority living in the Yugoslavian province of Kosovo, this
despite the lack of an authorizing resolution from the Security Council. The NATO
actions presented a complex moral dilemma for international lawyers. The NATO
action was clearly illegal, but at the same time, it appeared that the situation demanded
such action. As a result, the humanitarian intervention debate acquired prominence,
once again, on the international agenda, and scholars attempted to conceptualize

Basic principles of international law: a historical perspective 65

humanitarian intervention in a way that would allow intervention to prevent mass
atrocities while preventing it from being used as an excuse for imperialism. While
sovereign states were torn apart by civil war—Yugoslavia separated into a number of
different states including Bosnia- Herzegovina and Croatia—in other cases, civil wars
resulted in the collapse of authoritative, central governments that could control their
territories and provide for the well being of their people. Countries such as Somalia
were overwhelmed by warring factions competing for power. In all these cases, enor-
mous human suffering was a consequence, and the international system responded
as best it could by commencing peacekeeping operations which extended to actually
controlling and governing the territories in question themselves. The atrocities com-
mitted in these regions inspired a further set of developments focusing on courts,
such as the International Criminal Tribunal for the former Yugoslavia, based at the
Hague, and established for the particular purpose of trying individuals responsible for
major international crimes such as large scale murders, in the territories of the former
Yugoslavia (see Chapter 12).

Globalization

The phenomenon of globalization, the intensifying interdependence of states as
a result of commerce, migration, technology, and culture, another prominent feature
of the 1990s, presents a further set of challenges to sovereignty. Trade, for instance,
was becoming increasingly international; the economies of the vast majority of
states became more dependent on exporting and importing goods in order to take
advantage of the effi ciencies of global markets. Trade had always been a concern
of international law since its very beginnings. In 1994, however, the creation of the
World Trade Organization (WTO) was a particularly important development and
an outstanding example of how international law and institutions could coordinate
the actions of states. The WTO establishes the basic rules that all member countries
must observe in their trade relations with each other. What is remarkable about
this institution, further, is that it compels all members to subject themselves to the
dispute resolution mechanism of the WTO. Despite this fact, many powerful states,
including the United States and China, have now submitted themselves to this proc-
ess so in this case, it seems, states have been prepared to surrender their sovereignty
to an international institution because of the perceived benefi ts they receive from
membership of such an institution (see Chapter 15).

In addition to these developments, the sovereign state has been challenged by
the emergence of a number of actors that play an increasingly prominent role in
international affairs. Large corporations, operating transnationally, possess an
enormous amount of economic power that often exceeds that wielded by sovereign

66 Part I Studying international law

states. On the one hand, they could play an important role in promoting economic
development in poverty stricken countries. On the other, several such corporations
operating in Africa and Asia have been accused of committing large scale human
rights abuses—for example, by engaging in mining operations with no regard to
the well- being of the local populations. Non- governmental organizations such as
Amnesty International played an increasingly prominent role in promoting interna-
tional law—in this case, international human rights law (see Chapter 7). The net-
work of organizations constituting the International Campaign to Ban Landmines
took the initiative to draft a treaty aimed at the elimination of landmines, and won
a Nobel Peace Prize for its efforts. Non- governmental organizations such as these
provided individuals with an accessible way to become involved in issues, such as
the drafting of treaties, that had traditionally been the preserve of states.

The ‘War on Terror’

The terrorist attacks on New York on 11 September 2001 and the subsequent
United States response, most prominently the invasion of Iraq, presented a pro-
found challenge to the international system and international law. The United States
declared a ‘war on terror’ that consisted of several components, some of which
were identifi ed in its National Security Strategy of 2002. It asserted its right to
engage in ‘ pre- emptive self-defence’ in order to neutralize the new threats posed by
international terrorists. The United Nations Charter, as traditionally interpreted,
does not permit such a form of self- defence because it could encourage countries
to begin wars against their rivals. Nevertheless, the United States argued that the
new conditions warranted a change in the law. The United States also adopted
a policy of democracy promotion based on the belief that terrorism fl ourished in
non- democratic states. Many aspects of US thinking about the war on terror were
made clearer by subsequent actions—most prominently, the invasion of Iraq, which
took place without an explicit Security Council authorization and which was there-
fore widely regarded as illegal. What was especially disturbing was the alacrity
and willingness with which the US declared that various fundamental norms of
international humanitarian law and human rights law did not apply to individuals
suspected of being terrorists—thus challenging the basic, foundational premise of
international human rights law: that all human beings enjoy certain fundamental
rights simply by virtue of being human. The massive and unprecedented disrepute
that the United States has suffered as a result of the actions of the Bush administra-
tion has made it very likely that his successor, Barack Obama, will seek to pursue
more traditional, multilateral approaches to international problems. Tellingly, fur-
thermore, the collapse of the international fi nancial system resulted in vehement

Basic principles of international law: a historical perspective 67

calls for international cooperation and coordination to deal with a global crisis that
had its roots in the United States. The emergence of China and the unmistakable
shift of power—moral, intellectual, and economic—away from the West will likely
result in an international system in which societies from East Asia to South America
will demand various changes that cannot be ignored. But the question still remains
as to whether these shifts will result in the betterment of the lives of the poorest peo-
ple in the world, the billions who struggle to survive without the most elementary
needs being satisfi ed.

The question of when and how international law affects state behaviour will be
a subject of ongoing debate and analysis. Very often, as in the Congress of Vienna,
the international system departs from the basic principle that ‘all sovereign states
are equal’; great powers establish the character of the system and, indeed, they are
unwilling to participate in any international structure of government unless it pro-
vides them with a special role.

What is clear, from this brief examination of the history of international law,
however, is the enduring resilience of international law and the fl exibility and inge-
nuity that has been devoted, over the centuries, to making it work, and this despite
numerous major failures. International law can be seen in at least two ways: fi rst,
as a set of rules that will be inevitably violated by powerful states intent on having
their own way when the rules do not correspond with their interests. Or it may
be seen as a mechanism by which states make arrangements among themselves
precisely in order to further their own interests through cooperation. This includes
creating a set of rules that ensures predictability and a stable environment in which
expectations can be fulfi lled.

Creating international regimes that meet the needs of all states is a diffi cult and
challenging task. As debates about the character and content of human rights would
suggest, it is far from easy to reach agreement about issues that profoundly affect
both international and domestic society. States have their own views on how com-
plex issues such as environmental degradation can be addressed. And yet, despite
all this it is also true that little can be achieved without international cooperation
when addressing the major problems of our time—massive poverty, the spread of
diseases, environmental degradation, and human rights violations, to name but
some of the challenges the international community faces. Furthermore, power is
now dispersed in complex ways throughout the international system and as the
recent experience of the Bush administration demonstrates, even the most powerful
states cannot easily manage these challenging issues—of security, poverty, interna-
tional fi nance—through unilateral action alone. For these reasons, international
law remains relevant in international relations.

68 Part I Studying international law

Table 3.1 Timeline

Time Event Development in IL

16th century Colonialism Legal scholars attempt to lay down
fi rst doctrines

1625 Grotius writes ‘The Rights of
War and Peace’

Law shifts from religion towards
natural law

1648 Peace of Westphalia Establishment of sovereignty doctrine

1815 Congress of Vienna ‘Balance of power’

19th century Further ascendance of the
sovereign state

Positivism gradually replaces naturalist
jurisprudence—IL based on state
actions

1899 and 1907 The Hague Conferences Development of laws of war
(ad bello and in bello)

1919 League of Nations First major international institution,
creation of ILO, the Permanent Court
of International Justice

1945– United Nations Universal Declaration of Human
Rights in 1948, institutional structure
to promote international peace and
security; anticolonialism initiatives

1989– Humanitarian intervention? Creation
of WTO

1990s– Rise of internal wars

1994 Globalization

Challenge to IL?

2001– ‘War on Terror’

Conclusion

Sovereignty is the foundation of international law. International law can be defi ned
primarily as the law that governs relations between states. The history of interna-
tional law can be written in a number of different ways, and recent scholarship has
attempted to depart from the traditional Eurocentric approach to the discipline.
Both imperialism and wars have played a major role in the development of inter-
national law. The Peace of Westphalia in 1648 led to the emergence of the modern

Basic principles of international law: a historical perspective 69

concept of sovereignty. The League of Nations, the world’s fi rst major international
organization, was created after the catastrophic World War I. International human
rights law, which has grown dramatically since its beginnings in 1948, presented
a further major challenge to traditional ideas of sovereignty. The Cold War and
the confl ict between developed and developing countries profoundly shaped inter-
national relations in the years following the establishment of the United Nations.
Since then, phenomena such as globalization and terrorism have led to increasing
interdependence among states, and international law has expanded dramatically to
address issues such as terrorism on one hand, and international economic relations
on the other.

Questions

1. Why might it be important to study the history of international law?

2. What are the recent developments in the way in which the history of international law
is studied?

3. How has imperialism shaped the history of international relations and international
law?

4. What is the signifi cance of Westphalia in understanding international law; in what
ways have the Westphalian model of sovereignty been challenged over the years?

5. What is the signifi cance of Grotius and Vattel for the development of international
law?

6. What does the history of international law indicate about the major weaknesses and
strengths of international law, including international institutions?

7. What impact have international institutions such as the League of Nations and United
Nations had on international relations and law?

8. What are the central insights we receive from a historical perspective about the
relationship between international law and international relations?

9. What would the international system be like if we completely abolished international
institutions and international law?

Further reading

Alexandrowicz, C.H. (1973) The European- African
Confrontation: A Study in Treaty Making (Lei-
den: A.W. Sijthoff). A detailed study of the
creation of legal relations between Europe
and Africa that focuses on the nineteenth
century.

Anand, R.P. (1987) International Law and the
Developing Countries: Confrontation or
Cooperation? (The Hague: Kluwer Law Inter-
national). One of the pioneering books out-
lining the positions and views of developing

70 Part I Studying international law

countries shortly after their acquisition of
independence.

Grewe, W. (2000) The Epochs of International
Law (Berlin: Walter de Gruyter). A detailed
and comprehensive history of the discipline
of international law.

Koskenniemi, M. (2000) The Gentle Civilizer of
Nations: The Rise and Fall of International Law
1870–1960 (Cambridge: Cambridge University
Press). A theoretically rich and insightful history
of the period it covers, which traces the shift
from formalist European international law to
policy- oriented American international law.

Nussbaum, A. (1954) A Concise History of the
Law of Nations (New York: Macmillan). A good

basic introduction to the history of interna-
tional law.

Reus- Smit, C. (2004) (ed.) The Politics of Interna-
tional Law (Cambridge: Cambridge University
Press). A collection of essays, by international
law and international relations scholars, that
examines the relationship between law and
politics by focusing on areas such as the use
of force, the Kosovo bombing campaign, and
climate change.

Weeramantry, C. G. (2005) Universalizing Inter-
national Law (The Hague: Martinus Nijhoff).
A recent and visionary attempt to expand the
reach of international law.

Websites

www.iilj.org/research/HistoryandTheoryofInternationalLaw.asp The Institute for International Law
and Justice at New York University brings together scholars working on the history of international

law and publishes working papers on its website.

http://avalon.law.yale.edu/20th_century/leagcov.asp

http://avalon.law.yale.edu/17th_century/westphal.asp The Avalon Project at Yale Law School has
compiled a wide range of historical documents and offers detailed information on crucial events in
the history of international law—among others on the League of Nations and the Peace of West-
phalia.

http://www.un.org/aboutun/unhistory This website gives a detailed account of the history of the
United Nations.

http://www.un.org/law/ilc The International Law Commission has played an important role in the
codifi cation and development of international law over time—this website provides up- to- date infor-
mation on its workings.

Visit the Online Resource Centre that accompanies this book to access more learning resources
www.oxfordtextbooks.co.uk/orc/cali/

1. For a comprehensive overview of the
history and historiography of international law,
see the various entries by Wolfgang Preiser and
his colleagues in The Encyclopedia of Public

International Law, Elsevier vol. 7, pp. 126273
(1984). These include essays by distinguished
scholars from Asia and Africa.

Chapter endnote

Chapter 4

Perspectives on international
relations in international law
Başak Çalı

CHAPTER CONTENTS

• Introduction

• What is international law?

• The purpose of international law

• The relevance of theories of international law in international relations

• Conclusion

CHAPTER OVERVIEW

This chapter surveys the theories of international law. It aims to identify the contribution each

of these theories makes to the description, purpose, and relevance of international law in inter-

national relations. The chapter highlights the major sources of disagreement between different

types and levels of theories of international law on the description and purposes of international

law. It fi nally discusses the contribution of theories of international law to our understanding of

international relations and shows how theories of international law respond to the persistent crit-

icisms of the role and signifi cance of international law in the real world of international relations.

Introduction

In the previous chapters, we have seen that theories of international relations assign
different levels of explanatory power and importance to international law and his-
torical analysis of international law focus on the relationship between state sov-
ereignty, distribution of power amongst states, and the breadth and relevance of

72 Part I Studying international law

international law. In this chapter we will focus on theories of international law and
how they approach the foundations of law in a world of sovereign states.

Theories of international law aim to set out a coherent understanding of interna-
tional law by laying its foundations at a fairly abstract level. They respond to three
basic theoretical problems: the problem of description, the problem of purpose,
and the problem of relevance of international law. The problem of description cor-
responds to the question ‘What is international law?’ The problem of purpose cor-
responds to the question ‘What is international law for?’ The problem of relevance
corresponds to the question ‘Do states really, and if so why, comply with interna-
tional law?’ These three problems are interrelated and sometimes one theory may
attempt to solve all three of these problems. Inadvertently or not, any theory that
attempts to answer one of these questions will proffer a view on the other questions.
Some theories of international law hold that an answer to one of these questions
determines the answers to the other two.

Theories of international law are a dynamic collection of arguments that have
been constantly revised in the light of international events and the problems of their
time. They have a long history and cross theories of international relations. Different
theories of international law compete in order to be seen as the most convincing
theory to be used to respond to problems of international law. In different countries
and at different historical points in time (see Chapter 3), a theory may be adopted
from among those extant theories as the dominant international law position. Some
theories become more popular and appealing at certain times because they capture
the developments of their era better. In everyday practice, international lawyers,
diplomats, and politicians may appeal to more than one theory in defending their
positions on particular issues—and they may do so inconsistently. Of course, there
is also scepticism about the utility of theories of international law. This scepticism is
often portrayed through the image of a small circle of academics in their ivory tow-
ers discussing ‘theory’—an isolated debate with little relevance to the real world.
Theories of international law do, however, matter. They make up the backbone
which supports and sustains the practice of international law. Theories, for any
subject matter, provide a framework for guiding, understanding, and criticizing the
practice. Theories of international law provide a structure with which to make sense
of the international system and the legal signifi cance and meaning of the actions
of different actors in the system. Theories also allow us to imagine the future of
international law and the ways in which the international law of the future could
be different from the international law we know today. Different theories respond
to different types of concerns and questions. It is important to keep in mind that
theorists within a single approach may also have disagreements.

Perspectives on international relations in international law 73

This chapter analyses the theories of international law by focusing on the three
foundational problems we outlined at the start of this chapter, namely: description,
purpose, and relevance. The problem of the description of international law ena-
bles us to identify the long- standing debate between positivism and naturalism in
international law and contemporary contributions to this debate. The problem of
the purpose of international law allows us to distinguish between framework theo-
ries and goal- oriented theories. The problem of relevance addresses the question of
whether theories of international law have any real world relevance in understand-
ing how states behave.

What is international law?

Theories of international law have classically attempted to tackle the question ‘what
is international law?’. As we have seen in Chapters 1 and 3, international law is gen-
erally defi ned as the law that regulates relations between states. This is, however,
a nominal defi nition. It helps us to distinguish international law from domestic law
and international politics, but it does not describe the underlying structure or the
essence of international law.

Describing the essence of international law has been a major preoccupation of
international law theorists since the famous negative claim by John Austin that
‘international law is not really law, but it is positive morality’ (Austin 1832). Given
the thousands of international treaties, the existence of a global organization with
almost universal membership (the United Nations) and an international criminal
court this charge may at fi rst seem outdated and irrelevant. The question of whether
international law is law or not is nevertheless relevant as it shows us that however
we defi ne international law, it does not fi t with the description of law put forward
by Austin as the ‘commands of the sovereign’.

John Austin (1750–1859) was a positivist theorist of law who defi ned the most
important characteristic of law as being commands of a sovereign who could coerce
its subjects to comply with law. As there is no sovereign power in international law,
his conclusion about the defi nition of international law was straightforward and
dismissive: that it simply was not law. Austin’s negative description of international
law was derived from his defi nition of law as such. Austin’s conception of law has
been challenged by many theories of international law. We can distinguish four
broad schools that challenged his dismissive attitude towards international law as
law: fellow positivists who did not share the command theory of law, naturalists,
the process school of international law, and critical legal scholars.

74 Part I Studying international law

Positivism about international law

Some theories are more popular and, therefore, accepted than others. International legal
positivism is one such popular theory. Positivism is the name given to a group of theories
about international law that share a common thread. The common thread is the agree-
ment that law should be described as it is as opposed to what it should be. This means
that any description of law should accurately refl ect the social practices that make the
law. Austin, as we have just seen, was a positivist who argued that an accurate descrip-
tion of law was the command of the sovereign backed up by sanctions. He, therefore,
had serious doubts about whether international law was law at all. Positivists have disa-
greed with both components of this theory. Some positivists said international law was
indeed about the command of the sovereigns, but without the threat of sanctions. Other
positivists argued that command of the sovereign was not itself an adequate positivist
theory (Hart 1961).

The idea that international law is the command of sovereign states is also known
as the ‘voluntarist’ or ‘will’ theory of international law (Pellet 1992). Because
positivism about international law has a number of branches that have developed
through time, this view is also called ‘classic legal positivism’ about international
law. This theory describes international law as a system of rules created deliberately
and explicitly by states. The voluntarist version of positivism responds to Austin’s
challenge of lack of sanctions by pointing that there is no need for sanctions in
a system of rules where states have explicitly willed to be bound by the rules. This
view fi nds its most stark expression in the 1927 judgment of the Permanent Court
of International Justice in the Lotus/Bozkurt Case:

International law governs relations between independent states. The rules of law
binding upon States therefore emanate from their own free will as expressed in
conventions or by usages generally accepted as expressing principles of law and
established in order to regulate the relations between these co- existing independ-
ent communities or with a view to the achievement of common aims. Restrictions
upon the independence of States therefore cannot be presumed. (Lotus/Bozkurt
Case 1927)

The description of international law as law that each and every state has explicitly
agreed to has important consequences for knowing what the substance of law is.
Given that each state has to show its will to a rule that regulates its relations with
other states, this could also mean that states can withdraw support at any time.
International law then looks like an unstable modus operandi between states that
can be subject to a state changing its will on any previous agreement. Under the clas-
sic scheme, international law is viewed as law, but it is also hard to know what the

Perspectives on international relations in international law 75

content of that law is, as nothing can be imposed on a sovereign state that it does
not want to accept. The classic positivist position in this respect shares a common
ground with realist theories of international relations. Even though classic positiv-
ists agree that international law is law, the impact of law on the behaviour of states
is limited. States do not abide by the international laws they do not want to obey.
Realist theories of international relations have also long claimed that international
law is epiphenomenal to understanding international relations and state behaviour
within it. The very reason for this is that the background conditions of the inter-
national system are anarchic (Waltz 1979). ‘Anarchy’ in this context is meant not
as a condition of chaos, but one in which there is no sovereign body that governs
nation states. International law is only relevant when it overlaps with the interests
of states. In this respect the ‘will of the state’ in classic positivism and the ‘interests
of the state’ in international relations realism overlap in their vision of international
relations and the role of international law within it.

Classic legal positivism has been criticized by a number of positivists, who believe
that the will of an individual state as the foundation of international law theory
is not an accurate or sound description of international law as we know it. First,
states act multilaterally on a wide range of international issues. The proposition
that individual states are the sole arbiter of international law as it applies to them
does not fi t the practice of multilateralism through treaties in international law. If
each state unilaterally defi ned international law, it would be impossible to have
stable international organizations such as the United Nations, the International
Telecommunications Union, or the World Trade Organization. A group of positiv-
ists, for these reasons, has moved from ‘will’ theories to theories based on ‘consent’
as a more sound description of international law. Under the positivist consent theo-
ries of international law, the description of international law is modifi ed: interna-
tional law is rules to which states have consented. Contrary to the will theory, the
consent theory has a more stable outlook on international law, as consent is not
something that a state can change whenever it pleases. Once a state has consented to
a rule, there are further rules governing the bindingness of the law thus created—so
consent implies more than will because it has a procedural element.

There are ways of giving consent to a rule of international law and consent can
also be withdrawn by following a procedure (see Chapters 5 and 6). Consent theo-
ries, in this way, solve the problem of the constantly changing character of interna-
tional law, but also remain respectful of the will of the states. There are signifi cant
parallels between the vision of the consent theories of international law and institu-
tional theories of international relations. In both of these theories, the multiplicity of
sovereign states as the description of the system is recognized, but there is a further

76 Part I Studying international law

emphasis on the condition of cooperation between sovereign states. Consent theo-
ries rely on this condition as well as theories that recognize the importance of insti-
tutions in managing interstate relations.

This version of positivism, however, also comes with problems. Once consent is
viewed as the will of states expressed in certain ways, there is still the issue of defi n-
ing the correct way to express consent. Sceptics of the consent theory will immedi-
ately point out that the theory does not solve the centrality of the will of the state
in the description of international law: it merely formulates it in a different way.
Unless one thinks that there was some ‘imaginary original consent’ to the consent
theory and the procedures of expressing consent, the problem of the will of the state
as the ultimate reference of international law is not solved. Most positivist theoriz-
ing accepts this caveat and argues that the consent theory still works because most
states have accepted it as the norm and that there are good reasons to respect the
consent of states, anyway. In a world of nation states with different interests, they
argue, a consent- based positivist approach to international law is the best way to
ensure coexistence or cooperation of states (Weil 1983, Kingsbury 2002).

From the preceding discussion we can see that consent theorists disagree with
each other about what counts as consent. We can identify two broad approaches
to the establishment of consent amongst positivists. First, there is the family of
theories which focuses on the acts and deeds of individual states to identify which
part of international law is binding amongst which combination of states. We can
call these the unitary state action- based theories of consent. Under these theories,
international law can be viewed and described as a pyramid. At the top of the
pyramid, there are the rules that every state has consented to (or is assumed to
have consented to); in the middle there are the rules that a large group of states has
consented to; and at the very bottom, there are the rules that only apply to a very
limited number of states.

Second, there is the family of theories which argues that we should not solely
focus on the acts and deeds of individual states but also on other ways and fora
through which states express their will. The practice of international courts and
tribunals, the activities of the legislative organs of the United Nations (such as the
General Assembly, the Peace- building Commission, the Human Rights Council)
and the organs of regional organizations are examples of such fora. This is because,
by delegating powers to international organizations and by accepting the jurispru-
dence of international courts and tribunals, states have implied that they consent
to the activities of these organs. We can call these collective state action- based the-
ories of consent (Simma and Paulus 1999). The description of international law
under these theories is richer. It allows for a larger number of rules to be viewed

Perspectives on international relations in international law 77

as common to the society of states as a whole (see Chapter 6). There are parallels
between this theory and the social constructivist theories of IR to the extent that
state interests are viewed as being subject to modifi cation and redefi nition through
socialization within the international system. The condition of the international
system, therefore, is one of continuous interaction and socialization.

Natural law descriptions of international law

Natural law descriptions of international law are best understood in opposition to
positivist theories of international law. As we have seen above, different versions
of positivism agree that international law is based on the social practices of states
alone. Natural law theories challenge this view as they regard it as neither a coher-
ent nor a desirable description of international law. Natural law theorists hold that
the law is not simply a function of social practices. It has a moral element at its
very core. International law, therefore, cannot be described without reference to an
account of these embedded moral rules.

For once, natural law theorists argue that positivism cannot account for the
bindingness of international law, and for that purpose turn on the idea of ‘original
consent’. Positivists cannot explain why states should follow the principle of good
faith in adhering to international treaties (known in Latin as pacta sunt servanda),
which holds that all states shall be faithful to promises they make and honour
treaties they sign. Natural law theorists point out that it is impossible to show that
states have actually consented to this principle throughout history. They argue that
it is implausible because the principle of good faith has a very good chance of com-
ing into confl ict with state interests at different times. It is, therefore, not in states’
interests to blindly agree to the principle of good faith. As we nevertheless think
that pacta sunt servanda is a central principle of international law, natural lawyers

Voluntarism Unitary consent Collective consent

IL is what a state wills as IL IL is what a state consents to
through unilateral procedures
as IL

IL is what states consent to through
collective procedures as law

Close identifi cation between
state interests and IL

A small gap between state
interests and IL as consent
cannot be withdrawn at will

A larger gap between state interests
and IL

Parallels with Realist
Theories of IR

Parallels with Institutional and
Liberal Theories of IR

Parallels with Social Constructivist
Theories of IR

Table 4.1 Positivist descriptions of international law

78 Part I Studying international law

suggest that it makes more sense to treat the principle of good faith as a moral rule
than as a rule accepted by social practices. The moral force of the rule, therefore,
comes before and informs the social practice. The principle of good faith is a moral
rule that is followed by most states most of the time because the common good of
all states is served by having stable and predictable relationships with each other.
Natural law theorists conclude that moral rules, such as these, are needed to com-
plement and perfect the social dimension of law.

The undesirability of positivist descriptions of international law is the second
issue natural law theories focus on. Natural lawyers refuse the positivist posi-
tion that states can consent to any rule they please. Where states consent to
immoral things, they argue, it should not be viewed as international law as such.
This view highlights that too much from the character of law is lost when it loses
its pull to justice. If an immoral rule, such as an interstate agreement to extermi-
nate a people, is viewed as law, then law is nothing but a tool to legitimize any
type of action committed by states, however brutal or devastating. Natural law
theorists dispute that this is what law is. Law has to have an independent effect
on its subjects and, therefore, it has to be more than what the subjects would
like it to be.

Under natural law theories, the defi nition of international law, therefore, should
make a reference to the moral point of law. In other words, international law has
to be defi ned as a body of law composed of not only the actual will of states, but
also of moral limits and goods which restrict what states can agree to make per-
missible and prohibitive. That natural law theorists disagree on the content of the
common good that characterizes international law should, however, come as no
surprise. Human rights, for example, is one of the contenders (Tesón 1998). These
rights form the limits within which states would be free to fashion positive laws.
International law is, in natural law theories, the body of rules that states agree to
abide by in their relations with each other and which are compatible with the com-
mon good, however the ‘common good’ is defi ned.

Natural law theories of international law are at odds with international relations
theories of realism. Natural law advocates that states ought to be compelled with
moral reasons when abiding with international law. The latter does not. Natural
law descriptions of international law fi t more comfortably with social construc-
tivist theories of international relations, because they share the common underly-
ing assumption that norms have an independent effect on the behaviour of states.
The condition of the international system, therefore, is one of an international soci-
ety of states where states are capable of recognizing some moral point in their rela-
tions with each other.

Perspectives on international relations in international law 79

International law as a process

The process school of international law has two further monikers. It is also
known as the ‘ policy- orientated school’ or ‘New Haven School’ because it was
established at Yale Law school in the 1940s. This theory grows out of the dis-
satisfaction with the positivist and natural law descriptions of international
law as rules either emanating from state will or from reason. The process
school defi nes international law as an authoritative and controlling process of
decision- making in which various actors in the world community participate
(Ratner and Slaughter 1999). The process school does not see international law
as a set of rules that have been made in the past, but as a process which takes
into account past decisions, current international affairs, and the future. This
theory holds that the relationship between law and policy is not only unavoid-
able, but also necessary for international law to be responsive to the emerging
needs of international society. Describing international law as an ongoing proc-
ess of authoritative decision- making enables international actors to deal with
policy factors openly and systematically. This strengthens the effectiveness of
international law and, in turn, states’ obedience to it.

The process theory views international law primarily as a political process. This
does not mean that all political decisions of international actors are synonymous
with international law. Political decisions have to: (1) come from relevant and
authorized actors; (2) they have to have prescriptive content; and (3) they have to be
taken in accordance with criteria expected by the world community. International
law is not made by states but by decision- makers with authorized powers. Such
decision- makers include state offi cials, intergovernmental organizations, and
non- state actors. The importance of the role played by an actor is determined by the
specifi c international law question at stake.

The process school alters the description of law as a set of rules made by states
by viewing it as a decision- making process undertaken by the relevant world actors.
Similar to natural law approaches, the process school does not view international law
simply as a platform where anything goes. It also states that international law has
a purpose and a direction, which is to ‘realize human dignity’ (McDougal, Lasswell,
and Reisman 1981: 550). We will discuss this direction further in the next section.

The description of international law as a constant interaction of policy, context,
and authoritative past decisions assumes a great deal of common good faith on the
part of the world’s policy makers. The process theory of international law positions
itself between positivism and naturalism by putting an emphasis both on the expres-
sion of state will and on principles that exist independently of that will. Sceptics of

80 Part I Studying international law

this theory are concerned that this middle position is not tenable and that states
always try to manipulate the decision- making process to serve their own ends rather
than pursuing a common aim that serves the world community as a whole. The
process school, as a response, argues that it is still better that states openly show
how their policy choices infl uence international law rather than them viewing inter-
national law as a set of rules that no state effectively obeys. The process school of
international law sits better with students of politics because it is capable of crossing
the disciplinary divide between international law and international relations jargon
and is able to create a relevant space for international law in international politics.
The process school of international law can be viewed as one type of social con-
structivist theory of international relations, where the legal and political processes
are seen as mutually interdependent.

Critical legal studies and international law

Critical legal studies (CLS) theories are a family of approaches to international
law which share a common point of dissatisfaction about how international law
is defi ned by positivism, naturalism, and the process theories. These theories
argue that a more accurate description of international law has to emphasize
the contradictory and indeterminate character of international law. CLS shows
that states, international organizations, and other international actors, such as
NGOs, constantly draw contradictory conclusions from the same norms, and
fi nd contradictory norms embedded in the same texts or behaviours. For exam-
ple, in the view of some interpreters, according to the long- standing debate
on the lawfulness of humanitarian intervention, unilateral intervention by indi-
vidual states is not prohibited by the United Nations Charter. Others argue that
states can only use individual force in the case of self- defence and all other types
of military force must be authorized by the United Nations Security Council
(see Chapter 10). CLS scholars argue that even though the arguments put for-
ward by international lawyers are predictable and highly formal, the outcome of
such arguments is not determined by international law itself. International law,
therefore, is more accurately defi ned as a set of arguments delivered in a particu-
lar format, but constructed for multiple purposes and from multiple perspectives
by the decision- makers of the world community. What differentiates percep-
tions of international law from the perspective of the decision- makers, is politics
(Koskenniemi 2000). CLS scholars do not advocate that international law is
a pointless enterprise. They do, however, register caution about the objectivity of

Perspectives on international relations in international law 81

international law as an enterprise. They argue that international law arguments
are shaped by the political preferences of actors and not the other way around.
(Koskenniemi 1990).

We can already start to appreciate how this description of international law dif-
fers from the other three. The CLS description departs from positivism and natural-
ism as it does not view international law as an independent entity. At fi rst glance, it
has similarities with the process school, because it views international law as having
a very close relationship with political views and the preferences of international
actors. It does not, however, share the optimism of the process school about the
process of international law yielding determinate outcomes about the content of
international law. The reason for this is that CLS scholars think that international
lawyers can achieve any substantive outcome for a legal problem as long as they
apply the conventional argumentative patterns. The process school on the other
hand thinks that past international legal agreements and decisions exert a stronger
pull towards the right legal answers. CLS theories therefore, describe international
law as an indeterminate language game.

CLS approaches to international law share an affi nity with those critical interna-
tional relations theories that are doubtful of attaining objective knowledge about
international relations. This commonality allows both approaches to defi ne their
research agendas as questioning general theories about the international system and
criticizing traditional views, positions, and concepts.

Table 4.2 Description of international law

Approach Emphasis Background assumptions
about the international
system

Parallels with IR
approaches

Legal Positivist
approaches

States as central
law- makers

Anarchy Realism
Institutionalism

Natural Law
approaches

The moral point in
international law

Society of international
states

Social
constructivism

Process School IL as an interactive
process of world
policy- makers

Society of international states
as well as other international
actors

Social
constructivism

Critical Legal
Studies

IL as a language A collection of interacting
actors historically brought
together

Critical
International
Relations
approaches

82 Part I Studying international law

The purpose of international law

There is an important distinction we have to make when we talk about the
purpose, or the purposes, of international law. This is the distinction between
outcome- oriented theories and framework theories. Outcome- oriented theo-
ries of international law aim for desired results in international affairs through
international law. They view international law as a means to maximize some
sort of utility or value, such as human rights, human welfare, human dignity, or
social justice. Framework theories, on the other hand, see international law in
terms of facilitating relationships between entities. The reason for the existence
of international law is to enable interactions, and not, as outcome- orientated
theories would have it, to secure outcomes. Framework theories also pursue
goals, such as the goal of peace, but the normative content of these goals are
defi ned through their value for enabling interactions and not as an independent
outcome.

In international law, natural law- oriented theories tend to be more
outcome- orientated and positivist theories tend to be more framework- based. The
process school of international law is also an outcome-oriented theory as it defi nes
the aim of international law as the realization of human dignity. CLS scholars can be
either outcome- orientated or framework- oriented in their defi nition of the purpose
of international law.

Outcome- oriented theorizing about the purposes of international law has
focused on human rights, human dignity, democracy, gender, and distributive
justice as the desired results that international law should aim for. Some of
these outcome- oriented theories assess the current state of international law in
the light of these goals and identify the shortcomings of current international
law and propose concrete changes. Outcome- oriented theories can identify such
goals based on historical arguments, social theory, scientifi c developments (such

Table 4.3 Framework theories and outcome- oriented theories

Framework theories Outcome- oriented theories

Aim to facilitate relationships between
existing actors

Aim to bring about a desired state
of affairs

Purpose is sensitive to how it enables interactions Purpose sensitive to goals independently
defi ned, e.g. justice, human rights

Perspectives on international relations in international law 83

as environmental changes), social developments (such as poverty), political
philosophy, or any combination of these.

Third World Approaches to International Law (TWAIL), for example, have
viewed international law as a tool to remedy colonial wrongs and to re distribute
wealth between those states that were colonized and the colonizers. In the 1970s,
this approach informed and infl uenced General Assembly Resolutions at the United
Nations. With the demise of the non- aligned movement and the collapse of the
Soviet Union, TWAIL lost its political currency in international law- making circles.
Similarly, feminist approaches to international law analyse international law from
the perspective of gender and the gender inequalities embedded in the international
legal system. They offer a critique of the consequences of a male- dominated prac-
tice of international law and propose guidelines for a more engendered practice of
international law. Indeed the recognition of the act of rape as a basis of a war crime,
a crime against humanity or, genocide charge (see Chapter 12) is an outcome of
feminist critiques of international law. Other goal- oriented theorizing may simply
critique the practice from the perspectives of the outcomes produced and question
the desirability of such outcomes without proposing concrete changes. We can call
these refl ective outcome- oriented theories.

On the list of goals international law should aim for, human rights and global
justice have received the most attention from the discipline of political philosophy
because of the popularity and the strong moral appeal these ideas have in gen-
eral. One leading theoretical discussion has concerned the possibility of practically
applying the idea of human rights to the creation and recognition of new states in
international law and using human rights as justifi cation for humanitarian inter-
vention (Buchanan 2004). In the case of global justice, the central questions are
whether obligations of justice apply only within domestic political communities or
whether they also apply internationally (see Chapter 16).

Outcome- oriented theorizing assigns goals to international law that are inde-
pendent from the individual intentions of decision- makers. It further holds that
these goals should compel decision- makers to act consistently to realize these goals.
Because there are institutional constraints due to the nature of the international
state system as to how much of a desired goal can be achieved in real- time inter-
national relations, outcome- oriented theories demand that decision- makers do as
much as possible within their capacities. Such theories, therefore, focus on how
we can reform the institutions that we have in order to maximize the goals aimed
for. Outcome- oriented theories, therefore, can be both realistic and reform- focused.
A realistic version of a human rights- based theory of international law, for exam-
ple, may require that all international actors should respect human rights. Such

84 Part I Studying international law

a requirement would enable us to think about how international organizations such
as the United Nations or the World Bank can respect human rights and how actors
within these organizations should view their operations. Reform proposals con-
sider what changes are necessary to current international institutions in order to
better realize the goals of international law. Proposals for international taxation
(for better distributive justice), a world court of human rights (for better protection
of human rights), the reform of the United Nations to include a people’s assembly
(for more democracy in international law) are just a few examples of many such
proposed reforms.

Because the very reality of the international system is that it is based on inter-
state agreement or consensus, outcome- oriented theories are often approaches to
moral foreign policy. The process school of international law is the only theory that
addresses both the foreign policy of states and the international system as a whole.
That said, a great number of international treaties and international organizations,
such as the United Convention on the Discrimination of All Kinds of Discrimination
against Women and the United Nations High Commissioner for Human Rights, are
concrete outcomes of outcome- oriented theorizing.

Framework theories of international law, on the other hand, are agnostic towards
independent goals. This is not because they do not consider human rights or jus-
tice, for example, as valuable, but because they hold that international law exists
for a different reason altogether. Its purpose is to create a framework to enable
the relationship between international entities rather than the maximization of
a pre- determined set of goals. Most framework theories concede that they regard
states as the core international entities and international law is primarily concerned
with facilitating interstate relations. International organizations, individuals, and
non- state actors, such as armed groups, only enter into the framework as secondary
international entities. They receive their signifi cance from their indirect contribu-
tion to or their effects on the regulation of interstate relations.

Defi ning the purpose of international law in terms of relationships, primarily
between states, is a common thread in positivist theorizing about international law.
It involves making a number of assumptions. First, there is the assumption that there
are a number of political entities with their own individual projects about goals they
wish to pursue. Second, there is the assumption that none of these political entities
exist in isolation from each other. They are inevitably related to each other and, fur-
thermore, they need each other to realize their aims. Framework theories, therefore,
start by saying that cooperation between political entities—each with its own indi-
vidual trajectories and goals—is necessary for their peaceful coexistence. This is why
international law exists. Concepts such as human rights or human development enter

Perspectives on international relations in international law 85

into framework theories as by- products or derivatives of cooperation or necessary
elements for cooperation rather than as concepts with an independent purchase.

Framework theories do not specify what areas should be governed by inter-
national law because it is thought that this is largely determined by processes
of historical development and the needs of cooperation. For example, for a very
long period of time war (understood as armed confl ict between two states) was
permissible in international law. It was only after World War II that international
law banned the use of force in international law except in cases of self- defence.
This was because the consequences of war were viewed as too devastating for
interstate relations. In a similar way, the international protection of human rights,
international accountability for war criminals, protection of the environment,
and international trade and the accountability of multinational corporations for
complicity in international crimes are parts of the framework of international law.
In the future, it is possible for this framework to include new issues and to estab-
lish international institutions that make international relations between states
more heavily regulated by international law.

It is clear that there is a tension between outcome- oriented and framework types
of theorizing about the purposes of international law. Outcome- oriented theories
aim to bring international law closer to international justice. They demand that
international law should strive to be as just a system as possible, even though they
recognize the imperfections of the system and the injustices that exist within it.
Framework theories, on the other hand, insist that it would be illegitimate to pos-
tulate substantive goals for international law without those goals being accepted
as such by states. International law is essentially a framework of regulation and
interaction between political entities with political lives of their own. By doing so,
they also dispute the idea that international law is something that tries to reach
a desired end rather than effectively facilitate interstate relations and cooperation.
This means that international law would only promote a conception of the com-
mon good when states have collectively agreed to the promotion of that good as an
aspect of their relationships.

The tension between these two types of theorizing perhaps looks less dramatic
when we look at the actual practice of states in our contemporary world and the
purposes of the United Nations. The United Nations Charter in its Article 1 sets out
the four purposes for the United Nations:

1. to maintain international peace and security;

2. to develop friendly relations among nations based on respect for the principle
of equal rights and self- determination of peoples;

86 Part I Studying international law

3. to achieve international cooperation in solving international problems of an
economic, social, cultural, and humanitarian character, and in promoting
human rights; and

4. to be a centre for harmonizing actions in the attainment of these common
ends.

These purposes suggest that the interstate system has moved away from a paradigm
of detached coexistence or minimum cooperation. The protection of human rights
and economic cooperation are parts of positive international law alongside inter-
national peace and security. This means that the gap between the framework for
substantive cooperation and the goals international law should aim for may not be
too wide, as it fi rst seems.

The relevance of theories of international
law in international relations

International law scholars often take for granted that international law as a disci-
pline is crucial for understanding the conduct of international relations, its past,
and its future. As discussions of theories of international relations show, however,
not all international relations students agree with this assumption (see Chapter 2).
Theories of international relations are not necessarily interested in the research
questions international law asks. For the former, the driving question is why, in the
fi rst place, should we take international law seriously when studying international
behaviour and the structure of the international system? What does international
law tell us about the world we live in and how can we explain interactions and proc-
esses and predict the future of international relations? This difference in empha-
sis between theories of international relations and international law comes about
because international relations has a pool of social, cultural, political, and historical
explanatory factors that run alongside international law to understand and explain
international relations as a system and the behaviour of individual states within
the system. International relations theories, therefore, always assign relative impor-
tance to international law and its theories when studying international behaviour,
international processes, and the international system.

International law theories constantly remind students of international relations
about the legal aspects of their objects of inquiry. All of the theoretical schools of
international law we discussed above agree that international law infl uences how the
international system is constructed and how it operates. They provide perspectives to

Perspectives on international relations in international law 87

decision- makers to assess the current state of international law and its future. What is
signifi cant is that there are strong synergies and constructive dialogues between some
theories of international relations and international law. As a general observation, we
can say that the more international relations theories focus on non- material factors
such as, norms and ideas, the more relevant the theories of international law become
in international relations theory. Conversely, we can also observe that not all theories
of international law are idealist. Positivist theories of international law, as we have
seen, pay serious attention to accommodating state sovereignty as the basis of inter-
national law. The relevance of international law theories in international relations, in
this respect, is a matter of degree about the overlaps and synergies between theoretical
assumptions in both disciplines.

The empirical relevance of international law

The most important challenge international relations theory mounts towards inter-
national law theories is on the empirical relevance of international law in interna-
tional relations. This challenge focuses on how state behaviour is explained and can
be formulated as follows:

International law is not important or relevant in the real world because state behav-
iour is not ultimately constrained by it (or states will always violate international
law if it is in their interest to do so).

This challenge is the well- known rationalist- realist challenge to international law
and it views compliance with international law as the most important element for
defi ning what international law is. It further holds that international law is only
relevant if it motivates State A to do X even if X is not in its interest. Furthermore,
it argues that there is no overwhelming or signifi cant evidence in the real world
to support this proposition. If a state in fact acts in a way that is in accordance
with international law the assumption is that this is merely a coincidence between
a state’s interests and international law. In other words, the challenge suggests that
international law does not have a structural binding effect on states in the real world
and that, therefore, its relevance as well as its law- like quality is to be suspected.

We can quickly see that this rationalist- realist challenge overlaps with Austin’s
rejection of international law based on his command theory. International law the-
ory responds to the rationalist- realist challenge by highlighting the internal perspec-
tive of law and the need to be aware of the communicative nature of international
law. From the perspective of international law, even where a state disobeys interna-
tional law, the very fact that it is recognized as non- compliant by other states proves

88 Part I Studying international law

the signifi cance of international law. In this sense, no international actor really stays
outside the international legal framework. Positivist, natural law or critical legal
studies scholars all agree with the fact that international law enables international
events to be framed, discussed and evaluated in the form of a specifi c language
shared by international actors.

All theories of international law further draw the distinction between the effec-
tiveness of international law in certain places and at certain points in time and
the overall function of international law in the international system. As much as
effectiveness of international laws is an important issue both for international law
and for international relations in general, it is an oversimplifi cation to defi ne only
effective international law as relevant. Effectiveness is only one of the many com-
plex aspects of international law and it is not clear why it should be seen as the
most important one in identifying the importance of international law. This is all
the more curious because we do not question the relevance of law in the domestic
systems when it is ineffective. Ineffectiveness can be seen as a symptom of a legal
culture, but it is not what makes law relevant to our everyday lives. This holds for
international law as much as it holds for domestic law.

As much as international law may sometimes be ignored in international relations,
it is still taken into account by states and other actors and it is used to justify, explain,
and evaluate behaviour. It guides behaviour as it expresses expectations about how
international actors wish to be treated in the future. In this respect, theories of interna-
tional law caution students of international relations to empirical nuances. In the real
world, there are multiple reasons for compliance and non- compliance with specifi c
international laws. A state may comply with international law because: (1) of habit;
(2) this is how it wishes to be treated by others; (3) it sees a particular behaviour
in its long- term interest; (4) it believes this is the right thing to do; (5) it believes it
enhances its reputation; (6) or all of the above; or (7) some of the above. The compli-
ance reasons may change from one state to another as well as from topic to topic and
from time to time. International law theories, therefore, make the empirical picture
more complex than it may at fi rst seem. They point to the fact that from the internal
perspective of decision- makers there is a complex constellation of reasons to follow
international law or to defi ne themselves within the framework of international law.

The relevance of international law in the contemporary world

A more historically informed argument on the relevance of international law
in contemporary international affairs needs only to look at the degree of inter-
dependence and level of complexity in international law. No doubt states are

Perspectives on international relations in international law 89

involved in this as much as international organizations, international courts,
tribunals, and non- governmental international law entrepreneurs. States are
signing up to and ratifying an increasing number of multilateral treaties on
issues ranging from the international environment, to prohibited weapons,
human rights, individual criminal responsibility, and international trade and
investment. They also set up international judicial, monitoring, and administra-
tive institutions. Circumstances of international cooperation have effects on
small and medium sized states as well as on major powers. International law
has also become specialized into differentiated regimes—more akin to domestic
law—under international human rights law, international criminal law, inter-
national humanitarian law, international environmental law, and international
trade law. This makes it more diffi cult to talk about international law as a sin-
gle unitary concept when assessing its relevance and calls for a more nuanced
understanding of the different regimes of international law.

Conclusion

International law theorizing feeds both from politics and from moral- normative
theories. It is located between the disciplines of law and international relations.
It is rich with arguments and disagreements. But also, for these reasons, it is a
frontier of both theoretical and practical thinking about international relations.
We have seen that theoretical foundations of international law are under fi re
from at least two fronts. First, legal theorists have serious doubts as to whether
international law is law in the fi rst place and whether international law can ever
be independent from international politics or the morality of powerful states.
Second, we have seen that international relations scholars are suspicious about
whether international law matters at all in controlling the behaviour of states.
Theories of international law offer responses to such challenges and try to imagine
the best principles that regulate the complex, diverse, and dynamic international
society that we have. Theories of international law also serve as the constant
reminder of the relevance of international law in enabling international relations
and interstate cooperation.

Questions

1. What is international law?

2. In what ways do positivism and realism have similarities in describing international law?

90 Part I Studying international law

3. What are the differences between natural law theories and positivist theories of
international law?

4. What is the added value of describing international law as a process of decision-
making?

5. What are the central claims of critical legal studies scholars about the value of law in
international relations?

6. In what ways can we approach the purpose of international law?

7. What is the relevance of international law in international relations?

8. Is the relevance of international law empirically supported?

9. In what ways can we defi ne international society?

10. What differences can you identify in the ways in which international law theories and
international relations theories approach international law?

Further reading

Anghie, T., Chimni, P., and Mickelson, K. (2004)
The Third World and International Order: Law,
Politics and Globalization (The Hague: Kluwer
Law). A collection of essays focusing on the
relationship between third world states and
international law.

Arendt, A. C. (1999) Legal Rules and International
Society (Oxford: Oxford University Press). An
interdisciplinary analysis of the synergies
between international law and international
relations theories.

Charlesworth, H. and Chinkin, C. (2000) The
Boundaries of International Law: Feminist
Analysis (Manchester: Manchester University
Press). A feminist analysis of the shortcom-
ings of international law in accommodating
a gender perspective.

Higgins, R. (1994) Problems and Process—
International Law and How We Use It (Oxford:
Oxford University Press). An excellent intro-
duction to the process school of international

law and how it is applied to international law
problems.

Koskenniemi, M. (2000) From Apology to
Utopia: The Structure of International Legal
Argument, 2nd edn. (Cambridge: Cambridge
University Press) A fulsome defence of the
CLS argument in international law.

Nardin, T. and Mapel, D. R. (2000) International
Society: Diverse Ethical Perspectives (Princ-
eton: Princeton University Press). A compre-
hensive collection of essays on legal and moral
theoretical perspectives on international law.

Simma, B. and Paulus, A. L. (1999) ‘The
Responsibility of Individuals for Human Rights
Abuses in Internal Confl icts: A Positivist View’
American Journal of International Law 93:
302–16. A modern interpretation of positiv-
ism in international law.

Tesón, F. (1998) A Philosophy of International
Law (Boulder: Westview Press). A liberal and
goal- oriented theory of international law.

Perspectives on international relations in international law 91

Websites

http://www.ejil.org The European Journal of International Law publishes academic discussions on
topics in international law theory.

http://www.iilj.org/publications/HistoryandTheoryofInternationalLawSeries.asp The Institute for
International Law and Justice of NYU Law School features a range of interesting working papers in
the area of international legal theory.

http://www.opiniojuris.org This website acts as a forum for discussion about international law and
relations.

http://www.asil.org The American Society for International Law gives access to its publications and
posts upcoming events in the area of international law.

http://plato.stanford.edu/entries/legal-positivism/ This Stanford Encyclopedia article on legal
positivism gives a comprehensive overview of the history and infl uence of this theory beyond
international law.

Visit the Online Resource Centre that accompanies this book to access more learning resources
www.oxfordtextbooks.co.uk/orc/cali/

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PART II

IDENTIFYING
INTERNATIONAL LAW

In this part of the book we introduce you to the ways in which specifi c international
laws are identifi ed in international relations. International lawyers say that in order
for a statement to be law it has to come from a ‘source’ of international law. Sources
of international law are procedures based in the collective consent of states to a
particular rule, principle, or norm. When a rule or principle is identifi ed as part of
international law we say that it has legal consequences and it is legally binding as
well as having political and/or moral consequences. For example, if a state commits
genocide, we can call this not only a political catastrophe and a grave moral wrong,
but also a violation of international law. There are different types of legal conse-
quences that are attached to having international laws on a subject:

1. we establish that the rule, principle or norm has been recognized as law
because it has been produced through a legal procedure;

2. we expect states (and other relevant actors) to behave in accordance with
that international law as a matter of legal obligation;

3. a state can rightfully retaliate using peaceful means if another state is
breaching its obligations against that state;

4. states (and other relevant actors) can bring claims before international courts
for failing to obey international law; and

5. states (and other relevant actors) can legally demand the reversal of any
law- violating behaviour, compensation for damages, and offi cial apologies.

Knowing what international law says on a matter, of course, also has political
consequences. For example:

1. we can criticize states for not following international law once we establish
what that law is;

94 Identifying international law

2. we can demand states (and other relevant actors) to follow international
law; and

3. we can establish who follows and who violates international law.

In this respect there are important advantages to be gained from knowing what
international law says on a particular subject matter both for states and other inter-
national actors on the international plane.

Sources of international law are invariably defi ned with respect to the famous
Article 38 of the Status of the International Court of Justice:

The Court, whose function is to decide in accordance with international law such
disputes as are submitted to it, shall apply:

(a) international conventions, whether general or particular, establishing rules
expressly recognized by the contesting states;

(b) international custom, as evidence of a general practice accepted as law;

(c) the general principles of law recognized by civilized nations;

(d) subject to the provisions of Article 59, judicial decisions and the teachings
of the most highly qualifi ed publicists of the various nations, as subsidiary
means for the determination of rules of law.

This Article exists in the Statute of the International Court of Justice, so that when
states bring a dispute before the ICJ, the Court knows how to fi nd out what interna-
tional law says on a particular matter. Of these sources listed, treaties and customary
international law are the primary sources of international law. General principles
of law are there to help the Court to identify the law if treaties and custom are not
clear. General principles of law mean that the principle identifi ed by the Court has
to be general enough to be commonly used by most states. Teachings of publicists
are an auxiliary source and are there to help the judges clarify the precise meaning
of a contested or unclear piece of treaty or custom.

The identifi cation of international law has to primarily start from identifying
what states collectively agreed to either by way of explicit agreement (treaties) or by
way of looking at long- standing practices of states (custom). It is, however, recog-
nized that there are certain limits to what states can bilaterally or collectively agree
to. These limits are called ius cogens norms. There is a dispute as to what the list of
such super- norms should contain. Universally accepted examples, however, include
the prohibition of genocide and slavery. Two states, for instance, cannot make an
agreement to enslave humans. Such an agreement would not have any legal validity
and all other states would have a duty under international law not to recognize it.

Identifying international law 95

Chapters 5 and 6 set out in greater detail how treaties are made, how customary
international law is established, how these two primary sources of international law
interact with each other, and what role is played by ius cogens.

It is very useful to approach the identifi cation of international law as an argu-
mentative process. There is no statute book to tell us what the international law on
a specifi c issue is and it is more than likely that different states may have different
views on what international law is at a given time. While some international laws
bind all states (such as the prohibition of genocide or slavery), some laws only bind
some states (such as regional treaties or regional custom) and some laws are only in
force between two states (such as bilateral trade agreements). This is the fact of inter-
national law, which is based on an international system of states that does not have a
central legislative body. How then do we go about identifying international law?

1. State focus or issue focus: The fi rst step is to establish whether we are looking
for an agreement between a group of states or an international law on an
issue that binds all states.

2. Treaty, custom, or both? The next step is to identify whether the issue in
question is governed by treaties, by custom, or by both. If a state is not party
to a treaty, are there clear principles that we can establish as custom? If there
are both treaties and customary principles, what is the relationship between
the two?

3. Is ius cogens relevant? We can then think whether a ius cogens principle is
relevant. If a particular international law is viewed as ius cogens, then it is a
super- norm and states cannot make agreements contrary to it.

4. Clarity? Is the international law clear after having looked at treaties and
custom, and, if necessary, the general principles of law?

It is important to note that once we consider these steps we may be able to say exact-
ly what the international law is on a specifi c issue and which states it binds, or we
may also say that international law is not clear, or there is no international law on
a certain issue or that we found a rule, but it does not bind a specifi c state. Equally,
if we do fi nd a very clear international law on a specifi c matter, this does not mean
that it could effectively be enforced. The latter question depends on whether there
is any: a) strong conviction or pressure to follow international law, b) compulsory
third party settlement, c) states willing to submit themselves to dispute settlement,
or d) whether a state regards itself as a victim and decides to self- enforce interna-
tional law against another state. We cannot, however, say that there is no interna-
tional law because it cannot always be enforced. Rather, the identifi cation processes

96 Identifying international law

of international law enable us to see which international laws are enforced, which
are followed, and which are violated.

There are a wide range of actors in the domestic and international plane that
play a role in the identifi cation, creation, and enforcement of international laws.
The primary actors for law- making are states. As institutionalist, constructivist,
and liberal theories of international relations point out (see Chapter 2), however,
the social fabric of international relations is not solely made up of states. Other
actors range from international organizations, international courts, and tribu-
nals to non- governmental organizations, religious groups, and multinational
corporations—as well as some powerful individuals. These all come under the
umbrella of non- state actors. Non- state actors cannot make international law as all
law- making takes place through the formal sources of international law. They do,
however, infl uence states by putting pressure on them, by infl uencing their prefer-
ences, and by framing issues.

Of all these actors, international organizations are themselves creations of inter-
national law and for this reason they play an important role in the identifi cation of
international laws that apply to them. Because their existence and activities depend
on intergovernmental agreements they are also the single most important platforms
for collective law- making, identifi cation, and development. Through formalized
meetings and conferences they facilitate the identifi cation of emerging needs for
regulation and cooperation and offer processes for drafting international trea-
ties. The United Nations (UN) is the hub of the world’s multilateral treaty mak-
ing. It is also the repository of all international treaties. The International Law
Commission, an expert commission set up by members of the UN, is where most
international law is made in the literal sense. This Commission is a place where the
ideas of important treaties are born and go through a long drafting process with
the participation of all involved states. Regional organizations, such as the African
Union, the Organization of American States, and the Council of Europe, fulfi l simi-
lar regional roles. International organizations are also important for identifying
state conduct that is relevant for the identifi cation of customary international laws
(see Chapter 6). Independent experts and the international secretariats of inter-
national organizations have to, by their nature, contribute to the elaboration and
specifi cation of international laws as their existence and functions are created by
international law.

In Chapters 7 and 8 we turn to two other important actors in contemporary inter-
national relations that mark an important change from traditional and more state
and intergovernmental organization focused international law to a more judicial
and civil society focus: non- governmental organizations and international courts

Identifying international law 97

and tribunals. As we have seen in the discussion on the history of international law
in Chapter 3 both of these are relatively new to the international plane, but their very
existence affects the way we think about processes of law- making and identifi ca-
tion. Both NGOs and International Courts and Tribunals are regarded as guardians
of international law in a world where law is an output of intergovernmental proc-
esses. Chapter 7 on non- governmental organizations analyses an important puzzle
in evaluating the engagement of civil society organizations in international law.
Given that everyone accepts that states are the primary law- makers and enforcers in
international law, why are non- governmental organizations increasingly interested
in the making and enforcement of international law and participating in the work
of international organizations? The discussion of non- governmental actors surveys
the signifi cance of NGOs and exposes the advocacy and campaigns background for
treaty- making and discusses the distinction between legally binding and non- legally
binding international instruments. Chapter 8 on international courts and tribunals
provides a tour of the broad range of courts in international law and the very impor-
tant role they play in the identifi cation of international law. With more international
courts and active non- governmental organizations in international relations, we
see that states and intergovernmental organizations are not the only actors that
identify and interpret what international law means in specifi c contexts. This means
that even though the collective state authority is necessary to make international
laws, the stage for the interpretation, specifi cation, and application of international
law is more diverse than it ever was and that identifi cation of international law is a
more complex and multi- authored process. More knowledge, understanding, and
pronouncement of international law outside state and intergovernmental circles
also have an effect on states’ own approaches to understanding what the laws they
make mean in practice.

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Chapter 5

International treaties
Emmanuel Voyiakis

CHAPTER CONTENTS

• Introduction

• Why do states make treaties?

• The relationship between treaties, customary international law, and the concept of ius

cogens

• The making of treaties

• Universality or integrity? Reservations to treaties

• Application, interpretation, and the position of third states

• Amending a treaty

• Ending international treaties

• Conclusion

CHAPTER OVERVIEW

In the absence of a world government, the standards that international agents are bound

to observe in their relations are typically laid down in international agreements called

‘treaties’. Treaties come in many varieties: some constitute international organizations,

such as the United Nations. Others regulate particular areas of international law, such as

the law of the sea. Others are purely commercial or ‘synallagmatic’, such as agreements

about the sale of oil or about student exchanges between two states. The law of treaties

is the body of international legal principles that regulate, at the most general level, ques-

tions about the conclusion, validity, interpretation, and practical application of all such

agreements. The purpose of this chapter is to explain the basic concepts of the law of

treaties and to highlight how their application may vary depending on the character of the

treaty in question.

100 Part II Identifying international law

Introduction

A letter posted in Thailand reaches Greece. A fl ight from Frankfurt reaches Sydney
via Singapore. Rita spends her fi rst term as an exchange student in France. Ugandan
authorities board a ship fl ying the Liberian fl ag on suspicion that the ship is carry-
ing illegal weapons. Poland joins the European Union. The United Nations Security
Council authorizes the use of force to liberate Kuwait from Iraqi invading forces. The
European Court of Human Rights awards Eric compensation for injuries he suffered
whilst in custody of the Hungarian police. These random examples are all practi-
cally possible because the states concerned have concluded treaties to facilitate them.
There are thousands of international treaties concluded between states or internation-
al organizations. Identifying whether there is any treaty on an issue of international
concern is the fi rst step to identifying international law on a particular subject.

This chapter focuses on the reasons for and processes of treaty making in interna-
tional law. This is arguably one of the most technical subject matters in international
law. The law of international treaties employs a technical and specialized language
in regulating international agreements. This is in contrast to the more general ways
international relations scholars talk about international regimes (see Chapter 2).
Understanding international law- making terminology and the way it is employed,
however, is important for students of international relations for at least two rea-
sons. First, most international political and legal work carried out by state offi cials
as well as intergovernmental and non- governmental organizations involves treaty
drafting, negotiations, and disputes over treaty interpretation. The knowledge of
international treaty law is crucial for participating in these international processes.
Second, the rules about rules, in this case rules about making, implementing, and
terminating international treaties, increase the predictability of the process for all
the participants concerned. It is for this reason that the international legal language
is specialized in this fi eld. This chapter will go through the process of treaty mak-
ing by following the logical progression of an international treaty. It will start with
rules for making them, follow this with interpreting treaties, and will conclude with
changing the terms of the agreements or ending them.

Box 5.1 What is a ‘treaty?’

Treaties are agreements governed by international law and concluded primarily between
states. A treaty is legally binding and parties to an international treaty are able to hold
each other accountable for breaches.

International treaties 101

Why do states make treaties?

A generic answer to this would be that treaties facilitate international cooperation,
which states have good reason to value. International trade is a typical example:
without a net of bilateral and multilateral international agreements that set the
terms for international trade in goods and services, interstate commerce would be
practically impossible. Furthermore, treaties can help secure collective international
goods like international peace and security, by allowing states to agree common
standards of conduct, e.g. to refrain from using armed force in their international
relations, and to set up international institutions, such as the United Nations (UN)
or the World Trade Organization (WTO), and to equip them with the power to
monitor and enforce those standards.

States use treaties for a wide range of objectives: to secure commercial bargains
(sometimes called ‘synallagmatic’ treaties); to build international institutions; to
set out common standards of conduct. Consider how these objectives are typically
pursued within states: commercial bargains are the province of private contracts;
institution- building can occur both at the private (e.g. corporations) and public (e.g.
state organs) level; while the setting of general standards of conduct is almost the
exclusive province of government. The contrast provides a further glimpse into the
systemic importance of treaties in international society. They are the central pillars
of regulating international relations. Given the lack of central governmental mecha-
nisms that might create and impose certain international cooperative structures

Treaties concluded between two states are called bilateral treaties. When treaties are
concluded between more than two states, they are called multilateral treaties.

The title that an agreement has is not important for determining whether the agree-
ment is a treaty. Agreements under international law can be called ‘conventions’,
‘covenants’, ‘protocols’, ‘declarations’, ‘joint statements’, or may carry no particular des-
ignation at all.

An international agreement does not always need to be in written form in order to be a
treaty, although the existence of some form of record of the agreement is always useful
for evidential purposes.

This defi nition excludes:

1. agreements between states and private individuals or corporations; and

2. agreements that states have decided that should not be governed by
international law.

102 Part II Identifying international law

‘from above’—whether or not such mechanisms might be desirable—cooperation
by international agreement is the most prevalent and effi cient way for states to pur-
sue most of their individual and collective aims.

Cooperation by agreement can involve different levels of commitment on the part
of consenting states. States may fi nd it politically expedient to declare that they will
pursue a common aim without necessarily undertaking a duty to do so. More often
than not, however, states will prefer that every party to an agreement should also
be able to hold a party that breaches it accountable for that breach. For example,
agreeing states may decide that a breach will entitle the victim to seek reparations;
to terminate or suspend the agreement; or to submit disputes to the binding deter-
mination of a third party, e.g. an international court.

When international lawyers say that an international agreement is ‘legally bind-
ing’, they mean to denote agreements of the latter sort only, i.e. agreements the
breach of which can make the breaching party accountable to the victim through
available avenues of satisfaction and dispute settlement. The international law of
treaties is concerned with such agreements. Its main objectives, and the standards
which it must be judged against, are, fi rst, to lay down clear and fair rules regard-
ing the conclusion, validity, interpretation, and practical operation of treaties and,
second, to be fl exible enough to allow states to tailor the content and binding force
of their agreements to their specifi c needs and interests.

Table 5.1 Types of international treaties

Type Institution- building
treaties

Treaties setting multilateral
standards of conduct

Treaties that regulate
reciprocal bilateral
relations

Example The United Nations
Charter

The Statute of the
International Criminal
Court

Constitutive Act of the
African Union

International Covenant on
Civil and Political Rights

The Montreal Protocol on the
Substances that Deplete the
Ozone Layer

Australia–Thailand Free
Trade Agreement

USA–Argentina
Bilateral Treaty on
Extradition

Box 5.2 Where do we fi nd the law of treaties?

The international law of treaties is, for the most part, contained in a treaty, the 1969
Vienna Convention on the Law of Treaties (VCLT). The VCLT is the ‘treaty on treaties’.

International treaties 103

The relationship between treaties, customary
international law, and the concept of ius cogens

Is there a hierarchy of sources in international law?

International lawyers identify the sources of international law by reference to the
Statute of the International Court of Justice (see Chapter 8). The three main sources
of international law, stated in Article 38(1) of the Statute of the ICJ, are (1) trea-
ties; (2) customary international law; and—when the other sources do not provide
enough guidance—(3) general principles of law.

The fact that the Statute mentions treaties fi rst may create the impression that
treaties are hierarchically higher, i.e. that they would prevail over other sources in
case of confl ict, just as constitutional rules prevail over legislation in national legal
systems. That impression is mistaken. The sources of international law are inde-
pendent of each other and, as the ICJ confi rmed in the Nicaragua case (Military and
Paramilitary Activities In and Against Nicaragua—Merits 1986: paras 172–182) no
source is hierarchically higher. Treaty rules tend to be either more specifi c or newer
than rules of customary international law or general principles of law and, in that

The VCLT is a special treaty because:

1. even though only about half of the world’s states have become parties to it, virtually all
states recognize that its rules refl ect generally binding customary international law.

2. even though many states have decided not to go through with the formal process of
becoming parties to it, they follow the rules laid down in this treaty;

3. international lawyers, legal advisors, and negotiators rely on the VCLT without having
to conduct laborious research on customary international law or check whether their
negotiating partners are parties to the VCLT;

4. states are free to derogate from this treaty by agreement, but the vast majority of
treaties are concluded and applied in accordance with VCLT;

5. VCLT rules can be applied even in respect of treaties that lie outside the VCLT’s express
scope;

6. even though Article 2(1)(a) VCLT specifi es that the Vienna Convention applies only
to treaties ‘in written form’, there is no doubt that the VCLT is also applicable to oral
treaties as customary international law; and

7. although the VCLT has no retrospective effect, in the Kasikili/Sedudu Island case
between Botswana and Namibia the International Court of Justice applied it in respect
of a nineteenth century treaty!

104 Part II Identifying international law

sense, will take precedence by virtue of the practical axiom that specifi c/newer rules
have priority over general/older ones. By the same token, however, it is possible for
a newer customary rule to have precedence over an older treaty rule. Treaties and
customary international law can interact in two important ways. First, treaties can
contribute to the development of customary law, both by codifying already existing
custom and by providing an incentive for its future development. Second, custom-
ary international law is part of the background against which treaties are drafted,
interpreted and applied. For example, states may conclude a treaty in order to give
more legal precision to the content of a customary rule that they consider imprecise,
or in order to avoid their relations being governed by customary norms. In either
case, the proper interpretation of their treaty will require one to understand the
treaty in the light of what customary international law requires or allows.

The concept of ius cogens in the Vienna Convention
on the Law of the Treaties

It is often thought that, even if no source of international law is hierarchically
higher than the others, certain substantive rules of international law enjoy such
higher status. Article 52 Vienna Convention on the Law of the Treaties (VCLT)
calls such rules ‘peremptory norms of international law’ or ius cogens norms and
defi nes them as norms ‘accepted and recognized by the international community
of states as a whole as norms from which no derogation is permitted and which
can be modifi ed only by a subsequent norm of general international law having
the same character’. Usually cited examples of such norms are the general prohibi-
tion of the use of force and the prohibition of genocide, torture and other crimes
against humanity. Calling these norms ius cogens means that states are absolutely
prohibited from derogating from those norms by agreement and that any agree-
ment to derogate from those norms will be automatically null and void as a matter
of international law.

There is no doubt that respect for the norms typically described as ius cogens
is absolutely essential to the maintenance of any defensible system of interna-
tional law. At the same time, perhaps calling these norms ‘hierarchically higher’
than the rest misses their true significance. There are no—and will probably
never be any—examples of treaties endorsing the aggressive use of force or
condoning genocide or torture. In that sense, the idea that any such treaties
would be invalidated by the relevant ius cogens norms has only theoretical
significance.

International treaties 105

The making of treaties

Treaty- making is part of everyday diplomacy. Like most diplomatic work, it is a
politically sensitive and highly technical process. The complexity of treaty- making
depends on a variety of factors, such as the nature of the subject matter of the
treaty (e.g. a treaty on a politically important or excessively technical issue may
be harder to negotiate); the number of parties involved (bilateral treaties are
typically easier to negotiate and conclude than multilateral ones); and the rela-
tionship between the proposed treaty and other international obligations of the
negotiating parties (agreements amending existing treaties will usually be easier
to negotiate). These factors often cut across each other: a treaty on a politically
sensitive issue, such as the law of the sea, may often attract a high number of
negotiating parties, while the high participation rate may in turn accentuate the
political importance of the treaty and so on. It is not uncommon for a state that
would not be inclined to support a multilateral treaty to actually take part in its

Box 5.3 Pinochet and the interpretive function of ius cogens

The true function and signifi cance of ius cogens norms is more nuanced. Consider the
Pinochet (No. 3) case before the British Courts in 1999. The main issue there was whether
a treaty, the 1984 Convention against Torture (CAT), had curtailed the personal immuni-
ties that Heads of State enjoyed under customary international law. This was controver-
sial because, although the CAT allowed states to extend their jurisdiction over acts of
torture carried out by foreign offi cials, it did not include any express provision restricting
foreign Head- of- State immunities. What was the signifi cance of this silence? One could
plausibly argue that, if the drafters of the CAT wanted to restrict customary immunities,
they ought to have said so. On the other hand, one could just as sensibly argue that allow-
ing Heads of States to plead immunity against charges of torture would frustrate the aim
of bringing alleged perpetrators of torture to justice. The majority of the UK House of
Lords endorsed the latter view: it found that if one could interpret the CAT in two plau-
sible but opposite ways, one ought to adopt the interpretation which is more consistent
with any relevant ius cogens norms. Since the prohibition of torture is such a norm, it was
held that the CAT should not be interpreted so as to allow perpetrators of acts of torture
to escape justice and, therefore, that the CAT must be seen as having restricted the cus-
tomary immunity of Heads of State in relation to acts of torture. In other words, the UK
court did not use ius cogens norms to invalidate norms of state immunity, but to assist in
their proper interpretation—we might therefore call this the interpretive function of ius
cogens norms.

106 Part II Identifying international law

negotiation, if that state estimates that standing by while most of the world pro-
ceeds with the proposed treaty carries signifi cant political risk. The US attitude
towards the creation of the International Criminal Court (ICC) is a case in point:
although the US was initially opposed to the idea of such a court, it decided to
join the negotiations leading up to the 1998 Treaty of Rome when it became
clear that most states were in favour of creating the ICC. The advantage of this
strategy is that it allows the state concerned to have some say on the drafting of
the treaty, while still leaving it the option not to become party if the fi nal product
does not satisfy it fully.

We can distinguish between fi ve stages in the making of a treaty: negotiation;
adoption; authentication; expression of consent to be bound; and entry into force.
A treaty only develops legal force when it has gone through all the stages. Although
some of these stages may occasionally overlap, each can give rise to different
problems.

Box 5.4 The stages of treaty making

1. Negotiation between states representatives in conferences, scheduled drafting ses-
sions as well as in private meetings attended by diplomats, international legal teams,
experts, as well members of international and non- governmental organizations.

2. Offi cial representation by heads of state, heads of government, foreign ministers, or
other representatives with ‘full powers’ to sign a treaty.

3. Adoption, authentication, and expression of consent to be bound in a public setting.

4. Entry into force of treaty by ratifi cation of domestic parliaments.

Negotiation

International law does not prescribe a specifi c process for negotiating a treaty and
states enjoy considerable freedom to use their bargaining power to achieve a desir-
able agreement. For example, international law does not bar a state from threaten-
ing to withdraw economic aid in order to convince recipient states to enter into an
agreement with it. At the same time, this does not mean that states are absolutely
free to wield their negotiating power. The use of threats of armed force or fraud in
negotiation may make the treaty invalid and it is widely accepted that states have
a general customary obligation to display good faith in their dealings with one
another.

International treaties 107

Representation and ‘full powers’

A person is entitled to represent the state for the purposes of treaty- making if he
produces ‘full powers’, i.e. an offi cial document designating that person as a repre-
sentative, or if it appears from the practice of the negotiating states that they intend-
ed to dispense with this formality. Certain offi cials are considered as representing
their state without needing to produce full powers. These are: Heads of State or
Government and Ministers of Foreign Affairs; heads of diplomatic missions; and
representatives to international organizations and conferences. Acts performed
without full powers or equivalent authority do not bind a state. However, they can
acquire legal effect if the state involved subsequently affi rms them.

Adoption, authentication, and expression of consent to be bound

Negotiation ends with the ‘adoption’ of the text of the treaty, when the content of
the treaty is fi nalized and states can begin to consider their position towards it. But
states do not actually become bound by a treaty until they express their consent to
become parties to it. The VCLT lists several ways in which states can express their
consent to be bound. These are signature; exchange of instruments constituting a
treaty (e.g. an exchange of diplomatic letters); ratifi cation, acceptance, or approval;
accession (this term is used only when a state consents to become bound by an exist-
ing treaty); or any other agreed means.

Some means of expressing consent to be bound, such as signature, are simple and
direct. Others, such as ratifi cation, are more cumbersome. The choice of means usu-
ally depends on the political importance of the treaty in question. states typically
agree that minor or technical treaties will become binding immediately on signature
or by a simple exchange of instruments. Ratifi cation, which involves the submission
of the treaty for approval to the constitutionally competent branch of government
(typically, but not always, the national Parliament), is usually reserved for treaties that
contain substantial obligations, such as the creation of organizations, law- making
treaties etc. The requirement of approval by national government allows for better
democratic scrutiny of the treaty, but can also entail signifi cant delays between the
adoption of a treaty and the expression of states’ consent to be bound.

Suppose that a state has signed a treaty setting up a free- trade area ‘subject to
ratifi cation’. This means that although the state has ‘adopted’ the treaty text, it has
not yet expressed its consent to be bound and so the treaty has not become binding
on that state. Does it follow that the state in question is still free to increase tariffs
on imports from its future treaty partners? Article 18 VCLT gives a negative answer.

108 Part II Identifying international law

It provides that states which have signed a treaty subject to ratifi cation, or have
consented to be bound by a treaty which has not yet entered into force (see next
heading), have an obligation to refrain from acts that ‘would defeat the object and
purpose of the treaty’, until they make clear their intention not to become parties
to it or until the treaty enters into force. This obligation may be provisional in char-
acter, but it is not negligible, as it can limit the ability of signing states to shift their
international policy. This was the reason why the United States found it necessary to
state explicitly that, although it had signed the 1998 Treaty of Rome for the creation
of the ICC, it had no intention to become bound by it.

Entry into force

The fi nal stage in the making of any treaty is its ‘entry into force’. Unless a treaty
provides differently, treaties enter into force when all negotiating states have
expressed their consent to be bound. Most treaties with limited participation—e.g.
bilateral and regional treaties—adhere to this default rule. Multilateral treaties tend
to have their own special provisions that allow the treaty to enter into force when a
fair number of negotiating states—typically a quarter or a third of the total—have
expressed their consent to be bound. The treaty’s entry into force makes the treaty
binding between states that have expressed such consent. States that express such
consent after the treaty has entered into force become bound only from the date of
their consent.

Universality or integrity? Reservations to treaties

Once the text of a treaty has been fi nalized and negotiating states consider whether
to become a party to it, should they be able to choose to become bound by part
of that treaty only? One would think not. The end of negotiations is supposed
to produce a fi nal balance of rights and obligations in the treaty; allowing states
to pick and choose which parts of the treaty they want to be bound by seems to
undermine that fi nality. Moreover, multilateral treaties often seek to establish a
uniform set of standards for relations between states, e.g. a comprehensive code of
the law of the sea or of the law on carriage of goods by air. Here too it would seem
that the objective of uniformity can only be attained if the fi nal treaty text is consid-
ered as a ‘package deal’ and individual states are not—as the law of the treaties puts
it—allowed to compromise the ‘integrity’ of the treaty text.

International treaties 109

However, under certain conditions the law of treaties does allow states to become
parties to a treaty while avoiding being bound by some of its provisions. In the legal
jargon, it allows states to enter ‘reservations’ when expressing their consent to be
bound.

Box 5.5 What is a ‘reservation’?

Article 2(1)(d) of the Vienna Convention on the Law of Treaties (VCLT) defi nes reserva-
tion as a:

unilateral statement, however phrased or named, made by a State, when signing,
ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or
to modify the legal effect of certain provisions of the treaty in their application to that
State.

There are two reasons for this. First, when drafting a multilateral treaty with wide
participation, getting all negotiating states to agree on every draft provision can prove
diffi cult or practically unachievable. The possibility of entering reservations allows
the process of treaty- making to continue, while giving states that are not fully content
with the treaty to avoid being bound by certain provisions. Second, sometimes the
political impact of a treaty will depend not so much on whether all parties to it sub-
scribe to exactly the same package of rights and obligations, but on whether the treaty
is acceptable to as many states as possible, i.e. sometimes achieving universality in par-
ticipation may be worth the cost of fragmenting the integrity of the treaty text. Human
rights treaties offer an illustration of this idea. Allowing reservations can sometimes
be the only way of getting large numbers of states to agree to a human rights treaty,
whereas insisting on the absolute integrity of the treaty text might risk putting states
off the treaty altogether. At the same time, increasing participation by allowing states
to tailor the treaty text to suit their individual policy preferences may risk undermin-
ing the practical effectiveness of the treaty in question. In general, there is no getting
around the fact that deciding in favour of universality (i.e. allowing reservations) or
integrity (i.e. prohibiting or limiting reservations) is a diffi cult political judgement and
negotiating states may often disagree on the right strategy. A lot depends on the nature
of the topic and the ‘feel’ of the negotiating process. When arriving at a set of common
standards is very important and negotiators sense that agreement on a ‘package deal’
is within reach, states may decide to prohibit reservations and spend more time on
the negotiating table. This is almost invariably the case in respect of treaties with few
parties, but it can occur on the multilateral level as well.

110 Part II Identifying international law

What are reservations?

What sort of statements by states count as reservations? The VCLT defi nes a reserva-
tion as ‘a unilateral statement, however phrased or named, made by a state when sign-
ing, ratifying, accepting, approving, or acceding to a treaty, whereby that state purports
to exclude or modify the legal effect of certain provisions of the treaty in their appli-
cation to that state’. Note that the name or the phrasing of the statement is not criti-
cal: what matters is whether the statement tries to achieve an excluding or modifying
effect. In practice, this means that the ‘interpretive declarations’ that states sometimes
append to their expressions of consent, and which contain those states’ understanding
of what the treaty requires or allows, may actually amount to reservations.

Basic rules on reservations

The most basic rule on reservations is that that states may formulate reservations to
a treaty, except when (1) the treaty prohibits them; (2) the reservation is not amongst
those allowed by the treaty and; (3) in all other cases, the reservation is incompatible
with the ‘object and purpose’ of the treaty. The provision gives rise to three questions.
First, who should have the competence to judge whether a reservation is incompat-
ible with the object and purpose of a treaty? Second, if the reservation is incompatible
with the object and purpose of a treaty, should a state entering the invalid reserva-
tion still be considered a party to the treaty, or should the invalidity of a reservation
also entail the invalidity of that state’s consent to be bound? Third, if a reservation
is allowed by a treaty or is compatible with its object and purpose, are other parties
required to accept the reservation and, if not, what are their practical options?

The VCLT does not answer the fi rst question, but it is generally accepted that
every other party to the treaty can judge whether a particular reservation is compat-
ible with the treaty’s object and purpose. In practice, this arrangement is favourable
to reserving states, since it allows them to ‘test the waters’ by entering extensive

Box 5.6 Convention on the Law of the Sea: high integrity versus low ratifi cation

The Third United Nations Conference on the Law of the Sea, attended by over 180 states,
decided early on to prohibit reservations. Given the complexity of its subject matter, the
fi nal Convention on the Law of Sea was adopted in 1982 after almost ten years of nego-
tiations (still a record duration), but the drafters’ decision to ensure the integrity of the
treaty has been vindicated in practice, since only a handful of states have decided not to
ratify it.

International treaties 111

reservations in the hope that other parties will not fi nd them incompatible with the
treaty’s object and purpose. A more controversial issue is whether the institutions
and monitoring organs set up by a treaty are also competent to determine whether
a reservation is compatible with the treaty’s object and purpose. In its decisions in
Belilos v. Switzerland (1988) and Loizidou v. Turkey (1995), the European Court
of Human Rights held that it was competent to decide that question with regard to
the European Convention on Human Rights (ECHR). Similarly, the Human Rights
Committee, which monitors the implementation of the 1966 International Covenant
on Civil and Political Rights (ICCPR), has opined that it has competence to deter-
mine whether states’ reservations are compatible with the object and purpose of the
ICCPR.1 The question is not conclusively settled in international practice: although
the European decisions have been accepted by ECHR parties, some states have
objected strongly to the views of the Human Rights Committee on the matter.2

The VCLT does not throw much light on the second question either. Here too,
although there are some indications that the invalidity of a reservation does not
generally entail the invalidity of the reserving state’s consent to be bound, interna-
tional practice is not settled. In its aforementioned decisions, the European Court
of Human Rights held that the invalidity of Switzerland’s and Turkey’s reserva-
tions did not affect their status as parties to the ECHR; signifi cantly, neither state
proceeded to withdraw from that treaty.

The position of other states

When a reservation is allowed by the treaty, it is not necessary for other states to
accept the reservation for the reserving state to become a party. By contrast, when
the object and purpose of a treaty, or the limited number of negotiating states, sug-
gests that preserving the integrity of the treaty is essential, the reserving state can
only become party to that treaty if the reservation is accepted by all other parties.
In all other cases, the VCLT lays down fi ve rules. First, if a state accepts the reserva-
tion, the reserving state and the accepting state can consider each other as parties
to the treaty, minus the provisions to which the reservation relates and on a basis
of reciprocity (i.e. the reserving state too will not be able to invoke those provisions
against the accepting state). Second, the fact that a state objects to the reservation
does not entail that the reserving state and the objecting state cannot consider each
other as parties to the treaty, unless the latter clearly states an intention to the con-
trary. Third, if an objecting state has not expressed a clear intention not to become
a treaty partner with the reserving state, the provisions to which the reservation
relates will not apply as between the objecting state and the reserving state. Fourth,
a reservation and the expression of consent it is attached to become effective as

112 Part II Identifying international law

soon as one other state has accepted the reservation. Fifth, states are deemed to have
accepted a reservation if they do not raise an objection to it within twelve months
from the date the reservation was notifi ed to them.

Box 5.7 Point of discussion: assessing the VCLT regime on reservations

There is little doubt that the above rules put more value on achieving universality of par-
ticipation in treaties than on preserving the integrity of the treaty text. The VCLT rules
are favourable to reserving states, as they entail that a reserving state can count itself
as a party to a treaty, as long as there is at least one other state that does not object
to its reservations. Furthermore, under the VCLT rules, objecting states have no practi-
cal way of ‘overcoming’ or ‘defeating’ the reservation: they can either accept it or they
can altogether refuse to become treaty partners with the reserving state. Having said
that, states sometimes fi nd political value in being able to register their general disap-
proval of another state’s reservations. For example, in objecting to two US reservations
to the ICCPR, the Danish Government stated that ‘Denmark regards the said reservations
incompatible with the object and purpose of the Covenant, and consequently Denmark
objects to the reservations. These objections do not constitute an obstacle to the entry
into force of the Covenant between Denmark and the United States.’

Despite its weaknesses, the VCLT regime on reservations has not created important
problems in treaty practice. It is quite telling that a recent effort by the International
Law Commission to elaborate on the VCLT provisions in respect of reservations to human
rights treaties on the basis of developing international practice, based mostly on the
examples discussed in this section, has not as yet come up with any signifi cant improve-
ments (International Law Commission, Reports on the Reservations to Treaties, 1993–
2009). On the other hand, the ambiguities and gaps of the VCLT regime have worked as
an incentive to negotiating states to adopt their own clear rules as to which reservations
they want to make permissible. Modern practice shows that treaties tend either to pro-
hibit reservations altogether or to specify a limited number of admissible reservations.

Application, interpretation, and the position
of third states

Treaties must be observed in good faith, or, in the famous Latin expression, pacta sunt
servanda. As a general matter, the fact that the treaty may be inconsistent with a par-
ty’s domestic law is not a justifi cation for failure to perform it. For example, when a
state becomes party to a treaty prohibiting the imposition of the death penalty, it can-
not invoke the fact that this form of punishment is allowed (or even required) under
its Constitution as a justifi cation for not performing its international obligations.

International treaties 113

Third states

Treaties bind only parties to them. As Article 34 VCLT puts it, ‘a treaty does not cre-
ate either obligations or rights for a third state without its consent’, except of course
when the treaty provisions have developed into generally binding customary inter-
national law. For a third state to incur an obligation under a treaty, the third state
must expressly agree to undertake it. The situation is more nuanced in practice,
though. An economic alliance between states A and B may not create obligations
for state C, but it may limit the market for that state’s exports. Similarly, a bound-
ary treaty between states D and E may not create duties for state F, but it may give
rise to a situation that indirectly affects that state, e.g. by determining whether an
illegal activity by organs of state F near that boundary makes F liable to state D or
state E (or both). Creating rights for third states is simpler. Such rights arise as long
as the treaty provides for them and the third state has not indicated any objection.
Treaties regulating major international waterways, such as the Suez and Panama
canals, contain provisions of this type.

Temporal and territorial application of treaties

Unless contrary provision is made, a treaty is not binding retroactively. It applies
only to events and acts occurring after its entry into force. Moreover, unless an
intention to the contrary is expressed, a treaty is binding on a state in respect of its
entire territory. This rule has some practical importance, since it requires states with
overseas territories (or, in older times, colonies) to make a declaration excluding
those territories from the application of the treaty in question, if they so wish.

Practical problems can arise in the relationship between successive treaties on the
same subject matter. This is especially so when not all parties to the earlier treaties
are also parties to the later ones. Such discrepancies have the effect of fragmenting
the applicable treaty rules. Conscious of this danger, negotiators typically try to
include special provisions in their treaty governing its relationship with existing or
future instruments. The most famous such example is Article 103 of the UN Charter,
which provides: ‘In the event of a confl ict between the obligations of Members of
the United Nations under the present Charter and their obligations under any other
international agreement, their obligations under the present Charter shall prevail.’
This radical stipulation is obviously justifi ed in the light of the Charter’s special
status in the international system as the primary guardian of international peace
and security. In less important instruments, one will typically fi nd ‘accommodation’
provisions like that of Article 73(1) of the 1963 Vienna Convention on Consular

114 Part II Identifying international law

Relations: ‘The provisions of the present Convention shall not affect other interna-
tional agreements in force as between states parties to them.’

The interpretation of treaties

The VCLT provides two commonsense interpretive rules. Article 31(1) VCLT states
the basic principle of interpretation, according to which ‘A treaty shall be inter-
preted in good faith in accordance with the ordinary meaning to be given to the
terms of the treaty in their context and in the light of its object and purpose.’ In
addition to the text of the treaty, the context of a treaty may include other instru-
ments or agreements concluded in connection to the treaty, subsequent practice in
the application of the treaty and any other relevant rule of international law that is
applicable between the parties.

International case law illustrates the practical value of this basic principle. In the
Certain Expenses Advisory Opinion,3 the International Court had to determine
whether UN members could be required to carry the cost of maintaining UN peace-
keeping forces. Even though peacekeeping is not mentioned anywhere in the UN
Charter, the Court found it to be perfectly consistent with the overall purpose of
the UN to maintain international peace and security. Therefore, it was held that UN
members could be required to pay for peacekeeping costs as part of their normal
contributions to the UN budget.

Article 32 VCLT lays down a secondary principle of interpretation. It provides
that interpreters may have recourse to the preparatory materials of a treaty (such
as earlier drafts or records of negotiations) and the circumstances of its conclusion,
when the application of the basic principle leaves the meaning of the treaty unclear
or leads to a manifestly absurd or unreasonable result. Although this secondary
principle sounds plain, it should be used with great circumspection. Records of
negotiations do not always provide a sound guide to the meaning of the eventual
treaty, since they often consist of partial statements that negotiating parties made in
order to secure the best possible deal for themselves.

Amending a treaty

When drafting a treaty, the prudent diplomat should try to put in place a clear and
reliable method for amending it, in order to ensure its effectiveness and adaptability
to changing circumstances. This is especially important in respect of multilateral
treaties, the vast majority of which are of unlimited duration.

International treaties 115

The basic rule here that amending a treaty requires the consent of all parties.
If not all original parties agree to a proposed amendment, the treaty is effectively
fragmented in two: states consenting to the amendment are bound by the amended
treaty in their mutual relations and by the original treaty in their relations with
states who did not consent to the amendment.

Like the VCLT reservations regime, the regime governing treaty amendments
has infl uenced treaty practice by serving as a reminder of the kind of complica-
tions that negotiators would do well to pre- empt. The 1929 Warsaw Convention
on International Carriage by Air illustrates the diffi cult situation that can arise out
of successive treaty amendments, each of which is consented to by a different pro-
portion of the original parties. The Convention was amended six times and supple-
mented by a further treaty in 1961. Some of the parties to the Convention are not
parties to any of the amendments. Many are parties to some amendments only and
a few are parties to the supplementary treaty but not to the amendments. As a result,
the Convention failed in its aim to create a unifi ed regime for international car-
riage by air. The Warsaw Convention has now been replaced by the 1999 Montreal
Convention on the Unifi cation of Certain Rules of International Carriage by Air,
but the amendments saga in this area of law is not over: the new Convention too
contains no amendment provisions!

Most treaties contain their own amendment provisions to avoid the problems
of fragmentation entailed by the VCLT rules. These provisions tend to adopt some
version of what are often called ‘automatic’ amendments, i.e. rules that allow the
amendment of a treaty for all parties once a specifi ed number of states have con-
sented. For example, Article 108 of the UN Charter provides: ‘Amendments to the
present Charter shall come into force … when they have been adopted by a vote of
two thirds of the members of the General Assembly and ratifi ed in accordance with
their respective constitutional processes by two thirds of the members of the United
Nations, including all the permanent members of the Security Council.’ The practi-
cal effect of Article 108 is that amendments can become binding even on states that
voted against them or abstained.

Ending international treaties

International treaties may end for a variety of reasons. First, there may be good
reasons not to recognize an international treaty having a valid status in the fi rst
place. This is called invalidity of treaties. Second, treaties may end because they have

116 Part II Identifying international law

fulfi lled their purpose or because states argue that they are unable to keep to the
agreement. These issues are discussed under termination and suspension of interna-
tional treaties. Finally, there could be disputes over treaty interpretation amongst
states. This has led to the proliferation of diverse types of dispute settlement mecha-
nisms (see Chapter 8).

Invalidity

Like all agreements, treaties can suffer from fl aws that undermine their validity,
e.g. a treaty may have been procured by coercion or it may involve the breach of
a peremptory norm of international law (ius cogens). In such cases, and depend-
ing on the severity of the fl aw, the only option for states may be to declare the
treaty invalid, i.e. to declare that the treaty never created any legal duties for
them.

The most basic principle of the law of treaties relating to invalidity is that
only very severe defects in a treaty give states a right to declare their partici-
pation in it invalid. Furthermore, given that parties will often disagree as to
whether a treaty is indeed invalid, they are required to follow certain proce-
dural steps to invoke those grounds (these are discussed in the next section).
Examples of invalid treaties are very rare in practice, but there is little doubt
that the relevant VCLT provisions are a largely accurate statement of custom-
ary international law.

The VCLT provides that a state may declare its expression of consent to be bound
by a treaty invalid, i.e. that the treaty never created any obligations for it, only in
the following situations:

• when such consent was expressed in violation of its internal law regarding
competence to conclude treaties, but only when the violation was manifest
(i.e. objectively evident to any other state acting in good faith) and
concerned a rule of internal law of fundamental importance, normally
a constitutional rule;

• when that state’s consent was based on an error relating to a fact or
situation which was assumed by that state to exist at the time the treaty
was concluded, except when that state contributed to its own error or the
circumstances were such as to put it on notice of a possible error;

• when consent has been induced by the fraudulent conduct of another
negotiating state, or by the corruption of a state’s representative by another
negotiating state;

International treaties 117

• when consent has been induced by the coercion of that state or its
representatives by another negotiating state; and

• when the treaty confl icts with a peremptory norm of international law (ius
cogens). Existing treaties may become invalid once a contrary ius cogens
norm emerges.

Termination and suspension

Under certain conditions, states may lawfully terminate or suspend a valid treaty.
For a start, a treaty will terminate when it has achieved its objective, e.g. when
goods have been delivered and payment made; when the treaty provides that certain
events or dates will entail termination or suspension; or when all the parties agree to
terminate or suspend it. However, if the treaty does not provide for a right to termi-
nate or suspend, individual states cannot invoke such a right unless it is established
that parties implicitly intended to allow it.

The most common ground states invoke to terminate or suspend a treaty is ‘mate-
rial breach’ by another party, i.e. the repudiation of the treaty without adequate
grounds, or a violation of a provision essential to the accomplishment of the object
and purpose of the treaty. In this connection, it must be noted that the law of trea-
ties is not concerned with explaining why a state may choose to breach its interna-
tional obligations. Rather, it is concerned with determining the rights and options
of the victim of the breach vis-à-vis the breaching state. This focus seems to refl ect
a genuine difference in the perspective of international lawyers compared to that of
political scientists. Asking why states are tempted to breach their treaties is a ques-
tion for the political scientist. It calls for research into the motives of state behaviour
and, in particular, into how states weigh their various interests. By contrast, the task
of international lawyers is to explain how a given defect in, or a breach of a treaty,
changes the rights and duties between the parties to it. This task does not so much
require one to know why a state has breached the treaty, but what the general prac-
tice of states entitles the victim of the breach to do in response.

When the treaty is multilateral, a breach by one party allows all other parties to
terminate/suspend the whole treaty, or to terminate/suspend it only in relation to
the breaching party. However, this provision does not apply in respect of treaties of
a humanitarian character, i.e. state A cannot normally invoke the fact that state B
has violated a human rights treaty in order to stop complying with the treaty itself.
The reason for this exception is not hard to see: treaties of a humanitarian character
do not refl ect so much ‘bargains’ between states but rather shared commitments to

118 Part II Identifying international law

standards of conduct towards individual persons. The fact that one state party has
failed to observe those standards is not allowed to provide other states parties with
the opportunity to renounce them.

The remaining grounds of termination/suspension are much less frequently found
in practice. States may terminate a treaty when its performance has become impos-
sible, e.g. where the treaty relates to an island that has since disappeared, or when
there has been a ‘fundamental change of circumstances’, but only when those cir-
cumstances constituted an essential basis for the parties’ consent, the effect of the
change is radically to transform the extent of the obligations to be performed under
the treaty, the treaty does not establish a boundary and the fundamental change of
circumstances was not caused by a breach on the part of the party invoking it.

Unsurprisingly, international courts and tribunals hesitate to fi nd that a treaty
has either become impossible to perform or that there has been a ‘fundamental
change of circumstances’. The Gabcikovo- Nagymaros case between Hungary and
Slovakia offers a useful illustration.4 Hungary and Czechoslovakia had concluded a
treaty to build a dam on the river Danube. After the dissolution of Czechoslovakia,
Hungary claimed that Slovakia had failed to perform its part of the agreement.
Slovakia argued that the collapse of the Eastern Bloc constituted a fundamental
change of circumstances that allowed it to terminate the treaty. The ICJ was not
convinced, holding that the political motivation behind the conclusion of the treaty
was not an essential basis for the consent of the parties to it.

Settling disputes

Wherever a dispute arises as to the interpretation, application, and validity of a
treaty, states have a variety of means at their disposal for resolving it. Unless the
treaty in question prescribes a particular method of dispute settlement, such as
resort to arbitration, states are free to choose, or not to choose, any available settle-
ment means, or to employ more than one at the same time.

The main means of settling international disputes are negotiation; conciliation;
mediation; arbitration; and adjudication. Of those, negotiation is the most useful
and fl exible. Practice suggests that most treaty disputes are indeed solved in that
way. Negotiation may sometimes reveal that the dispute has resulted from inad-
equate communication or an incomplete knowledge of background facts. Often
negotiations lead to the drafting of a new agreement to replace or supplement the
existing one. When negotiations fail, states may resort to third parties in search
of an amicable solution. Conciliation and mediation are processes of this kind.
Conciliators and mediators are employed to hear the parties’ respective claims and

International treaties 119

to make recommendations that facilitate the amicable settlement of their dispute.
When this role is performed by offi cials of international organizations, such as the
Secretary- General of the United Nations, it is referred to as ‘good offi ces’. When
means of amicable settlement fail, states may choose to resort to the more adver-
sarial methods of arbitration and adjudication (see Chapter 8).

International law generally allows a state that has been the victim of a breach of a
treaty to require the offending party to pay compensation or make some other form of
reparation and to cease the offending conduct. If the other party fails to comply, states
can resort to what international lawyers call ‘countermeasures’. Countermeasures usu-
ally take the form of ‘an eye for an eye’: state A believes that state B’s decision to expel
one of its diplomats is wrongful and expels a diplomat of state B in response. But they
can extend to the suspension of another treaty or customary law obligation, e.g. when
state C freezes assets of the state D’s central bank in order to induce the latter to cease
the breach of a commercial treaty between them. Such countermeasures are lawful
when they are necessary and proportionate. They are not lawful when undertaken as
mere reprisals. In any event, countermeasures for the breach of a treaty may not include
the threat or use of force against the territorial integrity and political independence of
another state, or measures that violate fundamental human rights, the international
laws of war in relation to reprisals, and peremptory norms of international law.

Conclusion

Treaties are part of everyday diplomacy and debate between international actors and this
chapter has introduced their basic underlying concepts and explained how they apply
in different circumstances. Treaties are the most prevalent and effi cient way of securing
international cooperation. Treaties play an important role in international relations not
only because they enable states to act when there is mutual interest to do so. They also
enable international institution building as the case of the World Trade Organization and
the United Nations, and establish multilateral codes of international conduct, such as the
law of the sea and human rights. The next chapters will show how treaties concluded in
different areas help regulate these areas and how successful they are in setting out specifi c
frameworks of appropriate conduct. As we have seen in this chapter the making of, inter-
pretation, and termination of treaties themselves are subject to very detailed regulation
in international law. The widespread acceptance of rules of treaty making shows that
states regard these rules as fair and worth following. In this respect, the law regulating
international treaties itself is a successful regime in international relations.

120 Part II Identifying international law

Questions

1. What is a treaty?

2. Where do we fi nd the international law relating to treaties?

3. What functions do treaties perform in international relations?

4. How are international treaties made?

5. When does a treaty ‘enter into force’?

6. When does a treaty become binding on a state? Is signature of a treaty enough to
make a state bound?

7. What is pacta sunt servanda?

8. How are international treaties interpreted?

9. What are reservations to treaties? What purpose do they serve? Are they always
allowed?

10. When is a treaty invalid? What are peremptory norms of international law
(ius cogens)?

11. When may a treaty be lawfully terminated or suspended?

12. How are disputes about international treaties settled?

Further reading

Aust, A. (2007) Modern Treaty Law and Prac-
tice, 2nd edn. (Cambridge: Cambridge Uni-
versity Press). A reliable survey of the law
of treaties, with a very useful emphasis on its
practical application and probably the most
accessible account of the increasing use of
agreements in the form of MOUs.

Goodman, R. (2002) ‘Human Rights Treaties,
Invalid Reservations and State Consent’
American Journal of International Law 96:
531–60. A very useful account of recent prac-
tice on reservations to human rights treaties,
applying insights from compliance theories of
international relations.

McRae, D. (1978) ‘The Legal Effects of Inter-
pretative Declarations’ British Yearbook
of International Law 49: 155–98. A classic
discussion of the practice of entering reserva-

tions ‘by stealth’ and a thorough discussion
of the other potential effects of interpretive
declarations.

Redgwell, C. (1993) ‘Universality or Integrity?
Some Refl ections on Reservations to Gen-
eral Multilateral Treaties’ British Yearbook of
International Law 64: 245–82. A thorough
treatment of one of the most diffi cult ques-
tions in the theory and practice of treaties

Reuter, P. (1995) Introduction to the Law of
Treaties, 2nd edn. (Geneva: Presses Univer-
sitaires de France). A concise, accessible, and
interesting handbook on the law of treaties.

Sinclair, I. (1994) The Vienna Convention on
the Law of Treaties, 2nd edn. (Manchester:
Manchester University Press). An ‘insider’
account of the drafting of the VCLT and a
reliable account of its provisions.

International treaties 121

Websites

http://treaties.un.org This website compiles many of the most important treaties in international
law in the areas of human rights, disarmament, commodities, refugees, the environment, and the
law of the sea.

http://untreaty.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf Here you can
fi nd the full text of the Vienna Convention on the Law of Treaties of 1969.

http://fl etcher.tufts.edu/multi/general.html This site is another extensive source of international
treaties.

http://www. icj- cij.org/documents/index.php?p1=4&p2=2&p3=0 This website contains the full
text of the Statute of the International Court of Justice, which lays down the sources of international
law in Article 38(1).

http://www.un.org/Depts/los/index.htm This UN website contains the Convention of the Law of
the Sea and other related treaties.

Visit the Online Resource Centre that accompanies this book to access more learning resources
www.oxfordtextbooks.co.uk/orc/cali/

Chapter endnotes

Thirlway, H. (1989) ‘The Law and Procedure
of the International Court of Justice,
1960–1989 (Part One)’ British Yearbook of
International Law 60: 4–56. A comprehen-
sive survey and analysis of the International
Court’s more recent decisions relating to the
law of treaties.

Voyiakis, E. (2003) ‘Access to Court v. state
Immunity’ International & Comparative Law
Quarterly 52: 297–332. A discussion of the
function of ius cogens norms in the context
of the relationship between the right of access
to court for alleged acts of torture and state
immunity under customary international law.

1. General Comment No. 24 (52) of the UN
Human Rights Committee, CCPR/C/21/Rev.1/
Add.6, available through the online portal of
the UN High Commissioner for Human Rights
at <http://www2.ohchr.org/english/bodies/hrc/
comments.htm>/.

2. For the observations by France, the
United Kingdom, and the United States on the
Committee’s General Comment, see 4 Interna-

tional Human Rights Reports (1997) 6; 261;
265 respectively.

3. Certain Expenses of the United Nations,
Advisory Opinion of the International Court of
Justice, (1962) ICJ Reports 151.

4. Case Concerning the Gabcikovo-
Nagymaros Project (Hungary v Slovakia),
Judgment of the International Court of Justice,
(1997) ICJ Reports 65ff.

Chapter 6

Customary international law
Jason Beckett

CHAPTER CONTENTS

• Introduction

• What rules govern the formation of CIL? The conduct- centred model

• The CIL approach to state behaviour: states as agents with legal motivations

• What are the material sources of CIL?

• Identifying particular rules of CIL: the tipping point

• (Why) do states comply with CIL?

• Conclusion

CHAPTER OVERVIEW

This chapter focuses on what customary international law (CIL) is and how we can identify

it. CIL is an important source of international law as it is the only universally binding branch

of public international law (PIL). It is also controversial because of this claim to universal

application. This chapter fi rst briefl y maps the theories of CIL and then turns its attention

to the dominant, conduct- centred model of CIL in international law. It then focuses on

identifi cation of particular CIL rules and how CIL evolves and changes. The chapter concludes

with a discussion of how we can approach compliance with CIL.

Introduction

The common defi nition of custom is that it is accepted practice or that it is a practice
of long- standing. Customary International Law (CIL), however, is a diffi cult sub-
ject in international law, because there are many debates over just what counts as

Customary international law 123

practice, accepted practice, or a long- standing practice, in sum, as CIL. This makes
it all the harder to explain CIL to students of international relations and show its
value and use. In particular, there is no clear list which tells us which international
norms are customary, nor what the content of any given norm of CIL is exactly.
Consequently, it is also complex to determine whether state conduct is in compli-
ance with CIL or not. For example, there are perfectly clear arguments which—
depending on the view of CIL adopted—support either (or both) the perfect legality
and the blatant illegality of the 2003 invasion of Iraq.

Nonetheless, CIL must be studied because it is as authoritative a regime as interna-
tional treaty law for describing what international laws there are and evaluating the
legality of state action (see Chapter 5). The reason CIL constitutes a source of interna-
tional law lies in the historical acceptance of certain long- standing practices by states
as legally required and the recognition of this in Article 38 (1) of the Statute of the
International Court of Justice (ICJ) as one of the primary sources of international law.
Moreover, and unlike treaty law, CIL generates norms (permissive as well as prohibi-
tive) which are binding upon all states. The mutual expectations CIL creates amongst
states is as close as we can get to legislative activity for the international society of states.
It is for this reason that CIL is vitally important in the analysis of state conduct.

Due in part to the lack of textual clarity in Article 38(1), and in part because it
is such a far- reaching source of law, CIL is deeply contested both methodologically
and politically. In a nutshell CIL is an attempt to create normative structures and
rules to constrain and evaluate the conduct of states, but these structures and rules
are, themselves, drawn from the conduct of states. This is often perceived as a prob-
lematic idea. The formation of CIL, in particular, is contrary to basic assumptions of
realist and rationalist international relations scholarship. The over- arching objec-
tion is that CIL is just empty legal talk. It is merely a refl ection of the tools strong
states use to coerce weak states into doing what they want in international affairs.
This objection is indeed part of a general realist view towards international law
which holds that there is no difference between studying what strong states want
and international law because the latter cannot independently affect the former.

The aim of this chapter is to show how international law analysis of CIL responds
to this challenge in international relations. The chapter fi rst outlines the areas of
widespread agreement on CIL in international law. It then sketches the workings
and effects of the dominant model of CIL which derives law from the actual con-
duct of states. This section should enable students consistently to identify the norms
of CIL—both the universal prohibitions like the ban on torture, and new universal
permissions like the claim of economic sovereignty in the exclusive economic zones
(EEZ)—and to deploy these in analysis of the legality of state conduct.

124 Part II Identifying international law

Box 6.1 What makes CIL popular despite theoretical controversy?

Universal application and dynamism
Whilst treaties are binding only on those states which choose to sign and ratify them,

norms of CIL are binding on all states from the moment they come into being. This is the
great strength, the ‘unique selling point’ of CIL, and the feature which best accounts for
its status as law, despite the diffi culties inherent in its identifi cation and application. It is
through CIL that, for example, the prohibition on torture and other serious human rights
violations are binding even on those states who are not parties to the relevant torture
conventions. In this respect the CIL speaks to an important aspiration in international law
by enabling equal application of international law to all states. Indeed, the principle of the
bindingness of treaties (pacta sund servanda) is itself a norm of CIL.

This, vital, universality of CIL is achieved through an equation of silence with acquies-
cence. More specifi cally, under the doctrine of tacit consent, failure to actively protest
a norm during its evolution is deemed to be an endorsement of that norm. In this way, both
the voluntary structure of PIL, and the universal normativity of CIL, are preserved.

Arguments for the existence of CIL can rely on a wide range of practices, such as
multilateral treaties and United Nations General Assembly Resolutions. The idea of CIL,
therefore, enables one to make sense of the current complex practices of interstate activ-
ity. CIL is also important in order to codify existing practices. The analysis of CIL through
studying complex interstate practices is a key task of the International Law Commission,
the United Nations body responsible for codifying international law.

What rules govern the formation of CIL?
The conduct- centred model

In this section we focus on the general question of what counts as CIL. Because
law has no corporeal reality (it is not a physical ‘thing’ like a table or an island)
there is some dispute as to what, exactly, counts as a legal norm. The answer to
this question is all the more complex in a horizontal legal system because there is
a constant need to differentiate legal norms from moral and political ones. This dis-
pute is ontological in nature,1 and must not be confused or elided with interpretive
disputes which are concerned with what particular CIL norms say or mean. The
debates over what counts as law (what counts as a legal norm) must be resolved
before CIL can be accurately perceived or described.

There have, over the years, been many competing theories of CIL. Some based in
moral analyses, others in political processes. The former start the analysis of CIL
by looking at the content of norms and the latter by looking at the process within

Customary international law 125

which norms are created. None can be dismissed out of hand, but a few points of
general (though not universal) consensus can be discerned.

There is general agreement that CIL is a system of rules, and that it is derived
from the observable practice of states. However, it is also generally agreed that it
contains a ‘subjective element’. The two constituent elements of CIL are called: state
practice and opinio iuris (or juris). The classic judicial statement on the emergence
of custom comes from the North Sea Continental Shelf Cases which concerned
a dispute between Germany v Netherlands and Denmark before the International
Court of Justice:

Not only must the acts concerned amount to a settled practice, but they must also
be such, or be carried out in such a way, as to be evidence of a belief that this prac-
tice is rendered obligatory by the existence of a rule of law requiring it.2

Although somewhat opaque, both the Statute and the ICJ clearly refer to there
being two elements which must coincide to create CIL. Moreover, it is only with
a two- element theory that any degree of consistency, objectivity, or neutrality can
be brought to CIL. If we only look at the bare practice of states, we simply observe
what states do. We need to have an account of why states do what they do in order
to understand CIL. If we only look at what states should accept as law we impose
CIL on states. We have to show that there is a common understanding amongst
states about the belief of the legality of specifi c conduct. Finally, there is widespread
agreement that the generation or evolution of norms of CIL does not require the
individual and explicit consent of each state. This means that no state alone controls
the law- making and law changing process under CIL: It is an aggregation of state
practice with intent that creates CIL. This principle of aggregated conduct responds
to the criticism that CIL is simply what strong states do. It may be descriptively cor-
rect that strong states often set examples to other states and that their actions are
more likely to be mimicked or followed. This does not, however, mean that CIL is
in principle what strong states want. Indeed, in contested areas, such as anticipa-
tory self- defence or humanitarian intervention (see Chapter 10), the preferences of
strong states are contested under CIL.

The CIL approach to state behaviour: states
as agents with legal motivations

States engage in a diversity of practices, be they political, courteous, or legal,
in everyday international politics. No legal rules can be distilled directly from

126 Part II Identifying international law

the mere practice of states; there must be some form of differentiation, or dis-
crimination between normatively relevant, and normatively irrelevant conduct. In
theories of CIL the concept of opinio iuris plays precisely this differentiating role.
Put succinctly, one simply cannot treat all state conduct as ‘practice’, state conduct
must be judged against the rules of CIL. However, certain forms of conduct might
be intended to, or have the effect of, changing those very rules. Meanwhile, other
forms of conduct may be in pursuance or breach of those same rules. CIL, there-
fore, not only looks at what states do, it also asks what kind of legal motivation,
if any, is attached to the conduct of states. We can think of four generic forms of
state conduct:

1. conduct in compliance with existing law;

2. conduct at variance with existing law, but not intended to create law;

3. conduct in breach of old law, but not intended to create new law; and

4. conduct in breach of old law, but intended to create new law:

a. which fails; or

b. which succeeds.

In the light of this, state practice is what states actually do; but also, and more pre-
cisely, state practice is some of what states do. More precisely again, state practice
is that portion of state conduct which manifests and indicates opinio iuris: conduct
intended by states to create new law, or reform existing law.

The subjective element ‘opinio iuris sive necessitatis’ literally translates from Latin
as ‘belief of law or necessity’. It is the subjective element in the formation of CIL
because opinio is some form of belief imputed to states. Consequently, it is a way of
making sense of (or classifying) both the actions of states and the responses of their
peers. As a result, opinio iuris is a community concept; it is an attitude (a mindset,
belief, or expression of consent) which must not only be held by the acting states,
but also refl ected by their peers.

Norms of CIL can evolve only from the consistent conduct and belief of states
(i.e. from state practice). This is, indeed, the unifying core, the touchstone, of CIL
as a whole: CIL is a manifestation of the will of states drawn directly and exclu-
sively from the observed practice of the international community of states viewed
as a whole. CIL, therefore, provides a conceptual lens to evaluate state behaviour
as well as motivations for action, support, and dissent. It is for this reason that
international law and relations theories that do not have any room for motiva-
tions of states in driving their behaviour have important diffi culties to engage
with CIL.

Customary international law 127

Even if we treat states as agents with legal motivations, it is not possible to deter-
mine what the CIL rules are conclusively by analysing these motivations. In some
cases the practice of states may be inconsistent, and thus refl ect an inconsistent
opinio iuris. This is one way of approaching the use of nuclear weapons in interna-
tional law, for example. In such cases CIL is unable to evolve despite the intentions
of both supporters and dissenters.

We can contrast the case of nuclear weapons with those of prohibition of torture
and the emergence of the Exclusive Economic Zone (EEZ) respectively. In the nuclear

Case Study 6.1 Nuclear weapons through a CIL lens

Are there any CIL principles regulating the use of nuclear weapons?

Nuclear weapons are possessed by a small group of states, but they have not been used
since the end of World War II. What does this mean in terms of CIL?

Some nuclear weapon possessing states may believe that they only possess nuclear
weapons as a deterrent, so possession of weapons may refl ect a desire to prohibit them.

Some other nuclear weapon possessing states may believe that they have a right to use
these weapons to protect themselves from attacks of a similar kind as a matter of CIL. It is
simply that such circumstances have not arisen.

Some states who do not possess nuclear weapons may aim to possess them and think
there is a right to use them.

Some states who do not possess nuclear weapons may believe that these weapons are
unlawful to use as a matter of CIL.

What effect might these types of conduct and lack of conduct with diverse motivations
have on the formation, evolution, or alteration of CIL in this area?

Consider Judge Shahabudeen’s dissenting opinion in the Nuclear Weapons Advisory
Case:

In view of the position taken by the … proponents of legality … over the past fi ve dec-
ades, it will be diffi cult to argue that the necessary opinio juris later crystallized if none
existed earlier.

[T]he position taken by the proponents of illegality would bar the development of the
opinio juris necessary for the subsequent emergence of any such permissory rule.

[It] is reasonably clear that the opposition shown by the proponents of legality would
have prevented the development of a prohibitory rule if none previously existed, and
that the opposition shown by the proponents of illegality would have prevented the
development of a rescinding rule if a prohibitory rule previously existed.1

1Nuclear Weapons Advisory Opinion (1996) ICJ Reports 226, at 379.

128 Part II Identifying international law

weapons example, we appear to have both practice and opinio, but in fact we have
neither because of the split in community expectations, beliefs, and actions. In the
case of torture, the ‘practice’ is (tragically) considerably more uniform. According
to Amnesty International, some 135 states routinely use torture (perhaps others
are also complicit in this, sending their suspects on so- called ‘black fl ights’ to the
torturing states). There seems to be depressingly little offi cial state protest at these
activities. This would appear to amount to a great deal of state practice.

However, no state in international law has ever claimed a general right to tor-
ture. States either deny that they torture, offer spurious excuses as to why (their
particular variant of) ‘torture-lite’ is permissible, or put the torture down to the
acts of ‘rogue elements’. In other words, no state expresses an opinio iuris favour-
ing torture, and the international community thus has no cause to respond to such
a claim. Torture then offers a paradigm example of state conduct, which is not CIL
because it refl ects no opinio iuris; it is not even intended as constitutive of new
legal norms.

The advent of the EEZ refl ects an opposite to each of the previous examples: here
the conduct was intended as norm creating, and was accepted as such: a new norm
of CIL was created. Under both the 1958 Geneva Convention on the Territorial Sea,
and the then applicable CIL, states could claim a territorial sea and a contiguous
zone of twelve nautical miles from the baselines. Beyond this was the ‘high seas’
an area of maritime freedom, with particularly entrenched freedoms of fi shing and
resource exploitation.

During the negotiations for the 1982 Convention on the Law of the Sea (UNCLOS)
certain states put forward the idea of a 200-nautical mile Exclusive Economic Zone;
which would signifi cantly reduce both the scope and the freedoms of the High Seas.
Several states supported this idea, many were quiet, and a few objected vociferously.
Those in favour began claiming such zones. They sought to enforce their claims by
prohibiting ships from other nations from fi shing (or otherwise exploiting resources)
there. Initially, there was some protest, which was met by a claim of emerging legal
right. But gradually, the conduct of those claiming the EEZ was endorsed and emu-
lated. After just a few years almost every coastal state in the world had declared an
EEZ, and the protest had been abandoned.

In this case we see all the ingredients of a successful evolution of CIL. We have
a clear and consistent conduct. This is supported by an opinio iuris on the part of
those acting; and thus becomes state practice. This practice is then acquiesced in,
endorsed, and emulated; this fulfi ls the community aspect of opinio. As a result,
a new norm of CIL is formed. Unfortunately, few examples of CIL are quite so uni-
versally accepted, nor quite so clear cut.

Customary international law 129

What are the material sources of CIL?

Many practitioners and academics distinguish between the so- called ‘material’ and
‘formal’ sources of law. Essentially a formal source is what makes a certain norm
law; inclusion of CIL in Article 38 of the ICJ Statute, for example. A material
source is what gives that norm content; i.e. what actually occurs to create the
norm. Thus Article 38(1) is the formal source of CIL; what states actually do (with
the requisite opinio) is the material source. There are several material sources of
CIL, namely, unilateral state actions, resolutions of major international organiza-
tions, signifi cantly the United Nations General Assembly Resolutions, treaties, and
other texts.

State actions

CIL derives from what states actually do. However, states, unlike human beings,
are not ‘real’ actors. States can act only through human beings, and even then, only
through certain human beings (state offi cials) acting in certain ways (i.e. in their offi –
cial capacity). A president can act on behalf of his state, but his decisions over what
to have for breakfast—no matter how consistent, well reasoned, or regimented—do
not count as state actions or conduct, let alone as the basis of state practice. As Shaw
has put it:

A state is not a living entity, but consists of governmental departments and thou-
sands of offi cials, and state activity is spread throughout a whole range of national
organs. There are the state’s legal offi cers, legislative institutions, courts, diplomatic
agents and political leaders. Each of these engages in activity which relates to the
international fi eld and therefore one has to examine all such material sources . . . in
order to discover evidence of what states do. (Shaw 2008: 78)

Probably the most important repository of state practice is the national archive of
each state. Also of immediate relevance are national legislative acts incorporating,
or defying, proposed rules of CIL, or judicial fi ndings which support, rely on, or
dismiss arguments of CIL (like the Pinochet case, establishing the UK position on
the customary status of the prohibition on torture). Formal statements of intent,
protest, or support are also forms of practice; and more so any practical imple-
mentation of these—e.g. sending troops, offering logistic support, withdrawing, or
downgrading consular relations, etc.

Finally, several states also keep a ‘digest’ of developments in CIL and state con-
duct over the preceding year. In the United Kingdom, for example, this is termed

130 Part II Identifying international law

UK Materials in International Law (UKMIL), and can be found in the BYBIL annu-
ally. However, the digest is probably the least reliable (though obviously the most
accessible) record of state practice; as it has a necessary editorial bias, and a certain
degree of retrospective reconstruction.

United Nations General Assembly Resolutions

The role of the United Nations General Assembly (UNGA) resolutions in general
PIL is contested. Viewed functionally, the General Assembly resembles a national
legislature; however, according to its own Charter, UNGA resolutions are no more
than recommendations. Indeed, an early suggestion that the Assembly be granted
law- making powers was defeated with only a solitary supporting vote. Nonetheless,
certain UNGA Resolutions do have normative, indeed legal, force and effect because
of the wide and consistent support they attract from a large number of states. The
best way to make sense of this is by perceiving those resolutions as part of the cor-
pus of CIL, but as material sources of PIL.

That is General Assembly Resolutions are not law as resolutions, but rather qua
CIL. It is the content of the resolutions, and the responses of states to them, which
give them legal effect. This distinction is important, as it rules out the argument that
a resolution adopted unanimously or by consensus is automatically part of CIL,
or therefore refl ects CIL. It should also undermine the argument that resolutions
automatically enter CIL.

Instead, the crucial factor—the formal source—remains CIL: state practice and
opinio iuris. The key is to continue to look at what states actually do. Thus, even
if voting in the UNGA could be considered as an example of state practice, what
would it amount to? Surely, it could amount to no more than a contribution to
a rule that states must vote in certain ways in the UNGA, or that state representa-
tives must raise their hands at particular times rather than others. No truly material
practice has taken place. UNGA resolutions that are adopted unanimously or by
consensus are not, therefore, automatically part of CIL and an assessment of states’
intentions is necessary in adopting and supporting them.

A possible alternative is to perceive UNGA resolutions not as practice, but as
evidence of opinio. In this vein, the ICJ, in the Nuclear Weapons Advisory Opinion,
stated:

General Assembly resolutions, even if they are not binding, may sometimes have
a normative value. They can in certain circumstances provide evidence important to
establishing the existence of a rule or the emergence of an opinio juris. To establish
whether this is true of a given General Assembly resolution, it is necessary to look

Customary international law 131

at its content and the conditions of its adoption; it is also necessary to see whether
an opinio juris exists as to its normative character. Or a series of resolutions may
show the gradual evolution of the opinio juris required for the establishment of
a new rule.3

However, this statement seems incomplete, even evasive. How might one discover
‘whether an opinio juris exists as to its normative character’, except by looking out-
side the resolution to the actual practice of states? The question then remains identi-
cal: have states acted in a consistent manner, such that evidences opinio iuris, and
on a scale which leads to the generation of a new norm of CIL? This has, undoubt-
edly, happened. Perhaps the best example is the Declaration on the Granting of
Independence to Colonial Territories and Peoples, (GA Res. 1514) (1960), which
went on to form the basis of the CIL—and quite possibly ius cogens—right to
self- determination.

Treaties and other texts

Treaties can become custom, and customary rules can be codifi ed into treaties, and
indeed a single rule can have force as simultaneously both treaty and customary
law. Perhaps the most famous, and important, instance of a treaty rule becoming
accepted as CIL is the defi nition of State laid out in Article 1 of the Montevideo
Convention on the Rights and Duties of States. This norm is particularly important
because it defi nes the direct subject of PIL, the state. It is interesting, and famous,
because it never actually achieved the status of conventional (i.e. treaty) law due to
a lack of ratifi cations.

Nonetheless, the formula laid out—that to be a state, an entity must possess:
a defi ned territory; a permanent population; an effective government; and inde-
pendence (‘the capacity to enter into relations with other states’)—has formed and
focused the basic understanding of statehood (and indeed of the structure of PIL,
viz. effectiveness over legitimacy) for many years (see Chapter 9). Paradoxically
then, it was the very success of the defi nition which precluded the convention from
coming into force: it was simply unnecessary as conventional law. However, it
should be emphasized that it was not the content of the convention which made
the defi nition of statehood part of CIL. Rather, it was the reaction of states to that
content which ensured its entry into CIL. Suffi cient quantity and generality of state
support is again key to the emergence of CIL.

Some treaties have the specifi c aim of codifying CIL. Here groups of states, or
learned societies of international lawyers, or UN bodies like the Sixth Committee
or the ILC undertake to codify already existing rules of CIL. This is an area of PIL

132 Part II Identifying international law

which courts controversy, and for a simple reason: if the rules of CIL really were so
clear as to be uncontroversially codifi ed, then there would be no need to codify them.
Consequently, codifi cation always tends toward a ‘tidying up’, indeed a ‘progressive
development’—passed off as a ‘clarifi cation’—of the often nascent, putative, inde-
terminate, or contested rules of CIL. There is no normative hierarchy between con-
ventional and customary law, the two can coexist, intertwine, and even modify one
another. Thus when the parties to a treaty—and non- party states—act in a manner
consistently at odds with the treaty’s provisions, their conduct may give rise to a cus-
tomary rule modifying, or even revoking, the treaty in question. Likewise, the parties
to a new treaty almost invariably wish to alter—or opt out of—the pre- existing law,
and thus ratify the treaty precisely to modify CIL, at least between the parties.

There are two basic confl ict- resolving rules of general international law: that
later law supersedes earlier, and that more precise rules apply in preference to more
general ones. Thus the twin questions are: which is the more up- to- date law, treaty,
or custom? And, which rule is most precisely applicable to the question at hand?

As a result, one cannot simply take at face value any convention’s claim to be a codi-
fi cation; but neither can one dismiss a claim of customary status simply on the grounds
of underwhelming ratifi cation or conventional support. An absence of ratifi cation could
precisely signal support and success: if the convention codifi es already existing CIL, then
there is no need to support it as conventional law as well. Once again then, one must look
not only at the text of the treaty, but at the reactions, the conduct and practice, of states.

Identifying particular rules of CIL: the tipping point

State practice is that conduct of states which manifests, or implies, opinio iuris, but
this leaves us with four (or, perhaps fi ve) types of practice, and an open question:
how much practice is required to create a rule of CIL? We can posit a simple topog-
raphy of types of conduct:

1. practice intended as rule creative;

2. practice in support of a putative new rule;

3. practice in partial support (modifi cation) of an evolving rule:

a. intended to qualify that rule; or

b. intended to extend that rule; and

4. practice in rejection of a putative or evolving rule.

Customary international law 133

To return to the example of the EEZ; when such zones were initially claimed by
some states, there was a clear normative intent: to alter the legal regime regulat-
ing the High Seas (1). What became vital then was the response of other states,
and especially maritime states. Many simply emulated the claims (2) or agreed to
respect the zones claimed (2). However, others sought to modify the rule, even as it
crystallized. Certain Latin American States, for example, sought to claim a 200-mile
territorial sea, thus radically extending the scope of the proposed rule (3(b)). This
extension was not widely endorsed.

Consequently, the conduct of these states, although motivated by opinio, and thus
classifi able as practice, had, in reality, little or no normative effect. Such states would
be legally entitled to retain their claims to a 200-mile territorial sea, as a standing
invitation to normative change (1). However, they would not gain the corollary
entitlement to enforce their claims against third states. Thus they could claim a ter-
ritorial sea of 200 miles, but would be in breach of CIL if they should attempt to
prevent third states from exercising the freedoms of the high seas, as modifi ed only
by the EEZ regime, in the area between 12 and 200 nautical miles from the shore.

A few states—noticeably the USA and Japan—rejected the idea of the EEZ, main-
taining a commitment to the classic freedoms of the high seas. As a result, they
specifi cally sent their fl eets to fi sh in areas (outside of the established territorial seas)
where other states had claimed EEZs. This is a clear example of practice in rejec-
tion (4). However, this practice was itself widely protested, and that protest is an
odd amalgam of type 2 and type 4 conduct: conduct in support of the new rule, and
rejection of its proposed qualifi cation or rejection. In the end, even the US dropped
its objections and claimed its own EEZ.

The overall result of all of this state practice—which was generally uniform,
though not universal—was the creation of the EEZ regime in CIL. But this, again,
begs rather than answers the question of how much practice is needed to generate
a new rule, or modify an existing one. There is no clear answer to this question,
certainly no numerical threshold. There have been several attempts to offer a quan-
tifi ed or formulaic solution, but my favoured answer is colloquial: it takes a heap of
state practice (which necessarily includes a heap of opinio) to generate normative
evolution.

I owe the following to Stephen Fry:

The great thinker Zeno once sat a pupil of his down at a table and put a bean in
front of him. ‘Is this a heap?’ he asked the pupil. ‘No’ said the pupil, who was very
smart. ‘Of course it isn’t, it’s a bean.’ Zeno then placed another bean beside the fi rst.
‘Is this a heap then?’ ‘No.’ Zeno added beans, one at a time until the student said
‘Yup, guess you could call that a heap.’ ‘Ah,’ said Zeno. ‘So a heap is twenty- seven, is

134 Part II Identifying international law

that right? You are telling me that the word “heap” actually means twenty-seven?’
At which point the pupil got uncomfortable and bopped Zeno on the head with
a discus.

A heap is indefi nable, yet contextually recognizable; though the importance of
context—or the question of which factors are relevant to context—has not been
defi nitively settled. Some factors, however, can be identifi ed: there is no minimum
length of time over which a practice must take place, however, the less time which
passes, the more ‘uniform and consistent’ the practice must be. The more practice
there is, the less uniform it needs to be; conversely, sparse practice must be virtually
uniform. Certain writers maintain that the more ‘reasonable’, or ‘consonant with
World Order Values’, a proposed rule, the less practice is required.

Box 6.2 CIL and consent: the question of persistent objector

The persistent objector theory claims that states have an ‘opt-out’ option as regards nas-
cent rules of CIL. In essence, the claim is that an individual state which objects to a rule,
persistently, and from the very beginning, will not be bound by that rule, even if it becomes
part of CIL, and therefore binding on all other states minus the objector. There is a very
limited degree of doctrinal support for the persistent objector theory.

Conceptually, this theory relies on the idea that CIL emerges if and only if an individual
state consents to that rule. This, however, goes against the collective assessment of state
practice and opinio iuris underlying CIL formation.

CIL in the real world

As we have seen from the examples discussed uncovering, and identifying, the rules
of CIL is not only controversial, but also an onerous task. State practice is widely
dispersed, often awkward to identify, hard to weigh, and generally not uniform.
Added to this, states’ international legal offi cers are often busy and under pressure.
There is thus a temptation, if not to take shortcuts, then at least to take the path
of least resistance. This leads to a phenomenon identifi ed as ‘bureaucratic inertia’,
which gives an added force to the customary claims of both treaties and certain
UNGA resolutions. Put very simply, under pressures of time, it is easier to consult
a written source, and to take that as defi nitive. A treaty which claims to lay down the
rules of CIL offers clarity and ease. Therefore, it is incorporated into legal advice.
The effect, of course, is that the treaty is then acted upon—treated as CIL—and that

Customary international law 135

very action, and the normative belief/intent it implies, becomes state practice, and
thus (partially) constitutive of the norm’s status as a norm of CIL. This (virtuous or
vicious) circle then reinforces the treaty’s claims to customary status. Other states
build upon this.

The compatibility of CIL with ius cogens norms

Ius cogens norms are higher- order, non- derogable, norms; which fi t awkwardly
into the conduct- based structure of CIL. Ius cogens norms are intended to place
constraints on all of IL as they have the power to annul international laws that
are contrary to ius cogens norms. Neither international treaty law nor CIL, how-
ever, give a further indication of how such super norms might be identifi ed. The
importance of the content of norms and not the process which creates them is at
the forefront for identifying ius cogens norms (Weil 1983: 425). This defi nition has
a strong natural law tint to it as it is concerned with laws all states ought to follow
(see Chapter 4).

The ius cogens debate gives rise to the idea of ‘relative normativity’. That is, the
idea that some norms are, for whatever reason, more important, more normative
than others; and on to the idea of ‘super norms’ embodying a necessary moral
content of law, or imposing necessary moral limitations on law. The hegemonic
aspect of this claim is often overlooked, but ought to be emphasized. The key ques-
tion is a simple one: if there is a necessary link between law and morality then
how do we decide which moral principles to impose on the conduct of states, or
what the correct division of labour is between moral principles and principles based
on state conduct? A common criticism in this regard is the dominance of Western
(Northern) liberal states and their preferences being presented as universal moral
principles. This leads to the true crux of the question: what are IL or CIL for? The
classic image of P/CIL in a pluralistic society of states revolves around the search for
consensus, common ground, common interest, and agreed universals; even if these
prove hard to fi nd. This consensus building differentiates CIL from moral prefer-
ences of powerful states.

Box 6.3 Discussion point: morality and CIL

Is there a necessary relationship between any particular morality and CIL?
One argument would suggest that some moral precepts and axioms are automatically

incorporated into the corpus of CIL; or that some principles are accepted into the body of

136 Part II Identifying international law

(Why) do states comply with CIL?

Compliance studies form another inherently controversial aspect and study of
CIL. This is so for several reasons: fi rstly, the content of many international obli-
gations appears indeterminate, this makes it awkward to distinguish compliance
from breach; second, states are not always entirely honest (let alone transparent)
about their actions, this is a particular complicating factor in the deinstitutionalized
realm of CIL; third, even where compliance or non- compliance can be observed
with some certainty, the factors motivating state conduct tend to be opaque at best.
Furthermore, the value of CIL extends beyond whether states comply with CIL
norms or not. CIL has a strong communicative element and its key function in
international relations is to analyse legal motivations and assess the legality of state
action.

Factors contributing to compliance with CIL: state identity
and systemic benefi ts

There are two ways of looking at the factors that contribute to compliance. First,
we can analyse compliance from the perspective of an individual state and second,
from the perceptive of the benefi ts all states receive from compliance.

As liberal international relations scholars and social constructivists also point out
(see Chapter 2) a state’s identity as far as it defi nes an attitude towards international
law is an important factor in compliance. It has been suggested for example that
‘domestic regime type’ (i.e. liberal democracies, democratizing states, authoritar-
ian states) or the self- perception of the size of the state (i.e. small states, big states)
may be an important factor in determining attitudes towards international law.
A further argument extrapolating the work of Immanuel Kant on peace among

CIL on a lower level of evidence (of general support) than are other (normal) rules. This
would mean, for example, that rules prohibiting, e.g. genocide or torture are treated differ-
ently from those pertaining to Maritime Delimitation or Diplomatic Immunities.

Another argument would suggest that there is no need to give preferential treatment
to morality of any kind as a matter of principle. Members of the international community
are engaged in a joint enterprise seeking the realization of cooperation and peaceful exist-
ence. This would mean that law should refl ect solely the observable aims of the interna-
tional community.

Customary international law 137

republican states; liberal international relations scholars argue that democratic, or
liberal, states have an inbuilt propensity towards respecting the demands of legal-
ity. This view has also received attention in international law research. Scobbie, has
noted that:

At the very least, if a (democratic) State departed from [Customary] Rules, it may
be faced with the necessity of justifying its actions to domestic political audiences,
or even to the judiciary in those States where customary international law is auto-
matically incorporated into domestic law. (Scobbie 2007: 21)

This view adds further complexity to compliance with CIL in countries with strong
rule of law traditions applying CIL principles in domestic courts. Empirically, however,
there are also counter examples where neither democratic structures nor independent
domestic courts play a role in compliance with CIL rules. The US torture practices
in Guantanamo Bay Camp is a case in point. For non- democratic states, different
domestic constraints and international pressures apply in their attitude towards par-
ticular CILs. Weak or ‘rogue’ states face a very real possibility of sanctions or enforce-
ment actions in the event of breach. Even strong non- democratic states may face trade
sanctions, or at least the adverse effects of international disapproval.

The second perspective is to approach CIL compliance in terms of systemic ben-
efi ts to all states in complying. CIL allows for the management of mutual expecta-
tions, thus states obey because they are expected to obey, but also because they
expect others to obey. Rules, in short, bring predictability to conduct. This predict-
ability is reinforced by peer pressure amongst states, states’ concerns for their own
reputations (as ‘good’ or ‘law abiding’), a belief in the fairness of particular norms
or the system of IL as a whole, perhaps a sense of moral obligation, and fi nally
a wariness of the potential costs of non- compliance.

Beyond, but also bolstering, this desire for predictability and stability there are
three primary incentives for obeying CIL: clarity, interest, and moral exculpa-
tion. The clearer and more determinate a legal rule is, the greater its ‘compliance
pull’. In other words, states have a propensity to obey the law, as this depoliticizes
decision- making, leaving the right thing to do as the lawful thing to do. Similarly,
as CIL refl ects the ‘morality’ or confl uence of interests of the international commu-
nity of states as a whole, then, generally speaking, obedience should, in any given
instance be in any given state’s best (long-term) interests.

Finally, and drawing once more on Kant, obedience to the law provides moral
exculpation for both the initiation and the outcome of a political choice, or course of
action. Lawful action is beyond moral reproach. Even the most mediated approach
is defl ected: the law may be criticized, but those who act in accordance with it may

138 Part II Identifying international law

not be. The inverse also applies: those who choose to breach the law must justify
not only their conduct, but also the outcomes (the side effects) of that conduct. They
bear a full moral responsibility for all of the effects of their unlawful conduct.

Conclusion

CIL is generally defi ned as a collective practice of long- standing. In this chapter we
have attempted to elucidate the meaning, and explain the value, of CIL as a source
of international law. CIL has importance, as it is the only universally binding branch
of IL. What counts as CIL is a subject of theoretical controversy, but understanding
CIL is indispensable to the identifi cation of international laws. CIL rules are also
part of many domestic judicial systems. This means that they have relevance not only
in international politics, but also in domestic courts. The CIL rules in international
law have a strong communicative aspect. They signal mutual expectations of states.
They also contribute to the stability and predictability of interstate behaviour. CIL is
also a good indicator for identifying the demands for, and resistance to, changes of
international laws. This chapter has shown that the conduct- centred model empha-
sizes that CIL is a collective law- making process in international relations. It accom-
modates the legal motivations of supporters as well as dissenters in arguments for the
existence, change or modifi cation of CIL’s rules.

Questions

1. What is customary international law?

2. What makes customary international law important?

3. Who is bound by customary international law?

4. What is state practice? What are the sources of state practice?

5. What is opinio iuris? How does it relate to state practice?

6. How much state practice is needed to create a new rule of CIL? Does this depend on the
content of the rule?

7. In what way can we approach the relationship between customary international law and
morality?

8. How can we tell whether states comply with CIL or not?

9. What reasons are there for states to comply with CIL?

Customary international law 139

Akehurst, M. (1974–75) ‘Custom as a Source of
International Law’ British Yearbook of Inter-
national Law 47: 1–53. The classic text on the
orthodox British understanding of CIL.

Beckett, J. (2006) ‘Rebel Without a Cause? Martti
Koskenniemi and the Critical Legal Project’
German Law Journal 7/12: 1045–88. For
a more political, and critical, exploration of
the role of public international law in inter-
national life.

Falk, R. (1966) ‘On the Quasi- Legislative Compe-
tence of the General Assembly’ American Jour-
nal of International Law 60: 782–91. A wider
understanding of the sources, and effects, of
public international law.

Franck, T. (1995) Fairness in International Law
and Institutions (Oxford: Oxford University
Press). The classic liberal text on the instru-
mental value of law to world affairs.

Koskenniemi, M. (2007) ‘The Fate of Public Inter-
national Law: Between Technique and Politics’
Modern Law Review 70: 1–30. For a norma-
tive defence of the value of public internation-
al law, and lawyers, as political actors.

Schachter, O. (1989) ‘Entangled Treaty and Cus-
tom’ in Y. Dinstein (ed.) International Law
at a Time of Perplexity: Essays in Honour
of Shabtai Rosenne (Dordrecht: Martinus
Nijhoff), 717–38. A comprehensive study of
the interplay of the two principle branches of
IL.

Scobbie, I. (1997) ‘The Theorist as Judge: Hersch
Lauterpacht’s Concept of the International
Judicial Function’ European Journal of Inter-
national Law 8/2: 264–98. A clear theoreti-
cal exposition of the role of theory in legal
decision- making at the international level.

Tasioulas, J. (1996) ‘In Defence of Relative Nor-
mativity: Communitarian Values and the
Nicaragua Case’ Oxford Journal of Legal Stud-
ies 16: 84–128. An articulate defence of the
liberal- moralist approach to CIL.

Weil, P. (1983) ‘Towards Relative Normativity in
International Law?’ American Journal of Inter-
national Law 77: 413–42. The classic defence
of the positivist understanding of CIL.

10. How do we distinguish breaches of CIL simpliciter from breaches intended to create new
rules?

11. What are the possible effects of the responses of other states to a putative breach of
CIL?

Further reading

Websites

http://www.nyulawglobal.org/globalex/Customary_International_Law.htm This website is a useful tool
set up by New York University Law School to help students research customary international law.

http://www.un.org/law/ilc/ The International Law Commission plays an important role in the
progressive development and codifi cation of international law and this website provides up- to- date
information on its work.

140 Part II Identifying international law

1. Ontology is the study of what exists.

2. (1969) ICJ Reports 4, at para. 77.

3. (1996) ICJ Reports 226, at para.70.

http://www. icj- cij.org/docket/index.php?p1=3&p2=4&k=e1&p3=4&case=95 The International Court
of Justice’s website gives access to its materials, among others relating to the legality of the threat of use
of nuclear weapons.

http://www.un.org/documents/resga.htm All the resolutions taken by the UN General Assembly
are published on this website.

http://www.un.org/ga/sixth/ The United Nations Sixth Committee, along with the ILC, under-
takes to codify already existing rules of CIL.

Visit the Online Resource Centre that accompanies this book to access more learning resources
www.oxfordtextbooks.co.uk/orc/cali/

Chapter endnotes

Chapter 7

Non- governmental
organizations and
international law
Meghna Abraham

CHAPTER CONTENTS

• Introduction: non- governmental organizations in a terrain occupied by states

• Motivations for NGO involvement in international law

• NGOs and sources of international law

• NGO participation in intergovernmental organizations and processes

• The role of NGOs in the development of international law

• The role of NGOs in the enforcement of international law

• Evaluating NGO involvement in the development of international law

• Conclusion

CHAPTER OVERVIEW

International law is traditionally understood as a domain which is created by states and which

concerns interstate relations. This chapter focuses on the role of one type of non- state actor,

non- governmental organizations (NGOs) in the development of international law in expand-

ing and transforming the interstate paradigm of international law. NGOs do not have a formal

standing in international law but have for close on two centuries now infl uenced and shaped

its development. This is particularly the case for specialist areas of international law such

as international environmental law, human rights law, humanitarian law, criminal law, and

labour law.

142 Part II Identifying international law

Introduction: non- governmental organizations
in a terrain occupied by states

Earlier chapters have discussed how states create various forms of international law from
treaties to customary international law. It is largely undisputed that only states can cre-
ate international law and that the formal sources of international law are state- centric.
Although states are the ultimate repository of law- making power in the international
law system, other actors play a role in exerting infl uence over the development and
enforcement of international law. These include national liberation movements such
as the Palestinian Liberation Organization (PLO), international organizations such
as the United Nations, businesses, religious groups, and non- governmental organiza-
tions, and even certain powerful individuals. All of these actors are broadly categorized
as ‘ non- state actors’ because they do not offi cially represent a state. They are admit-
tedly very different from each other in terms of their capacities and the degree and
ways of infl uence they have over international law- making. In this chapter we look at
non- governmental organizations (NGOs), which stand out as a signifi cant non- state
actor for the identifi cation of international law. NGOs are the only non- state actors that
aim for the identifi cation, progressive development, and enforcement of international
law and they have been recognized to play this role through establishment of formal
representation at international law- making fora and international organizations.

In this chapter we will defi ne NGOs as organizations which do not operate for
profi t and which have been created with the purpose of actively advancing a political
or social agenda. There are particular areas of international law where NGOs play a
more important role. These are areas such as human rights, humanitarianism, protec-
tion of the environment, fi ghting impunity for international crimes, social justice, and
indigenous peoples’ rights that are mostly associated with progressive causes that cross
borders. For this reason, international relations literature also calls NGOs international
‘norm entrepreneurs’ and views them as playing an important part in transforming the
landscape of state- focused international relations (Finnemore and Sikkink 1998). The
main point of international NGO activity is to infl uence the behaviour of states and
often to motivate them to pursue specifi c ends through international law.

This chapter will outline motivations for NGO involvement in international law-
making. We will discuss how NGOs approach the sources of international law and
consider reasons for NGOs to support non- binding legal instruments (called ‘soft’
law) as well as treaties. We will then examine how NGOs have increased their access
to intergovernmental organizations and international negotiations and what role
NGOs play in the development and enforcement of international law. We conclude

Non- governmental organizations and international law 143

by considering some of the ways in which we can evaluate NGO involvement in
international law- making.

Box 7.1 Defi nitions of NGOs

There are various defi nitions of non-governmental organizations. Broadly speaking, any
organization which is not a governmental body could be considered a non-governmental
organization. This can cover a wide range of organizations and entities from charities, cor-
porations operating for profi t, terrorist groups to religious groupings. In addition to groups
set up with the goal of advancing a public or social cause, the term can also include groups
set up to promote the interests of their members such as trade unions and associations
which represent business interests. These organizations may operate within a country, a
region, or internationally.

In the narrow sense, however, the term NGO is used to refer to not for profi t organizations,
which have social and political agendas that aim the advancement of a public good.

Motivations for NGO involvement in international law

A common characteristic of the NGOs which utilize international law is that they
want to infl uence the behaviour of states towards people, natural resources, or
species located within and outside the states’ territories. In order to do this NGOs
rely on the socializing effects of international law and institutions on the actions of
political actors domestically and internationally. Human rights or environmental
NGOs typically devote considerable resources, for example, in trying to infl uence
governments to adopt standards and regulations on specifi c issues. NGOs have a
strong interest in the process of making international law as it offers a route to not
only develop but also implement international standards.

Box 7.2 The earliest NGO attempts to shape international law

The earliest attempts by an NGO to shape international law include the campaign of the
British Anti-Slavery and Aborigines Protection Society (the predecessor of Anti-Slavery
International) for an international ban on slavery including the adoption of the Slavery
Convention in 1926. NGOs have since then devoted considerable resources to the develop-
ment of international law.

144 Part II Identifying international law

Involvement in the international law- making process may seem ineffi cient,
considering the amount of time taken to adopt an international instrument, the
state- centric nature of international law, the diffi culties of getting agreement across
a majority if not all states, and the weak enforcement mechanisms found in inter-
national law in general. Nevertheless, NGOs, like states, turn to international
law- making when seeking to resolve issues which require collective action and col-
lective recognition. The international ban on slavery presented such a dilemma as
states were reluctant to unilaterally give up their economic advantages linked to
slavery if other states did not follow suit. A modern day equivalent of this dilemma
is limiting greenhouse gas emissions linked to climate change. Similarly, NGOs may
also try to develop international law on issues which require cooperation between
two or more states. Conservation of endangered species may require cooperation
between several states: the state where the species is located, states through which
the species are traded and states in which consumers of endangered species are
located.

A signifi cant part of NGO activity concerns campaigning for recognition and
implementation of norms of appropriate behaviour, such as standards on the treat-
ment of prisoners and the rights of women. In such cases, NGOs turn to interna-
tional law, international NGO coalitions, and advocacy because of the relative gains
of international law in comparison to establishing such standards domestically. We
can identify six types of reasons for this: overcoming domestic politics and barriers,
economies of scale, better forum for negotiations, opportunities to increase com-
mitment, enhancing NGO legitimacy, and creation of international enforcement
mechanisms.

Overcoming domestic politics or barriers

A domestic NGO often turns to standard- setting at the international level to
try and circumvent barriers in domestic politics. So for instance, it may be
easier to push certain countries to accept standards on non- discrimination
against minorities in an international forum where they could face embar-
rassment if they were seen to be opposed to such a standard. A further reason
to prefer an international over a domestic standard is that an international
standard may be longer lasting. A commitment by a state under international
law offers a degree of protection if there is a dramatic and negative politi-
cal turn in domestic politics. Withdrawing from an international commit-
ment can be more difficult politically for a state than merely amending its
domestic law.

Non- governmental organizations and international law 145

Economies of scale

For an international NGO trying to get various states to agree to prohibiting torture
or to allow trade unions to form and operate, it may be easier to push for an inter-
national agreement on these matters rather than convince each state individually to
accept this as a standard. If NGOs are able to convince a critical mass of states for
a particular standard, it is more likely for other states to follow the same standard
(Keck and Finnemore 1998).

Better forum for negotiations

NGOs may choose international law- making processes because this enables them
to target countries (through lobbying and campaigning) which they are otherwise
unable to operate in and therefore cannot infl uence through domestic political
channels. In authoritarian or semi- authoritarian states domestic NGOs may face
repression from political authorities and international NGOs can be more effective
in campaigning for the domestic causes (Risse et al. 1998).

Opportunities to gradually increase the scope or level
of the commitment

The perceived weakness of international law that it often has vague standards and
is diffi cult to enforce may be an asset in terms of getting a larger number of states to
agree to it and to make a commitment to implementation. So the same state which
refuses to recognize economic, social, and cultural rights in its domestic law may
become a party to an international treaty requiring it to guarantee these rights. It may
do so because it believes the wording of the treaty is broad enough not to change its
domestic arrangements and/or the enforcement mechanism is too weak if it did not.
Once the state becomes a party, NGOs can then use a variety of means to strengthen
the interpretation of treaty provisions (i.e. increase the scope of the commitment made
by the state) and apply pressure on a concerned government for implementation.

Enhancing the legitimacy of NGOs

The recognition of states’ responsibilities for issues or groups that NGOs are cam-
paigning for in one or more countries may also have the knock- on effect of increas-
ing the recognition for and acceptability of the work of these NGOs. A high profi le
example is the International Campaign to Ban Landmines, which was awarded
the Nobel Prize in 1997 jointly with its then coordinator Jody Williams for taking

146 Part II Identifying international law

the idea of a ban ‘from a vision to a feasible reality’. By participating in international
negotiations and conferences, NGOs may also gain recognition which may be use-
ful for fundraising or, in some contexts, even offer a degree of protection (from
being shut down or the staff being targeted) to the NGOs activities.

Mechanisms for international enforcement

International law creates not only standards but also enforcement or monitoring
mechanisms (See Chapters 13 and 14). Though these mechanisms may be of vary-
ing strengths, each may offer a NGO with opportunities for applying pressure on
the state to comply with the obligations it has undertaken. In addition to the formal
mechanisms that exist for monitoring the implementation of a particular set of
standards, NGOs use public opinion and the media to persuade states to adhere to
their commitments under international law. They also use advocacy, litigation, or
political lobbying within the concerned state as a means of encouraging or securing
compliance. In the most extreme scenarios, NGOs may seek international sanctions
or direct military intervention in a state to bring about change.

NGOs and sources of international law

NGO perspectives on the sources of international law may differ from those of some
international lawyers and jurists because they approach international law as a means
to infl uence state behaviour in a sustainable way. NGOs, therefore, are interested in
the wider question of how international norms can be created and effectively inter-
nalized by state actors rather than the jurisprudential questions of the status of legal
texts in international law. In this context, NGOs are supportive of international treaty
making as well as other non- conventional forms of international cooperation.

It is within this context we can analyse the proliferation of soft law instruments in
international law and the NGO support in their creation and utilization. Soft law is
a term used to describe a variety of instruments used in the domain of international
law, which (in contrast to rules of customary international law and obligations under
treaties) are generally considered to be non- binding on states. The term soft law is used
to contrast it with hard law, and the latter indicates commitment to be legally bound
by a rule by states. Despite this lack of legal qualifi cation, states have been engaged in
creating soft law documents in diverse areas ranging from the environment to the pro-
tection of human rights and development. States may establish ‘soft’ law agreements

Non- governmental organizations and international law 147

because of their fl exibility (they can be replaced or amended more easily than treaties)
or precisely because it may be easier to get agreement on the content when the form of
the instrument is not legally binding. Individual states may have different motivations
for supporting or voting for soft law documents. These can range from genuine com-
mitment to follow the rules set to gaining or maintaining diplomatic reputation.

Box 7.3 Soft law instruments

Soft law instruments are a diverse range of documents created by states, organs of inter-
national organizations, or treaty bodies. They include:

• resolutions or declarations adopted by the General Assembly and other intergovern-
mental bodies such as the Human Rights Council. Some examples of this type of instru-
ment are the Universal Declaration on Human Rights, 1948, and the Declaration on the
Right to Development, 1986 (both adopted by the General Assembly), and resolutions
on the human rights situation in countries such as Sudan, Myanmar, and North Korea
adopted by the Human Rights Council;

• declarations or other documents setting out broad commitments adopted at interstate
conferences. Some examples are the Rio Declaration on Environment and Develop-
ment (adopted at the UN Conference on Environment and Development in 1992), and
the Vienna Declaration and Programme of Action (adopted at the World Conference on
Human Rights in 1993);

• interpretative guidance provided by UN human rights treaty-monitoring bodies and other
autonomous intergovernmental institutions; interpretative guidance or principles devel-
oped by UN independent experts; and codes of conduct, guidelines, and recommenda-
tions of international organizations. An example is the Guiding Principles on Internal
Displacement, which were developed by the Special Representative of the UN Secretary-
General on Internally Displaced Persons (IDPs) and identifi ed the rights and guarantees
relevant to IDPs in all phases of displacement. Another is General Comment Number 15
adopted by the UN Committee on Economic, Social and Cultural Rights in which it inter-
preted the right to an adequate standard of living to include the right to water.

Some academics and practitioners dismiss the entire category of soft law because they
believe it does not constitute ‘law’ and does not have any value (Weil 1983: 413–17).
The central problem with soft law from this perspective is that no state accepts to be
legally bound by it. Therefore, it has no legal authority. We could compare this position
to realist international relations theories given that the latter does not see any value in
international law, whether hard law or soft law. When looking at international norms
however, which is the primary focus of NGOs, it is hard to draw watertight distinctions

148 Part II Identifying international law

between ‘binding’ and ‘non-binding’ norms. Some treaty provisions may, in practice, be
‘soft law’ because they are worded so generally that they do not identify any specifi c
commitment on part of the state. Similarly, a soft law instrument such as the Universal
Declaration on Human Rights (UDHR) may over time increasingly acquire an author-
ity quite at odds with its status as a non-building declaration an authority quite at odds
with its status as a non-binding declaration of the General Assembly. Many of the arti-
cles of the UDHR have arguably now become statements of customary international
law (International Council for Human Rights Policy 2006: 16).

Given the weak formal enforcement mechanisms in international law the practi-
cal difference between a treaty and an appropriately worded soft law declaration
can also be fairly limited. Though soft law agreements may represent a weaker
form of commitment by a state, it is still a commitment. Guzman has suggested that
rather than viewing treaties and soft law as distinct legal structures, one should view
them as different points on a spectrum of commitment (Guzman 2008: 144). Based
on the context, a commitment made under a soft law instrument may be taken as
seriously by a state as a treaty obligation. For example states may strictly adhere
to their commitments regarding export of nuclear materials contained in the guide-
lines adopted by the Nuclear Suppliers Group of countries.

For NGOs in particular, there may be little practical difference between so- called ‘hard’
and ‘soft law’ when seeking to establish standards for the behaviour of states. A soft law
instrument, such as the General Assembly Declaration on Human Rights Defenders,
setting out standards of behaviour for the treatment of ‘human rights defenders’ can
still be relied upon by NGOs as a commitment that the state has to respect. NGOs also
argue in this and similar cases that as the Declaration draws on standards contained in
treaties, even if the form of the instrument is non- binding, the provisions are a restate-
ment of treaty provisions and hence are indirectly binding. In contexts where the instru-
ment offers interpretative guidance, such as those developed by UN human rights treaty
bodies, many NGOs can and do argue that as these bodies have been delegated this
function under the treaty they offer an ‘authoritative’ interpretation.

NGOs may also seek to strengthen the enforcement mechanism for soft law com-
mitments by advocating setting up a mechanism to monitor implementation. NGOs
lobbied the former Commission on Human Rights to set up the mandate of the
Special Representative of the Secretary- General on the Situation of Human Rights
Defenders. The mandate’s activities included ‘report[ing] on the situation of human
rights defenders in all parts of the world and on possible means to enhance their
protection in full compliance with the Declaration; . . . To establish cooperation and
conduct dialogue with Governments and other interested actors on the promotion
and effective implementation of the Declaration.’1 NGOs have subsequently used

Non- governmental organizations and international law 149

this mandate extensively both to seek protection for human rights defenders under
threat and to promote and strengthen the norms in the Declaration itself.

We now turn to the question of how NGOs obtain access to the intergovernmental
fora where international law is created.

NGO participation in intergovernmental
organizations and processes

NGOs have greatly increased their participation in intergovernmental organiza-
tions and in law- making processes over the last three decades. This has involved
both an expansion in the rules and practices facilitating NGO participation as well
as an increase in the numbers and types of NGOs who participate.

The main entry point for NGOs into the UN system has been Article 71 of the UN
Charter which provides that the Economic and Social Council (ECOSOC) may ‘make
suitable arrangements for consultation with non- governmental organizations which
are concerned with matters within its competence’. ECOSOC operationalized this
provision by setting up a system to grant ‘consultative status’ to NGOs.2 The purpose
of arrangements for consultation with NGOs is identifi ed as securing expert informa-
tion or advice from NGOs having special competence, or to ‘enable international,
regional, subregional and national organizations that represent important elements of
public opinion to express their views’ (ECOSOC Resolution 1996/31, para. 20).

To qualify for consultative status, NGOs must be of a ‘recognized standing within
the particular fi eld of its competence or of a representative character’. Other require-
ments include that it have an established headquarters with an executive offi cer, a
democratically adopted constitution, an authority to speak for members, represent-
ative structure and accountability mechanisms to members, and be funded primarily
by national affi liates/components or individual members. Any funding or support
received from governments has to be declared to the ECOSOC Committee. NGOs
may operate at the national, regional, or international levels. In 1946, forty-one
NGOs were granted consultative status by ECOSOC. Today the number of NGOs
with consultative status has increased to 3,172.

While the rules for NGO participation are still governed by the Resolution, NGOs
have gradually increased the level of their participation through ‘practices’, which have
been built up slowly and institutionalized. NGOs cannot vote or sponsor proposals but,
in some UN bodies, participate in parts of negotiations which were once considered the
exclusive province of states. For example, NGOs are now able to participate in informal
negotiations along with states on resolutions at the Human Rights Council while this

150 Part II Identifying international law

was not the case in earlier years. Another signifi cant innovation is the increasing accept-
ance of participation of NGOs without consultative status with the UN, at conferences
and preparatory meetings for drafting international instruments.

The greater interaction between NGOs and intergovernmental organizations has
also enabled NGOs to shape the agenda of these organizations and feed into inter-
national law- making processes through submission of information and support in
terms of expertise.

Despite all the innovations and the increasing number of NGOs that attend inter-
national conferences and meetings of intergovernmental organizations, there are still
a number of practical constraints on the participation of NGOs. Though many NGOs
have found creative ways to overcome some of these constraints, they play a role in
determining which NGOs are able to participate and their level of engagement.

The process to determine which NGOs can obtain consultative status with
ECOSOC can be politicized (a committee of nineteen states3 considers the applica-
tions), is time- consuming and may be administratively cumbersome. States are able
to ensure that some NGOs who monitor and publicize human rights situations in
their countries are never approved or to ask for their status to be suspended (for
some examples see Lindblom 2005: 383–5). Some NGOs who do not have con-
sultative status are able to overcome this hurdle by relying on partners with the
necessary status to accredit them as part of their delegations.

Most negotiations on international law instruments and meetings of key inter-
governmental bodies are held in New York, Geneva, or Vienna and the negotiations
span a number of years. The ability to invest resources in terms of staff time and to
bear the logistical costs therefore play a signifi cant role in determining which NGOs
are able to participate. Most international NGOs that engage substantially with the
system have offi ces in or close by these locations. This also places them at an advan-
tage in negotiating processes as their UN staff tend to have personal relationships
with delegations, which is an asset while lobbying and exchanging information, and
also a more in- depth knowledge of the procedures and practices of the concerned
body (which can be opaque and diffi cult to understand for a newcomer).

NGOs have tried to overcome these constraints by forming informal or formal
coalitions, which enable them to share information and resources and facilitate
the participation and draw on the strengths of a more diverse group of NGOs. For
instance, the Coalition for the International Criminal Court brought together nearly
500 NGO member participants (the largest delegation) at the Rome Diplomatic con-
ference on the International Criminal Court in 1998. 4 The Coalition started with
25 NGOs but now has over 2000 members from 150 countries in the world and
is notable for the effective coordination between its wide and diverse membership.

Non- governmental organizations and international law 151

The internet has also enabled NGOs to share information more widely and quickly,
to coordinate positions and advocacy and has also led to greater transparency in the
proceedings of UN bodies.

Given these constraints, international NGOs or well resourced regional and
national NGOs are in a better position to infl uence the agenda of intergovernmental
bodies. This can be because of their knowledge of the system, their role as ‘experts’
and/or their ability to invest the resources necessary for a longer- term engagement.

For an NGO which is able to succeed in part or most of its objectives domestically,
the international route may only be rational to the extent that it offers support to its
domestic advocacy. For many NGOs it may be logical therefore to consider ‘going
international’ as a small component of their overall advocacy strategy. NGOs from
countries where there may be little prospect of getting change in the human rights
situation domestically, however, may often be forced to invest resources in advocacy
at international fora and to join forces with other NGOs to try and bring interna-
tional pressure to bear. For instance, Colombia has been the subject of advocacy by
both national and international NGOs for a number of years.

The role of NGOs in the development of
international law

NGOs may be involved in all stages of the making of treaties or of other international
instruments, from negotiations, drafting, to the adoption of the instrument. NGOs are
also closely involved in efforts to enforce and implement international law. Indeed, if
we examine a specialist domain of international law such as international human rights
law, NGOs have infl uenced the development of most, if not all, of the instruments that
exist today. From the adoption of the fi rst major international human rights instru-
ment, the Universal Declaration of Human Rights (UDHR), 1948 to the most recently
adopted—the Optional Protocol to the International Covenant on Economic, Social
and Cultural Rights, most of these instruments originated because of NGO advocacy.

Initiating new standards

NGOs have infl uenced the development of new international standards in a variety
of ways. These include researching and campaigning for adoption of issue- specifi c
standards either in the form of soft law or international treaties, or optional
protocols to treaties that creates monitoring mechanisms.

152 Part II Identifying international law

Case Study 7.1 Standard setting: Amnesty International and the Convention
against Torture (Korey 2001: 170–80).

The Convention against Torture originated in a public campaign by Amnesty International
(AI) for the abolition of torture in 1972. AI carried out detailed research, published a world-
wide survey highlighting the practice of torture in over sixty countries, and organized peti-
tions in various countries which over a million people signed on to by the end of 1973. AI
also organized an international conference on torture bringing together government rep-
resentatives, UN staff, and NGOs. AI chose 10 December, the anniversary of the adoption
of the UDHR, for its symbolic value as the date for both the launch of the campaign in 1972
and the conference. Several government representatives then highlighted their concerns
about the practice of torture at the General Assembly which responded by adopting a
resolution condemning torture and other cruel, inhuman, or degrading treatment or pun-
ishment and by resolving to keep this issue on its agenda.

AI continued to campaign on the issue, highlighted the human rights violations per-
petrated by the Pinochet regime after the military coup in Chile, and began to call on its
network of members and volunteers to send letters to various authorities in response to
‘urgent action’ appeals on behalf of victims of torture. This led to an increase in the number
of governments expressing concern about the issue at the General Assembly; not only
Western governments but also signifi cantly the USSR and Bulgaria. From this point, the
process evolved through a UN Congress for the Prevention of Crime and the Treatment
of Offenders to the General Assembly’s adoption of a declaration which included for the
fi rst time a defi nition of ‘torture’. In 1984, the General Assembly adopted a treaty, the Con-
vention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(Convention against Torture).

The AI’s campaign for the Convention against Torture is also a good example of how soft
law instruments can help build support for standards before drafting a treaty. There are a
number of later treaties including the Convention on the Rights of the Child, the Optional
Protocol to the Convention against Torture, the Optional Protocol to the Convention on the
Elimination of All Forms of Discrimination against Women, and the International Conven-
tion for the Protection of All Persons from Enforced Disappearances, which also owe their
conception to NGO advocacy.

Many of the methods which were pioneered in the 1970s by AI in the areas of
research, networking, intergovernmental, and media campaigning have been used by
others subsequently. NGOs publicize human rights concerns and gaps in protection
within the international system to place the need for new international standards on
the agenda of states and IGOs. The monitoring and documentation undertaken by
NGOs as well as submissions to international bodies helps set the ground for this

Non- governmental organizations and international law 153

but NGOs also use the media and various forms of public campaigning. Similarly, in
the environmental domain, NGOs have shaped public consciousness of issues such
as climate change, nuclear proliferation, genetically modifi ed food, etc. This helps
keep an issue or a country in the spotlight, generate international concern about the
situation, and build momentum towards the need for international action.

NGOs also target particular governments, through their own lobbying at inter-
national fora or through domestic NGOs and actors, to champion international
legal initiatives on a particular theme or country.

Once a state decides to sponsor or support an initiative, the alliance with
NGOs can help to strengthen its advocacy efforts because of the additional
resources in terms of lobbying and information gathering brought in by the
NGOs. NGOs may have varying degrees of collaboration for specifi c initia-
tives. In the case of the Optional Protocol to the Convention against Torture
for instance, NGOs supporting the process held regular meetings with ‘friendly’
states to discuss strategies, forming a true coalition. NGOs are also less con-
strained by the formal protocols of negotiations between states and can be more
fl exible and innovative in their diplomacy. So while a state would not normally
attempt to shame another state publicly for its opposition to an initiative, an
NGO can do this.

In the last three decades, NGO have increasingly used international expert bod-
ies to initiate standard setting on human rights. This route is particularly useful in
order to build basic acceptance of states. NGOs have carried out advocacy with the
former Commission on Human Rights or its subsidiary body Sub- Commission on
the Promotion and Protection of Human Rights, lobbied to appoint independent
experts to study particular areas, identifi ed gaps in protection and made recommen-
dations for future action. NGOs have also contributed to any study or consultative
process set up to examine situations or draft an instrument. Two such examples where
NGOs helped to set standards are the International Convention for the Protection
of All Persons from Enforced Disappearances and the UN Declaration on the Rights
of Indigenous Peoples, which both originated from the former Sub- Commission on
the Promotion and Protection of Human Rights.

NGOs may also jump on the bandwagon when states or international bodies suggest
the development of a new international law instrument to support such a call, to shift
focus, or to block such an initiative when they consider it unproductive. An example of
the former is the Rome Statute for the International Criminal Court and of the latter is
the Multilateral Agreement on Investment (MAI) which was being negotiated within the
Organization for Economic Cooperation and Development. NGOs galvanized opposi-
tion to the MAI through a successful global campaign, run largely on the internet, in

154 Part II Identifying international law

which they highlighted their opposition to ‘secret’ negotiations over a treaty which they
perceived as protecting the rights of foreign investors at the expense of governments
ability to legislate in the public interest (Boyle and Chinkin 2007: 76).

NGO participation in negotiations, drafting, and entry
into force of treaties

Once a law- making process is initiated, NGOs remain involved in the negotiations
and drafting process to try and infl uence its content. NGOs continue advocacy at
domestic and international levels to build the support base for the initiative and
for the substantive content that they are lobbying to include in the instrument.
Coalitions which bring together diverse groups of NGOs, such as the one formed
for the International Criminal Court, are particularly effective as they may allow
pressure to be brought from varying constituencies such as faith- based groups,
women’s organizations, etc. At this stage of the process, NGOs also gain greater
infl uence by acting as sources of expertise or assisting states and IGOs in carrying
out the preparatory work for the instrument.

NGOs undertake a large, or a strategic, portion of the preparatory work for the
development of the instrument. They may prepare initial drafts of the instrument
itself, generally with a group of experts (who may be from academic backgrounds,
UN or regional mechanisms, or from NGOs). An example of this is the draft of the
Optional Protocol to the Convention against Torture, which was developed by the
International Commission of Jurists and the Swiss Committee against Torture (now
the Association for the Prevention of Torture) in 1990 and submitted by the Costa
Rican Government as its proposal in 1991.5 NGOs may also prepare commentaries
on drafts, background documents, analyses of particular issues, highlight positive
examples or practice from regional or national systems.

Box 7.4 NGOs as communicators of complex legal issues

During the negotiations on the Rome Statute for the International Criminal Court, Amnesty
International produced a series of fact sheets on key issues which presented complex legal
issues in an accessible manner and made it possible for non-experts to understand what
was at stake. This kind of information is valuable not just for other NGOs in their advo-
cacy but also for government delegations, particularly smaller delegations which may be
overstretched and lack the staffi ng and resources to engage in their own analysis of the
issues. In contrast, larger NGOs or coalitions of NGOs may devote considerable resources

Non- governmental organizations and international law 155

Many states also rely on the expertise, information- gathering and ‘naming and
shaming abilities’ of NGOs through the negotiating and drafting process. NGOs
disseminate information, make oral statements, and lobby for the participation of
experts including from regional systems. Through bilateral exchanges with delega-
tions, they try and clarify issues of concern to governments. In between formal meet-
ings as well, NGOs may convene or join meetings with states and experts to gather
support for a particular draft/approach or resolve deadlocks on controversial issues
in a less politically charged atmosphere.

NGOs who have representatives at international organizations or others who fol-
low the process for a long period also build relationships with individual diplomats.
These relationships encourage sharing of information and open up opportunities
to persuade the delegate to change his/her views. As a channel of infl uence, it may
be particularly effective when the diplomat has not been given instructions from
capital and may have the discretion to shape his/her country’s position. NGOs may
also need to rely on this channel of advocacy for countries where they do not have
domestic partners or where partners lack the ability to lobby the government.

NGOs use the threat of negative publicity to pressurize a government to either
modify its position or to refrain from blocking or sabotaging the initiative. NGOs
also carefully monitor, compile, and report on state positions in order to judge the
level of support on certain issues. This information is communicated to partners
based in the country for follow- up lobbying but can also be used in the domestic
and/or international media.

Another route that has been used is the participation of NGOs as part of
the state delegation or supporting smaller delegations to participate (some-
times in an attempt to neutralize powerful states who may be opposed through
the weight of numbers). A striking example of this is the establishment of the
Association of Small Island States by Greenpeace and the Center for International
Environmental Law (now the Foundation for International Environmental Law
and Development) in 1989. The two NGOs then coordinated the policy posi-
tions of thirty-seven states, who were members of the association, in the climate
change negotiations (Spiro 2006: 21).

to undertaking this kind of work and have staff members who are experts on thematic
issues or the ability to draw on a network of expertise. This kind of preparatory work is also
helpful for the secretariats of international bodies supporting international law-making
processes. These bodies may lack the resources and the expertise to undertake detailed
preparatory work themselves or fi nd it easier to rely on NGOs to carry out these functions.

156 Part II Identifying international law

As discussed in the Chapter 5 on treaties, the fi nal steps of the international
law- making process for treaties is for states to become parties to it. The treaty also
specifi es a minimum number of states which have to become parties for the treaty
to become operational. NGOs play a major role in encouraging states to become
parties and also take other steps to promote the effective use of the instrument (such
as lobbying for the implementing body to be allocated suffi cient resources). The
locus of lobbying shifts even more to political bodies, such as parliamentary bodies,
within countries and NGOs may try and develop resources to boost the capacity of
a larger group of domestic NGOs to engage with the ratifi cation campaign.

Typically, states that have supported the initiative are high on the list of targets
with NGOs asking states to follow through on their support by taking on the com-
mitment. In addition to lobbying, mobilization of public opinion, embarrassment
using comparisons with other states’ ratifi cation records, NGOs may also rely on
state to state lobbying. Once a supportive state becomes a party, NGO lobbying
may shift to trying to persuade it to invest efforts in convincing other states to
become parties. States that have invested a lot of efforts in the initiative may be
more responsive to taking on such a role. Ratifi cation campaigns can also open up
strategic opportunities for NGOs based in the country to open up a wider discus-
sion within the country on measures that a state should take to bring its domestic
laws and policies in conformity with the instrument.6 This process may be useful
in promoting greater awareness of the rights and standards in question and may
achieve some of the goals set by NGOs domestically in terms of extending protec-
tion/strengthening enforcement mechanisms even if the state does not ratify the
instrument.

How can we explain NGOs’ ability to infl uence the process?

A state taking up an issue in response to lobbying by domestically based NGOs
is relatively straightforward to understand. Domestic NGOs use various forms of
political leverage and bureaucratic infl uence to infl uence the state’s policy on an
international initiative as they do on domestic policies (Spiro 2006: 9). What is
more complicated to assess is why a state takes up an issue because of lobbying by
an international NGO or an international coalition of NGOs. Do states only act
when there is a coincidence between their interests and the interests of the NGOs or
do NGOs independently shape the incentives of states? The answers are speculative
and contested both in theories of international relations and international law.

Unlike other areas of international law such as trade law or environmental law,
states do not have a clear motivation to ‘prefer that other states treat their own

Non- governmental organizations and international law 157

nationals, in a right- respecting fashion’ (Spiro 2009: 3). It is diffi cult therefore to
explain state sponsorship of international human rights standard setting initiatives,
in response to lobbying by NGOs, purely in terms of a coincidence between the
state’s interests and the interests of NGOs. There are some situations in which the
two do come together or where NGOs may try and convince states of this fact. For
instance, Anderson considers that some states extended support to the International
Campaign to Ban Landmines because they viewed it as ‘an important counterweight
to the hegemony of the United States’ (2000: 107). This, however, can not be said to
be a comprehensive explanation.

Another explanation could lie in the way in which NGOs have shaped repu-
tational incentives to encourage states to identify and prove themselves in terms
of their promotion of human rights. On the fl ip side, they may threaten negative
reputational consequences for states which oppose initiatives to expand protection
for human rights. This may be signifi cant both for the state’s own self- identity but
also in its relationship with other states. The reputational incentive may be most
effective when the state in question also considers that it already complies, or wants
to, with the standard it is promoting so it does not bear a high risk or cost in terms
of compliance. Many states have also built a reputation as the champions of certain
human rights issues and traditionally sponsor thematic resolutions and other initia-
tives linked to these themes. They may wish to build on this reputation by being
the architects of a treaty or hard law instrument. States are also not monolithic and
sometimes an individual ambassador or minister who is committed to a particular
issue can play a signifi cant role in ensuring that the state takes on a leadership role
in pushing forward a law- making initiative.

In some cases, being identifi ed internationally as supporters of a particular human
rights concern may help defl ect attention from the state’s handling of this issue
domestically. By taking on a role as an international champion the state may be
signalling to its domestic and/or an international constituency that it is committed
to this issue and this may help defuse criticism it could otherwise come into.

The role of NGOs in the enforcement
of international law

The primary objective of NGO involvement in the development of international law
is to develop standards, which they can then ask the state to comply with. NGOs use
a variety of tactics and strategies to encourage or ‘shame’ the state into complying

158 Part II Identifying international law

with its commitments or use all possible domestic and international political and
legal mechanisms to ensure accountability for a failure to comply. It is not possible
to do justice to this vast area of NGO activity so we will therefore briefl y discuss
these under the overarching themes below.

Publicize non-compliance

The entire model of interstate enforcement of international treaties has limited
value in the area of international human rights law as states may not have an
incentive to monitor how another state treats its nationals or react to instances of
non- compliance. For instance, the interstate complaint mechanisms (to complain
about alleged violations of the treaty by another state) found in many international
human rights treaties have never been used by any state.7

NGOs therefore fi ll this gap by generating and disseminating information about
non- compliance. This information may be published by the NGO, reported in the
media, and submitted to domestic bodies, IGOs, and human rights monitoring bod-
ies. Guzman considers this to be an important variable in the way the work of some
human rights NGOs, such as Amnesty International, can affect state behaviour.
‘Credible reports that shed light on the conduct of states reduce uncertainty regard-
ing their compliance and, therefore, increase the reputational consequences of a
violation’ (Guzman 2008: 99). To ensure that this information is considered cred-
ible, NGOs need to demonstrate their non- partisan nature. Organizations that are
open to well- founded challenges in terms of bias and inaccuracy can lose the ability
to affect the reputation of states.

Clarifi cation of what is non-compliance

A major challenge in relation to some areas of international human rights law is to
clarify and establish when a violation or non- compliance has occurred. This can be
the case when the treaty provision is broad or vague, where there is no agreement
that a rule of customary international law exists or when dealing with a non- binding
instrument. NGOs contribute to the process of clarifi cation by advancing their own
legal analysis of provisions. They also support expert monitoring bodies in devel-
oping interpretative guidance on provisions. These can take the form of new soft
law documents, by which NGOs then try to hold states to account. There can be
a tension here for NGOs between their interest in expanding the scope of applica-
tion of a rule and their interest in being taken seriously when making assertions of
non- compliance.

Non- governmental organizations and international law 159

Lobby for action in response to non-compliance

NGOs may not stop at merely providing information but typically try and use
all possible avenues to ensure accountability for non- compliance. These avenues
include litigation, advocacy, and public campaigning.

NGOs may fi le complaints before domestic, regional, or international judicial
or quasi- judicial mechanisms to get judicial pronouncements requiring the state to
modify its conduct. They may also demand prosecutions of perpetrators and repa-
rations for victims.

Advocacy activities may take the form of persuasion within states or reliance on
expert or political bodies to apply pressure on the state to alter its conduct. These
bodies may include National Human Rights Institutions, Parliamentary bodies, and
other monitoring bodies at the domestic level. Internationally these may include any
of the enforcement mechanisms ranging from the UN Security Council to a statement
by an individual UN appointed expert. In the most extreme cases, NGOs may call for
sanctions, withdrawal of aid, or other coercive measures to force a state to comply.

Evaluating NGO involvement in the
development of international law

In the preceding sections of this chapter, we have examined some of the ways in
which NGOs infl uence the development of international law. In this section we will
consider some of the possible ways in which we can evaluate the involvement and
infl uence of NGOs in this area.

Redressing a democratic defi cit?

NGO participation is sometimes justifi ed on the basis that it allows for represen-
tation of voices at the international level which would otherwise go unheard. It
is argued that NGOs lend legitimacy to the international law- making process.
However, the contrary argument is that NGOs distort the process.

One of the main discussions revolves around the legitimacy of ‘unelected’
NGOs exerting infl uences over processes which are the domain of sovereign gov-
ernments who are, at least in theory, meant to represent the interests of their
populations. John Bolton has argued that within the (democratic) nation- state,
political interests compete for governmental power in order to receive legitimacy

160 Part II Identifying international law

to implement their preferred policies domestically, and to negotiate on behalf of
the nation internationally. Civil society, in this context, provides an opportunity
for opposition groups—who were defeated at the ballot box—to put forward
their positions. The troubling aspect for democratic theory here is whether or not
the ‘interests’ defeated during the election should have a say alongside popularly
elected governments, or whether this undermines the legitimacy of the system
(Bolton 2000: 217–18).

The claim that NGO participation contributes to a democratization of inter-
national law- making processes and that NGOs constitute a channel for convey-
ing ‘world opinion’ (Anderson 2000: 91–120, Boyle and Chinkin 2007: 57–62)
has also been challenged from those who point out that only a few well- resourced
NGOs and coalitions of NGOs infl uence and initiate international standard- setting
and shape the content of these standards. This concern is strengthened by the fact
that international NGOs are typically small, highly professional, ‘elite’ organiza-
tions funded by western donors and are not very representative of the people whose
concerns they are advocating (Anderson 2000: 117–18).

On the other hand, NGO infl uence may be exaggerated by such critics—ultimately,
international instruments have to obtain state consent (and thus domestic political
endorsement) before they bind a state.

Moreover, other factors may also undermine the democratic quality of the inter-
national law- making process. Not all states participating in international negotia-
tions are democratic, and even if they are, their negotiating positions may not be
representative of the aspirations of its citizens and represent the views of special
interests within the country. Many issues that form part of international negotia-
tions may not be democratically deliberated within a country.

In any case, not all international standards should depend on their acceptance by
the democratic majority. Just as we acknowledge the need for constitutional protec-
tion of fundamental rights domestically, even if this constrains majority rule, minor-
ity rights, prohibitions against racial discrimination or even torture in international
law should not depend on endorsement from political polls or election platforms.

The value of NGO participation and infl uence may not be said to be rooted in
facilitating greater involvement of citizens in international law- making, and thus
‘democratizing’ international law-making—as argued above, most NGOs are not
representative in character or created to serve such a function. But NGOs may
add democratic value through their monitoring and publicizing of states’ positions,
which may lead to greater transparency of otherwise opaque and distant interna-
tional negotiations. By broadening the agenda of international law- making NGOs
also increase the responsiveness and relevance of international law.

Non- governmental organizations and international law 161

How do we gauge how effective NGOs have been?

The extent to which we consider NGOs effective in international law- making
depends on our criterion for effectiveness. If we measure NGO success by the degree
to which they have infl uenced the development of new standards in specialist areas
such as human rights, NGOs have been extremely successful. Almost the entire
body of international human rights law bears the imprints of NGO infl uence. They
have also successfully shaped the reputational incentives of states so that support
for or opposition to the development of international human rights may affect a
state’s reputation.

It gets more complicated if we try and gauge how effective NGOs have been in
using international law to change the behaviour of states. A part of this requires us
to assess the complex empirical question of how international law constrains the
behaviour of states. In the human rights fi eld, recent empirical studies have sug-
gested that there is only a limited correlation between ratifi cation of human rights
treaties and adherence to human rights standards (Hathaway 2002)—although
others have challenged these fi ndings (Goodman and Jinks 2003).

There is no doubt that NGOs use international law, in a variety of ways, to apply
pressure on states to change their behaviour. NGOs can point to success in a number of
cases (releases of prisoners or stopping forced evictions), changes in policies and laws
within countries, international action on a country such as humanitarian interven-
tion. What may be diffi cult though is to establish a tight causal relationship between
NGO advocacy, their reliance on international law, and changes in state behaviour as

there may be a number of other explanatory variables which others could point to.

Conclusion

The analysis in this chapter indicates that it is not possible to ignore NGOs as
actors in the areas of international law and relations. It would also be advisable to
see them as having infl uence only where their interests coincide with states instead,
NGOs act independently, in collaboration with, or in opposition to states. Modern
law- making, particularly in specialist areas of international law, would be impos-
sible to conceive of without the involvement of NGOs.

NGOs have been the catalyst for the development of international law in a variety
of ways. They shape the incentives of states in initiating, supporting, adopting, or
becoming parties to international law instruments. They are also important agents
for enforcement; they provide information on compliance; and lobby for action in

162 Part II Identifying international law

situations of non- compliance. In summary, NGOs have used international law to
shape international and domestic politics and the behaviour of political actors and
are likely to do so for the foreseeable future.

Questions

1. Why are NGOs interested in international law-making?

2. How have NGOs increased their participation in international law-making?

3. Which NGOs are able to participate and what are some of the constraints on NGO
participation?

4. How do NGOs infl uence and contribute to international law-making?

5. What channels of infl uence do NGOs use to infl uence states?

6. Why do NGOs invest effort in ‘soft law’? What is its signifi cance in international law
and organizations? What is its relevance for students of international relations?

7. What is the difference between binding and non- binding norms? How much of a
difference does this make in practice?

8. In what ways can we evaluate the involvement of NGOs in international law-making?

9. What are some of the concerns around NGO participation in terms of diversity and
representativeness of NGOs?

10. How effective do you think NGOs have been in infl uencing the development of
international law?

Further reading

Boyle, A. and Chinkin, C. (2007) The Making of
International Law (Oxford: Oxford Univer-
sity Press). This book provides a clear and
comprehensive account of international
law- making and the role of NGOs as partici-
pants in these processes.

Charnovitz, S. (2006) ‘Nongovernmental Organi-
zations and International Law’ American Jour-
nal of International Law 100: 348. This article
maps out some of the main issues about
NGOs and international law.

International Council for Human Rights Policy,
International Commission of Jurists, and Inter-

national Service for Human Rights (2006)
Human Rights Standards: Learning from
Experience (Geneva: International Council for
Human Rights Policy). This report describes
international human rights standard- setting
processes.

Lindblom, A. (2005) Non- Governmental Organi-
sations in International Law (Cambridge:
Cambridge University Press). This book
examines the legal status of NGOs in inter-
national law and the different avenues for
NGOs to cooperate with, participate in the
proceedings of, and submit cases to intergov-

Non- governmental organizations and international law 163

ernmental organizations, international, and
regional judicial bodies.

Martens, K. (2006) NGOs and the United Nations :
Institutionalization, Professionalization and
Adaptation (New York: Palgrave). This book
describes the interaction between NGOs
and the United Nations in policy initiating,
developing, and implementing processes,
using leading international NGOs as case
studies.

Risse, T., Ropp, S., and Sikkink, K. (1998) The Power
of Human Rights: International Norms and

Domestic Change (Cambridge: Cambridge
University Press). Through case studies, this
book examines how NGOs use international
norms and institutions for infl uencing state
behaviour.

Spiro, P. (2009 forthcoming) ‘NGOs and Human
Rights: Channels of Power’ in Research Hand-
book on Human Rights (Cheltenham: Edward
Elgar). This chapter examines the different
pathways used by human rights NGOs in
order to assess the role of NGOs in global
decision- making.

Websites

http://www.amnesty.org.uk/ Amnesty International is a worldwide movement of people who
campaign for internationally recognized human rights for all.

http://www.hrw.org/ Human Rights Watch is a leading independent NGO in the area of human
rights dedicated to defending and protecting human rights.

http://www.un.org/dpi/ngosection/index.asp The Department of Public Information of the U nited
Nations acts as liaison between NGOs and the UN and provides information on how this interac-
tion works.

http://www.icbl.org/ The International Campaign to ban landmines is a network of more than
1,400 NGOs in ninety countries and informs about its activities as well as the Mine Ban Treaty and
related topics.

http://www.antislavery.org/ Antislavery International is one of the world’s oldest international human
rights organizations which has, since 1893, sought to infl uence international policy and law- making
against slavery and related abuses.

Visit the Online Resource Centre that accompanies this book to access more learning resources
www.oxfordtextbooks.co.uk/orc/cali/

Chapter endnotes

1. UN Commission on Human Rights
resolution 2000/61, para. 3.

2. ECOSOC Resolution 1996/31, paras
22–24.

3. The current members are Angola,
Burundi, China, Colombia, Cuba, Dominica,
Egypt, Guinea, India, Israel, Pakistan, Peru,

Qatar, Romania, Russian Federation, Sudan,
Turkey, United Kingdom, and United States of
America.

4. See the ‘Our History’ section on the web-
site of the Coalition for the International Crimi-
nal Court, available at http://www.iccnow.
org/?mod=cicchistory (last visited 4 May 2009).

164 Part II Identifying international law

5. The NGOs based the draft on an original
draft prepared and submitted by the Costa Rican
government in 1980 but updated the text based
on the experience of the European Committee for
the Prevention of Torture as well as input from a
series of regional consultations. For more infor-
mation see, Inter- American Institute for Human
Rights (IIHR) and Association for the Preven-
tion of Torture (APT) (2005), Optional P rotocol
to the UN Convention against Torture and
Other Cruel, I nhuman or Degrading T reatment
or Punishment: A Manual For Prevention, (IIHR
and APT), 42, available at http://www.apt.ch/
c omponent/option,com_d ocman/task,cat_view/
gid,45/Itemid,99999999/lang,en/ (last visited
19 April 2009).

6. See as an example, International W omen’s
Rights Action Watch Asia Pacifi c (2008), Our

Rights Are Not Optional! Advocating for the
implementation of the Convention on the
Elimination of All Forms of Discrimination
against Women (CEDAW) through its Optional
Protocol: A Resource Guide, (Kuala Lumpur:
International Women’s Rights Action Watch
Asia Pacifi c). The resource guide provides
information and arguments that NGOs can use
in their advocacy with governments but also
provides tips on using this process strategically
in the context of developing a multi- pronged
approach towards realizing women’s human
rights.

7. Offi ce of the High Commissioner for
Human Rights website, section on human rights
bodies—complaint procedures, available at
http://www2.ohchr.org/english/bodies/p etitions/
index.htm#interstate (last visited 5 May 2009).

Chapter 8

International courts and
tribunals
Juan M. Amaya-Castro

CHAPTER CONTENTS

• Introduction: international courts in contemporary life

• What are international courts?

• What are the functions of international courts?

• When are international courts successful?

• The future of international court and tribunals

• Conclusion

CHAPTER OVERVIEW

This chapter introduces a type of institution that is increasingly important in the fi eld of

international law: international courts. The last few decades have seen an enormous rise

in the number and importance of such courts, not just for states but for all (international)

actors. Increasingly, what international courts do catches the headlines; and increasingly,

states and others have to include international courts in their policy- making and strategic

calculations. First, the chapter will describe what international courts are, what they do, and

how they do it. The chapter will then look at the wider functional and systemic context: How

do international courts contribute to and affect international relations? Finally, the chapter

will explore ways of assessing the value of international courts.

166 Part II Identifying international law

Introduction: international courts
in contemporary life

At the turn of the twentieth century there were no international courts or tribunals.
One hundred years later, some thirty international courts produce thousands of
judgments every year. States devote more and more money and resources to defend-
ing their positions in legal fora. More and more, ordinary citizens are starting to feel
the growing importance of courts in international life.

The emergence and growth of international courts has brought about signifi cant
changes in some of the most essential features of international law. First, interna-
tional courts, by way of interpreting treaties, customary international law, and gen-
eral principles of law have signifi cantly contributed to identifi cation of international
laws and their precise meaning. States who submit themselves to the authority of
international courts fi nd it increasingly diffi cult to challenge the fi ndings of such
courts. Second, the existence of international courts has been an important conduit
through which international law, once the law to which only states had recourse,
has become accessible to non- state actors. Actors other than states—such as inter-
national organizations (IOs), non- governmental organizations (NGOs), corpora-
tions, and individuals—now have access to international courts in various ways,
sometimes even as equal parties to states in international proceedings. Non- state
actors are now able to legally compel states to comply with certain international
obligations (see Chapter 7). International courts have also contributed to the grow-
ing importance of international organizations (IOs), of which they sometimes form
a part. This expansion in the infl uence of IOs has to a large degree changed the way
we think about state sovereignty.

These and other dimensions of the role of international courts and tribunals will be
examined in this chapter. To begin with, though, it is important to understand what
international courts actually are, and what they do. This will help to assess their role
in the overall context in which they operate, and contribute to a better understanding
of the overall system of international law and international relations.

What are international courts?

International courts are many different things. In the most basic sense, they are groups
of men and women who have been given the legal authority and responsibility to
decide legal disputes. In this sense they are like national courts. International courts
play multiple roles: they are dispute settlement bodies, they are important elements

International courts and tribunals 167

in a system of legal enforcement, and they participate in the identifi cation, develop-
ment, and creation of international law. In all of these functions international courts
must rely on international legal sources—primarily treaties, customary international
law, and general principles of law—in order to reach a judgment: in other words,
they interpret and apply international rules. Most importantly, their decisions are
legally binding upon those who come before them.

Types of international courts

There are various types of international courts, as well as various ways of organizing
international courts into types.

Global courts

Generally speaking, when people refer to global courts they mean courts that deal
mainly with interstate confl icts and have a global reach. The quintessential exam-
ple here is the International Court of Justice (ICJ), which is an organ of the United
Nations (UN) but is also open to non- member states of the UN.

Regional courts

There are also a number of regional courts that operate only in particular geograph-
ical areas, such as the oldest court of all, the Central American Court of Justice
(CACJ). There are several of these courts in the Americas (4), Europe (4), and espe-
cially in Africa, which has seen a virtual explosion of regional courts, and now
counts eleven of them. There are no regional courts in Asia, although there has been
discussion about creating an international court in the context of the Association of
South East Asian Nations (ASEAN). Regional courts are often organs of regional
integration organizations, such as the European Union, the Andean Community,
and the East African Community.

Thematic courts

In addition to global and regional courts, there are also several thematic group-
ings of courts, like the three existing human rights courts. Even though they are
all regional courts—one in the Americas, one in Europe, and one in Africa—they
can be considered as a separate type because they deal mostly with individual
complaints against states and focus on a particular issue. Similarly, even though
the International Criminal Court (ICC) is a court with global reach and could be
said to be a ‘global’ court, it is considered to belong to the group of international
criminal courts (see Chapter 12). This group also includes the ad hoc tribunals

168 Part II Identifying international law

( tribunals created for specifi c confl icts), such as the Yugoslavia Tribunal (ICTY) and
the Rwanda Tribunal (ICTR), and the hybrid international criminal courts (which
are partly international and partly national courts).

Such hybrid courts have increasingly been established in the aftermath of war
and humanitarian crises. Hybrid courts are strictly speaking national courts, but
they come about through an agreement between the state and the United Nations
and often incorporate international elements such as procedural rules and foreign
judges. They generally operate on the territory of the states in question and will
apply national law unless otherwise agreed. In the wake of the Yugoslavia Tribunal
it has become evident that the prosecution of those who perpetuate atrocities has
a wider role in the overall transition to a post- war society. This role can be more
effectively performed when the tribunal is situated in the country itself, rather than
far away, and thus the hybrid approach is taken to increase the involvement of the
people and institutions in the country where the atrocities occurred. Finally, hybrid
courts are signifi cantly cheaper than international courts.

Aside from these courts, there are a number of entities that offer ‘arbitration’ as
a service. These are distinct entities in a number of ways and are often not seen as
international courts, but as ‘ quasi- judicial bodies’ even though they share many of
the same functions and features.

Box 8.1 International courts and tribunals

Global courts

International Court of Justice (ICJ): The Hague, The Netherlands (1945)
International Tribunal for the Law of the Sea (ITLOS): Hamburg, Germany (1988)
World Trade Organization Dispute Settlement Body (WTO DSB): Geneva, Switzerland (1994)

Regional courts

Europe:
Court of Justice of the European Communities (ECJ): Luxemburg, Luxemburg (1952)
Benelux Court of Justice: Brussels, Belgium (1965)
European Free Trade Area (EFTA) Court: Luxemburg, Luxemburg (1992)
European Court of Human Rights (ECtHR): Strasbourg, France (1950)
Americas:
Inter- American Court of Human Rights (IACtHR): San José, Costa Rica (1969)
The Court of Justice of the Andean Community (TJAC): Quito, Ecuador (1979)
Caribbean Court of Justice (CCJ): Port of Spain, Trinidad & Tobago (2001)
Central American Court of Justice (CACJ): Managua, Nicaragua (1907)

International courts and tribunals 169

Finally, there are a number of other entities that are neither courts nor arbitral bodies,
but that perform similar functions. Various human rights treaties have created ‘com-
mittees’—such as the Human Rights Committee, or the Committee on the Elimination
of Discrimination Against Women (CEDAW Committee)—that receive and pronounce
themselves on complaints in ways similar to courts, but with the important difference
that their decisions are not legally binding. The fact that a report by one of these com-
mittees is not legally binding does not mean that it is without effect. In fact, many states
will tend to accept and implement decisions, as if they were legally binding. In this

Africa:
African Union Court of Human and People’s Rights (ACHPR): Arusha, Tanzania (1998)
African Court of Justice (ACJ): Arusha, Tanzania (2003)
Arab Maghreb Union Judicial Authority (AMUIJ): Nouakchott, Mauritania (1999)
Court of Justice of the Common Market of Eastern and Southern African (COMESA):
Khartoum, Sudan (1994)
Court of Justice of the East African Community (EACJ): Arusha, Tanzania (1999)
Court of Justice of the Economic Community of Central African States (ECCAS): not yet
determined (1984)
Court of Justice of the Economic and Monetary Community of Central Africa (CEMAC):
N’Djamena, Chad (1999)
Court of Justice of the Economic Community of West African States (ECOWAS CCJ): Lagos,
Nigeria (1975)
Court of Justice of the Organization for the Harmonization of African Business Law
(OHADA): Abidjan, Ivory Coast (1995)
Tribunal of the Southern African Development Community (SADC): Windhoek, Namibia
(1992)
Court of Justice of the West African Economic and Monetary Union (WAEMU): Ouagadougou,
Burkina Faso (1994)

International Criminal Courts

International Criminal Tribunal for the Former Yugoslavia (ICTY): The Hague (1993)
International Criminal Tribunal for Rwanda (ICTR): Arusha, Tanzania (1994)
International Criminal Court (ICC): The Hague (1998)

Hybrid courts

Extraordinary Chambers in the Courts of Cambodia (ECCC) (2001)
Programme of International Judges in Kosovo (2004)
Special Court for Sierra Leone (SCSL) (1996)
Special Panels for Serious Crimes in East Timor (2000)
Special Court for Lebanon (2007)

170 Part II Identifying international law

sense, one can argue that the reports are politically or even morally binding. Similarly,
the World Bank Inspection Panel can review complaints and issue non- binding opinions
about the environmental impact of loans provided by the World Bank. Because their
reports are also not legally binding, these bodies are often omitted from lists of inter-
national courts, even though they can be important and infl uential in the development
of international law. Additionally, some international entities have been set up to deal

Box 8.2 Arbitration

Arbitration was the nineteenth- century precursor to modern international courts. In fact,
the fi rst big international court, established in 1899, was the Permanent Court of Arbitration
(PCA), which still exists and is quite active. In addition to the PCA, a special arbitral tribunal
was created for dealing with the ramifi cations of the confl ict between Iran and the US
in the 1970s and 1980s, the Iran–US Claims Tribunal. Bilateral Investment Treaties (BITs)
and Free Trade Agreements (FTAs) like the North American Free Trade Agreement (NAFTA),
which have grown exponentially in numbers since the 1990s and now amount to more than
2,700, contain arbitration provisions that allow foreign investors to bring cases against
states, frequently through the International Centre for Settlement of Investment Disputes
(ICSID). Mercosur, the regional organization for the Latin American cone (Argentina, Brazil,
Paraguay, and Uruguay) started originally with a mechanism based on arbitration but is
increasingly moving towards the establishment of an international court. And the World
Trade Organization’s Dispute Settlement Body (DSB) has a two- tier system, with a ‘panel’
stage which is more like arbitration (parties choose the panellists), and an ‘appellate’ stage
which, with its limited number of appellate body members who serve in rotation, is consid-
ered to be more like a court.

Arbitration differs from adjudication in several ways. Whereas courts are permanent,
arbitral panels (as they are often called) are ad hoc, or created for a particular case. While
courts have a permanent composition and a fi xed procedure, arbitration procedures and
the composition of panels are determined by the parties for each case. This gives arbitra-
tion a lot of fl exibility in relation to a court. In addition, courts are usually concerned with
developing international law in a more or less consistent and coherent way, whereas arbi-
tration panels are more focused on settling specifi c disputes. Because of this, courts have
a bigger systemic impact than arbitration. Because of the fl exibility and relative informality
of arbitration, there has been a growing reliance on arbitration proceedings in the context
of international economic disputes, and many people expect this type of mechanism to
become increasingly more signifi cant and important. Arbitration panels are created in the
same way in which international courts are created: by treaty and either specifi cally (ad
hoc) for a particular situation, or in advance, as a mechanism by which future disputes can
be addressed.

International courts and tribunals 171

with the awarding of fi nancial claims on a massive scale. The United Nations Claims
Commission, for instance, awarded hundreds of thousands of claims brought by people
and companies who had suffered as a result of the Iraqi occupation of Kuwait. Though
the claims commission follows court- like procedures, it is dealing with a very narrow
range of issues in an almost bureaucratic way, and is therefore not regarded as a court.

How international courts are formed

International courts are created by states. This can happen directly, when states
negotiate and sign a treaty to establish a court, such as in the case of the International
Criminal Court (ICC), which was created by a treaty called the Rome Statute of
1998. It can also happen indirectly, when an international organization empowered
by states to act on their behalf directs that a court be established, such as in the case
of the international criminal tribunals for Yugoslavia and Rwanda, which were
created by the United Nations Security Council.

International courts can also be created as part of an international organiza-
tion. So, for instance, the International Court of Justice (ICJ) is an organ of the
United Nations (UN), the Andean Court of Justice is an organ of the Community
of Andean Nations, and the European Court of Justice is an organ of the European
Union. These international organizations are themselves created by treaties, one
part of which creates an international tribunal to deal with the settlement of legal
disputes within that organization.

The treaties or decisions by which international courts are created are important
documents for the functioning of these courts because they specify how much each
particular court can do, which cases it can hear, who can bring a claim against
whom, and which legal sources the court can apply in each case, topics we will turn
to in the following sections. Since there are many differences between the various
international courts, lawyers will always fi rst consult these treaties before bringing
a case to them.

Who can bring a case to an international court?

There are several different types of international court proceedings. First, there are
proceedings between states—provided for by practically all international courts.

Second, there are proceedings between individuals and states. Here individuals
(or companies, or NGOs) can bring a case against a state if they feel that they have
been wronged by its actions or laws. Such proceedings are most commonly dealt
with by human rights courts, but also occur in the area of international investment

172 Part II Identifying international law

treaties or regional integration organizations, such as the Court of Justice of the
East African Community.

Third, individuals and other non- state actors can bring cases against international
organizations. So far, this type of proceeding is available exclusively in regional inte-
gration organizations, such as the Court of Justice of the European Union, and in
labour disputes, such as when employees of international organizations settle admin-
istrative disputes with their employers in the Administrative Tribunal of the UN.

Fourth, international criminal tribunals can bring cases against individuals. This
is a very recent development that only began in the 1990s with the creation of special
international criminal tribunals that dealt with crimes committed in Rwanda and
the former Yugoslavia, and which culminated in the creation of the International
Criminal Court (ICC). In these proceedings, the international criminal tribunals
have their own prosecutors who bring cases against individuals suspected of having
committed genocide, war crimes, or crimes against humanity.

Finally, a national court can request a preliminary ruling or clarifi cation of the
law from an international court (see below Box 8.7 on the ECJ). This type of pro-
ceeding is typical of organizations that pursue regional integration. Under this pro-
ceeding, a national judge can ask the international court to pronounce itself on the
correct interpretation or the legality of a rule or act of the regional organization.
After receiving a preliminary ruling from the international court, the national court
uses this information to make its own judgments.

The access of non- state actors to international courts has impacted on how
we conceive of international relations. This development means that states may
have to answer to individuals or non- governmental organizations for their con-
duct (see Chapter 13). It also means that individuals can be answerable for their
actions carried out as state offi cials (see Chapter 12). These new international legal
relationships add new layers of complexity to international relations simply as
interstate relations.

Box 8.3 Jurisdiction and admissibility

In order to initiate any proceedings before an international court, the case must meet cer-
tain jurisdictional and admissibility requirements. A case before an international court gen-
erally proceeds through a preliminary phase and a merits phase. In the preliminary phase,
the court establishes whether it has jurisdiction and whether the case is admissible. Then,
if the case is taken up by the court, it will proceed by looking at the facts and making a rul-
ing on the merits of the case.

International courts and tribunals 173

Jurisdiction

For a court to have jurisdiction over a dispute means that the court has the compe-
tence, authority, or power to look into the case. Jurisdiction is granted by the states that
created the court, and the rules for jurisdiction are set out in the treaty or decision that
established it. Sometimes an international court will have ‘obligatory’ or ‘compulsory’
jurisdiction. This means that the states granted it the authority to hear a certain type of
case once and for all. Often, though, courts only have jurisdiction on a per- case basis,
which means that states must consent to jurisdiction in each case separately. In many
cases, jurisdiction can be also be revoked by the state after it has been accepted.

The best example of this is the International Court of Justice. States can recog-
nize its jurisdiction in various ways. They can do it unilaterally, offi cially declaring
that they accept the jurisdiction of the ICJ. They can do it collectively, including
a provision into a treaty stating that any future confl ict about the implementation
or interpretation of that treaty should be brought to the ICJ. States can also agree
to voluntarily submit a particular legal dispute to the ICJ. In any of these situa-
tions, however, states can choose to limit the topics or issues that the ICJ can deal
with. Other courts, like the Inter- American Court of Human Rights, require that
states explicitly recognize its jurisdiction without imposing these limits. States and
individuals often overlook the important question of jurisdiction, and bring cases
that cannot be addressed by the court (or ‘exceed its jurisdiction’). Such cases are
dismissed by international courts at the preliminary stage.

Admissibility

Another part of the preliminary phase is the question of admissibility. For a case or
complaint to be admissible it needs to fulfi l a number of criteria which are either
specifi ed in the treaty establishing the court or fl ow from general rules of customary
international law. For example, many international tribunals require the ‘exhaus-
tion of domestic remedies’. This means that all available national procedures need
to be tried out before a case is brought to an international tribunal. The idea behind
this rule is to allow states a chance to resolve the matter themselves, before they
are exposed to international scrutiny. This rule is very important in the context
of human rights tribunals. Cases are frequently dismissed as inadmissible. For
example, in the European Court of Human Rights as many as 80% of cases are
declared inadmissible and end at this stage.

Merits

Once a court has established that it has jurisdiction and that the case is admissible,
it can move on to look at the substance of the case. During this ‘merits phase’, the

174 Part II Identifying international law

court listens to arguments presented by the parties to the case. Occasionally, it will
hear arguments from other parties as well. Depending on the type of proceeding,
it may listen to experts or hear witnesses, and in some cases it can carry out an
investigation to inform itself directly of the facts. Most proceedings have a written
part, in which there is an exchange of arguments in writing, and an oral part, in
which the court listens and poses questions to the parties and their lawyers. Once
they have heard all sides, the judges retreat and deliberate, and fi nally they produce
a judgment.

All in all, international court proceedings can last anywhere from six months to
six years, although in many cases this depends on how fast the parties want to see
a judgment. Sometimes they are not really in a hurry. Other times the case never
reaches a conclusion because the parties decide to settle out of court. For example,
a case brought to the ICJ by Libya against the United States and the United Kingdom
in 1992 produced a decision on the preliminary phase in 1998 and was fi nally
removed from the Court’s list ‘at the request of all the parties’ in 2003.

Provisional measures

Sometimes one of the parties will ask a court to pronounce itself before the case has
been concluded, or, as the expression goes, ‘to order provisional measures’. Usually
this involves a request to suspend a particular action while the case is pending.
Provisional measures are frequently requested in the fi eld of human rights, when
an international court can for instance ask a state to suspend an extradition, while

Box 8.4 Reforming the European Court of Human Rights

In an attempt to deal with an ever growing case load, the Council of Europe is trying to
reform the way the European Court of Human Rights handles cases. At the end of 2007,
over 100,000 cases were pending before the Court, and its forty- fi ve judges were not able
to keep up. Some estimate that its case load will double in the next three to four years, as
more and more people fi nd their way to the Court. Though a lot has been done to stream-
line the procedure and strengthen the supporting legal staff, it has not been enough to
stem the fl ow. In 2004 the Council of Europe adopted Protocol 14, which amends some key
features of the way that the Court handles applications. The main purpose of the reforms is
to make it easier for a case to be declared inadmissible. In particular, the Court will now be
able to declare cases inadmissible if the applicant has not suffered a ‘signifi cant disadvan-
tage’. Human rights NGOs have voiced their concerns about these changes because they
will make it more diffi cult for individuals to access the Court.

International courts and tribunals 175

it looks into the case. A famous example of a provisional measure is the request
submitted by Serbia and Montenegro in 1999, asking the ICJ to order members of
NATO to halt their bombing campaign. The ICJ declined to issue the ruling because
it determined that it did not have jurisdiction. Even in these provisional procedures,
questions of jurisdiction and admissibility matter.

Judgments

Judgments are binding on the parties, and an appeal or review is possible only in
very few instances. Depending on the type of proceeding, a judgment can mean dif-
ferent things. If the dispute was between two states, the court will establish which
state was in breach of its international legal obligation; which is a different way of
saying that the state violated international law. If the case is brought by a non- state
actor against a state, the court will establish whether the state breached its obliga-
tions under international law. If the case was brought against an individual accused
of committing war crimes, the court will establish the criminal responsibility of the
individual. We will go into the effect of these decisions below.

Advisory Opinion

There is one type of procedure that is different from all the others. Sometimes
a court can be asked to give a so- called ‘Advisory Opinion’. A request to do so can
come from an organ of an international organization, such as in the case of the
UN General Assembly, which can ask the ICJ to render an Advisory Opinion, or
it can come from individual states, as is the case with the Inter- American Court of
Human Rights. Advisory Opinions are, as their name indicates, not legally bind-
ing and express an international court’s authoritative views on a particular issue.
Both legal scholars and states will generally take these Opinions seriously because
of their persuasive authority. Individual states, however, may refrain from strictly
implementing the Court’s fi ndings if they disagree with them.

Box 8.5 What rules do international courts apply?

Generally speaking, international courts apply rules of international law. However, this does
not mean that they can apply all rules of international law. Their legal scope is determined
in a number of ways. The treaty that establishes the court in question usually stipulates
which law can be applied. Some courts, like the ICJ, can apply a wide scope of international
law. Others have a very narrow frame: the WTO Dispute Settlement Body, for instance, can
only apply WTO law, and the European Court of Human Rights can only apply the European
Convention on Human Rights.

176 Part II Identifying international law

What is the effect of international judicial decisions?

Legal effect

Judgments of international tribunals are legally binding. This means that states
have a legal obligation to abide by them, to implement them, and to enforce them.
Sometimes a court indicates to the state how it should do this. It may instruct the
state to abolish a particular policy, order it to pay compensation, or order that
the states negotiate a settlement. In the context of human rights courts, one can
see diverse approaches. In some cases, the European Court of Human Rights has
considered that the fact that a violation has been found was in itself suffi cient
compensation. In other cases, that court has ordered signifi cant fi nancial repara-
tions. The Inter- American Court of Human Rights has done the same, but has gone
further and has ordered in some cases that the state perform a number of symbolic
acts of apology and repentance as a form of reparation for gross human rights
violations.

Even where a court indicates specifi cally how a state should abide by its obliga-
tions, it remains up to the state and its national authorities to enforce the judgment.
In other words, judgments of international courts do not automatically enter into
effect, but need to be put into effect by the state in question. Unlike in domestic affairs,
where a national judge can order the release of a prisoner, the release of informa-
tion, or the release of assets, and this order has value with jailers, public authorities,
banks, etc., this is not the same with international judgments. International judg-
ments are legally binding declarations that a state has breached (or not) interna-
tional law. But they cannot be directly enforced at the national level. One notable
exception here is the Inter- American Court of Human Rights. Its judgments can be

For the ICJ, the question of which law to apply is linked to the question of jurisdiction.
A recent example of this is related to the war that broke out between Russia and Georgia
in the fall of 2008. Though this confl ict had many legal dimensions, there was only one
relevant basis on which Georgia could initiate proceedings against Russia. It just so hap-
pened that Russia (and Georgia) were both parties to the Convention on the Elimination
of All Forms of Racial Discrimination (CERD), which allows states to bring cases related to
racial discrimination to the ICJ. Of all the various multilateral and bilateral treaties to which
both countries were a party, this happened to be the only one that Georgia could invoke in
order to involve the ICJ’s jurisdiction in this case. So, though the case could have involved
various topics, the ICJ could only apply CERD, and no other international rules, when decid-
ing the case.

International courts and tribunals 177

enforced by national judges, without intervention by the national government or
legislature. This can sometimes lead to confusion and to problems of enforcement,
and it can also lead to problems not going away. An example of this is the large
number of Italian cases that keep coming to the European Court of Human Rights.
These relate to the problem that the judicial system in Italy is very slow. Cases can
be pending for up to twenty years. In the past, the European Court has found this
to be a breach of the European Convention of Human Rights, which in Article 6
stipulates that judicial proceedings have to take place within a ‘reasonable period’ in
order for these proceedings to be fair. For decades though, the Italian state has been
unable to do anything about it. It takes a lot of time and a lot of resources to change
a state of affairs that is so complex and deeply rooted in the legal culture of a coun-
try. This meant that Italians keep going to the European Court of Human Rights and
that this court keeps fi nding breaches of international law, with little else changing.

Enforcement

The absence of an ‘international enforcement agency’ often fi gures in criticisms of
international law, and seems to buttress realist approaches to international relations.
However, as a matter of fact, most international judgments are complied with. Mutual
or collective agreement to comply with court judgments is an important compliance
factor. Different tribunals also have different enforcement mechanisms, depending
on what their constitutive treaty stipulates. So the Statute of the ICJ allows states to
call on the UN Security Council for support if the other party in the case does not
comply with a judgment. This is not necessarily an effective mechanism, especially
when it concerns trying to pressure a permanent member of the Security Council
itself. A well known example concerns a case brought by Nicaragua against the US,
related to covert military operations that the US had carried out against Nicaragua.
The US disagreed that the court had jurisdiction and refused to participate in the
merits of the case. The fi nal judgment was in favour of Nicaragua, but the US refused
to accept this on the basis that the ICJ should never have had jurisdiction in the fi rst
place. Naturally, any action by the Security Council was effectively vetoed by the
US. As a gesture of goodwill to the US, and in an attempt to obtain the release of
large amounts of fi nancial assistance, Nicaragua agreed to drop the matter. Though
Nicaragua was bullied by the US into doing this, one can argue that Nicaragua was
better off with the ICJ judgment because it gave Nicaragua some bargaining power
that it would otherwise not have had. Even so, the Nicaragua case remains an excep-
tion, and most judgments are duly complied with.

In other instances where international courts are part of the institutional struc-
ture of an international organization back- up mechanisms operate to supervise

178 Part II Identifying international law

compliance with international tribunals. For instance, the European Court of
Human Rights falls under the Council of Europe. Its main executive body is the
Committee of Ministers. This entity has the task of reviewing compliance with the
Court’s judgments. It can put signifi cant political pressure on states to comply, but
has as its only real instrument the possibility of expulsion from the organization.
This is a very blunt weapon, and it can be counterproductive, since it would cut off
access to the Court for the inhabitants of the country involved.

The issues of compliance and enforcement indicate that what is at stake is the
degree to which states are truly integrated into some sort of strong political relation-
ship and the role of international courts in processes of political interrelation. In the
case of the European Court of Justice, for example, the value at stake is European
integration. For an EU member it would require too much political capital to openly
defy the ECJ, just like it cannot defy the other organs of the EU itself. This degree
of political interrelation or integration does not exist in other regional contexts and
this is a factor affecting compliance. However, many continue to see international
courts as important catalysts in processes of political integration.

What are the functions of international courts?

Dispute settlement

International courts are part of the larger ‘system’ of public international law.
Within this system, they perform a number of functions. One of these is the func-
tion of settling disputes—at least to the extent that they can be translated into legal
disputes. For instance, the border dispute between Ethiopia and Eritrea was ‘set-
tled’ by an arbitral tribunal set up under the auspices of the Permanent Court of
Arbitration in 2002. This tribunal decided exactly where the contested boundary
ran and which towns, villages, roads, and rivers belonged to which country. The tri-
bunal was set up as part of a ceasefi re arrangement between the two countries who
had just fought a war over the issue. However, in 2008 tension rose again between
the two countries and it became clear that the roots of the confl ict were much more
complex and that it would take more than a legally binding judgment for it to be
resolved. This illustrates the point made above that international courts are part of
the larger political ‘system’ of international relations. The role that they can play
in processes of dispute settlement is related to the political context in which they
operate, but in doing their work, international courts and tribunals can at times
contribute to the resolution of disputes.

International courts and tribunals 179

Enforcing international law

International courts are changing the way in which international law is enforced.
States used to rely on a system of self- help to enforce compliance with international
law. This meant that they could retaliate or take countermeasures in view of breaches
by other states. So, if one state seized assets of the nationals of another country, with-
out justifi cation, the other country might do the same back, as a countermeasure, to
force the fi rst country to change its ways. It is clear that as a system of enforcement,
this one is very prone to escalation and extremely sensitive to power asymmetries.
International courts are a move away from that system and a move towards a system
in which courts, by stating clearly and unambiguously who was in the legal wrong,
could improve the system of enforcement. This particular function made a quan-
tum leap when international human rights tribunals and regional integration courts
were allowed to hear cases brought by individuals. Whereas states have not been
so eager to bring cases against another state, preferring instead to use familiar and
more controllable diplomatic channels, individuals (and other non- state actors) have
been eager to challenge states on the international plane. In this way, individuals
can now trigger enforcement mechanisms and enforcement has become much more
decentralized. And because individuals need to fi rst challenge the state at the level of
national courts, national judges have also become a part of the enforcement system.

Box 8.6 Judicial review of Security Council actions

As the activities of the Security Council have increased, so too have concerns about the
legal limits of Security Council action. Can the Security Council violate international law?
If so, who can review its actions? For many, this is a role to be played by the International
Court of Justice (ICJ), the principal judicial body of the United Nations and arguably the
world’s most prestigious court. Others vehemently deny that the ICJ has such a function,
and argue that its Statute does not provide for such authority. So far, very few cases that
have come before the Court have raised questions that could lead it to pronounce itself on
this matter, and many consider it unlikely that the ICJ would risk confronting the Security
Council in this way. Another international court, the ECtHR, has considered that it cannot
pronounce itself on the actions of the UN. However, the ECJ recently annulled the EU’s
implementation of the Security Council’s asset- freezing resolutions on the ground that
they violated EU norms of fair procedure and property protection. Though this does not
directly review the Security Council’s resolutions, it does pronounce itself on their accord-
ance with international standards. It is to be expected that these types of tensions and
confl icts will increase in the future.

180 Part II Identifying international law

Identifying and developing international law

International courts have become an intrinsic part of the law- making processes
of public international law. Though it is the states who are the most important
law- making actors, international courts play a very signifi cant role in this process
by interpreting the very content of international laws in concrete situations in which
states disagree. In this role, international courts have clarifi ed the general meaning
of many important international law doctrines. This will be readily apparent when
reading any international law book which will contain numerous references to judg-
ments by international courts. Judgments of courts are not legally binding on other
states in most cases, even if these states have also accepted that court’s jurisdiction.
However, an international court’s interpretation of a particular treaty or its recogni-
tion of the existence of a rule of customary law will often carry signifi cant authority
amongst both states and their lawyers. Besides, international courts will generally
be faithful to their own judgments and judgments of other courts, and states will be
mindful of this.

In the course of doing their work, international courts often advance ground-
breaking and foundational interpretations of the legal rules that they are applying.
Take for instance the ruling by the ICTR, in which Jean- Paul Akayesu was found
guilty of the crime of genocide. In this ruling, the Rwanda Tribunal found that mass
and systematic rape could constitute a part of the crime of genocide. This was not
based on a particular rule which stated that rape could be an instrument of geno-
cide, but rather on an analysis by the Tribunal in light of the systematic mass rape
that occurred in Rwanda and had previously occurred in the former Yugoslavia.
The example makes clear how international tribunals can be useful contributors
to the development of international rules. Whereas it would take years to reach the
necessary agreement to draft a treaty, and even more years for there to be practice
suffi cient to constitute customary law, international courts, in their dealing with
concrete situations, can be much more responsive to changing conceptions and to
new developments. As such, they add a degree of fl exibility to the process of making
and developing international law.

This function of international courts is exemplifi ed by the procedure that allows
them to render Advisory Opinions on questions submitted to them. Though Advisory
Opinions are not binding, many of them are subsequently used as authoritative state-
ments of the law. Moreover, they often grab the headlines. The International Court of
Justice’s Advisory Opinion that the wall built by Israel in the Occupied Territories was
illegal did not result in Israel’s removal of the wall, but it has made world news and
has given activists and politicians a blunt argument to use against Israeli policies.

International courts and tribunals 181

Furthermore, international courts and tribunals can sometimes change the very
nature of the political processes in a particular context. As such, they perform
a role in the systemic context that they help create through their existence. This
is most clearly visible in the case of international organizations pursuing regional
integration. The European Court of Justice has often been called ‘the engine of
European integration’, because many of its decisions were instrumental in break-
ing both political and legal, resistance to removing barriers between EU member
states. States and other international or transnational actors adapt their strategies
according to legal processes offered by international courts. They do so more at
some times than at others, more in regional integration contexts than with the
ICJ. But, for example, even before the International Criminal Court had started
its fi rst case, many states and other actors were already taking its existence into
account and were adapting their policies in light of the ICC’s arrival on the scene.
This does not always happen in the most desirable ways. Sometimes, what seemed
to be a political solution to a problem can be complicated by the presence of legal
institutions. For instance, ongoing Ugandan peace talks between the government
and the rebels stalled because of the ICC Prosecutor’s investigation of the rebel
leader. At the moment of writing, it seems that the Ugandan rebel leaders are not
interested in peaceful settlement as long as the ICC is committed to bringing them
to criminal prosecution.

Summing up, international courts perform multiple functions, and have in
many ways changed the rules governing international relations. They play a role
in processes of dispute settlement, in the enforcement of international law, and
in the interpretation, development, and even making of new international rules.
They have opened up the playing fi eld to individuals, to non- state actors, and to
national judges, profoundly changing the political architecture of many countries
and regions. But they are also limited by their own design and require a friendly
political context to perform these roles.

Box 8.7 The European Court of Justice and the uniformity of EU law

Though the ECJ has greatly contributed to the development of EU law, it also keeps that
development in check. Since national judges have to interpret and apply EU rules, it was
considered essential for these interpretations not to diverge from each other, and national
judges are supposed to consult the ECJ before applying EU law. Upon receiving a request for
interpretation, the ECJ hands out a special type of judgment, called ‘preliminary ruling’. The
growth of the EU, both in terms of the number of countries (and national judges) and in

182 Part II Identifying international law

When are international courts successful?

Success for international courts is diffi cult to measure. The European Court of Human
Rights has been called a ‘victim of its own success’, referring to the fact that it has been
swamped with cases and cannot deal with the waves of new applications reaching
it every day. One way in which a court’s success can be measured is by the number
of cases brought to it. The ICJ had a big drop in cases brought to it during the late
1960s and only started to pick up again in the 1980s. A common explanation for
this was that in the 1950s and 1960s it decided some cases in ways that were per-
ceived too ‘conservative’, for the political mood of the time, and in particular against
the massive processes of decolonization which were changing the way international
politics and international law was perceived. This bad reputation was so damaging
that the Convention on the Law of the Sea, adopted in 1982, created a new tribunal,
the International Tribunal of the Law of the Sea, which was supposed to be more
representative of the new times and more ‘modern’ than the ICJ. However, in the same
decade, the case load picked up again for the ICJ. More ‘progressive’ references to
human rights in the 1980s were said to have restored confi dence in that court.

Whether a particular judgment was ‘successful’ will often only show over time.
Agents of governments often argue during the oral proceedings of cases that taking
a particular decision will be ‘bad for the court’s credibility’. A court’s credibility,
however, is not necessarily the same as its popularity, which can be fi ckle and capri-
cious. Ultimately, what may matter more is whether the judgments a court produces
are good ones. Are they suffi ciently based on the wealth of legal precedents? Are they
carefully argued and persuasive? Will they be used as a reference by lawyers and
judges in the years to come? Sometimes judgments are quickly forgotten, and some-
times they are memorable and lasting. Sometimes a dissenting opinion by a judge in
the minority of the court will be more memorable than the judgment itself.

For some people, including judges, an international court needs to stand above the
political interests of states and other actors. It should not care about being popular
and even if states and others walk away and forget its judgments, the court needs to
stick to its role as a strict interpreter of the rules. For other people, including judges

terms of the scope of its rules and regulations, has made uniformity in interpretation both
more desirable and more diffi cult to achieve. Like its human rights counterpart (the ECtHR)
the ECJ is struggling to keep up with an ever growing number of cases.

International courts and tribunals 183

too, an international court needs to be in touch with the world of states and other
actors, with the mood of the times, it needs to be responsive, pragmatic, and realis-
tic. Ultimately, they would argue, international law is better off with international
courts than without them, so interpretation of international laws by courts should
be fl exible to increase their political acceptance. For this last group of people, politi-
cally acceptable judgments allow international courts to remain relevant for inter-
national relations.

Whether or not courts will prove successful in terms of cases brought to it is hard
to predict—the Central American Court of Justice is the oldest international court
in the world, but for no obvious reasons Central American countries have brought
most of their cases to the ICJ.

The ECJ can be seen to be extremely successful. Its judgments are respected,
and the EU donates lavish resources to help do its work as well as possible. Over
the last fi fty years the ECJ’s powers have increasingly been expanded. More and
more cases are brought to it by more and more actors (states or national judges)
and every year, thousands of law students from all over Europe visit its building in
Luxemburg as ‘the place where the action is’. Its Andean sibling, the Andean Court
of Justice, cannot be said to be successful in this way. Many law students in the
Andean region hardly know about this court, and they do not think that anything
important happens at all there. States in the region have been stingy with resources.
Even so, the Andean judgments are very similar to those of the ECJ and have even
been inspired by the European judgments (another token of the ECJ’s success).
This may partly be explained by the political context. In the Andean region there
is too much political instability for a serious and sustainable political commitment
with integration to emerge. It may be a chicken- and- egg situation. The European
Court of Human Rights is often credited to have been pivotal for the endurance of
European democracies and rule of law. But, it may be the other way around: the
endurance of European democracies and rule of law may have been the primary
condition for the success of the Court.

The future of international courts and tribunals

The steep increase in the number of international courts and tribunals has received
both support and scepticism. Many people see it as a sign that the international
legal edifi ce is strengthening and welcome international law playing an increasingly
prominent role both in international relations as well as in domestic affairs. For the
supporters of this development, more international courts mean more international

184 Part II Identifying international law

rule of law. It means more states and other actors will be able to bring each other
to court. It also means that international law will develop faster, since courts play
an important role in that respect. For these supporters, this will mean that impor-
tant international rules related to areas such as human rights, humanitarian law,
environmental law, etc. will be better implemented and enforced. More interna-
tional courts will also mean that the better courts can prevail even if the weaker
courts don’t. This phenomenon is also known as ‘forum shopping’ and it means that
people, when given the choice, will choose the court that offers best results. This
type of competition will also yield, according to the enthusiasts, ‘cross-fertilization’,
a metaphor used to describe the way in which different courts will infl uence each
other in ways that will strengthen the fabric of international law.

Others, however, worry about the proliferation of international courts. They fear
that it will lead to a ‘fragmentation’ of international law. With so many courts, there
are bound to be contradictions in their pronouncements, which will lead to confu-
sion and disarray, and even to injustices. They are less optimistic about the ‘forum
shopping’ phenomenon, since they believe that courts are not supposed to work
according to such ‘free market’ logic. Rather, they fear that international law will
be undermined in its authority by divergence and contradiction. If different courts
cannot agree on the correct interpretation and application of a rule, then how will
states be supposed to agree? Both sides may have a point in their projections, but it
remains to be seen how the phenomenon of more and more prominent international
courts will impact on the world they govern, and on the various actors, big and
small, that use them.

Conclusion

This chapter has looked at the various types of courts that exist in contemporary
international life. It has looked at the differences between them but has focused on
the signifi cant features that are characteristic to all international courts. In particu-
lar, it has described the processes by which international courts can come about. It
has looked at the various ways in which international courts can become the site
of a legal dispute: who can bring a case to a court and against whom? It has also
looked at how international courts operate, the rules that they apply and what
the effect is of an international court’s judgment. Finally, some attention has been
devoted to the question of when a court is successful and what the future holds for
international courts in the international system.

International courts and tribunals 185

Questions

1. Name some of the ways in which an international court can be formed.

2. What is the role of ‘jurisdiction’ in the functioning of an international court?

3. What are the phases in which an international court deals with a case?

4. Who can bring a case to an international court?

5. Are international judicial decisions binding?

6. How are international judgments enforced?

7. How do international courts participate in the identifi cation, development, and
creation of international law?

8. What are the challenges faced by some of the European international courts?

9. What are the most important functions of international courts in international
relations?

10. What makes an international court successful?

Further reading

Amerasinghe, C. F. (2009) Jurisdiction of Spe-
cifi c International Tribunals (Leiden: Nijhoff
Publishers). An exhaustive analysis of the
jurisdictional dimension of the work of
international courts.

de Búrca, G. and Weiler, J. H. H. (2001) Collected
Courses of the Academy of European Acad-
emy of Law, 10–1 (Oxford: Oxford University
Press). A comprehensive analysis of the Euro-
pean Court of Justice.

Janis, M. W. (ed.) (1992) International Courts
for the Twenty- first Century (Dordrecht:
Nijhoff Publishers). Though a bit out of
date on some topics, this book provides an
excellent overview by reputable authors of
the past and of the various visions of the
future.

O’Connell, M. E. (2006) International Dispute
Resolution: Cases and Materials (Durham,
N.C.: Carolina Academic Press). This book
allows students to see international adjudica-
tion from the perspective of the broader fi eld
of international dispute settlement.

Romano, Cesare (1999) ‘The Proliferation of
International Judicial Bodies: The Pieces of the
Puzzle’ New York University Journal of Interna-
tional Law and Politics 31/4: 709–51. A special
issue devoted to the question of proliferation,
provides an overview of the various argu-
ments and their various perspectives.

Wildhaber, L. (2006) The European Court of Human
Rights, 1998–2006: History, Achievements,
Reform (Kehl: Engel). A comprehensive analysis
of the European Court of Human Rights.

186 Part II Identifying international law

Websites

www. icj- cij.org The website of the International Court of Justice, the principal judicial organ of the
United Nations gives access to cases, advisory opinions, and information on current activities.

http://www.itlos.org/ This is the homepage of the International Tribunal for the Law of the Sea
which provides materials relating to the Tribunal’s activities.

http://www.ccj.org/ This website informs on the activities and cases of the Central- American Court
of Justice.

http://www. pict- pcti.org/ The Project on International Courts and Tribunals is an initiative by
academics from universities in different countries and conducts and publishes research on the more
than twenty international courts and tribunals that now exist internationally.

http://www.aict-ctia.org/ The project on African International Courts and Tribunals is an essential
resource to research Africa’s regional and sub-regional courts.

http://curia.europe.eu The website of the European Court of Justice offers information on its cases
and activities in all offi cial languages of the European Union.

http://www.tribunalandino.org.ec/ The Andean Tribunal of Justice offers information about past
and present cases.

Visit the Online Resource Centre that accompanies this book to access more learning resources
www.oxfordtextbooks.co.uk/orc/cali/

PART III

TOPICS IN INTERNATIONAL
LAW

In this part of the book we set out a selection of major topics of contemporary inter-
national law and relations in greater detail—namely statehood, the use of force, the
conduct of armed confl icts, international crimes, human rights, the environment,
trade, and global justice. The aim of each chapter is to expose what the body of
international law in any given area is really about and in what ways the discussion of
these central themes in international relations, such as human rights, trade, or envi-
ronment, seen through the lens of international law, affects how we approach the
subject matter. The chapters further identify the major institutional developments in
these issue areas and set out how international politics and the international system
have shaped international law and how international law in turn shapes political
analysis and international relations. These discussions by experts in each topic thus
expose students to the distinct international law perspective on the issue.

We can make some general observations about approaching the relationship
between international law and international relations through a topical lens. First,
each topic has its own special characteristics depending on the subject it aims to reg-
ulate. In some topics, the law is very closely related to the fundamental interests of
states, as in the areas of creation of new states and the use of force. Some topics are
in constant need of reassessment and re- evaluation due to changing circumstances,
such as the protection of the environment. Other topics are very hard to regulate
due to diffi culties in identifying a common ground for all states and other relevant
stakeholders. These characteristics play an important role in determining how clear
international laws and principles are on each topic.

In all the topics discussed in this book the fi rst thing to note is that interna-
tional law fulfi ls a number of important functions. In some areas, international law
primarily aims to limit the options states have with which to achieve their policy
objectives (e.g. the use of force, protection of the environment, or human rights). In

188 Topics in international law

The regulation of topics by international law is a dynamic process and there is
a constant revision of the rules and norms in each topic. It is, therefore, important
to follow the creation of new treaties and soft law instruments, and refl ect on the
position of customary international law for each topic. In some topics, the scope of
regulation is expanding. This is seen, for example, in the case of the large number
of treaties signed to protect the human rights of vulnerable groups. In other topics,
circumstances constantly require new regulation or fl exible interpretation as in the
case of emerging environmental threats. In other areas, customary international law
has an important effect on treaty law, as in the case of the use of force.

The regulation of topics in international law is not even in its robustness and
comprehensiveness. This is the outcome of the interaction between the diffi culties
inherent to the subject matter, the diversity of confl icting state interests and the
preferences and presence of historical circumstances acting as an impetus for inter-
national regulation. We can observe, in particular, that in some topics; (a) it is not
clear what the specifi c international laws are that bind all states (environment); (b)
it is not clear whether there could be any international laws without a change of the
international system itself (global justice); (c) international law and international

Topics and functions of international law

Use of force Limiting policy options, creating international institutions

Trade Framework for common benefi ts, creating international
institutions, limiting policy options

International crimes Deterring individuals, creating international institutions

Self- determination, recognition,
secession

Providing guidance for political decisions, limiting policy
options

Human rights Limiting policy options, creating international institutions,
providing a framework for cooperation

Environment Limiting policy options, setting a framework

other areas, international law sets a framework through which all states can realize
common benefi ts (e.g. trade). International law can also aim to deter individuals
from using the powers they have as either state actors or powerful non- state actors
unduly (international crimes). It may further aim to provide guidance for political
decisions (the recognition of states). Finally, in many areas, international law creates
institutions that provide the development and application of international laws. In
most topics, international law undertakes more than one of these functions.

Topics in international law 189

politics are closely intertwined and rules look more like guidelines for good action
rather than robust laws (recognition of states); (d) there is a larger list of objectively
established principles often together with dispute settlement mechanisms and inter-
pretive monitoring bodies (trade, human rights, international crimes).

It is useful to think of this uneven breadth of regulation in the light of theories
of international relations. Realist and institutionalist rational approaches to inter-
national law make an important claim that it is more likely that states will commit
to international laws that coincide with their own interests. In other words, regula-
tory options that require minimum changes to a states’ foreign and domestic policy
interests are more likely to be successful. A detailed analysis of topics, however, will
show that when international law not only regulates, but also creates institutions
for monitoring of international commitments, this may not be the case. The creation
of institutions inserts a degree of unpredictability into the identifi cation of interna-
tional laws. This could mean that: (a) states may be unwilling to create international
institutions or that (b) they may disrespect the decisions of such bodies that do not
coincide with their own interests. In the case of the protection of the environment,
we observe that states have been unable to create institutions. In the case of trade,
however, there are not only international institutions, but also compliance by major
powers with unpopular decisions against them delivered by these institutions. In
the case of human rights, on the other hand, we see a large number of institutions, a
mixed record of membership to such institutions, and a mixed record of compliance
with unpopular human rights decisions. Liberal and constructivist international
theories are able to explain adherence to unpopular international laws by way of
domestic pressure or by states being socialized to accept those decisions. Marxist
approaches, on the other hand, contrast the successes of trade regimes with the lack

Complexity inherent in
the subject

Diversity of state interests
and preferences

Historical impetus

Use of force Low High World War II

Creation of states Low High –

Environment High High –

Human rights Medium High World War II

Humanitarian law High Low Hague Peace
Conventions of 1899
and 1904, World War II

Trade Medium Medium World War II

Global justice High High –

190 Topics in international law

of progress made in creating a more just international order that takes the needs of
the poor into account.

In the light of the differences in state behaviour across different topics of interna-
tional law, we can say that theories of international relations have varying explana-
tory currency depending on the topic international law regulates. States react and
behave differently in different areas of international law due to a combination of
factors, such as domestic make- up, socialization, strategic calculation of interests,
or geographic location. It is, however, apparent that the clearer an international law
is on a specifi c topic, the more diffi cult it becomes to ignore that law in justifying
state behaviour. International law in different topics, therefore, is both sensitive to
political factors and is able to affect how political factors themselves are viewed.

CHAPTER 9

States and international
law: the problems of self-
determination, secession,
and recognition
Christopher J. Borgen

CHAPTER CONTENTS

• Introduction

• International law and statehood

• International law of self-determination

• The problem of secession in international law and international relations

• Conclusion

CHAPTER OVERVIEW

States are the main actors of international relations and the primary subjects of interna-

tional law. Yet, statehood itself is not easy to defi ne. States themselves disagree as to what

is or is not a state. This chapter will examine not only statehood as a legal construct but also

the relationship between state sovereignty and the self- determination of peoples. To do this,

this chapter will focus on the problem of secession. The chapter will start with a discussion

of how we describe the characteristics of ‘statehood’. Related to this, it will consider the

international law concerning the recognition of states. The chapter then turns to the inter-

national law of self- determination and outlines how this political ideal has become a legal

concept and how it relates to the territorial integrity of states. Drawing these various strands

together, the chapter will then consider how international law approaches the problem of

secession. It highlights the majority view that international law does not recognize a right

to secession and that it addresses secession as a factual event that may have complex legal

192 Part III Topics in international law

consequences. The chapter will close with two case studies: the declaration of independ-

ence by Kosovo and the confl ict between Georgia and Russia over South Ossetia.

Introduction

Is there any role for international law in the creation or recognition of states?
Are there objectively defi ned criteria for statehood? In the world today there are
micro- states recognized by all and other entities with large populations barely rec-
ognized by any. Compare Nauru and Taiwan. Nauru, a small island in the South
Pacifi c with just over 14,000 citizens and a land area of 13 square miles, is widely
recognized as a state and is a member of the United Nations. By contrast, Taiwan, a
prosperous political entity with a population of more than 22 million, is recognized
by only about twenty states and is not a member of the UN.

These two examples show that there can be disagreement as to what is a state and,
consequently, as to the total number of states in the world. For example, the United
States recognizes 194 states, but that number includes Kosovo and does not include
either South Ossetia or Abkhazia. Russia, for its part, does not recognize Kosovo,
but it does recognize both South Ossetia and Abkhazia. In any case, a useful base-
line is the number of UN member states: 192 (at the time of writing). However, it is
also important to keep in mind that UN membership is not a prerequisite for state-
hood and that there have been widely recognized states that were not UN members,
such as Switzerland, which only became a UN member in 2002.

This chapter considers the complex interplay of international law and interna-
tional relations in the birth, modifi cation, and demise of the main actors of the
international systems: states. In order to do this, it will introduce and discuss three
concepts related to the creation of new states and the dismembering of existing
ones in contemporary international relations: self- determination, secession, and the
recognition of states.

This chapter will fi rst examine whether there is a tension between the sovereignty
of states and the self- determination of peoples. While many readers may come
to this chapter with at least a basic understanding of what is—or is not—a state,
the defi nition of self- determination has been the source of some confusion. Even
though self- determination is a political ideal with deep roots in Western philosophy,
as a legal concept its history is relatively short and its exact outline is ill- defi ned.
Political leaders and jurists have noted a possible tension between a right of
self- determination and the protection of territorial integrity itself, another corner-
stone of the modern international system. In part, the clash seems to arise from one

States and international law 193

right (self-determination) favouring ‘peoples’ over states and the other (territorial
integrity) favouring existing states over peoples. Secession is the point in which the
contrast between self- determination and territorial integrity is at its sharpest. When
should a people be able to dismember a state? As such, the topic of secession also
relates to sovereignty and the very stability of the international system.

How international law does—or does not—attempt to regulate secession will be
the central question of this chapter. As a means of approaching this complex issue,
we will consider the practical problem of the recognition of states. In other words,
when there seems to be a successful secession, what is the proper response? May an
existing state recognize a new state? Must it? Conversely, is it prohibited from giving
such recognition? Can international law even regulate such diplomatic activity?

As we shall see in this chapter, because of the high political stakes involved in dis-
mantling existing states and the danger this poses to international peace and security,
the debate still rages over the proper role of international law. Many, if not most inter-
national lawyers believe that international law does not include a right of secession.
Others argue that, under extreme circumstances, an oppressed people have a right of
secession as a remedy under international law. The goal of this chapter is to explain the
political ramifi cations of these two views and to set out the legal justifi cations for each.

International law and statehood

Statehood and sovereignty

States are the main actor in global politics and are the focus of classic international
law. While international law since World War II has increasingly addressed issues
related to non- state actors such as individuals, international organizations, and, as
we shall see in this chapter, ‘peoples’, this has been in addition to, not instead of, its
role regulating state behaviour. Consequently, before considering the law and poli-
tics of how states are born (and, to a certain extent, one way in which they can die),
we should consider what a state is, both juridically and practically.

Sovereignty is the core attribute of statehood. Key elements of sovereignty include
independence, territorial authority, and territorial integrity.

The modern conception of sovereignty is traced to the Treaty of Westphalia,
signed in 1648. Sovereignty included full and exclusive authority over the territory
in question. Each state was the supreme authority within its territory and had no
right of action within another’s territory. Westphalia thus codifi ed the doctrine in the
European state system that no entity—emperor, pope, or other decision-maker—is

194 Part III Topics in international law

above the level of the state. The state became the main actor in the international
system (see Chapter 3). Although this concept has been modifi ed somewhat, partic-
ularly in the defence of human rights, the basic idea that there is a ‘zone of privacy’
within a state’s domestic system still exists.

Another important aspect of sovereignty is international ‘personhood,’ also called
international ‘personality’ (see Chapter 1). International personality means that,
among other things, an entity is able to enter into treaties and make legal claims before
international and domestic courts. Personality signifi es that an entity has certain rights
and (potentially) responsibilities. International personality is crucial in order to be able
to undertake the modern breadth of diplomatic activities such as becoming a member
of the UN and other interstate organizations, accessing certain international tribu-
nals, and making legally- enforceable agreements including contracts and treaties. (It is
important to note that while all sovereigns have some form of international personal-
ity, not all entities with some form of international personality are sovereign.)

As the state became the pinnacle of the international system in the wake of
Westphalia, so the goal of many national movements became achieving statehood.
Although there is no single text that explains what is required to be a state, the 1933
Convention on the Rights and Duties of States, better known as the Montevideo
Convention, sets forth a series of benchmarks that are generally accepted in the
international community. An entity that claims to be a state should possess the fol-
lowing qualifi cations:

1. a permanent population;

2. a defi ned territory;

3. government; and

4. capacity to enter relations with other states.

Each of these terms potentially presents its own set of problems. For example, what
does it mean for a territory to be ‘defi ned’? What if the borders of an entity are in
dispute, such as the boundary between Niger and Benin in Africa? Does that mean
that neither Niger nor Benin are states for not having a defi ned territory? Or what
of the disputes over Israel’s borders?

While questions such as these can be the fodder of much political debate and rhetoric,
international lawyers try to discern principles from state practice. For example, while
many states may have border disputes, a border dispute is not the same as question-
ing whether or not an entity has any territory. A rule stating otherwise would throw
the international system into turmoil as the status of many states would be put into
question. The legal interpretation of these terms is linked to a pragmatic appreciation

States and international law 195

of what is or is not workable. At the same time, legal principles affect international
relations by acting as a litmus test for which entities are or are not states.

Professor Martti Koskenniemi, an international lawyer and former diplomat, con-
trasts what he calls the ‘legal approach’ to sovereignty—in which law exists prior to,
and thus regulates, state sovereignty—with the ‘pure fact approach’—in which sover-
eignty is external to law and thus law must bend to sovereign will, not vice versa. Realist
and rational approaches in international relations, in this respect, are akin to ‘pure fact
approach’ as they do not make any space for international law in this fi eld because
they regard that the question of becoming a state is determined by material conditions
and pre- calculated responses of other states in the international system. Under the legal
approach, law does play a role in defi ning the criteria for the emergence and dissolution
of states. Many UN instruments and documents use the rhetoric of the legal approach.
Koskenniemi, however, argues that sovereignty doctrine is based on neither one nor the
other solely, but rather oscillates between the two. For example, the pure fact of occupy-
ing a certain territory does not in itself create a state if other states do not accept that this
act meets the criteria for statehood (Koskenniemi 2005: 228–31).

This leads us to the question of recognition of statehood and its role in interna-

tional relations.

What is the recognition of statehood?

If an entity meets the criteria listed in the Montevideo Convention, is it a state? The
answer to this question is not clear, neither in theory nor in practice. Entities claim-
ing statehood also seek formal ‘recognition’ of their statehood by other states. The
recognition of a state is the decision by one state to accept that another state has
come into existence, such as, for example, the recognition by France of the establish-
ment of Bangladesh as a state. The general view is that recognition is not a formal
requirement of statehood. Rather, recognition merely accepts a factual occurrence.

Box 9.1 Recognition of governments

The recognition of a state should not be confused with the recognition of a government,
which refers to the formal recognition that there has been a change of government—
perhaps under diffi cult circumstances such as a coup or a revolution—within an existing
state. The 1979 Iranian revolution leading to the establishment of the Islamic Republic as
the new government of the continuously existing state of Iran is an example of a situation
that brings into question whether or not to recognize a government.

196 Part III Topics in international law

This is sometimes called the ‘declaratory’ view of recognition. By contrast, the ‘con-
stitutive’ view is that recognition is a requirement for juridical statehood.

Although recognition is not a formal requirement of statehood, it is very impor-
tant nonetheless. The extent to which a new state is able to participate in the interna-
tional community is, in practice, largely determined by the extent of its relationships
with other states. Such bilateral relationships are based upon mutual recognition.
However, although under the declaratory view recognition is supposedly apolitical
and merely the acceptance of a factual occurrence, no state is required to recognize
an entity claiming statehood. The giving or withholding of recognition is an act
with signifi cant political ramifi cations.

By recognizing an entity as a state, the recognizing state gives its opinion that
the entity meets the requirements under international law for statehood. But when
an entity is not generally recognized, its position in the international system is put
into question. It will have diffi culty joining international organizations, such as the
WTO, or receiving assistance from international fi nancial institutions, such as the
World Bank or the International Monetary Fund. Entities with a contested status
may be prevented from joining the UN. Similarly, any country that does not recog-
nize a putative state will not accord that entity sovereign immunity. Thus, although
recognition is not a formal requirement of statehood, the lack of recognition—espe-
cially by politically powerful states such as the US, Russia, or EU member states—
can signifi cantly narrow the future prospects of an entity claiming statehood.

Whether or not one state chooses to recognize another state is, as a matter prac-
tice, largely a question of politics. While international law provides guidelines for
when a state should or should not recognize another state, there is little risk of
formal sanctions if those guidelines are transgressed. States do face two other risks,
though. The fi rst is the reputational harm that may be associated with a question-
able recognition or non-recognition. For example, a state that recognizes a separa-
tist entity that does not really have the characteristics of statehood may be viewed as
supporting unlawful behaviour and it may fi nd its own moral authority damaged in
diplomatic negotiations on related or unrelated issues. Second, any arguments that
a state makes in regards to recognition or non-recognition may come back to haunt

Box 9.2 Secession versus succession

The state system is not static. In 1960, there were about one hundred states. Today there
are over 190. States appear and disappear through decolonization, merger into new states,
absorption of one state into another, secession, and dissolution, among other possible

States and international law 197

it in regards to other entities. For example, some have said that Russia’s arguments
for recognition of South Ossetia (discussed in Case Study 9.2) could cause it prob-
lems in regards to Chechen separatists. Legal arguments are double-edged swords.

However, although an entity may not be a recognized state, and thus may not
enjoy (as a practical matter) all the fruits of statehood, it is important to note that
being unrecognized does not excuse an entity from various norms of international
law. For example, entities with effective control of territory will be considered
responsible for the protection of human rights within that territory.

With the rise of the Westphalian system, states became the most important enti-
ties in global political relations. Non- state actors defi ned primarily by ethnicity,
religion, or geography were comparatively marginalized. At times such groups, in
seeking the fruits the Westphalian system had to offer, sought to become states. In
the next section, we will consider the evolving concept of self- determination and
how it relates to statehood. We will then turn to the most diffi cult of political dilem-
mas in this regards: the problem of secession.

International law of self-determination

Self- determination is a concept that sits uneasily within the state- centric Westphalian
system. On the one hand, arguments based on self- determination have been used to
try to form new states. This use of self- determination exemplifi es that statehood is
the ‘gold standard’ of the international system. However, groups seeking statehood
also use the principle of self- determination to justify why they should be able to
separate part of the territory from an existing state and use that for the territory of a
new state. These justifi cations implicitly (and sometimes explicitly) claim that there
are times in which the prerogatives of statehood itself can be trumped by claims of
self- determination such that a state will lose sovereignty over part of its territory.
This is the problem of secession.

Before turning to this diffi cult question, though, we need to consider the law and
the political rhetoric of self- determination.

actions. The rules of state succession govern the transfer of rights and obligations from
one state to another when one of these evolutionary processes takes place. Secession is
thus a method by which a new state can be formed while the rules of succession pertain to
apportionment of rights and duties in any instance of state formation.

198 Part III Topics in international law

Self- determination: from political rhetoric to legal right

While the roots of the concept of self- determination include the American
Declaration of Independence (1776) and the French Revolution (1789), the concept
became emphasized in modern international politics via various speeches (includ-
ing the Fourteen Points and the Four Principles speeches) made by US President
Woodrow Wilson in the closing days of World War I (1918). However, the use of
the term led to more confusion than clarity at Versailles:

‘When the President [Woodrow Wilson] talks of “self-determination” what unit
has he in mind? Does he mean a race, a territorial area, or a community?’ It was a
calamity, [Secretary of State Robert] Lansing thought, that Wilson ever hit on the
phrase. ‘It will raise hopes which can never be realized. It will, I fear, cost thousands
of lives. In the end it is bound to be discredited, to be called the dream of an idealist
who failed to realize the danger until it was too late to check those who attempt to
put the principle into force.’ (Macmillan 2002)

As exemplifi ed in this quote, Woodrow Wilson’s Secretary of State, Robert Lansing,
was prescient in his framing of the issues that would spin forth from the principle of
self- determination. Who has a right to self-determination? Who does not? As a mat-
ter of right, to what lengths can one go in seeking self-determination? Secession?
War? These questions plagued the American negotiators after World War I, and
would continue to be at issue, to varying degrees, into the twenty- fi rst century.

While Woodrow Wilson’s Fourteen Points highlighted the ideal of self-
determination, the United Nations Charter re- emphasized the term. In Article 1,
para. 2 it states that one of the purposes of the UN is:

To develop friendly relations among nations based on respect for the principle of
equal rights and self- determination of peoples, and to take other appropriate meas-
ures to strengthen universal peace . . .

While self- determination was an important political principle pertaining to the
founding of the UN, it was not clear that it was a legal right that could be used by
individuals or groups to make claims.

However, the concept of self- determination was subsequently included in Article
1 of both the International Covenant of Civil and Political Rights (ICCPR) and the
International Covenant of Economic, Social, and Cultural Rights (ICESCR), the
cornerstone treaties of international human rights law. Article 1 of these treaties,
both of which were concluded in 1966, states:

All peoples have the right of self- determination. By virtue of that right they freely
determine their political status and freely pursue their economic, social and cultural
development.

States and international law 199

This ‘legalized’ the concept of self- determination, taking it out of the realm of mere
aspiration or rhetoric. However, there was still the question of what the scope of
this right would be—who can claim a right to self- determination and what does
that right entail?

Applying self- determination to international relations:
who or what has a right of self-determination?

Various experts have argued that self- determination was understood in the 1960s as
simply another term for decolonization. Thus, the phrase ‘all peoples have the right of
self-determination’ should be understood to mean that all colonies have the right to be
independent. While this interpretation was useful for a time, as the era of decolonization
ended, the question of how one should defi ne ‘peoples’ became more contentious.

As the Canadian Supreme Court put it in an opinion concerning the legal rami-
fi cations of a possible secession of Quebec, the meaning of ‘peoples’ is ‘somewhat
uncertain’.1 That is an understatement. At various points in international legal his-
tory, the term ‘people’ has been used to signify, among others, citizens of a nation
state, the inhabitants in a specifi c territory being decolonized by a foreign power, or
an ethnic group.

Modern interpretation has shied away from a purely ethnographic defi nition of
‘peoples’ as it would not take into account, for example, whether the citizens of a
multi- ethnic state are a ‘people’. Others have argued that ethnicity- based defi ni-
tions could lead to inter- communal strife. Various commentators have attempted to
reframe the analysis by defi ning the idea of ‘the self- determination of peoples’ on
non- ethnographic terms. For example, Professor James Crawford of Oxford argues
that groups with a right to self- determination include:

1. colonies;

2. states;

3. distinct political- geographical areas within existing states, whose inhabitants
are arbitrarily excluded from any share in the government such that these
territories are essentially non- self-governing; and

4. any other territories or situations where the parties have agreed to apply the
concept. (Crawford 2006: 127).

Therefore, all the citizens of a multi- ethnic state would, by category (2), be one peo-
ple. But, even if we accept this dynamic defi nition of ‘people’, we still need to assess
what the right of self- determination would actually entail. In other words, does
self- determination include a right to secede from an existing state?

200 Part III Topics in international law

Applying self- determination to international relations:
the territorial integrity of states

The territorial integrity of states is ensured in Article 2(4) of the UN Charter which

states:

All Members shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any state, or in any
other manner inconsistent with the Purposes of the United Nations.

Similarly, the Helsinki Final Act also provided for inviolability of borders, although
it does allow for border changes if through peaceful means and based on an agree-
ment among the parties involved.

Related to this is the legal principle uti possidetis juris. Originally used in the
decolonization of Latin America in the nineteenth century, uti possidetis meant
that former colonies that achieved independence would have the same borders as
the boundaries it had as a colony. This principle was subsequently applied in the
decolonizations of the twentieth century, and, with greater controversy, to the newly
independent states after the end of the Cold War. In this last case, the pre- existing
boundaries used were not colonial borders, but the administrative boundaries used
within the USSR or Yugoslavia.

While the ICJ has noted that uti possidetis is a relevant principle in inter-
preting the application of self- determination, others argue that it is of little
consequence. These jurists explain that uti possidetis defines the borders of a
state at the time of independence. It has no bearing as to whether or not an
entity may secede from an existing state. All states, regardless as to whether
they were formed by decolonization or by other means, have a right to ter-
ritorial integrity; the concept of uti possidetis does not add anything to this,
according to these jurists.

Between the prohibition of the use of force to change borders in the UN Charter
and, possibly, the rule of uti possidetis, has secession effectively been declared illegal
under international law?

The problem of secession in international
law and international relations

Secession is the separation of part of the territory of an existing state so that that
territory may itself become a new state. The pre- existing state continues on, minus
the territory that has seceded.

States and international law 201

Box 9.3 Secession versus dissolution

Secession from a state is not the same as the dissolution of a state. Dissolution is when a
state ceases to exist. Its territory may be reorganized as one or more new states, but the
prior state no longer exists.

During the Yugoslav War, the European Community established the Arbitration Commis-
sion of the Peace Conference on Yugoslavia, better known as the ‘Badinter Commission’, to
resolve questions of international law that arose from the confl ict. According to the Com-
mission’s fi ndings, the Socialist Federal Republic of Yugoslavia was already in the process
of dissolution at the time fi ghting began. As such, Croatia and Bosnia had not attempted
to secede, they merely proclaimed their sovereignty during a time of the dissolution of
Yugoslavia. The USSR’s transformation into the newly independent states is another exam-
ple of dissolution. By contrast, the confl icts over South Ossetia and Abkhazia (in Georgia),
Northern Cyprus, and Transnistria (in Moldova) are considered attempted secessions, as
the parent state still exists in each case.

The majority view: no right of secession

In 1970, the UN General Assembly passed General Assembly Resolution
2625, the Declaration on Principles of International Law Concerning Friendly
Relations and Co- operation among States in Accordance with the Charter of the
United Nations, better known as the Friendly Relations Declaration.2 This spe-
cial resolution was passed at the twenty- fi fth anniversary of the founding of the
United Nations to restate the basic principles of the organization. After defi ning
self- determination in language similar to the ICCPR and the ICESCR, it then
goes on to state:

Nothing in the foregoing paragraphs shall be construed as authorizing or encourag-
ing any action which would dismember or impair, totally or in part, the territorial
integrity or political unity of sovereign and independent States conducting them-
selves in compliance with the principle of equal rights and self- determination of peo-
ples as described above and thus possessed of a government representing the whole
people belonging to the territory without distinction as to race, creed or colour.

From the birth of the United Nations, diplomats and jurists emphasized that a
right of self- determination was not a ‘right of secession’. The drafting committee for
the UN Charter noted that ‘the principle [of self- determination] conformed to the
purposes of the UN Charter only insofar as it implied the right of self- government
of peoples and not the right of secession’ (Cassese 1995: 40).

202 Part III Topics in international law

By this interpretation, self- determination is a right of ‘internal self-determination’:
meaningful participation in the political, economic, and cultural life within one’s
state. This is contrasted with ‘external self-determination’, or the ability to separate
and start a new state. Among the various self- determination units described above,
only colonies have a right to external self- determination. And, of course, a section of a
state may separate from and leave a pre- existing state with the consent of that state.

A Commission of Experts convened by Quebec’s National Assembly to assess the

legal issues related to a hypothesized secession of the province concluded:

For colonial peoples, this choice [over one’s destiny] includes the possibility of inde-
pendence; for others, that possibility is precluded, but at the same time it implies the
right to one’s own identity, the right to choose and the right to participate: ‘It also, at
least for now, stopped being a principle of exclusion (secession) and became one of
inclusion: the right to participate. The right now entitles peoples in all states to free,
fair and open participation in the democratic process of governance freely chosen by
each State’. Identity and democracy are its two essential components, but not inde-
pendence except—according to certain authors who express this view with caution—
in the case of an extremely serious and continued denial of the right so defi ned.3

The concern of many experts is that if there was a right to secession, it would
cause a downward spiral in the state system. Aggrieved groups within existing
states would make realistic (or unrealistic) claims of a right to secession assuming
some of those claims were successful, aggrieved groups within newly formed states
may then make their own realistic (or unrealistic) claims that they have a right
to secession, and so on. Rather than the roughly 190 states that exist today, we
would have a world of hundreds, if not thousands, of microstates. The coordina-
tion problems would be immense.

Nonetheless, one cannot say that international law makes secession illegal. While
secession does not operate as a right (according to the majority view), it is not pro-
hibited by international law. Rather, attempted secessions are, fi rst and foremost,
considered internal matters that are regulated by domestic law.

International law, by contrast, is largely silent regarding secession. However, under
certain circumstances a secessionist dispute may implicate international law:

• when a new entity seeks recognition as a sovereign state (in which case there
are rules for recognition or non-recognition);

• the establishment of an armed insurgency (in which case there are the laws of
armed confl ict);

• if there is a threat to international peace and security (which would thus
likely become an issue for the UN Security Council);

States and international law 203

• if another state intervenes militarily to aid the separatists (which would likely
be a violation of the UN Charter); or

• if the secessionist group becomes a de facto regime (discussed below).

There are also ongoing obligations under international law regarding the monitoring
and enforcement of human rights norms. But, according to the mainstream view, out-
side of decolonization there is no right to be able to secede from an existing state.

The reply: the ‘extreme cases’ argument

While the dominant view is that there is no right to secession, some jurists con-
tend that in certain circumstances a people do have a right to ‘remedial’ secession,
which is sometimes referred to as ‘external self-determination’. The argument
that self- determination gives a remedy of secession outside the colonial context is
highly controversial.

Proponents of remedial secession often refer to the Friendly Relations Resolution
of the UN General Assembly, described above. As mentioned earlier, the resolution
excludes secession as a means of forming a sovereign state when the existing state
respects equal rights and the self- determination of peoples. Rather than emphasiz-
ing the ban on secession, as the mainstream jurists do, those supporting remedial
secession emphasize the caveat that secession is not a remedy only when the exist-
ing state respects internal self- determination. This is viewed as implying that when
the state does not respect internal self- determination, external self- determination
may be an option. This caveat of the Friendly Relations Resolution has been reiter-
ated in the 1993 Declaration of the UN World Conference on Human Rights and
the General Assembly Declaration on the Occasion of the Fiftieth Anniversary of
the UN in 1995 (Tomuschat 2006a: 34–5).

This interpretation may have found its way into state practice in re Secession of
Quebec, the advisory opinion issued by the Supreme Court of Canada on the issue
of secession. The Canadian court found that ‘[a] right to external self- determination
(which in this case potentially takes the form of the assertion of a right to unilateral
secession) arises only in the most extreme cases and, even then, under carefully
defi ned circumstances . . .’4

While the form of what a rule of external self- determination would look like is a
bit hazy, any attempt to claim a situation where secession trumps territorial integ-
rity must at least show that:

1. the secessionists are a ‘people’ (as defi ned in a manner recognized by the
international community);

204 Part III Topics in international law

2. the state from which they are seceding seriously violated their human rights; and

3. there are no other effective remedies under either domestic law or
international law.

Some may also argue that the entity seceding must be a contiguous territory with
defi nable borders.

Those arguing in favour of secession as a remedy admit that state practice is
thin but claim support from the case of Bangladesh and possibly from the case of
Kosovo.

Secession and state practice

Besides the legal issues, as a matter of practice secession is disfavoured by the
international community. Aside from instances of decolonization, the only clear
case since World War II of a secession contested by a pre- existing state that was
both successful ‘on the ground’ and was accepted and recognized by a signifi –
cant portion of the international community is Bangladesh. (Eritrea may also be
considered a successful secession, although some would say that (1) it was only
part of Ethiopia due to a UN programme, thus placing it in a different category
from separatist projects that well up within the domestic sphere of an estab-
lished state and (2) the Ethiopian government ultimately accepted the separa-
tion, albeit after a protracted confl ict.) We will consider the cases of Kosovo and
South Ossetia at the end of this chapter.

Some unsuccessful attempted secessions, such as Northern Cyprus, have
nonetheless resulted in territories being separated from their pre- existing states
for decades. Yet, they are considered unsuccessful to the extent that they are
not welcomed by the international community as sovereign states. Diplomatic
practice shows us that military success ‘in the fi eld’ does not necessarily lead to
political legitimacy and the recognition of statehood. This observation can both
support that states have been socialized to be suspicious of secession, as con-
structivist international relations would suggest, or that this is a self- protecting
behaviour in order not to encourage secession against oneself as rationalist
international relations scholars would suggest. Regardless of the approach one
pursues, we can say that there is a strong overlap between the international law
on secession and state behaviour.

In the next section we will consider the legal and political implications in state
recognition.

States and international law 205

Box 9.4 Unsuccessful attempted secessions since 1945 (a partial list)

• Nagorno- Karabakh (Azerbaijan)
• Republika Srpska (Bosnia Herzegovina)
• The Karen and Shan states (Burma)
• Tibet (China)
• Katanga (Congo)
• Turkish Federal Republic of Northern Cyprus (Cyprus)
• Abkhazia (Georgia)
• East Punjab (India)
• Kashmir (India)
• Kurdistan (Iraq/Turkey)
• Anjouan (Islamic Republic of the Comoros)
• Gagauzia (Moldova)
• Transnistria (Moldova)
• Biafra (Nigeria)
• Bougainville (Papua New Guinea)
• Chechnya (Russian Federation)
• Somaliland (Somalia)
• Tamil Elam (Sri Lanka)
• South Sudan (Sudan)
• Democratic Republic of Yemen (Yemen)

List adapted (with adjustments) from Crawford (2006).

Recognition and secession

In arguments over attempted secessions, the issue of legality often shifts from the
question of the legality of the secession itself, to the issue of whether or not to rec-
ognize the seceding entity as a new state. A frequent reason for not recognizing an
entity as a new state is if it originated from an act contrary to international law.
Territorial changes caused by the use of force are generally seen as unlawful and
will not be recognized.

An example of this could be the reaction of the international community to Turkey’s
invasion of Cyprus in 1974 that led to the proclamation of the Turkish Federated
State of Cyprus (TFSC).While the Security Council did not call for non- recognition
of the TFSC, in Security Council Resolution 367 (1975) it did note its regret over
the proclamations of the TFSC and did say that no action should be taken by any
member state of the UN that would divide the island. The situation further devolved

206 Part III Topics in international law

with the November 1983 proclamation by what had been the TFSC that the now
newly named Turkish Republic of Northern Cyprus (‘TRNC’) was an independent
state. Security Council Resolution 541 (1983) called upon states not to recognize
any Cypriot state other than the Republic of Cyprus. Only Turkey has recognized
the TRNC and the Security Council called the proclamation ‘invalid’.

A second reason for not recognizing an entity as a state is its lack of independence
in relation to another state. For example, but for Russian assistance, including mili-
tary assistance, energy subsidies, and diplomatic cover, the so- called Transnistrian
Moldovan Republic (or ‘TMR’), the group seeking to secede from Moldova, would
probably not be able to survive as a separate entity. The TMR is not recognized by
any other UN member state.

Beyond the issue as to whether a state fi nds it prudent to recognize a new entity as
a state, there is the question of whether recognition of a secessionist entity can itself
be an illegal act. While some jurists argue that granting recognition of a new state
that was formed by an illegal act (usually due to an illegal invasion or occupation)
would perpetuate and actually reward that illegal activity, state practice has been
mixed in this regard, especially if the illegal act seems irreversible.

The question that remains is: what is the legal status of an entity that controls
territory but remains largely unrecognized?

De facto regimes

Entities that have taken control of territory but have not been recognized as states
are called de facto regimes. They possess some, but not all the attributes of state-
hood. Their unique status does give rise to certain rights and responsibilities.

A de facto regime may undertake normal acts required for the support of its
population and it may conclude agreements that are held at a status below treaties.
However, while the de facto regime has certain rights and responsibilities, acts by
de facto regimes have uncertain legal effectiveness (unlike the acts of actual states).
As they are not recognized states, it is harder to enforce the decisions of de facto
regimes through the courts of established states. Moreover, if the de facto regime
(that is, the partially seceded entity) becomes reintegrated with the state from which
it was seeking separation, any agreement or contract of the de facto regime becomes
invalid. The only exception is that the reintegrated state may be held liable for the
acts of the de facto regime that were ‘part of the normal administration of the ter-
ritory concerned’ on the assumption that such acts were neutral (Frowein 1992:
966–98).

If, on the other hand, the de facto regime becomes a state, then its acts will be
binding on the new state.

States and international law 207

Conclusion

Since the Treaty of Westphalia, states have been at the centre of the international
system and of classic international law. The concepts of sovereignty and territorial
integrity capture important aspects of the characteristics of statehood. Based on the
Montevideo Convention, a state must have a permanent population, a defi ned terri-
tory, a government, and the ability to enter into international relations.

States note the arrival of new states through a process of recognition. The
declaratory view of recognition holds that recognition is not required for state-
hood. If an entity is not recognized, it has little ability to have diplomatic rela-
tions, join international organizations, and undertake many activities that are
common for states.

Self- determination has evolved from being political rhetoric to an inter national
legal right. The right of self- determination may be claimed by a ‘people’, a term
which has different meanings in different circumstances. Self- determination
allows a p eople to participate meaningfully in their political system and freely
pursue their economic, social, and cultural development. Applying the right
of self-determination itself can lead to different results in different contexts.
Self- determination for colonized peoples allows for the ability to separate the
c olony from the c olonial state so that the colony may gain independence and
become a sovereign state. For a state as a whole, self- determination means the
right to be free from external interference in its pursuit of its political, e conomic,
and social goals. For c ommunities that are not colonies and within e xisting
states, self- determination means ‘internal self-determination’, the p ursuit of
minority rights within the existing state. Some argue that in non- colonial cases,
self- determination may also allow for s ecession under ‘extreme cases’ and
‘c arefully defi ned circumstances’. This is highly contested.

Thus, self- determination is not a general right of secession. However, secession
is not prohibited by international law; it is simply treated as a fact that may or
may not have occurred. This chapter has aimed to provide an overview of the most
relevant debates relating to these complex issues.

Case Study 9.1 Kosovo

On 17 February 2008, the Parliament of Kosovo declared Kosovo’s independence from
Serbia. Kosovo had been a majority Albanian province (with a Serb minority) within
Serbia and its predecessor states. Kosovo became an autonomous province in 1963
and remained as such until autonomy was rescinded in 1989. Throughout the 1990s,

208 Part III Topics in international law

Kosovar Albanians sought either a restoration of autonomy or independence. In 1998,
the Serb Government initiated police and military actions in the province, resulting in
widespread atrocities. In March 1999, the North Atlantic Treaty Organization (‘NATO’)
launched a controversial air campaign to force the Serb Government to withdraw the
police and military. In the aftermath of NATO’s intervention, the UN Security Council
passed Resolution 1244, which authorized the UN’s administration of Kosovo and set
out a general framework for resolving the final political and legal status of Kosovo.
While Security Council Resolution 1244 had language relating to resolving the ongoing
conflict over Kosovo and that, pending determination of Kosovo’s final status, Kosovo
should have substantial autonomy within Serbia, the resolution did not use the term
‘self-determination’. For the next nine years, the UN participated in the administration
of Kosovo, while political negotiations over the final status of the territory were large-
ly inconclusive. In December 2007, the mediators announced the process had ended
in an impasse. On 17 February 2008 the Assembly of Kosovo declared Kosovo’s inde-
pendence. While the US, Great Britain, France, Germany, and a host of other countries
formally recognized Kosovo as a sovereign state, Serbia, Russia, Romania, Moldova,
Cyprus, and other states have argued that Kosovo’s secession and/or the recogni-
tion of that secession would be a breach of international law. The day after Kosovo’s
Parliament declared independence, Secretary of State Condoleezza Rice announced
that the US recognized Kosovo as an independent state and further explained:

The unusual combination of factors found in the Kosovo situation—including the
context of Yugoslavia’s breakup, the history of ethnic cleansing and crimes against
civilians in Kosovo, and the extended period of UN administration—are not found
elsewhere and therefore make Kosovo a special case. Kosovo cannot be seen as prec-
edent for any other situation in the world today. 1

Even prior to the declaration of independence, Russian Foreign Minister Sergei Lavrov called
a potential Kosovar secession a ‘subversion of all the foundations of international law, . . .’2
The majority of states have positions somewhere in between these two poles. As of the
time of this writing, sixty-two states have recognized Kosovo’s independence.

At the moment, it is too early to tell what the long- term impact of Kosovo’s independ-
ence and the widespread recognition of Kosovo’s independence will be. The legal question
has come to the forefront as on 8 October 2008, at the request of Serbia, the UN General
Assembly by a vote of 77 for, 6 against, and 74 abstaining, asked the International Court of
Justice to provide it with an advisory opinion on the question: ‘Is the unilateral declaration of
independence by the Provisional Institutions of Self- Government of Kosovo in accordance
with international law?’

1United States Recognizes Kosovo as Independent State, Statement of Secretary of State Condoleezza
Rice, Washington DC (18 February 2008) available online at <http://www.america.gov/st/texttrans-
english/2008/February/20080218150254bpuh5.512637e-02.html> (visited 7 March 2009).
2Paul Reynolds, Legal Furore over Kosovo Recognition (BBC News 16 February 2008), available online at
<http://news.bbc.co.uk/2/hi/europe/7244538.stm> (visited 13 April 2009).

States and international law 209

Case Study 9.2 South Ossetia

In the months leading up to Kosovo’s declaration, South Ossetia and Abkhazia, two separa-
tist enclaves within the former Soviet Republic of Georgia, became more vociferous in their
own calls for independence. South Ossetians are ethnically distinct from Georgians and
have comprised a semi- autonomous community within Georgia for 700 years. In the Soviet
era, they were an ‘autonomous region’, a status that granted certain limited autonomy
within Georgia, which was a hierarchically superior ‘Union Republic’ with greater rights of
sovereignty.

In the aftermath of the break- up of the Soviet Union, Georgia was recognized interna-
tionally as a sovereign state with the same borders that it had as a Union Republic within
the USSR. Tensions between the South Ossetian community and the Government of Geor-
gia, which had fl ared at times under the Soviet Union, rose to a new high after independ-
ence. A civil war erupted and Russia intervened, assisting South Ossetia. Since 1992, South
Ossetia has been effectively separated from the rest of Georgia, and Russia has maintained
a military presence there. At no point until 2008 did any UN member state recognize South
Ossetia as a sovereign state.

Over the course of the spring and summer of 2008, tensions once again increased
between the Government of Georgia and South Ossetia. There is much controversy
over different versions of the events. Russia contends that in the first week of August,
Georgia began unprovoked shelling of cities in South Ossetia. Georgia, for its part,
maintains that throughout that summer there had been numerous provocations from
the South Ossetians, including the use of deadly roadside bombs and other attacks.
Russia claimed that the Georgian shelling targeted, among other things, Russian
peacekeepers in the region. The Georgian leadership responded that Russian troops
were not targeted but notes that the Russian troops often actively supported South
Ossetian forces.

What is clear is that on 8 August 2008, the Russian military crossed out of South
Ossetia in force and began a military campaign that ranged through much of Georgia,
attacking major ports and cities and coming within kilometres of Tbilisi, the Georgian
capital. After a brokered ceasefire, Russian forces returned to their bases in South
Ossetia. On 26 August 2008, Russia officially recognized both South Ossetia and Abk-
hazia (another separatist entity in Georgia) as sovereign states. In September it signed
Treaties of Friendship, Cooperation and Mutual Assistance with each. Nicaragua has
also recognized the statehood of these territories. As of this writing Nicaragua and
Russia are the only two states to recognize South Ossetia or Abkhazia.

Russian President Dmitri Medvedev explained Russia’s actions by stating that ‘“sover-
eignty is based on the will of the people” and “territorial integrity can be demonstrated
by the actual facts on the ground”.’ He further explained that Russia was not denying the
principle of territorial integrity as one of the fundamental principles of international law, it
was just recognizing the ‘specifi c situation’ that it is unlikely that the South Ossetians can
live in a single state with the Georgians.

210 Part III Topics in international law

Questions

1. How does international law defi ne states? Does this legal defi nition adequately
capture political reality?

2. What is the difference between the recognition of statehood and the recognition of a
government?

3. Can international law regulate the recognition of states? Can it regulate the
recognition of governments? Why or why not?

4. How do self- determination, secession, minority rights, and sovereignty relate to each
other?

5. What does it mean to say that self- determination is no longer a political
ideal but a legal right? What purposes may be served by ‘legalizing’ self-
determination?

6. What may be some of the political or diplomatic consequences of using the various
defi nitions of ‘people’ for the purposes of self-determination?

7. How can self- determination be defi ned today?

8. Are secession or any issues related to secession regulated by international law? If such
regulation exists, is it effective?

9. Assess the arguments, both legal and political, for and against the concept of
‘remedial’ secession.

Foreign Minister Lavrov also stated, regarding Russia’s recognition of South Ossetia, that
(as paraphrased in press reports) ‘Georgia’s territorial integrity was destroyed by Geor-
gian President Mikhail Saakashvili himself when he decided to order a bombardment of a
peaceful town in South Ossetia last summer’.1

If we accept the international borders of Georgia at the time of the dissolution of the
USSR, then the relevant self- determination unit would be the state of Georgia and the ‘peo-
ple’ are all the people of Georgia (including South Ossetia and the rest of Georgia). Even if
we were to defi ne the inhabitants of South Ossetia as a separate people, inasmuch as South
Ossetia is recognized as part of Georgia, then the traditional view is that self- determination
only allows for minority rights within the existing state, not secession from that state. Thus,
for Medvedev’s implied argument to be correct, even if South Ossetians are a people for the
purpose of the law of self- determination, one would also have to agree that ‘external self-
determination’ or secession can be a remedy in cases besides decolonization. In such a case,
the South Ossetians would need to show that they suffer extreme and persistent abuses by
the Government in Tbilisi and that there is no other option for resolving this crisis.

1Russia Steadfast on Kosovo, B92 Online (17 February 2009), available online at <http://www.b92.net/eng/
news/politics-article.php?yyyy=2009&mm=02&dd=17&nav_id=57224> (visited 25 February 2009).

States and international law 211

10. Does Kosovo meet the legal requirements of statehood? Does Taiwan?

11. What are the strongest arguments in favour of the illegality of the recognition of
Kosovar independence? What, by contrast, are the best arguments in favour of the
claim that recognition of Kosovo’s independence is legal?

12. How strong or weak are Medvedev’s and Lavrov’s arguments justifying Russian
recognition of South Ossetia?

13. Can a state make a legal argument for the recognition of Kosovo but the non-
recognition of South Ossetia? Vice versa?

Further reading

Cassese, A. (1995) Self- Determination of Peoples:
A Legal Reappraisal (Cambridge: Cambridge
University Press). An infl uential text; Cassese
subsequently became a judge on the Interna-
tional Court of Justice.

Crawford, J. (2006) The Creation of States in
International Law, 2nd edn. (Oxford: Oxford
University Press). A comprehensive examina-
tion not only of how states are created, but of
sovereignty and statehood itself.

Grant, T. D. (1999) The Recognition of States:
Law and Practice in Debate and Evolution
(Santa Barbara, CA: Praeger Publishers). A
comprehensive analysis of recognition as a
matter of political practice and law.

Hannum, H. (1996) Autonomy, Sovereignty, and
Self- Determination: The Accommodation of
Confl icting Rights (Philadelphia, Pennsylvania:
University of Pennsylvania Press). A good set
of historical case studies.

Kohen, M. G. (ed.) (2006) Secession: Internation-
al Law Perspectives (Cambridge: Cambridge
University Press). An excellent collection of
essays from a variety of viewpoints on issues
of secession and self- determination.

Lalonde, S. (2002) Determining Boundaries
on a Confl icted World: the Role of Uti Pos-
sidetis (Montreal: McGill-Queen’s University
Press). Historical overview of the concept

of uti possidetis and issues in its current
application.

Lynch, D. (2004) Engaging Eurasia’s Separatist
States: Unresolved Confl icts and De Facto
States (Washington, DC: United States Insti-
tute of Peace Press). Discusses the concept
of de facto regimes in the context of the
separatist confl icts in Georgia, Moldova, and
Azerbaijan.

Summers, J. (2007) Peoples and International
Law: How Nationalism and Self- Determination
Shape a Contemporary Law of Nations (Lei-
den: Martinus Nijhoff). A comprehensive
history of the evolution of the concept of
self- determination.

Weller, M. and Metzger, B. (eds.) (2008) Set-
tling Self- Determination Disputes: Complex
Power- Sharing in Theory and Practice (Leiden:
Martinus Nijhoff). Presents a variety of case
studies in self- determination confl icts with a
particular emphasis on power sharing as a
confl ict resolution mechanism.

Wilde, R. (2008) International Territorial
Administration: How Trusteeship and the
Civilizing Mission Never Went Away (Oxford:
Oxford University Press). Looks at the role
of trusteeship and international territorial
administration in relation to post- confl ict
societies, self- determination, and issues of
sovereignty.

212 Part III Topics in international law

1. re Secession of Quebec [1998] 2 SCR 217
(Canada) at ¶ 123 (1998).

2. Declaration on Principles of Interna-
tional Law Concerning Friendly Relations and
Co- operation among States in Accordance with
the Charter of the United Nations, GA Res.
2625 (XXV).

3. Thomas M. Franck et al. (2000) ‘The Ter-
ritorial Integrity of Quebec in the Event of the
A ttainment of Sovereignty’, in Anne F. B ayefsky,
ed., Self-Determination in International Law:
Quebec and Lessons Learned 241, at Sec. 3.08
(Kluwer).

4. Secession of Quebec at ¶ 123.

Websites

http://www.eisil.org/index.php?sid=438841738&cat=188&t=sub_pages Electronic Information Sys-
tem for International Law (EISIL) page on ‘Self-Determination’. Includes links to primary sources,
websites, and research resources.

http://www.eisil.org/index.php?sid=438841738&cat=14&t=sub_pages Electronic Information Sys-
tem for International Law (EISIL) page on ‘States and Groups of States’. Includes links to subheadings,
each of which includes primary sources, websites, and research resources.

http://www.unhchr.ch/html/menu2/i2intslf.htm The Offi ce of the High Commissioner for Human
Rights provides a compilation of documents and news relating to self- determination.

http://www.unmikonline.org/ This site provides information on the mandate and activities of the
United Nations Interim Administration Mission in Kosovo, which was established after the 1999
NATO campaign.

http://avalon.law.yale.edu/20th_century/wilson14.asp The Avalon Project of Yale University
webpage for the Woodrow Wilson Fourteen Points speech.

http://avalon.law.yale.edu/20th_century/intam03.asp The Avalon Project webpage for the 1933
Convention on the Rights and Duties of States, also known as the Montevideo Convention.

http://www.un.org/en/members/index.shtml UN webpage listing all member states.

Visit the Online Resource Centre that accompanies this book to access more learning resources
www.oxfordtextbooks.co.uk/orc/cali/

Chapter endnotes

Chapter 10

Use of force in international law
Nigel Rodley and Başak Çalı

CHAPTER CONTENTS

• Introduction

• The general framework on the use of force in international law

• Self-defence

• The use of force, self- defence, and non- state actors

• Unilateral humanitarian intervention?

• The collective security system under the United Nations Charter

• The power of international law on the use of force: rhetoric or controlling?

• Conclusion

CHAPTER OVERVIEW

This chapter is about the normative grounding of the use of force in international law and the

operation and limits of international law in international relations in this area. The chapter fi rst

provides an overview of the unilateral and multilateral legal bases for using force in interna-

tional law. It covers the use of force in self- defence, the use of force against non- state actors

and unilateral humanitarian intervention. It then discusses the basis for using force under the

auspices of the United Nations. The chapter concludes by discussing the success of interna-

tional law on the use of force in restraining state behaviour since 1945.

Introduction

Use of force is one of the central topics in international law and international
relations. In any society we think of law as the means of preventing confl ict,

214 Part III Topics in international law

especially violent confl ict, among its members, and so the use of force in interstate
relations goes to the heart of what we expect the key function of international law
to be: namely, to enable states to coexist in peace and to avoid violent confl ict that
claims human life. Historically, too, the use of force has been a central preoccupa-
tion of thinkers. The conditions under which states may wage war and, once war
starts, how states should conduct that war have been tackled by the classical inter-
national law theorists ranging from Vitoria (1557) to Gentili (1598); from Suarez
(1610) to Grotius (1625) and from Pufendorf (1688) to Vattel (1758.) All of these
classical theorists are also part of the just war tradition, the tradition that sets out
moral limits to waging war. There are a lot of overlaps between modern interna-
tional law and the just war tradition on the use of force. There are also a lot of dif-
ferences. International law on the use of force can be described as a long- standing
effort to develop prescriptive norms on the use of deadly force by states which are
capable of guiding state conduct. International law in this area, therefore, aims to
be both action- guiding and effective.

In as much as use of force is a historically important topic in international law,
it is also a topic burdened with disagreements about what the precise rules are.
Furthermore, there are serious doubts about whether international laws on the use of
military force can successfully constrain state behaviour at all. The decisions by states
to use force are so fundamentally intertwined with their perceptions of protecting
primarily their fundamental interests that few states may wholeheartedly commit to
unconditional compliance with predetermined rules on their conduct. On the other
hand, states do not want a system of complete chaos where it is hard to determine from
where the next military attack may come. This has two important consequences. First,
there have always been efforts to regulate the use of force through international law
because states prefer a system that manages mutual expectations. Second, states also
prefer to have room to manoeuvre and have, therefore, developed their own interpre-
tations of the rules and on many occasions have demanded—not necessarily success-
fully—that the rules be reinterpreted or changed in the light of new circumstances. The
right to collective self- defence during the Cold War, humanitarian intervention during
the 1990s, and international terrorism post 2001 are examples of such circumstances.
Historically, therefore, the use of force in international law developed as an area where
states have both demanded rules and have fought to keep their autonomy when decid-
ing to use force themselves. Some people would say this makes for bad international
law as international law risks being no more than what each state thinks it is. We shall
later return to this discussion.

This chapter fi rst considers the general international law framework for the use of
force by providing a brief summary of the law governing the use of force prior to the

Use of force in international law 215

drafting of the UN Charter and the contemporary international law in force since
1945. It will then discuss the legal bases for the use of force; self- defence, humanitar-
ian intervention, and multilateral use of force under the collective security mechanism
of the United Nations, and the different interpretations of what the rules are. The
chapter will conclude by assessing how best we can understand the effectiveness of
international law governing the use of force.

The general framework on the use of force
in international law

The most important characteristic of post- World War II international law is the ban on
the use of force in international relations by the United Nations Charter. Article 2(4) of
the United Nations Charter, probably the most famous Article of the Charter, states:
‘All Members shall refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any state, or in any other
manner inconsistent with the Purposes of the United Nations’. This ban had its histori-
cal roots in the Kellogg- Briand Pact of Paris in 1928 which renounced waging war as
an instrument of national policy. Before World War II, sixty- three states signed the Pact.
The Kellogg- Briand Pact was unsuccessful in constraining state behaviour, but it laid the
normative framework for convictions at Nuremberg and Tokyo Military Tribunals for
waging aggressive wars and the United Nations Charter. The fact that there is a universal

Table 10.1 The use of force framework in the United Nations Charter

Use of force by states Use of force by the UN Security Council

Reason: self- defence Article 51 Reason: collective security Article 39

Nothing in the present Charter shall impair the inherent
right of individual or collective self- defence if an
armed attack occurs against a member of the United
Nations, until the Security Council has taken measures
necessary to maintain international peace and security.
Measures taken by members in the exercise of this
right of self- defence shall be immediately reported
to the Security Council and shall not in any way affect
the authority and responsibility of the Security Council
under the present Charter to take at any time such
action as it deems necessary in order to maintain or
restore international peace and security.

The Security Council shall determine the
existence of any threat to the peace,
breach of the peace, or act of aggression
and shall make recommendations, or
decide what measures shall be taken, in
accordance with Articles 41 and 42, to
maintain or restore international peace
and security.

216 Part III Topics in international law

ban on the use of aggressive force by the Charter is a signifi cant historical development.
Prior to 1945, states held the ultimate authority over deciding to restrain from aggression
and it was recognized under customary international law that states could wage war for
reasons of self- help, self- defence, and, possibly, humanitarian intervention.

The United Nations Charter was a fundamental shift because it limited the rea-
sons that all states can use for going to war for self- defence. It also gave the United
Nations Security Council the power to legitimize the use of force in international
relations. This innovative thinking which took the decisions to use force as far away
as possible from individual states was a result of the devastating consequences of
World War I and I and the rise of international pacifi sm as a political ideal. The
United Nations Charter created an international authority, the Security Council,
to act on behalf of the member states when international peace and security in
the world was threatened. This was called the ‘collective security mechanism’.

Box 10.1 How many times has the ban on the use of force been violated?

The United Nations Charter tells us that if a state is not using force in self- defence, it is in
violation of international law. Timely questions to ask at this stage would be how many
times has the ban on the use of force been violated and which states have done this? These
questions are diffi cult to answer. Because of the decentralized system of international law
we only have allegations and claims in diplomatic fora and assessments by international
legal writings that states have violated the ban on the use of force.

A further diffi culty in this area is the relationship between treaty law and customary
international law on the use of force. Because the UN Charter is open to interpretations,
a state which uses force internationally could make three types of arguments:

1. according to a correct interpretation of the Charter, the use of force was lawful;

2. the use of force is lawful under customary international law and the UN Charter
should be interpreted in the light of this;

3. the use of force may be a violation of the UN Charter, but it is aimed at modifying
customary international law and the interpretation of the Charter.

To date, there have only been two interstate cases before the International Court of
Justice:

• in the case of Nicaragua v the United States (1986), the US was found in violation of
international law; and

• in the case of Congo v Uganda (2003), Uganda was found in violation of international
law.

Use of force in international law 217

Self- defence, on the other hand, was viewed as a reasonable, logical extension of the
idea of self- preservation in the face of an imminent attack.

The United Nations Charter’s balancing vision of unilateral self- defence and the
‘collective security mechanism’ also needs to be seen in the light of the institutional
shortcomings of the post- World War II world. With the world having two ‘super-
powers’ during the Cold War and one after, the Security Council was not furnished
with the resources and capabilities to become the world’s police force. The Charter’s
vision was the creation of an independent military staff committee that would carry
out assessments of international peace and security and react promptly. This never
materialized. The United Nations Security Council is a coordinating body of major
power interests in responding to collective security threats rather than an independ-
ent and impartial mechanism transcending the interests of states.

The United Nations Charter has an important effect on the development of
customary international law on the use of force. Because virtually all states in the
international system are parties to the Charter, customary international law on
the ban on use of force runs parallel to treaty law. States, who fi ght for exceptions
to the ban on the use of force, however, frequently turn to customary international
law to modify dominant interpretations of the UN Charter.

Self-defence

Self- defence is the only uncontestedly legitimate reason to use force unilaterally
that survived World War II. The United Nations Charter sets out the right to
self- defence in Article 51 of the United Nations Charter (see above Table 10.1).
This Article points to an important tension in the mindset of the drafters of the
UN Charter about the meaning of self- defence. First, Article 51 stipulates that
the right to self- defence is an inherent right of states. This means that the right
to self- defence existed prior to the UN Charter and that a state’s right to defend
itself is not dependent on a treaty agreement between states. The recognition of
self- defence as an inherent right also suggests that there exist rules governing the
right to self- defence under customary international law. Article 51 further rec-
ognizes that this right can be exercised individually and collectively. This means
that a collection of states can use force collectively against an aggressor state, and
that this is legitimized by the United Nations Charter. Second, the United Nations
Charter requires states to inform the Security Council immediately of the meas-
ures they have taken to defend themselves. This part of the Article 51 suggests that

218 Part III Topics in international law

the right to self- defence should not be viewed as an alternative to the UN collec-
tive security system. In other words, even though states have an inherent right to
protect themselves from armed attacks, they should not wage a prolonged war
under the guise of self- defence.

The necessity to recognize a state’s individual and collective right to
self- defence and the need to promote the logic of collective security for all states
are sound objectives, but they do not sit comfortably together when assessing
what happens in practice. Firstly, there is the problem that states do not want
to delegate control over a military operation, which they believe protects their
vital interests, to the Security Council. Indeed, since 1945, no military operation
carried out in the name of self- defence has been handed over to the Security
Council by a sovereign state. This is explained by states not being willing to
lose authority and control over military decisions of a defensive nature. Second,
it is diffi cult to get the Security Council, a political body made up of fi fteen
UN member states, fi ve of which (China, France, Russia, the United Kingdom,
and the United States) are permanent, to act consistently when a state attacks
another state. In practice, the result has been that the Security Council has not
taken a central role in individual or collective self- defence operations—with one
exception. This was the Security Council action after the invasion of Kuwait by
Iraq in 1990. In contemporary international law the downplaying of the role of
the Security Council in cases of individual or collective self- defence is regarded
as a reasonable compromise.

When can states resort to the right of self-defence?

This is one of the most controversial questions in the fi eld of use of force. It raises two
interrelated problems. First, who decides when is the right time to use self-defence?
Second, what objective standards are there to decide when self- defence can be used?
Because the UN Charter recognizes an inherent right to self- defence it is generally
viewed that the state that has been attacked has the right to decide. If the Security
Council is able to act promptly, it can also signal whether a state is entitled to use the
right to self- defence under particular circumstances, as it did with Security Council
Resolution 1368 recognizing the right to self- defence of the US against Afghanistan
after the September 11 attacks of 2001. When a state is part of a security alliance,
a larger number of states are involved in the decision- making process even if they
have not themselves been attacked. The problem here is that if a number of states
can determine when it is right to invoke the right to self- defence this may lead
to wars of aggression. It is, therefore, important to have objective standards to

Use of force in international law 219

establish when states can really use their right to self- defence. This later question is
a part of ongoing controversy as the answers depend on an assessment of factual
questions as well as what the standards mean. The controversy on the standards
focus on two central issues:

1. what kinds of circumstances trigger the need to self- defence by using military
force? and

2. in what manner should states use their right to self-defence?

What circumstances justify self-defence?

The timing of the right to self- defence depends on interpreting the wording of the
UN Charter. This recognizes the right to self- defence ‘if an armed attack occurs’.
Three possible readings of this clause have been proposed. The fi rst is what may
be termed as the ‘strict’ interpretation. For a state to be able to use the right to
self- defence, an armed attack must actually occur. In other words when the fi rst
bomb hits the ground, any state has the indisputable right to self- defence. Only
in this way, it is argued, can the weak system of international law avoid states
resorting to aggression in the name of self- defence. This strict interpretation has
been challenged by some decision- makers and legal experts as being unrealistic.
They typically point to the case of having knowledge that the attack is imminent.
If state A knows that in two hours a bomb will fall in one of its cities, what justifi es
waiting for this to happen before using the right to self-defence? Given that the
purpose of the right to self- defence is to protect the political and territorial integ-
rity of a state, a degree of anticipatory or pre- emptive self- defence seems to be both
necessary and acceptable in international relations. The question then becomes
how to avoid the notion of such pre- emptive self- defence being stretched and so
blurring the distinction between aggression and defence. The second reading of
self- defence incorporates this concern and is based on an understanding of immi-
nent armed attack. An armed attack may not have occurred, but all the evidence
shows that it will occur and waiting for it to occur would be too costly. The third
reading of self- defence extends the notion of pre- emptive self- defence beyond the
point of imminence and argues that states may defend themselves against poten-
tial threats before they actually become real threats. Many international lawyers
dismiss this last point for two main reasons. First, it is very diffi cult to distinguish
self- defence and aggression when states operate with potential threats rather than
imminent attacks. Second, there is an even greater danger than with the second
reading that self- defence is no longer an exception to the ban on the use of force,
but a routine justifi cation for the use of force by strong states in international

220 Part III Topics in international law

relations. In other words, self- defence by deadly force must be a necessity in the
light of circumstances and not one of a number of policy options. The fi rst and
second readings both have numerous and infl uential adherents. The fi rst reading,
with the apparent support of the International Court of Justice, accepts the practi-
cal problem raised by ‘realists’, but says that the rule must be construed strictly.
Thus, as with mitigating circumstances in national law, the response of the inter-
national community to a genuine (non-abusive) act of anticipatory self- defence (a
real attack was indeed about to occur) would be one that refrains from imposing
any sanction in response to the action. In both readings, therefore, international
law may be understood as supporting a self- defence doctrine which is fl exible
enough to address imminent and dangerous attacks, but also robust enough to set
an objective standard to assess state action in the face of necessity.

The conduct question

The conduct of a state facing an armed attack is important because it
raises the question of whether states have a free hand when responding in
self- defence. This question was particularly prominent during the Cold War
when there was a nuclear race between the western and the eastern blocs.
Could a state wipe out another nation in exercising its right to self-defence?
This is a disturbing, but also a difficult question to answer because the answer
is dependent on the actual circumstances of the armed attack. The International
Court of Justice in its Advisory Opinion on the Legality of Nuclear Weapons
in 1996 recognized the possibility that if the life of a nation is at stake, it may
use nuclear weapons to defend itself. This means, however, that the attack from
the aggressor has to be of a particularly catastrophic kind, probably involving
nuclear weapons or similar. International lawyers use the language of ‘propor-
tionality’ of self- defence to address this point. Here, proportionality means
that the response to the attack must be adequate to the nature and the scope
of the attack itself. If a state responds to the destruction of one of its sea vessels
by destroying a village, for example, it is hard to appreciate the proportional-
ity of the response. In actual situations, examples are a lot more fine- tuned
and more detailed assessments of facts are required to understand whether
a state has used its right to self- defence responsibly. Given the lack of an insti-
tutional body that could make such assessments, it is mostly left to individual
states and United Nations organs (in particular the Security Council and the
General Assembly) to judge the overall conduct of states exercising their right
of self- defence.

Use of force in international law 221

The use of force, self- defence, and non- state actors

A central bias of the international relations system is its statist character in fram-
ing, assessing, and evaluating problems of international legal life. The use of force
framework for states is not immune from this. The United Nations Charter bans the
use of force or threat of use of force by states against states. The right to self- defence
is also defi ned as a right of a state against another state. A necessary element of an
armed attack is that such an attack must be attributable to a state. Non- state actors
do not fi gure in this international framework because the regulation and the conse-
quences of their activities are viewed primarily as domestic. When a criminal gang
uses violence against civilians, the state defends the victims by prosecuting the crimi-
nals under domestic laws of murder. There have been, however, circumstances when
the state- state paradigm of the use of force is challenged by violent non- state actors
located in so- called failed or weak states. These are particular types of non- state actors.
They are armed groups with access to military resources, a recognizable structure and
hierarchy and, at times, also controlling territory. For international law a signifi cant
question with respect to violent non- state armed groups is whether they are supported
by a state actor in their activities. There are two possible scenarios in this regard:

1. affi liated non- state actors: they are armed groups supported by the
government of the territory they are based in which attack another state
(e.g. USA, Taliban, and Al Qaeda in Afghanistan); and

2. non- affi liated non- state actors: they are armed groups located in a failed state
or a weak state and, independently of the state in which they are located,
attack another state. (e.g. armed groups in the territory of the Democratic
Republic of Congo/Uganda).

The two categories defi ned above are not rigid. For example, a state may not be
actively supporting an armed group, but showing a degree of acceptance of its activities
(Hezbollah in Lebanon) or a state may be indifferent to the activities of an armed
group in its territory or too weak to stop it (PKK in Iraq). From the perspective of
international law, if a state supports the violent activities of a non- state actor, it is clear
that the victim state has a right to self- defence against the supporting state. In cases
where the link between the non- state actor and the host state is weak or non- existent
on the other hand, the international legal position is not as clear- cut. The reason for
this goes back to the discussion of the necessity and proportionality requirements of
the right to self- defence in international law. As a fi rst option a state that is attacked

222 Part III Topics in international law

by a non- state armed group needs to seek the cooperation of the host state in arrest-
ing and prosecuting the members of that armed group. It is only when the attack is
disastrous or the host state is unwilling or unable to cooperate that the self- defence
paradigm is relevant. Of course, in such a situation the host state may be understood
as supporting the armed group in a way that brings it closer to the fi rst option.

Unilateral humanitarian intervention?

Unilateral humanitarian intervention refers to situations when a state or a group of
states claim to use force to save the lives of citizens of another state. A key feature of
this defi nition is the intention that informs the use of force decision. This intention
is defi ned as ‘saving lives’ in cases where there is an imminent threat to considerable
numbers of people living elsewhere. Humanitarian intervention is an important part
of the just war tradition that is informed by a moral imperative to protect the innocent.
Throughout history, civilians have suffered at the hands of their own states or at the
hands of warlords in failed states. Several examples since 1990 illustrate why the need
to save individuals from widespread and systematic killing is a real problem in current
international relations. For instance, the 1994 Rwanda genocide which saw twenty
per cent of the Tutsi population murdered by the Hutus, or the Srebrenica massacre of
1995 in the former Yugoslavia which claimed 8,000 Bosnian lives in one day.

Box 10.2 Self- defence, terrorist attacks, and armed attacks

After the 11 September 2001 attacks on the World Trade Center in New York and the
Pentagon, the United States’ Government argued that it had the right to fi ght a ‘war on
terror’. This political rhetoric did not have a corresponding legal category in international
law. International law defi nes war as taking place between two states and self- defence as
a response to an actual or imminent armed attack. It is possible for a state to use its right to
self- defence against another state, which supports a non- state armed group. This means
that those who carried out the attacks become legitimate military targets. UN Security
Council Resolution 1368 confi rmed this view. If, on the other hand, there is no state to
attribute with non- state actor violence, it is more appropriate to see an attack as a law
enforcement matter, i.e. violations of domestic laws and matters of international crimes,
such as aircraft hijacking, aircraft sabotage and possibly as crimes against humanity.

Use of force in international law 223

International lawyers have long discussed the question of whether humanitarian
intervention was part of customary international law pre-1945; if it were custom,
whether it has survived 1945 and if neither is the case, whether the state practice in
contemporary international relations supports a customary right to humanitarian
intervention (Rodley and Çalı 2007).

The political reality of humanitarian intervention has compelled some authors to
argue that it is or should be allowed in post- UN Charter international law. Here,
the argument focuses on the fact that a unilateral humanitarian intervention is not
really an intervention against the territorial integrity or the political independence
of a state. The aim of such a military intervention is precisely humanitarian and if
the intervening state pulls out as soon as the humanitarian mission is fulfi lled it does
not in fact interfere with the domestic activities of a state.

In fact, international law and international politics have long been sceptical of
a legal right to unilateral humanitarian intervention because of the danger of abuse
of this right by states. For international lawyers, signifi cantly, recognizing a right to
unilateral humanitarian intervention has always been a question of bad policy. This
means that no one really denies that there could be circumstances where innocent
lives can only be saved by outside intervention. The central problem is that states
do not act with a single motivation when they decide to use force and real- time
interventions with mixed motivations are prone to cause more suffering than they

Table 10.2 Proponents and opponents of humanitarian intervention

Proponents of unilateral humanitarian intervention
in international law

Opponents of unilateral humanitarian
intervention in international law

The purpose is humanitarian. Self- defence is the only basis of unilateral
use of force in international law.

It is not directed against territorial integrity or political
independence.

Humanitarian intervention is precisely
against the territorial integrity and
political independence of the state whose
sovereignty is thereby violated.

It does not violate the principle of non- intervention. Recognizing unilateral humanitarian
intervention upsets the stability of the
international system.

If no other option is possible, states have a duty
to save lives.

Humanitarian intervention is subject to
abuse and selectivity.

Collective security mechanisms should be
used and improved.

224 Part III Topics in international law

may end, and set in motion bigger armed confl icts. It is for these policy reasons
that international law favours humanitarian interventions to take place under the
collective security mechanism of the United Nations rather than unilaterally.

The collective security system under
the United Nations Charter

As stated earlier in this chapter, the collective security system established under the
United Nations Charter was an institutional and legal innovation of the post- World
War II world. The central ideas behind this system are spelt out in Chapter VII of

Box 10.3 Kosovo: unilateral humanitarian intervention and the mitigating
circumstances argument

The military intervention by NATO in Kosovo in 1999 sparked a new round of debate on
unilateral humanitarian intervention in international law and international relations. NATO
member states argued that they intervened in (then) Serbia and Montenegro to save
the lives of the Albanian majority in the region of Kosovo from the oppressive Serbian
Government. This intervention was successful in defeating the Serbian forces in Kosovo. It
also set in motion the de facto separation of Kosovo from the rest of Serbia and the subse-
quent declaration of independence by Kosovo. A central argument of NATO member states
was that the United Nations Security Council was unable to act because of Russia’s threat
to veto any collective action and this necessitated acting unilaterally. Political and legal
commentators were divided on the question of whether NATO had no choice but to inter-
vene unilaterally and whether the threshold of necessity was met in this case. Politicians
and international lawyers were divided along the same four lines. One group argued that
the intervention was unlawful; another group argued that it was indeed lawful given the
circumstances; a third group argued that it was unlawful, but legitimate politically and mor-
ally; and a fi nal group argued that the Kosovo case was a sign of legal change in itself. In
the midst of this controversy, however, an international lawyer (Franck 2003) offered a fi fth
approach to this controversy. He suggested that international politics was too messy to be
governed by international law at all times and extreme circumstances may require states
to step out of international law temporarily to deal with the exigencies of a situation. This
means that the constraining power of the law is untouched by state behaviour, but that the
states stepping out of the law are not punished for their actions. This is what may be called
the mitigating circumstances argument for humanitarian intervention.

Use of force in international law 225

the United Nations Charter entitled ‘action with respect to threats to the peace,
breaches of peace and acts of aggression’. This chapter recognizes that it is the task
of the UN Security Council to determine when there is a threat to international
peace and security (Article 39) and that the Security Council can take the measures
that it deems necessary (Articles 40, 41), including the use of armed force (Article
42) in order to maintain and restore international peace and security. Article 25 of
the UN Charter further states that all members of the UN agree to comply with
the decisions of the Security Council. These powers are unique in the history of
international organizations as no international body has been given the powers to
authorize the use of force in the name of the international community before.

The purpose of the collective security system has been to break the monopoly of
states over the use of force. When we study the activities of the Security Council
since 1945, however, we fi nd that the legal and political evolution of the collective
security system has led to a plurality of forms of legitimization for the use of force by
the United Nations collective security system. Signifi cantly, during the Cold War, the
collective security mechanism did not operate because of the threat of veto from one
of the permanent members of the Security Council. The United Nations, therefore,
was unable to collectively interfere, for example, in confl icts of self- determination,
decolonization, and the proxy and regime- change wars between the Soviet Union and
the USA in Asia, Africa, and Central America.

In the meantime, however, the United Nations developed the practice of using peace-
keeping forces in countries where parties consented to the UN blue berets overseeing
a ceasefi re or peace agreement. Because the United Nations never received agreement
from member states to establish a stand- alone military force, the United Nations
peacekeeping forces emerged as a patchwork of multinational troops from volunteer-
ing states. These forces rest on the doctrine of mutual consent from all parties involved,
impartiality towards the parties, and use of force only in self- defence. The General
Assembly of the UN and the Security Council were both involved in establishing these
peacekeeping forces. As a result, the UN was not able to oversee confl icts before they
erupted, but it could after hostilities paused in places such as Kashmir (India–Pakistan),
the Golan Heights (Israel–Egypt), and Cyprus (Cyprus–Turkey). The UN was prepared
to use force to contain the civil war that broke out in the Congo in 1960 after Belgium
left. But United Nations casualties, including the death of the then Secretary- General,
and the lack of commitment from member states to fi ght the war led to the serious
failure of the collective security system (McCoubrey and White 1996).

The end of the Cold War saw the United Nations collective security system enter
a new phase. This is better described as a proliferation of collective security systems
rather than the revival of the Security Council from the Cold War divisions. Since

226 Part III Topics in international law

the 1990s, the Security Council has increased its peacekeeping activities consid-
erably and has more frequently authorized the use of force. It has not, however,
emerged as the sole and undisputed centre of collective use of force decisions in
international relations. The increased willingness of regional organizations such
as NATO, the European Union, the African Union, and ECOWAS to intervene in
the world’s internal confl icts has meant that the United Nations collective security
mechanism has taken on the role of legitimizing as well as authorizing state action.
In particular, the more risky, dangerous, and short term a military operation is, the
more frequent it has become for the UN Security Council to ‘contract-out’ the action
to a group of states or endorse their actions. When an operation incorporates the
long- term goals of state and institution building in the aftermath of a civil confl ict,
it is more common to have UN- led multi- dimensional peacekeeping operations.

International relations developments point to the regionalization and, possibly, pri-
vatization of collective security arrangements. This asks the question as to whether
private security companies will become a regular part of future collective security
mechanisms. It is not clear what this means for the future of the collective secu-
rity mechanism from an international law perspective. International law primarily
concerns itself with the legitimation of decisions to use force through applying correct
procedures. It also frowns on mercenarism which is not easily distinguished from
using private entities to deploy armed force. Even though the Security Council is itself
not a representative body of the world’s states and peoples, it has assumed the role
of being the only legitimate institution when it comes to authorizing the use of force.
The strong compliance rate with the decisions of the Security Council in this area also
points to the fact that states have widely accepted the role of a UN- mandated political
body to take collective decisions or to endorse the decisions of regional actors. The
plurality of actors involved in collective security and the lack of hierarchical relation-
ships between the UN Security Council and regional organizations, however, also raise
the problem of an accountability gap in the legal regulation of the use of force. This
is a question closer to the home of international lawyers because it raises the problem
of accountability, that is, regulation and blame when an operation endorsed by the
Security Council, but carried out by a state or a regional organization, goes wrong.

The Security Council through its resolutions has also affected how the use of force is
interpreted in international law. The most important trend in Security Council resolu-
tions since the 1990s has been the expansion of the interpretation of ‘a threat to inter-
national peace and security’. The Security Council has moved away from a strictly
statist understanding of such a threat towards a more human security focused under-
standing. This has meant that the Security Council has become more willing and able
to authorize the use of force in order to protect civilians, women, and children caught

Use of force in international law 227

up in civil confl ict or domestic oppression. From one perspective, we can see this as the
revival of the idea of collective humanitarian intervention. Security Council Resolution
1674 in this respect is signifi cant. Not only does it recognize that ‘peace, security and
human rights are interlinked and mutually enforcing’, it also reaffi rms that the United
Nations has a ‘responsibility to protect populations from genocide, war crimes, ethnic
cleansing and crimes against humanity’.1 This resolution signals that permanent mem-
bers of the Security Council are willing to recognize any major threat to human life,
be these threats part of domestic or interstate problems, as a legitimate basis for the
authorization of the use of force under the United Nations Charter.

Despite inconsistencies in responding to humanitarian crises around the world
and continuing disagreements amongst its permanent members, the Security Council
has lost neither legal nor political centrality in the collective security mechanism.
States turn to the Security Council to legitimize their decisions to use force and

Table 10.3 The UN Charter and the proliferation of the collective security system

Type Examples

Use of peacekeepers recommended by the
General Assembly and carried out by a UN
peacekeeping force

United Nations Emergency Force (UNEF 1)
(1956)

Use of peacekeepers authorized by the Security
Council and carried out by a UN peacekeeping
force

United Nations Operation in Burundi (ONUB )
2004

Use of force authorized by the Security Council
and carried out by a regional organization

Operation Artemis—European Union in
Democratic Republic of Congo Operation
(2003)

Use of force endorsed by the Security Council
and authorized and carried out by a regional
organization

ECOWAS intervention in Liberia (1990)

Use of force authorized by the Security Council
and carried out by an individual state

Operation Turquoise—France in Rwanda (1994)

Operation Palliser—United Kingdom in Sierra
Leone (2000)

Use of force carried out by collective agreement
of a regional organization in relation to a member
state of that organization

African Union Mission in Sudan (2004)

Use of force for collective self- defence recognized
by Security Council

Operation Enduring Freedom, US and allies in
Afghanistan (2001)

Use of force in the territory of a state with the
consent of that state

International Security Assistance Force of NATO
in Afghanistan (2003)

228 Part III Topics in international law

peacekeeping or enforcement missions authorized by the Security Council are likely
to receive political acceptance in the international community. This is not, however,
to suggest that the Security Council is an effi cient mechanism that takes impartial
and timely decisions at all times. The very idea of a collective security mechanism
has taken root in international practice and the attitudes of states, civil society, and
the public towards the Security Council is an excellent example of international law
in action within a highly politicized and divisive international political context.

The power of international law on the use
of force: rhetoric or controlling?

The previous sections have indicated the dynamics of interpreting the international
law rules on use of force within the framework of international politics. It should be
clear by now that one of the important lessons of this chapter is that international

Box 10.4 Responsibility to protect

The term ‘responsibility to protect’ was fi rst presented in the report of the International
Commission on Intervention and State Sovereignty in 2001 as a new approach to face the
challenge of protecting the lives of civilians who are caught in large- scale violence because
their states are collapsed, or unable or unwilling to protect them.

‘Responsibility to protect’ doctrine says that the central principle of international law—
state sovereignty—must yield to the grave violations of human rights and humanitarian law,
including genocide, ethnic cleansing, and crimes against humanity.

In the 2005 World Summit, all members of the United Nations embraced this doctrine.
The World Summit Outcome Document stated that:

• it is primarily the responsibility of each and every state to protect the lives of its citi-
zens from ethnic cleansing, genocide, and crimes against humanity;

• the international community should assist states in every way to this end; and

• if a state ‘manifestly fails’ in its responsibility, the international community must take
stronger measures, including the use of force, through the Security Council.

There is an ongoing discussion on the legal status of the responsibility to protect doctrine
in international law as some states argue that responsibility to protect was not agreed
on as a ‘norm’ at the World Summit. Some argue that the Security Council is the ultimate
authority on the use of force and the primary determinant for action is the agreement of
its members rather than the situations on the ground.

Use of force in international law 229

law does not exist in a vacuum. On the contrary, there is a very close relation-
ship between the interpretation of international law and the international political
context. This is especially the case in one of the most important legal and politi-
cal questions of international life: the external use of deadly force sanctioned by
a political process. Some international commentators appreciate the proximity of
international law to politics; some, of course, take an opposing stance. Proponents
of these views can come from anywhere on the spectrum that ranges from real-
ism to constructivism (see Chapter 2). Those international relations observers who
take a strong realist position, however, believe international law is insignifi cant in
driving state action with regard to the use of force. This is because realists explain
confl ict as an outcome of material conditions and power relations.

When the role of international law in regulating the use of force is viewed as an
overall positive development in international relations one can fi rst think of the
function of international law as a way of managing mutual expectations amongst
states. The international law on the use of force serves precisely this purpose. The
UN Charter framework sends a number of messages both to strong and small states
and non- state actors intending to use force domestically and internationally. First,
if an armed group targets a civilian population it is likely that the Security Council
would authorize the use of force to stop this from happening. This, however, does not
tell us anything about whether such an intervention would be timely or effective.

Second, the fact that states and regional organizations turn to the Security Council
for recognition and legitimation means that the collective legitimation of the use of
force through international law matters in international relations. States do take into
account the possible costs of not receiving legitimation from the Security Council
in deciding the course of their military behaviour. Thirdly, in the case of strong
states, such as the US and Russia, we do not observe them rejecting the United
Nations Charter outright, or turning away from the Security Council on a regular
and consistent basis. This means that the international law on the use of force fi g-
ures in the long- term benefi t calculations of strong states as well as of smaller states.
Many states, weak or strong, do contest the meaning of the provisions of the United
Nations Charter when interests vital to their political standing are at stake. Even in
these cases, however, a major power challenging international law has not caused
international law to change and correspond to such preferences. As we have seen
within the context of the discussion of the meaning of self- defence in international
law and the emergence of non- state armed groups, there is room for expanding the
interpretations of concepts so that they better capture the realities of international
life. So change in international law is not necessarily a dangerous development in
itself. The pre- emptive self- defence doctrine developed by the United States between

230 Part III Topics in international law

2003 and 2009 was rejected by many states. The tendency, therefore, for strong
states to disregard international law is not a suffi cient reason to regard interna-
tional law as irrelevant in the sphere of the use of force. It should be recognized,
though, that international law on the use of force is an international norm that faces
violation in international life.

Thirdly, in the case of peaceful and small and medium size states (the majority of
the United Nations), the United Nations is an important channel and sometimes the
only way to contribute to the maintenance of international peace and security. This
means that the international law on the use of force has socialized most of the states
in the international system to make sense of wars, allegations of self- defence, and
calls for the deployment of peacekeeping troops within the language and the frame-
work of international law. In this respect, international law on the use of force plays
a constitutive role of interstate conduct in international relations.

Those who view the proximity of international law to politics as negative, point
to the fact that states have, most of the time since 1945, acted based on their own
preferences and calculations of their own state interests. The instances when these
states have adhered to the UN Charter can better be explained by the ‘low cost’ of
compliance rather than state- internalization of international law. In other words,
when important interests really are at stake, states pay no attention to international
law on the use of force nor are they concerned with any possible long- term damag-
ing effects of their behaviour. Instead, they manipulate existing rules by offering
alternative interpretations that merely serve the purpose of tailoring international
law to fi t their real interests. A clear example of this is the US- led invasion of Iraq
in 2003 that was justifi ed by the protagonists through the potential threat of Iraq
holding ‘weapons of mass destruction’. The key point in this argument is that states
only interact with international law on the use of force selectively. They turn to
international law when it suits their own private assessment of a particular situa-
tion. When the fi t is not there, they offer an alternative interpretation of what the
rules are.

Regardless of where one falls on the negative/positive spectrum, a number of
general observations can be made about how international law scores in political
debate. First, international law provides a structure for making arguments in the
area of use of force whether this is rhetoric, action- guiding principles, or standards of
evaluation. International law serves to limit the range of arguments politicians, dip-
lomats, and legal experts use on political and legal platforms. Second, international
law offers a framework for evaluating state conduct that is embedded in both the
collective practice of states and in principles that makes sense of this practice. This
evaluative role of the international law framework on the use of force is all the more

Use of force in international law 231

signifi cant in an era where international governmental and non- governmental
organizations monitoring and evaluating state conduct and international law are
on the rise. Such an evaluative framework further enables political shaming and
the mobilization of public opinion. In some cases, it also legally demands liability
for actions. The strength of the international law framework in this respect comes
from the collective recognition of principles for the regulation of the use of force by
a diverse range of policy- makers in world politics.

Conclusion

This chapter has set out the international law framework for the use of force in
international relations. International law on the use of force is both a creation of the
United Nations Charter and subsequent practices of states since 1945 in the inter-
national arena. The chapter shows that because of the high- politics aspect of the use
of force, international law has faced two important challenges. First, politicians and
international lawyers have constantly contested the scope of what international law
says. This is both because of novel developments in international politics, such as
the rise of internal armed confl icts and non- state armed groups, and states protect-
ing their monopoly over decisions to use force in international relations. Second, the
importance of the subject matter has led to heated discussions about the relevance
of international law on use of force decisions and created committed sceptics and
supporters in both international law and international relations.

Questions

1. What is the importance of the United Nations Charter for the use of force in
international relations?

2. Which Articles of the United Nations Charter regulate the use of force in international
law?

3. What is the scope of the right to self-defence?
4. What are the arguments for and against anticipatory or pre- emptive self-defence?
5. Can states invoke a right to self- defence against non- state armed groups?
6. What are the policy arguments for and against unilateral humanitarian intervention?
7. What is the collective security mechanism and how has it developed since 1945?
8. Is it important that the UN Security Council authorizes or endorses use of force

decisions by regional organizations? If so, why?

232 Part III Topics in international law

Art, L. J and Waltz, K. (2008) The Use of Force:
Military Power and International Politics, 7th
edn. (Lanham, MD: Rowman and Littlefi eld
Publishers). A realist assessment of the use of
force in international relations.

Dinstein, Y. (2005) War, Aggression and
Self- Defence (Cambridge: Cambridge
University Press). A detailed analysis of the
bases of unilateral use of force in internation-
al law, including the legality of use of force by
states against non- state actors.

Finnemore, M. (2004) The Purpose of Inter-
vention: Changing Beliefs about the Use
of Force (Ithaca, NY: Cornell University
Press). A social- constructivist analysis of
what kinds of arguments states have histori-
cally mobilized for intervening in the inter-
nal affairs of other states and how historical
arguments compare to our contemporary
conceptions of humanitarian intervention.

Franck, T. M. (2003) Recourse to Force:
State Action against Threats and Armed
Attacks ( Cambridge: Cambridge University
Press). A comprehensive discussion of the
evolution of international law on the use of
force and its competing interpretations.

Franck, T.M. and Rodley, N. (1973) ‘After
Bangladesh: The Law of Humanitarian Inter-
vention by Military Force’ American Journal
of International Law 67/2: 275–305. A clas-
sic analysis of the lawfulness of humanitarian
intervention in international law.

Gray, C. (2008) International Law and the
Use of Force (Oxford: Oxford University
Press). A comprehensive introduction to the

international legal framework on the use of
force since 1945.

Holzgrefe, J. L. (2003) Humanitarian Inter-
vention: Ethical, Legal and Political Dilem-
mas ( Cambridge: Cambridge University
Press). A multidisciplinary analysis of human-
itarian intervention as a moral, legal, and
political issue in international relations from
leading contributors in three disciplines.

McCoubrey, N. and White, H. (1996) The
Blue Helmets: Legal Regulation of United
Nations Military Operations (Sudbury, MA:
Dartmouth). A comprehensive legal analy-
sis of how the United Nations peacekeeping
operations have evolved and the interna-
tional legal basis for their establishment
and status.

McQueen, N. (2006) Peacekeeping and the Inter-
national System (Oxford: Routledge). A polit-
ical analysis of the evolution of peacekeeping
using detailed historical and contemporary
case study analysis.

Rodley, N. and Cali, B. (2007) ‘Revisiting Kosovo:
Humanitarian Intervention on the Fault- lines
of International Law’ Human Rights Law
Review 7/2: 275–97. A comprehensive analy-
sis of the humanitarian intervention debate
and its implications for international law
methodology.

Walzer, M. (2006) Just and Unjust Wars: A Moral
Argument with Historical Illustrations
(New York: Basic Books). A modern inter-
pretation of the just war tradition discussing
moral arguments in favour of using force in
international relations.

Further reading

9. What are the arguments in favour of the relevance of international law for state
behaviour in the area of use of force?

10. What are the arguments against the relevance of international law for state behaviour
in the area of use of force?

Use of force in international law 233

Websites

http://www.un.org/Docs/sc/ The UN Security Council informs on all its activities and provides
access to reports and resolutions.

http://www.iciss.ca/ report- en.asp Here you can fi nd the full text of the Report of the International
Commission on Intervention and State Sovereignty.

http://www.crimesofwar.org/ The Crimes of War Project is a collaboration of journalists, lawyers,
and scholars dedicated to raising public awareness of the laws of war and their application to situ-
ations of confl ict.

http://www.un.org/Depts/dpko/dpko/ This website contains all the relevant information on the
activities of the United Nations Department of Peacekeeping Operations.

http://www.asil.org/insights.cfm The American Society of International Law regularly publishes
on current topics in international law, and often discusses the legality of international activities.

Visit the Online Resource Centre that accompanies this book to access more learning resources
www.oxfordtextbooks.co.uk/orc/cali/

Chapter endnote

1. Security Council Res. 1674 of 28 April 2006.

Chapter 11

International humanitarian law
Elizabeth Griffi n and Başak Çalı

CHAPTER CONTENTS

• Introduction

• What is international humanitarian law and how is it made?

• The nature of international humanitarian law

• Purposes of international humanitarian law and its basic principles

• Compliance with international humanitarian law

• Non- state actors and compliance with international humanitarian law

• Conclusion

CHAPTER OVERVIEW

This chapter examines international humanitarian law (IHL), the body of international law that

contributes to our understanding of the regulation of violence in international relations. The

chapter commences with an examination of the roots of international humanitarian law—that is,

the institutional history of IHL and the sources of IHL. It then explores the purpose of IHL which

is to regulate the use of deadly force by each and every party to an armed confl ict. The chapter

particularly focuses on the basic principles of IHL, which aim to strike a balance between military

necessity and the principle of humanity during times of armed confl ict. The chapter concludes

by discussing what reasons states have to comply with IHL and indicators of compliance.

Introduction

International humanitarian law (IHL) is the branch of international law that pro-
vides rules that regulate the conduct of armed confl ict. The very idea that interna-
tional law can play a role in regulating the most violent form of organized human

International humanitarian law 235

conduct—war—is problematic and has often been challenged. One simply needs to
open a newspaper or watch the news to see the horrifi c consequences of war on every
continent. When we see the death, suffering, and destruction caused by war we might
well be tempted to say ‘law is simply irrelevant during war’. However, the idea that
armed confl ict should be regulated by a set of international rules is extremely force-
ful; it has moral weight and it is important in international relations. The human
misery and destruction that occurs as a result of war demands that the international
community seek ways to regulate violence and minimize the horrifi c consequences
of war. Indeed, since ancient times the international community has sought ways to
regulate the horrors of war. The history and development of IHL provide evidence
that states see the value of agreed codes of conduct to regulate confl ict and as the
nature of confl ict has changed so too the international community has attempted to
respond to new horrors by expanding and adapting the rules of IHL.

IHL is the body of law that regulates the conduct of hostilities by all parties to
a confl ict once an armed confl ict has commenced. IHL (also called ius in bello)
should be distinguished from the law governing the use of force (also called ius
ad bellum—see Chapter 10) which concerns the legality of decisions about going
to war. IHL concerns the regulation of violence once a confl ict has commenced. It
provides detailed rules that regulate the means and methods of warfare and which
aim to protect those persons that are not taking part in a confl ict, including civil-
ians and soldiers that are out of action (also called hors de combat). Even though
states have failed to abolish wars altogether in international relations, there is now
a solid corpus of IHL which provides guidance to soldiers, commanders, politi-
cians, non- state armed groups, war reporters, and civil society about how to behave
in times of confl ict. IHL helps us to make sense of tactical and strategic decisions
taken by the military, orders of politicians, and the behaviour of civilians in times
of armed confl ict.

This chapter provides an overview of the nature and basic principles of IHL and
it discusses the effectiveness of this unique body of international law. The chapter
commences with an examination of what IHL is and how it is made and how it has
developed over time. We then explore how IHL regulates armed confl ict through
a number of basic principles. The rules of IHL are extensive and wide- ranging and
the chapter does not attempt to cover every aspect of IHL. Rather we focus on
some key foundational principles that underpin IHL and we discuss some of the
debates and diffi culties that arise in interpreting these principles particularly within
the context of contemporary confl icts. The fi nal part of this chapter addresses the
important question of compliance with IHL and reasons and incentives for state
and non- state actors to comply with IHL.

236 Part III Topics in international law

What is international humanitarian
law and how is it made?

IHL is one of the oldest branches of international law and its roots pre- date modern
international law and its state system. Attempts to regulate armed confl ict date back
to ancient times and are evident across many diverse cultures throughout history
(Meron 1998). Modern IHL is made up of a large number of diverse international
treaties concluded in the past 200 years and customary international law.

Historically, the development of IHL has been prompted by a combination of
a destructive war, appeal to humanitarian considerations, and the logic of the
need for reciprocity- building in relation to these considerations. The 1864 Geneva
Convention, for example, concerns the amelioration of the condition of the wounded
in the battlefi eld. This treaty shows that all parties recognize the strong moral appeal
of not killing or abandoning a wounded soldier and the lack of military necessity
in targeting the wounded. This mutual understanding creates the conditions for
cooperation and fair play on the battlefi eld. The historical background, however,
also plays a decisive role. The 1864 treaty was a direct response to 45,000 soldiers
left behind in the battle of Solferino of 1859.

The historical progression of IHL further shows that the subject matter of IHL
has gradually expanded to address advancements in weapons technologies and the
consequences of war for civilians. Until 1949, for example, a large body of rules
was developed concerning the means and methods of warfare and the treatment of

Box 11.1 War and armed confl ict: what is in a name?

The international legal defi nition of armed confl ict has changed over time:

• initially, the existence of armed confl ict was recognized only when two states offi –
cially declared war against each other. War in this legal sense can only take place
between two states;

• after 1949, it was accepted that an armed confl ict exists even if one of the states does
not recognize it. From 1949 onwards, any use of armed force by one state against the
territory, ships, or air force of another state was said to trigger an armed confl ict;

• any armed confl ict between two or more states is known as an ‘international armed
confl ict’;

• the 1949 Geneva Conventions recognize that there can be armed confl icts within
a single state. The Geneva Conventions refer to a confl ict that occurs within one
state as a ‘ non- international armed confl ict’.

International humanitarian law 237

soldiers who were captured by enemy forces (prisoners of war), but there were no
rules regarding the protection of civilians. During World War II, the aviation and
aerial bombing technology made it possible to bombard territories over thousands
of square kilometres. This was the fi rst time when the number of victims was higher
among civilians than among soldiers. This and the horrors of the Nazi run concentra-
tion camps, where civilians were tortured, murdered, and subjected to various cruel
forms of medical experimentation, promoted the drafting of the most well- known
of IHL treaties, the 1949 Four Geneva Conventions. These Conventions, amongst
other things, set out explicit rules for civilian protection during war. More recently,
the nature of confl ict has changed and there has been a rise in bloody civil wars. The
international community has responded to the changing nature of confl ict, albeit
not swiftly enough for many, by attempting to formulate rules that govern civil wars
(referred to by international lawyers as internal armed confl icts). As warfare changes
and adapts the international community continues to be confronted with new forms
of violence that require the development of IHL. One contemporary challenge for
IHL is the regulation of the use of computers and robotic technology in armed con-
fl ict and attacks carried out by computers (also called computer network attacks).

Box 11.2 What does IHL regulate?

Modern IHL is concerned with six central topics:

1. permissible use of weapons and military tactics;

2. protection of those who can no longer fi ght (wounded, sick and shipwrecked troops,
prisoners of war);

3. the duties and rights of neutral parties to a confl ict;

4. rules regulating occupation;

5. the protection of people who do not take part in the fi ghting (e.g. civilians, medics, and
aid-workers);

6. the protection of cultural, religious sites, and the environment.

The order of these six topics refl ects the historical progression of IHL, which is coined as
the ‘humanization’ of IHL (Meron 2000).

The humanization of IHL, that is the increasing focus on the humanitarian protection
function of IHL, is refl ected both in the changes in the name of the topic and the develop-
ment of its substance. IHL was traditionally referred to as the ‘laws of war’ or ‘the inter-
national law of armed confl ict’. The emphasis on international ‘humanitarian’ law in the
title of this chapter refl ects the development of this body of law as also being very much
concerned with the protection of those not directly involved in hostilities and minimizing

238 Part III Topics in international law

IHL treaties

Of all the IHL treaties, the Hague Regulations, the four Geneva Conventions, and
two Additional Protocols of 1977 together stand out. The international treaties
signed in the Hague in 1899 and 1907 after two Peace Conventions are together
known as the ‘Hague Regulations’. For the main part, the Hague Regulations
create rules that relate to weapons and targeting during war. The four Geneva
Conventions of 1949 and their two Additional Protocols of 1977 focus more on
protection of civilians and those who are no longer able to fi ght (sometimes called
hors de combat). Since 1977 IHL has attempted to respond to developments in the
fi eld of modern weaponry and certain weapons have been outlawed (e.g. cluster
bombs, chemical and biological weapons, and anti- personnel landmines). There is
not, however, a treaty that bans the use of nuclear weapons. The legality of the pro-
liferation and use of nuclear weapons has been subject to controversial proceedings
before the International Court of Justice (see Chapter 6).

International treaty- making in IHL has always been multilateral and a large number
of states have ratifi ed IHL treaties. For example, the 1949 Geneva Conventions has
194 state parties and its 1977 Additional Protocol on Protection of Civilians in Times
of International Armed Confl icts has 168. The near universal numbers of parties to
these treaties provide evidence that these treaties now have the status of customary
international law. The high ratifi cation rate also demonstrates that states recognize the
need for an internationally agreed framework for the regulation of armed confl icts.

Box 11.3 Major IHL treaties

1856 Declaration Respecting Maritime Law
1868 St. Petersburg Declaration Renouncing the Use, in Time of War, of Explosive Projec-

tiles Under 400 Grams Weight
1899 Declaration Concerning Asphyxiating Gases
1899 Declaration Concerning Expanding Bullets
1907 Hague Conventions Respecting Laws and Customs of War on Land
1907 Hague Conventions

the suffering and restoring the dignity of all those who fi nd themselves in the line of fi re.
Modern IHL requires parties to an armed confl ict to also take into account the sustain-
ability of the environment and the infrastructure necessary for the survival of the civilian
population and culture.

International humanitarian law 239

Customary IHL

Customary IHL is important because it establishes which rules apply to all states regard-
less of their ratifi cation status of the myriad of IHL treaties. The proliferation of inter-
national courts and tribunals interpreting IHL rules and increased monitoring of state
commitments by non- governmental organizations (see Chapters 7, 8, and 13) also give
further utility to customary IHL in the application of IHL to specifi c armed confl icts.

In the fi eld of IHL, treaties play a signifi cant role in the formation of customary
international law with respect to non- treaty parties. Treaties both attract support for
treaty norms from non- ratifying treaties and point to divergent practices between
parties to an IHL treaty and others. A large body of customary IHL is evident in the
fi eld of protection of civilians and soldiers who are no longer able to fi ght. A 2005
International Committee of the Red Cross (ICRC) study of customary IHL found
that most customary rules mirror those of treaty provisions and most states think
similar rules for treatment of civilians should apply in the context of international
as well as internal confl icts (Henckaerts 2005). Indeed, deliberate targeting of civil-
ians is a strong candidate for a ius cogens prohibition in international law.

The area of choice of weapons points to a different relationship between treaty law
and custom. Treaties that prohibit certain weapons are widely ratifi ed by states, but
there is also contrary state practice by states that oppose the ban of a weapon, and/or
actively produce, use, and sell it. The Ottawa Convention of 1997 on the Prohibition
of Anti- Personnel Landmines, which has attracted 150 signatures, is a case in point.
Despite a signifi cant number of states committed to no longer produce, stockpile,
and transfer anti- personnel landmines, a small number of states remain outside the
treaty system and are opposed to an immediate ban of landmines. This international
dynamic creates diffi culties for solidifying customary international law. Given that

1925 Geneva Gas Protocol
1949 Geneva Conventions
1954 Hague Convention on Protection of Cultural Property in the Event of Armed

Confl ict
1972 Biological Weapons Convention
1977 II Additional Protocols to Geneva Conventions of 1949
1980 Convention on Certain Weapons
1993 Chemical Weapons Convention
1997 Ottowa Convention on the Prohibition of Anti- Personnel Landmines
2005 III Additional Protocol to Geneva Conventions of 1949

240 Part III Topics in international law

customary international law is a dynamic process (see Chapter 6), the position of
landmine- producing states needs to be continually observed before we can say that
near universal ratifi cation of the Ottawa treaty shows signs of emerging as custom.

The nature of international humanitarian law

The nature of IHL as a body of international law is unique due to a number of its insti-
tutional features. These are, the actor- centric nature of IHL; the existence of two sets
of rules for international and internal confl icts; and the incorporation of a non- state
actors, and the International Review of the Red Cross, in its implementation.

IHL and actor-centricism

IHL challenges international relations and law approaches that view states as uni-
tary actors and international law as only regulating relationships between states.
IHL regulates the conduct of all actors that are involved an armed confl ict: these
actors may be states (be it as fi ghting parties or neutral observers), but they may
also be any individual or group of individuals of any nationality that are involved
in an armed confl ict—e.g. rebel groups, soldiers, medical offi cers, civilians, or
non- governmental humanitarian organizations.

In this respect, IHL approaches international law not as an interstate phenom-
enon, but as an actor- based phenomenon. It is the involvement with an armed con-
fl ict that triggers the applicability of IHL to various actors. Even though IHL is
made in the same way as other branches of international law in that it is made
by states, the obligations, duties, privileges, immunities, and prohibitions of IHL
are applicable not only to states but also to individuals, armed non- state groups,
neutral parties, and even non- governmental organizations. The very nature of IHL
means that it is not possible to fully understand or analyse this branch of interna-
tional law through a state- centric lens and it is necessary to disaggregate the actors
involved in an armed confl ict. As we will see in Chapter 12, IHL does not only
incur state responsibility. In addition, individuals can be held criminally responsible
before domestic and international courts for violating rules of IHL (called ‘grave
breaches’ in the 1949 Geneva Conventions on war crimes). States also have a duty
to repress breaches of IHL regardless of who commits it (civilians or combatants)
and not only an individual soldier, but also soldiers within a chain of command can
be responsible for the same violation of IHL. The fact that IHL creates obligations
not only for states, but also for individuals is a key design factor that must be borne
in mind when examining the purposes and effectiveness of IHL.

International humanitarian law 241

International and internal armed confl icts

Historically, the regulation of civil wars (referred to by international lawyers as
non- international armed confl icts or internal confl icts) was not seen as being an
appropriate topic to be addressed in international relations. This can be explained by
the reluctance of states to give away a part of their sovereignty in dealing with inter-
nal dissidents and secessionist movements and the understanding that state armed
forces and non- state armed forces are not equal parties in a confl ict. Due to the
resistance to regulate internal confl icts, IHL has different rules that are applicable in
international and non- international (internal) armed confl icts. In particular, states
regard dissidents as criminals rather than combatants. It is for this reason that no
prisoner of war status exists in internal armed confl icts.

In 1949, states controversially accepted that minimum considerations of humanity
should apply in internal armed confl icts. In 1977 the Second Additional Protocol to
the 1949 Geneva Conventions in its fi rst article further defi ned a non- international
armed confl ict as taking place between a state party to the Protocol and dissident
armed forces or other organized armed groups which have a command structure
and control part of a territory and codifi ed fi fteen further rules about how parties
should conduct themselves in such confl icts. This Protocol received support due to
decolonization and secessionist movements around the world at the time, but also
attracted resistance as ‘giving rights to terrorists’. Since 1977 the increasing humani-
zation of IHL coupled with the strengthening of the human rights movement and
more international focus on the need to respond to non- international armed confl icts
has generated more concern and, in turn, rules that regulate civil wars. Despite this,
the rules that govern non- international confl icts are less developed and weaker than
those applicable to international armed confl icts.

Box 11.4 Primary rules applicable in international and non- international armed
confl icts

The rules applicable in international and non- international armed confl icts are different.
When attempting to determine which specifi c rules are applicable to a particular confl ict
one must fi rst classify the confl ict as either international or non- international. The follow-
ing are the most important rules that are applicable to different types of confl ict.

Rules applicable in international armed confl icts.

• Hague Conventions

• Geneva Convention I relating to the wounded and sick members of armed forces in
the fi eld

242 Part III Topics in international law

IHL and the International Committee of the Red Cross (ICRC)

Another unique element of IHL is that it is the only body of international law that
provides a special status and role to an international humanitarian organization.
The 1949 Geneva Conventions task the International Committee of the Red Cross
(ICRC) to play a major role in encouraging compliance with IHL and it is recog-
nized in treaty law as having the authority to visit prisoners, organize relief opera-
tions, reunite separated families, and carry out other humanitarian activities during
armed confl icts. Many states recognize the international legal personality of the
ICRC and accord it privileges and immunities under their domestic laws.

Purposes of international humanitarian
law and its basic principles

The most basic purpose of IHL is to manage armed confl icts. IHL provides rules which
regulate how parties can lawfully conduct armed hostilities in a manner that limits

• Geneva Convention II relating to the wounded, sick, and shipwrecked members of
armed forces at sea

• Geneva Convention III relating to the Treatment of Prisoners of War

• Geneva Convention IV relating to the Protection of Civilians

• Protocol I relating to the protection of the victims of international armed confl ict

• Customary international law

Rules applicable in non- international armed confl icts:

• Common Article 3 to the four Geneva Conventions of 1949 ( this is one provision on
non- international confl icts which is placed in all four Geneva Conventions)

• Protocol II of the Geneva Conventions relating to the protection of victims of
non- international armed confl ict

• Customary international law

In reality, classifying a specifi c confl ict is often not a straightforward matter. This is the case,
for example, where states interfere in non- international armed confl icts. In such situa-
tions what appears to be a non- international armed confl ict becomes what is known as an
‘internationalized non- international armed confl ict’. Such confl icts give rise to considerable
debate about the classifi cation of the confl ict and whether the rules governing international
or non- international confl ict bind some or all of the various actors engaged in the confl ict.

International humanitarian law 243

human suffering and minimizes damage (e.g. to the environment, infrastructure, and
cultural and religious objects). IHL recognizes that parties to a confl ict are entitled
to do whatever is necessary to win the war (the principle of military necessity) but it
creates rules that aim to ensure that the damage that results from armed confl ict is
minimized and that unnecessary suffering is not infl icted upon any person. IHL does
not prohibit all forms of killing or violence during armed confl ict. Indeed, one of the
purposes of IHL is to provide clear rules as to when it is lawful to kill during armed
confl ict. However, IHL requires that parties to a confl ict only do whatever is necessary
to win the war. The only legitimate aim of a war is to weaken the military force of the
other side. It is not therefore legitimate for parties to a confl ict to pursue other aims,
e.g. deliberately killing innocent civilians, instil fear in the civilian population by using
sexual violence as a weapon of war, or to attempt to exterminate or displace an entire
ethnic group out of a particular location (sometimes referred to as ‘ethnic cleansing’).
IHL essentially seeks to limit human suffering and ensure that any confl ict is strictly
regulated and carried out on the basis of legal rules. In this section we discuss a number
of foundational principles of international law. While these principles might seem
straightforward when they are read in a textbook, the practical application of these
principles is hugely problematic and it gives rise to lengthy legal and political debates.

Box 11.5 IHL basic principles: military necessity

• Parties to a confl ict are allowed to do whatever is necessary to win the war (in line
with IHL).

• The only legitimate object of war is to weaken the military force of the enemy.

• Military necessity cannot be invoked as a reason for violating IHL.

• There must be a balance struck between humanity and military necessity.

Underpinning IHL is the idea that human beings should be treated in ways that rec-
ognize their moral worth and dignity. One of the central purposes and features of IHL
is to limit human suffering and protect innocent victims of confl ict and out- of- action
fi ghters (hors de combat). Thus, parties to a confl ict are not allowed to randomly kill,
torture, starve, or lay siege to innocent civilians and they must respect the dignity of
all hors de combat. Every person must be treated with dignity and humanity and IHL
provides many extensive rules that set out how particular groups should be protected
in both international and non- international armed confl icts. Different rules govern
the protection of civilians, medical personnel, hors de combat, prisoners of war, jour-
nalists, humanitarian workers, religious personnel, and other categories of people.

244 Part III Topics in international law

Box 11.6 IHL basic principles: protection of humanity and the prohibition of
superfl uous injury and unnecessary suffering

• All human beings must be treated with humanity and parties must respect human dig-
nity. The principle of humanity means that parties to a confl ict are not, for example,
able to kill and maim at random, ethnically cleanse populations, forcibly displace civil-
ians, burn down religious monuments, torture, use sexual violence as a weapon of war,
or use cruel, inhumane, or degrading treatment of any kind against any human being.

• Although the killing of combatants is allowed, IHL prohibits inhumane and painful
ways of killing (e.g. drowning and torture).

• Some weapons have been outlawed as they cause superfl uous injury and unnec-
essary suffering (e.g. chemical, biological, and poisonous weapons, expanding
and exploding bullets, and weapons primarily causing injury by non- detectable
fragments).

Common Article 3 of the Geneva Conventions sets out the minimum standards
for armed confl icts and calls for humane treatment of those not directly taking
part in hostilities. The principle of humane treatment is also the basis of treatment
of prisoners of war, the duty to allow access for humanitarian relief and medical
personnel, treatment of civilians, respect for the dead, and a duty to inform families
about the fate of missing persons. All of these sub areas of IHL, therefore, include
positive duties or prohibitive actions to fulfi l the aim of respect for the moral worth
of humans. The killing of innocent civilians, torture, sexual violence, mutilation of
dead, bodies and medical experimentation are prohibited and respect for humani-
tarian relief personnel, and protection of medical personnel are required. Implicit in
the appeal to values common to all humanity is also the idea that there is nothing
to gain from not fulfi lling these duties and observing these prohibitions and that the
IHL rules that stem from the principle for respect should be seen as separate from
maximizing military gain during a confl ict. The principle of reciprocity also does
not apply to such rules. For example, the fact that one party to a confl ict tortures
prisoners of war does not give the other party the right to torture the prisoners of
war from the other side. If both parties torture prisoners of war, both are regarded
as having acting unlawfully and they may be prosecuted for violating IHL.

The principle of humanity also relates to the protection of fi ghters as well as civil-
ians. While IHL recognizes the legitimacy of killing combatants in certain circum-
stances (where this is justifi ed by military necessity) it also places restrictions upon the
killing of combatants and prohibits superfl uous injury and unnecessary suffering.

International humanitarian law 245

Box 11.7 Common Article 3 to the four Geneva Conventions

Common Article 3 to the four Geneva Conventions:

• applies to any armed confl ict not of an international character occurring in any
state;

• provides the basic minimum guarantees of humanity and it is accepted as customary
international law; and

• binds all parties to the confl ict including state military forces and non- state groups,
including rebels.

Common Article 3 prohibits:

• violence to life and person, in particular murder of all kinds, mutilation, cruel treat-
ment, and torture;

• discrimination of any kind (e.g. based on race, colour, religion or faith, sex, birth,
wealth, or any other similar criteria);

• hostage taking;

• outrages upon personal dignity, in particular humiliating and degrading treatment;

• passing of sentences and the carrying out of executions without previous judgment
pronounced by a regularly constituted court, affording all the judicial guarantees
which are recognized as indispensable by civilized peoples.

Common Article 3 also sets out that the wounded and sick shall be collected and cared for
and sets out that an impartial humanitarian body, such as the International Committee of
the Red Cross, may offer its services to the parties to the confl ict.

IHL requires all parties to a confl ict to balance military necessity inherent
in armed confl icts with humanitarian principles that aim to protect the basic
human interest in freedom from suffering. Balancing military necessity and
humanity requires parties to an armed confl ict to ensure that they respect the
principle of distinction and to ensure that any action carried out is proportional
to its aim. Achieving the correct balance between military necessity and human-
ity is not a straightforward or an easy matter. While IHL provides rules and
principles it does not provide textbook answers or any easy solutions. Parties
to armed confl icts are required to make quick decisions about actions that may
have devastating impacts upon human lives or the environment. The decisions
that they make will never be ideal and will be subject to long- term legal and
political scrutiny and criticism.

246 Part III Topics in international law

During any armed confl ict all parties to a confl ict are required to ask a number
of important questions before carrying out an attack. Commanders must make
decisions about what they can target, which weapons they can use, and what
kind of impact a specifi c military action will have on people and the environment.

The principle of distinction determines who is a legitimate target during the con-
duct of hostilities. This principle states that combatants and civilians, military objec-
tives and civilian objects must be distinguished at all times and attacks can only be
directed against combatants and military objectives. Civilians cannot be deliberately
targeted so long as they do not take direct part in hostilities. Following on from the
principle of distinction, attacks that cannot discriminate between combatants and
civilians are prohibited. It is important to note that this has been made lawful only
after World War II. Techniques such as carpet bombing used in Germany and Japan
by the UK and the USA were regarded as effi cient ways to end the confl ict. The ban
in indiscriminate attacks in the 1949 Geneva Conventions has infl uenced the course
of technology and carpet bombing has largely fallen away to precision bombing in
current modern warfare, as we have seen during the fi rst Gulf War of 1990.

Box 11.8 IHL basic principles: the principle of distinction and proportionality

• In order to protect humanity armed forces are required to distinguish between mili-
tary and civilian targets and they are only allowed to direct their operations against
military objectives.

• IHL prohibits the direct targeting of civilians and civilian targets such as schools,
religious buildings, patrimonial sites, and hospitals.

• A party to the confl ict may only target a civilian object in exceptional circumstances
where there is clear evidence that a civilian object is being used for military purposes
and where it can justify an attack on the basis of military necessity. Any such attack
must be proportionate to the aim.

• In modern non- international confl icts, civilians and military targets are often not
easy to distinguish, for example, where fi ghting is carried out by rebels that operate
out of densely populated civilian areas.

• IHL obliges all parties to a confl ict to ensure that their actions are proportional to the
military aim.

• A disproportionate attack is ‘an attack which may be expected to cause incidental
loss of civilian life, injury to civilians, damage to civilian objects, or a combination
thereof, which would be excessive in relation to the concrete and direct military
advantage anticipated’ (Protocol 1 Article 51).

International humanitarian law 247

In essence, IHL sets out rules that determine who can and cannot be attacked;
what can and cannot be attacked and how the attackable can be attacked.

The principle of proportionality requires the weighing of the concrete and direct
military advantage and the incidental loss to civilians, and damage to civilian objects
for each attack and other strategic decisions. If the latter is anticipated to be exces-
sive in relation to the former, that attack is prohibited under IHL. The principle of
proportionality is a cornerstone of targeting decisions during armed confl icts where
military objectives are located in civilian areas or the confl ict is fought in densely
populated areas. This principle does not apply to the confl ict as a whole, rather, it is
a guiding principle for each and every strategic decision taken by the commanders.
IHL does not provide a list of the number of injuries or deaths that would be accept-
able when pursuing a particular military aim. This means that every situation must
be analysed on the basis of the information available at the time in good faith—an
extremely complex and controversial task.

IHL prohibits both indiscriminate attacks (e.g. carpet bombing) and dispropor-
tionate attacks. A disproportionate attack is one that leads to excessive civilian
damage and/or casualties. While IHL does prohibit both indiscriminate and dispro-
portionate attacks, this does not mean that all civilian deaths and injuries that result
during war are unlawful. Parties to an armed confl ict and in particular commanders
are required to take all feasible precautions to ensure that any attack complies with
the basic principles of IHL that we have discussed.

The principle of precaution goes hand in hand with proportionality and it
demands that constant care is taken to spare the civilian population; civilians and
civilian objects. The precautions need to be feasible and should be aimed at mini-
mizing incidental loss and injury. The precaution principle applies to both decisions
of targeting and choice of weapons. It requires parties to have made an assessment
prior to any attack and to cancel any attack which becomes apparent to be dispro-
portionate. Parties should also give advance warning prior to attacks. This principle
also applies to the party receiving the attacks and it requires states or other groups
to protect the civilian population against the effects of attacks. Parties to a confl ict
also have a duty to avoid locating military objectives in densely populated areas and
to remove civilians from the vicinity of military objectives.

Box 11.9 Collateral damage

IHL prohibits the direct targeting of civilians and civilian objects and provides that any
attacks carried out must be proportionate to the military aim. When planning an attack,

248 Part III Topics in international law

Sceptics of IHL might argue that minimizing the effects of killing is a slip-
pery slope and it is diffi cult to constrain the logic that sits at the core of armed
confl ict: to destroy the enemy. It is inconceivable for armed confl icts to be ster-
ile, especially when confl icts are fought in densely civilian- populated areas or
when it is diffi cult to draw a distinction between a fi ghter and a civilian. The
diffi culty of minimizing the actual suffering of armed confl ict, however, does
not mean that there cannot be any principles or rules that guide the decisions of
those employing military power. IHL does not challenge the fact that some types
of killing are lawful within the context of armed confl icts. Combatants have
a licence to kill other combatants and destroy military targets. IHL also recog-
nizes that a combatant in an international armed confl ict cannot be prosecuted
for taking part in hostilities and has immunities as a prisoner of war. This is the
starting point of IHL: it aims to establish which forms of violence are legitimate
and which ones are not during armed confl icts. However, the prohibition of
superfl uous injury or unnecessary suffering and the principles of distinction—
proportionality taken together with the obligation to take precautions—have
proved to be powerful tools that have emerged and which go some way to mini-
mize the effects of confl ict.

parties to a confl ict, in particular commanders, are obliged on the basis of the information
that they have available to them to ask themselves the following questions:

• Is there a military purpose to the planned action? If so what is it?

• Is what I want to attack a military objective? Does the attack properly distinguish
between civilians and military personnel and objectives?

• What means and methods can I use to ensure that the attack is not indiscriminate or
disproportionate? What weapons can I lawfully use?

• Will this attack lead to any unnecessary suffering?

Taking precautions prior to attack is an obligation under IHL. However, as there is no out-
right prohibition of killing under IHL it may be that an attack that leads to the loss of civilian
life or civilian injury may be deemed to be lawful if it can be demonstrated that command-
ers took all necessary precautions and carried out their attack in line with the rules of IHL.
In such a situation any loss of civilian life or injury to civilians may not be viewed as unlawful.
Where civilians are killed or injured as a result of an attack carried out according to the
rules of IHL it is sometimes referred to as ‘collateral damage’. This is a colloquial term often
used in international relations to describe incidental loss of life, injury to persons, or dam-
age to property and the environment. Attacks that do lead to incidental loss of life but are
lawful raise a number of ethical, moral, and political questions.

International humanitarian law 249

Compliance with international humanitarian law

The assessment of the theoretical and empirical conditions of compliance with IHL
is a complex enterprise as it requires making some assumptions about the motiva-
tions of states agreeing to IHL norms in the fi rst place, the indicators for compliance
and the relationship between non- compliance and accountability. There are also
further questions about the assessment of the compliance of non- state actors with
IHL. We will discuss these issues in turn.

Motivations of states and IHL: why do states agree
to rules that govern armed confl ict?

The central discussion about motivations of states concerning IHL takes place
between those who think that states are agents that can act out of humanitarian
compassion and for norm- driven reasons and those who think that a state’s rea-
son for agreeing to IHL are self- interested and instrumental reasons with the view
of maximizing its own interests and preferences. Posner categorizes these camps
as optimists and pessimists about the basis for agreement on IHL rules (Posner
2002). These camps also correspond with constructivists and realist rationalists in
international theory (see Chapter 2). Constructivists emphasize the power of IHL
norms to provide a framework for engaging in armed confl ict and the way in which
IHL provides the very vocabulary and constitutive rules to make sense of armed
confl ict. IHL enables the international community to evaluate the conduct of wars
and the attribution of blame to states and individuals for their action in the light of
rules agreed by the international community. The principle of distinction between
civilians and combatants, for example, is a central concept to assess attribution of
blame. Many IHL rules are also action- guiding for a diverse number of actors dur-
ing confl icts and they enable these actors to have expectations about the conduct of
civilians, combatants, the medical and humanitarian personnel. An empirical factor
on the side of the constructivists is the existence of a wide corpus of IHL agreed by
a large number of states. IHL, therefore, can be regarded as a fi eld of international
law where socialization is high and persuasion with the content of norms is an
important aspect of compliance.

Realist- rationalists, on the other hand, emphasize that states, especially in times of
armed confl ict, primarily seek to ensure their security and material power. This very
condition makes states instrumental agents in deciding which rules it will confi rm
and which it will not and humanitarianism has to be seen in terms of instrumental

250 Part III Topics in international law

value in deciding whether it will pull towards compliance. Rationalists also empha-
size that the logic of reciprocity is central to understanding IHL and that the erosion
of trust between parties to observe the IHL rules is a powerful factor for an actor
to put humanitarian considerations aside, however appealing they may be from
a legal or moral perspective. This view, therefore, holds that actors do not follow
IHL because they are moved by considerations of humanity, but because following
rules offers them a comparative advantage compared to not following the rules.
Once a state decides that the comparative advantage is no longer there, it will fl out
the rules. IHL compliance is successful as long as a state thinks that it advances its
own security or its interests. Realist- rationalist arguments fi nd empirical support in
the behaviour of major powers towards IHL. For example, it is signifi cant to note
that China, India, Russia, and the United States are not parties to the 1997 Ottawa
Convention on Anti- Personnel Landmines. United States and India are not parties to
the 1977 Additional Protocols to the Geneva Conventions. In the case of landmines,
we can see that these states still see an additional utility in using landmines in con-
fl icts. In the case of the Second Additional Protocol to the Geneva Conventions on
the Protection of Civilians in non- international armed confl icts, the realist- rational
argument that this Protocol gives undue protection to insurgents is prominent.

It seems that it is not fruitful to approach this debate as an either/or scenario.
It is true that IHL is the language of the conduct of armed confl icts and all state
actors debate the terms of their or others’ behaviour within the boundaries of this
language. Even in the case of the US argument that the terrorists they fi ght do not
meet the prisoner- of- war status laid down in laws of war (Paust 2007), the point is
the challenge of the settled norms of IHL rather than refusing the laws of war alto-
gether. It is, however, also true that adhering to a language does not in itself point to
respect for the law. There may be reputational benefi ts to be seen to be adhering to
the language of laws of war, with not much cost against it.

There is, however, also evidence that IHL is not just language. IHL is diffused into
practices of all armed forces: this is a requirement of the 1949 Geneva Conventions.
Every state trains its armed forces based on IHL rules, and Hague and Geneva regula-
tions in particular. It is also true, however, that reciprocity is the basis of IHL- compliant
behaviour and IHL defi nes the terms of such reciprocity. The rules of IHL also respond
to giving due recognition to the interests of states. The interests of states in securing
military objectives and avoiding loss and injury of their own civilian population and
civilian objects, is recognized by IHL. In this respect, IHL states that in order for
a state to secure its own interests of military advancement and security of its own
people it has to agree to rules that also protect the security of the enemy civilians. This
logic also applies at the level of the individual in the battlefi eld. In order to be treated

International humanitarian law 251

humanely as a prisoner of war, it is in the interest of a soldier to treat another prisoner
of war humanely. IHL, therefore, operates by persuading actors about the reasons to
comply with the IHL and some states are more socialized into IHL principles than
others. There is, further, an argumentative dimension to IHL, especially encouraged
by the proportionality and precautionary principles. Because both of these principles
are heavily fact sensitive, they require discussions and debates in good faith in order
to establish whether they have been respected or not.

Indicators of compliance

IHL includes hundreds of specifi c rules, prohibitions, and duties that are codifi ed
in over fi fty treaties and by customary international law. When we study spe-
cifi c instances of compliance in specifi c confl icts, whether the confl ict is interna-
tional or non- international internal, and whether the treaties are ratifi ed by the
parties to the confl ict, make a signifi cant difference in assessing compliance. We
can approach indicators for compliance by focusing on central topics within the
IHL regime.

Box 11.10 Indicators for compliance with IHL

1. Compliance with prohibited acts during armed confl ict (i.e. torture, hostage taking).

2. Compliance with positive obligations during armed confl ict (i.e. duty to inform the
families of missing persons).

3. Compliance with proportionality and precautionary principles in the planning of a mil-
itary operation.

4. Compliance with duty to train military on IHL rules and principles.

5. Compliance with prosecuting individuals for breaches of IHL (see also Chapter 12).

These different areas or indicators of compliance correspond to different types
of obligations that states agree to undertake in IHL. The fi fth area on the list is
particularly important as states have a duty to prosecute and punish individuals
who fail to observe the rules of IHL. As will be discussed in Chapter 12, viola-
tions of IHL has a special form of jurisdiction under international law: universal
jurisdiction. When we take this multidimensional view of compliance, we fi nd, for
example, that an army is complying with prohibitive acts or the proportionality
principle but that it does not prosecute its soldiers who violate IHL. Conversely, we
may fi nd cases where IHL training is low, but prosecution rates are high. Different

252 Part III Topics in international law

types of indicators for IHL, therefore, can show different types of compliance
behaviour of a single state.

Non- compliance and accountability

Unlike the developments in other areas of international law, such as international
human rights law (see Chapter 13), there are no international courts or bodies
that are specifi cally charged with assessing compliance with IHL. The Geneva
Conventions of 1949 leave this primarily to states themselves and as we discussed
earlier, states are under a duty to try individuals alleged to have committed war
crimes and punish those individuals in the light of the facts and the IHL rules. This
institutional design is thought to be fl awed by some as it enables the states to be
the judges of their own performances in times of armed confl ict. Violations of IHL
that stem from failure to observe principles of proportionality and precaution are
especially suspect to this charge as these principles require implementation at the
highest ranks of the military responsible for overall strategy of a war. Considering
the close relationship between high military ranks and politicians, it is clear to see
that there is not a strong incentive structure to prosecute violations of IHL involv-
ing high- ranking commanders and political orders. A particular response to this
problem has been to criminalize some gravely heinous acts, such as the intention to
destroy a people or ‘ethnic cleansing’, internationally—Chapter 12 discusses these
in greater detail. It is, however, important to note that even though IHL is unique in
that is creates individual duties under international law, the statist nature of enforc-
ing such duties presents an obstacle for gaining compliance by high- level political
and military leaders. From a more sociological perspective, states tend to become
more protective of their political leaders and armies in times of confl ict. This also
has an effect on lack of prosecutions of leaders for violations of IHL.

There are a number of international institutional avenues that can be triggered to
hold persons that do not comply with IHL to account. In the case of international
armed confl icts, one of the state parties can bring a case to the International Court of
Justice if both parties accept the voluntary jurisdiction of this court (see Chapter 8).
A case can also be brought against an individual before the International Criminal
Court if the state where the suspected war crime is committed is a party to the
International Criminal Court Statute or where the state of the person committing
the war crime is a party (see Chapter 12). Both of these avenues, however, depend on
the consent of the states to be called into account or allow their national to be tried
before international courts. The accountability mechanisms for violations of IHL
in times of internal confl icts are, on the other hand, much fewer. Members of rebel

International humanitarian law 253

forces, when captured by state forces are subject to criminal prosecution under the
domestic laws of that country. Members of state forces, however, escape account-
ability in most cases, as either the state does not recognize that IHL is applicable or
the state does not prosecute members of its own armed forces for their conduct in
defending their own territories. The internal confl icts in South America and Europe
have been an exception to this defensive principle as civilians were able to bring
cases against security forces before regional human rights courts in places such as
Colombia, Peru, the United Kingdom, Turkey, and Russia (see Chapter 13).

Non- state actors and compliance with international
humanitarian law

IHL rules assume that if an armed force with an identifi able command structure is involved
in an armed confl ict, be it international or non- international, it is bound by the rules of
IHL. Members of such forces have the same obligations that states have to respect the rules
of IHL. The criterion to trigger IHL duties for a non- state armed group is its capacity to
behave as an army. The logic of reciprocity also applies to confl icts between two non- state
armed groups or between a state and a non- state armed group. The IHL requirements can
be conceived as a measure to protect a group’s own security and secure humane treatment
of its armed forces. There are also examples of observance of IHL by non- state actors
by committing themselves to commitments, declarations, or codes of conduct (Clapham
2006). Secessionist non- state actors have a further incentive to follow IHL rules in order
to receive acceptance and recognition as an insurgency movement internationally. In this
respect, compliance with IHL can also be seen through an instrumental lens as a way of
contributing to the future status and reputation of a non- state actor group.

There are also, however, a signifi cant number of civil confl icts where such incen-
tive structures do not exist. This may be due to the lack of interest amongst fi ghting
parties to receive international legitimacy or recognition, collapse of mutual trust
between the parties and escalation of violence, the lack of checks and balances
within a non- state armed group, the inability of the armed group to discipline its
individual members, the lack of international pressure and monitoring, or the exist-
ence of a very unequal power relationship between parties to the confl ict.

The latter scenario has especially devastating effects on IHL observance. When
a party to a confl ict has a signifi cant military disadvantage, it tends to fi ght the confl ict
in dense civilian areas, to use civilians as human shields, or encourage its combatants
not to respect rules of openly carrying arms and wearing distinctive signs in order to
indicate their combatant status. All of these acts themselves constitute violations of IHL.

254 Part III Topics in international law

There is, however, the further problem of how the stronger party conducts its actions in
the face of such behaviour. For example, IHL suggests that the principle of distinction
should be respected in all targeting decisions. This principle does not, however, specifi –
cally deal with the use of voluntary and forced human shields. While some argue that
a voluntary human shield is someone who loses his or her protection as a civilian and
becomes a legitimate target, others disagree and argue the principle of proportionality
and precaution requires the attacker to consider all other ways before targeting a civil-
ian. It is also a matter of debate as to whether a forced human shield can be a military
target. Non- state actor non- compliance with IHL, therefore, puts into danger the com-
pliance of the other parties to the confl ict, be it state and non- state actor.

The increase in the privatization of armed confl icts creates a further challenge for
compliance of non- state actors with IHL. The involvement of private military com-
panies (PMCs) (employed by both states and non- state actors) gives rise to a new set
of complex questions of how to ensure PMCs follow IHL and are held responsible
for IHL violations. Abuses of IHL by PMCs, such as the involvement of members
of PMCs in the torture and inhuman interrogation techniques in the Abu Ghraib
prison in Iraq (Singer 2007) demonstrate the importance of this issue.

The contracting out of military activities to private companies is often used by
governments as a way of avoiding soldier fatalities and avoiding public criticism at
home and abroad. Like individual members of armed groups, individuals working
for PMCs are responsible for IHL violations. However, IHL also assumes that indi-
viduals participate in hostilities under clear command structures and that there is an
institutional framework to train, discipline, and prosecute a soldier under domestic
law. Because PMCs are private companies or corporations, their employees do not
have the same kind of relationship to the state that a soldier has. This different kind
of relationship between the state and the private company and the company and
the privately employed soldier creates a structural barrier that prevents systematic
respect for IHL by PMCs. This structural problem is part of a wider policy debate
about how PMCs should be regulated and who should regulate them to ensure that
they do not violate principles of IHL.

Conclusion

In this chapter we provided an overview of the basic principles of the body of inter-
national law that regulates armed confl icts: international humanitarian law. We high-
lighted that IHL is a unique body of international law that creates direct duties not
only for states, but also for armed groups and individuals under international law.

International humanitarian law 255

This challenges the interstate outlook on international law. We fi rst set out where
this body of law can be found and which topics and relationships it regulates and we
outlined some unique features of this body of law. We then explored the purposes
of IHL and the conceptual tools and principles it employs in order to reach these
purposes. We highlighted that compliance with IHL is a good prism to evaluate the
debate between constructivism and realist- institutionalism in international relations
as reaching military objectives and defending one’s own nation and people and rules
that regulate confl icts have a complex relationship conceding points to each side of
the debate. We fi nally discussed the complexities around compliance and non- state
actors and the reasons of incentive and motivation structures for non- state armed
groups and private military companies in complying with IHL rules.

Case Study 11.1 Internal confl icts and international responses

Arcadia is a state made up of two ethnic groups: the Arcadians (80%) and the Utopians
(20%).

The Government of Arcadia is comprised entirely of Arcadians. Over the past ten years,
the Arcadian Government has systematically discriminated against Utopians in Arcadia.
The Arcadian Government has banned Utopians from attending university, working in the
government, and accessing the social welfare and health systems. Thousands of Utopians
have been detained without trial for ‘crimes against the Arcadian state’ and many thou-
sands have simply ‘disappeared’.

Five years ago, frustrated with the denial of their rights, a group of Utopians formed the
Utopian Liberation Front (ULF). Since that time, ULF has been fi ghting against the Arcadian
Government. The fi ghting is confi ned to the north of Arcadia around the city of Oxford
which is populated by Utopians.

Two years ago, the Arcadian Government commenced ‘Operation Anti-Terror’, a military
campaign aimed at eradicating the ULF. The Arcadian Government has stated that ‘Opera-
tion Anti-Terror’ is a necessary and legitimate response to the terrorist threat posed by the
ULF in Arcadia.

On the 20 May, the Arcadian military received credible information that ULF fi ghters have
established a strategic base in the city of Oxford. The city of Oxford is under ULF control.
The commander of the Arcadian military believes that ULF is storing weapons in a Utopian
mosque and has established an important communications centre in a hospital. Both the
mosque and the hospital are in the centre of Oxford and both are being used by the civil-
ian population. There are around 400 patients in the hospital and 60 people pray at the
mosque each day. The commander of the Arcadian military is planning to deploy fi ghter
jets equipped with the latest precision targeting systems over Oxford to attack the mosque
and the hospital from the air.

Discuss the lawfulness of the planned attacks on the mosque and hospital. What specifi c
issues would the Commander of the Arcadian forces need to take into consideration when

256 Part III Topics in international law

Questions

1. What is armed confl ict and how is it defi ned in IHL?

2. How is IHL different from other types of international law?

3. What is the relationship between IHL, international history, and the advancement of
technology?

4. What are the central topics covered by IHL?

5. What does the ‘humanization’ of IHL mean and how could we assess this?

6. What are the central purposes of IHL? How does the body of rules of IHL achieve
such purposes? (We recommend reading through the treaties in order to answer this
question.)

7. What are the basic principles of IHL?

8. What motivates states to be bound by IHL?

9. Should states disregard IHL when they are fi ghting with non- state actors with no
regard to IHL?

10. What challenges do private military companies bring to IHL?

11. Is there a need to rethink the basic principle and rules of IHL?

Further reading

planning this attack to ensure that it complies with IHL? What additional information, if any,
would the Commander need to know in advance of the attack?

On the 22 May, the commander of the Arcadian armed forces authorizes his forces to
carry out the air attacks on the mosque and the hospital. The attack takes place at 16.00
hrs. The attack on the hospital leads to the death of all 400 patients and 100 medical and
other staff. The attack on the mosque leaves 5 dead and 59 injured.

The world media, the United Nations, and the international diplomatic community are
extremely concerned about the loss of civilian life and injuries that resulted from the attack
carried out by Arcadian forces on the hospital and mosque. You are a diplomat working for
the Draconian Government, the current president of the UN Security Council and you have
been asked to prepare a brief on the attacks and possible courses of action. How would
you structure your brief?

Detter, I. (2000) Law of War (Cambridge: Cam-
bridge University Press). A comprehensive
discussion of the contemporary challenges to

international humanitarian law and changing
legal context of modern warfare.

International humanitarian law 257

Dinstein, Y. (2005) War, Aggression and
Self- Defence (Cambridge: Cambridge Uni-
versity Press). A comprehensive analysis of
international humanitarian rules and how
rules apply in real- time situations, such as the
confl icts in Iraq and Afghanistan.

Henckaerts, J. M and Doswald- Beck, L. (2005)
Customary International Law. Vol. 1: The
Rules (Cambridge: Cambridge University
Press). A compilation and analysis of cus-
tomary international humanitarian law that
applies during international and internal
armed confl icts in the light of the develop-
ments in state practice.

Meron, T. (2000) ‘The Humanization of Humani-
tarian Law’ American Journal of International
Law 94: 67–121. A comprehensive account of
how principles of humanity and respect have
permeated into the corpus of international
humanitarian law.

Posner, E. (2002) A Theory on the
Laws of War (Chicago: Chicago Law
Papers). A realist- rationalist analysis of the
reasons states have for making and complying
with international humanitarian law.

Roberts, A. (2008) ‘The Equal Application of
the Laws of War: A Principle Under Pressure’
International Review of the Red Cross 90/872:
931–62. A thorough analysis of whether
international humanitarian law should
apply differently to those involved in fi ghting
depending on the worth of their causes for
fi ghting.

Singer, P. W. (2007) Corporate Warriors: The Rise
of the Privatised Military In dustry, 2nd rev. edn.
(Ithaca: Cornell University Press). A comp-
rehensive discussion of the history of the
p rivatization of the military and the problems
the privatization poses for regulation.

Websites

http://www.icrc.org Website of the International Committee of the Red Cross containing all the
relevant legal documents on IHL, a database of national implementation, and access to the leading
journal, The International Review of the Red Cross.

http://www.icrc.org/Web/eng/siteeng0.nsf/html/party_main_treaties This specifi c link belongs
to the International Committee of the Red Cross and it provides a list of all states parties to main
international humanitarian law treaties.

http://www.icrc.org/ihl Database providing the texts of over 100 international humanitarian law
treaties and commentaries on the meanings of articles on some of the core treaties.

http://www.crimesofwar.org This is an excellent introduction to the main principles of IHL, includ-
ing comments on application of IHL to ongoing confl icts by experts.

http://www.crisisgroup.org This is an excellent website to get information about recent confl icts
around the world providing factual information as well as political analysis.

http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/ montreux- document-170908 The full text and
commentary on the Montreux Document on Private Military and Security Companies.

Visit the Online Resource Centre that accompanies this book to access more learning resources
www.oxfordtextbooks.co.uk/orc/cali/

Chapter 12

International criminal law
Paola Gaeta

CHAPTER CONTENTS

• Introduction

• The birth and evolution of international criminal law

• The core crimes and the rationale behind their international criminalization

• The enforcement of international criminal law at the international level

• The relationship between international criminal courts and national courts: primacy

versus complementarity

• Conclusion

CHAPTER OVERVIEW

This chapter explains what international criminal law is and why and when it has asserted itself

as a branch of international law. The fi rst part of the chapter outlines the birth and evolution of

international criminal law, focusing on the main three phases of this process. Next, it explains

the reasons behind the international criminalization of conducts amounting to the so- called

‘core crimes’ (war crimes, crimes against humanity, and genocide). Finally, it examines the main

features of the most well- known international criminal courts and tribunals, the merits and

demerits of international criminal proceedings in comparison to domestic proceedings, and

the coordination between the judicial activities of international criminal courts and national

courts in the repression of international crimes.

Introduction

International criminal law is a branch of international law made up by rules on
the personal criminal accountability of individuals for conducts amounting to

International criminal law 259

international crimes. International criminal law directly attaches criminal account-
ability only with respect to international crimes proper, which comprise the so- called
‘core crimes’: war crimes, crimes against humanity, and genocide. All these crimes
express what can be called ‘state criminality’, for they are crimes usually perpetrated
by state offi cials in their offi cial capacity, often with the tolerance, acquiescence or
direct support of the apparatus of the state. Their direct criminalization under inter-
national law is now undisputable. It has its roots in the gradual emergence of a set
of ‘supra-national’ values, proper to the international community as a whole, that
must be safeguarded against those states that—through their individual organs or
their whole apparatus—disregard them.

The assertion of international criminal law as a branch of international law is
a recent phenomenon that occurred around the early 1990s, with the establishment
of international criminal courts. Until that time, the criminalization and repres-
sion of international crimes was entirely left to national courts, and international
law merely confi ned itself to enjoin individual states to punish those crimes, and
to enhance their judicial cooperation (in the fi eld of extradition and collection of
evidence abroad) to ensure their repression.

The international law approach to international crimes aims to specify what
kinds of obligations states have in punishing individuals who commit international
crimes and what institutional arrangements need to be in place for the effectiveness
of international criminal law. Theories of international relations, on the other hand,
adopt varying degrees of a scepticism or optimism towards international criminal
law. Sceptic positions highlight that international criminal law will be abused by
states and states will only cooperate with international courts or organizations if
they are coerced or if it is in their interests to do so. Scepticism towards international
law is further supported by the fact that most powerful states in the world are not
parties to the International Criminal Court, but they unilaterally declare situations
in the world as international crimes. Realist theories of international law, in particu-
lar, explain this scepticism by suggesting that the anarchical nature of the society
makes it impossible for the altruistic application of international criminal law. The
more optimistic accounts on the other hand, emphasize the transformative nature of
international criminal law and how the institutionalization of international crimes
can shape the interests of state actors. The mobilization of non- governmental actors
and domestic courts by international criminal law may also shape the attitudes and
preferences of state actors towards international criminal law.

This chapter aims to trace the development of the normative framework of inter-
national criminal law and its institutions. It identifi es two signifi cant contribu-
tions of international criminal law to understanding international relations. First,

260 Part III Topics in international law

The birth and evolution of international criminal law

The fi rst phase: the Nuremberg and Tokyo Tribunals

It was with the establishment of the International Military Tribunal at Nuremberg
(IMT or Nuremberg Tribunal) and the International Military Tribunal for the Far
East (Tokyo Tribunal) that, for the fi rst time in history, the principle according to
which individuals acting on behalf and with the protection of their state can be
held personally accountable for crimes committed in violation of international law

international criminal law modifi es the state sovereignty doctrine in the area of
criminal justice by creating the category of international crimes. Most international
relations theories grapple with the idea that over a hundred states in the world
have accepted that international and domestic political decisions have criminal
components that can be prosecuted domestically or internationally. The normative
force of this idea, rather than narrowly defi ned self- interests of states, does most of
the work in explaining the widespread commitment to international criminal law.
Second, the institutional framework of international criminal law (the International
Criminal Court) is based on the diffusion of principles of international criminal law
in domestic states, especially amongst the domestic judiciary. This sets in motion the
empowerment of domestic judges as important actors of international law in the
areas of international crimes.

Box 12.1 International crimes versus transnational crimes

International crimes must not be confused with another class of crimes, which are some-
times also described as ‘international’ crimes on account of their strong transnational
dimension, but that are committed by private individuals for private purposes (think, for
instance, of piracy, money laundering, counterfeiting of currency, drug traffi cking, corrup-
tion, traffi cking in human beings, and so on). International criminal law does not deal with
this class of crimes, that can better be termed ‘transnational crimes’. The role of interna-
tional law in respect to this class of crimes is simply to provide the appropriate framework
to allow states to better organize the joint repression of such crimes, in particular by way
of treaties on judicial cooperation. The idea is that states usually have a strong interest
in repressing those crimes that are transnational in nature and jeopardize their common
interests. Therefore, there is no need for international law to directly deal with them, to
avoid impunity, as instead is the case with international crimes proper.

International criminal law 261

was asserted. This was a landmark event. Until then, subject to limited exceptions,
foreign national courts were not allowed to sit in judgment over individuals who
had acted as state representatives, for the international rules and principles on state
immunity shielded them from criminal accountability. The predominant doctrine
was that state offi cials could only be judged by their own courts, to ensure that
foreign states did not interfere, through their judicial systems, in the exercise of
the sovereign authority of other states. In practice, the doctrine of state immu-
nity guaranteed impunity for crimes committed by state offi cials under the colour
of law, since it was highly implausible that the national courts of those offi cials
would have sat in judgment over crimes expressing ‘state criminality’. At the inter-
national level, the only available remedy when those crimes were committed was
to claim the international responsibility of the state as such, and require the states
to provide reparation for the illegal conduct of its state offi cials. In a well known
dictum, the Nuremberg Tribunal wiped out this doctrine and asserted the following
principle: ‘Crimes against international law are committed by men, not by abstract
entities, and only by punishing individuals who commit such crimes can the provi-
sions of international law be enforced.’ Since then, the notion of individual criminal
accountability of individuals responsible for international crimes has become fi rmly
embedded in international law.

Box 12.2 The Nuremberg and the Tokyo Military Tribunals and trials

The Charter of the International Military Tribunal at Nuremberg (the London Charter) was
signed on 6 August 1945 by France, the UK, the US, and the USSR after very diffi cult nego-
tiations relating to the list and defi nition of the crimes to be subject to its jurisdiction, as
well as the rules of procedure and evidence that the Nuremberg Tribunal had to follow.
The London Charter conferred the Nuremberg Tribunal jurisdiction over three classes of
crimes: crimes against peace, war crimes, and crimes against humanity. Article 8 ruled out
the possibility for the defendants to successfully rely upon having acted qua state offi –
cials or in obedience to superior orders to escape criminal responsibility. The London
Charter provided that each of the signatory states had to appoint one chief prosecu-
tor, one lead judge, and one alternate judge. The prosecution charged twenty- four indi-
viduals (Hitler and many others closest to him committed suicide and did not face trial
at Nuremberg), the best known among them being Hermann Goering. The Tribunal ren-
dered its fi nal judgment on 30 September and 1 October 1946 (the trial had started one
year before, with the receipt of the indictment by the defendants, on 10 October 1945). It
acquitted three people on all counts, and found the others guilty on at least one count. One
of the most challenging tasks of the Tribunal, from a strictly legal point of view, was to

262 Part III Topics in international law

demonstrate that the prosecution of crimes against peace (namely, having waged a war of
aggression) did not violate the principle of legality in criminal matters; in other words, that
the Tribunal was not exercising criminal jurisdiction over a conduct that, at the moment it
was carried out, was not considered as a criminal act. In this regard the Tribunal pointed
out that various international treaties, such as the 1928 Kellogg-Briand Pact and the 1924
Protocol for the Pacifi c Settlement of International Disputes, banned resort to wars of
aggression. As regards the unavailability of the defence of having acted qua state offi cials
or in obedience to superior orders, the Nuremberg Tribunal asserted that ‘individuals have
international duties which transcend the national obligations of obedience imposed by
the individual state’ and that ‘the principle of international law, which under certain cir-
cumstances protects the representatives of a state cannot be applied to acts which are
condemned as criminal by international law’.

The Tokyo Tribunal was established in January 1946, by virtue of a Decree issued by the
US General D. MacArthur to implement Article 10 of the Potsdam Declaration (which pro-
vided that ‘stern justice’ was to be done for war criminals). Its Statute was very similar to
that of the Nuremberg Tribunal, and conferred on the Tribunal jurisdiction over crimes
against peace, war crimes, and crimes against humanity; again, the Statute of the Tokyo
Tribunal ruled out the defence of having acted in an offi cial capacity or in obedience to
superior orders. All the signatories of the instrument of surrender of Japan (Australia,
Canada, China, France, the Netherlands, New Zealand, the UK, the US, and the USSR), plus
India and the Philippines, appointed a judge of the Tribunal. Unlike the Nuremberg Tribunal,
there was a sole Chief Prosecutor, a US national (Joseph Keenan). The Presiding Judge was
an Australian, Sir William Webb. The trial started on 29 April 1946 and the majority judg-
ment was given in November 1948. The Prosecution had charged twenty- eight people, all
of them high level military and political leaders of Japan. All defendants were found guilty
on at least one count. (In the meantime, however, one defendant had died and another
one was declared unfi t to stand trial; in total, therefore, the Tribunal convicted 26 people.)
Some judges issued dissenting judgments. In particular, the Dutch Judge B. Roling argued
that aggressive war was not a crime entailing personal criminal responsibility under inter-
national law.

The second phase: the adoption of treaties for
the repression of international crimes by states

After the remarkable experiment made with the establishment of the Nuremberg
and Tokyo trials, states decided to cope with international crimes by following
the approach that was normally used for the repression of transnational crimes
(i.e. crimes committed by private individuals, usually for private ends, but having
a strong transnational component—such as drug traffi cking, money laundering,

International criminal law 263

and so on: see Box 12.1 above). While debating the establishment of a permanent
international criminal court, they drafted treaties or treaty provisions for the prose-
cution and punishment of crimes such as genocide and war crimes (and also torture
and apartheid). These treaties ‘simply’ enjoined contracting states (1) to criminal-
ize those conducts within their own legal orders and (2) to punish the responsi-
ble persons or, for war crimes amounting to grave breaches of the 1949 Geneva
Conventions (see Box 12.3), to extradite them to another contracting state. In other
words, with regard to crimes perpetrated within the context of state criminality or
state violence, the international community reacted by resorting to the traditional
institutional framework of adopting specifi c treaties or treaty rules aimed at impos-
ing on states the duty to criminalize the prohibited conducts, and of organizing
judicial cooperation for their repression. International law was simply a tool for
the coordination of the exercise of criminal jurisdiction by states, instead of directly
criminalizing and punishing conducts amounting to international crimes.

Unfortunately, this traditional institutional framework was not well suited for
the prosecution and repression of international crimes, and consequently was sel-
dom employed by contracting states: some of them even failed to pass the necessary
implementing national criminal legislation; or, when they possessed all the neces-
sary legal requirements for the exercise of their criminal jurisdiction, they simply
failed to make use of such jurisdiction. For a long time the scheme with which
national criminal jurisdictions had to deal with forms of state criminality, commit-
ted either at home or abroad, simply proved unworkable (and to some extent it
still is today). This should come as no surprise: when crimes are committed abroad
by state offi cials on behalf or with the support of their state, third states tend not
to interfere with the conduct of such offi cials, although—faced with mass- scale
crimes—international law allows (and in some cases even obliges) them to act.
When crimes are committed domestically, various reasons can stand in the way of
prosecution: if the crimes are perpetrated under an authoritarian regime, prosecu-
tors and judges have to wait for its toppling; however, when this occurs, amnesty
laws are normally passed ‘for the sake of’ national reconciliation, or immunities, or
the statute of limitation are urged by the culprits, or other political and legal hurdles
are relied upon.

The turning point: the establishment of international criminal courts

The establishment in the early 1990s of the International Criminal Tribunal for
the former Yugoslavia (ICTY) and for Rwanda (ICTR) opened a new era: for the
fi rst time in history truly international criminal tribunals were set up to prosecute

264 Part III Topics in international law

and punish genocide, crimes against humanity, and war crimes, i.e. the so- called
‘core crimes’. Their creation paved the way to the establishment of the International
Criminal Court (ICC) in 1998 and of a group of mixed criminal tribunals, some of
them with a strong international component as is the case with the Special Court for
Sierra Leone. All these international or mixed criminal tribunals exercise their juris-
diction over individuals who may be indicted on account of criminal rules of a truly
international nature. Those rules are provided for in their constitutive instruments:
they describe the prohibited conducts and indicate what criteria must be applied
for sentencing; in addition, they are normally supplemented by other international
rules, chiefl y customary rules, and by general principles of law common to national
legal orders. These international and mixed criminal tribunals, in particular the
ICTY and the ICTR, have spawned a copious case law, thus contributing to the
emergence of new international customary rules supplementing those which already
existed. Finally, and more importantly, their functioning, although not fl awless, has
contributed to disseminating the idea that there are criminal conducts that may
not go unpunished, and that individuals responsible for them must be brought
to justice.

The international community has therefore begun to enforce its criminal
prohibitions through international or quasi- international courts and tribunals that
apply international criminal rules directly. In a nutshell, with regard to the core
crimes the ius puniendi (i.e. the right to punish) has ceased to be an exclusive state
prerogative; furthermore, it is exercised at the international level on behalf of the
international community as a whole. Plainly, states can still prosecute and punish
individuals who engage in those criminal conducts. However, the current exercise of
national criminal jurisdiction in this fi eld can better be described as a judicial activ-
ity performed for the international community as such, rather than as a modality of
exercise of a sovereign power. One could go so far to say that, with respect to the core
crimes, the new approach has reversed the traditional one briefl y described above:
now it is national criminal law and national criminal jurisdictions that constitute the
instrument enabling the international community to repress such crimes. These are
crimes directly criminalized at the international level. As few international mecha-
nisms have been set up to prosecute and punish the responsible individuals, national
judges, if and when they step in and exercise their criminal jurisdiction over those
crimes, also act as judicial organs of the international community thereby accomplish-
ing a sort of dédoublement fonctionnel (role splitting), a phenomenon well known to
international lawyers and of which some national courts seemed to have been fully
aware.1 It is as though the international community, still an imperfect community,
availed itself of national criminal courts to enforce its criminal prohibitions.

International criminal law 265

Be that as it may, we can however conclude that in the fi eld of core crimes
there now exists a branch of international law comprising a truly international
criminal law.

The core crimes and the rationale behind their
international criminalization

International crimes, as noted above, encompass war crimes, crimes against human-
ity, and genocide. The international criminalization of each of these crimes has its
own rationale and has followed its own path.

War crimes

War crimes comprise serious violations of international rules regulating the conduct
of the belligerent parties during an armed confl ict ( so- called ‘international humani-
tarian law’ or the ‘laws of war/armed confl icts’) (see Chapter 11). The rationale
behind the assertion of individual criminal liability under international law for war
crimes can be traced back to the eighteenth century, when national criminal codes
and military manuals started providing for the right of a belligerent to prosecute
and punish his own soldiers for violations of the laws of war. As for war crimes
committed by enemy personnel or civilians, it would seem that the power of a bel-
ligerent to exercise his criminal jurisdiction was initially limited to the time of the
armed confl ict and, in any case, only within occupied territories. However, armistice
or peace treaties could contain a clause whereby the victorious belligerent imposed
upon the defeated states the obligation to surrender alleged war criminals for trial.
World War I abruptly launched the discourse on war crimes in the international
arena. Article 228 of the Peace Treaty of Versailles constitutes the fi rst clear inter-
national recognition of the right of a belligerent party to bring to justice persons
belonging to the other belligerents for violations of the laws and customs of war
after the end of hostilities.2 The path towards criminalization of war crimes devel-
oped through: (1) the establishment of the Nuremberg and Tokyo Tribunals; (2) the
adoption of specifi c provisions in the four 1949 Geneva Conventions on the protec-
tion of the victims of war and the 1977 Additional Protocol (namely the provisions
on the so- called ‘grave breaches’); and (3) a set of criminal provisions contained in
few other treaties of international humanitarian law. This process culminated in the
1990s, with the creation by the UN Security Council of the ICTY and the ICTR, and

266 Part III Topics in international law

with the establishment of the ICC and other international criminal courts and tribu-
nals. The rationale behind the international criminalization of conducts involving
serious violations of the rules of international humanitarian law is clear. It lies in the
need to ensure—also by way of a threat of criminal sanctions—that some elemen-
tary principles and considerations of humanity are respected in warlike situations,
so as to reduce the suffering and misery caused by war as much as possible.

Box 12.3 Defi nition and classes of war crimes

War crimes are serious violations of the laws of armed confl ict entailing individual criminal
accountability under international law. The laws of armed confl ict can be split into two
main groups: the rules regulating the conduct of hostilities (i.e. the method and means of
war), codifi ed at the Hague Peace Conference in 1899 and 1907 (the so- called Hague law)
and those regulating the protection of persons who do not, or no longer, take part in the
hostilities (i.e. the victims of war), codifi ed in Geneva by the four 1949 Conventions (the
so- called Geneva law). Those rules, however, only apply to international armed confl icts,
namely to confl icts between states. Non- international armed confl icts are scarcely regu-
lated by international law. States tend to consider those confl icts as a matter pertaining to
their domestic affairs, and therefore are regulated by national law only, for they relate to
situations where a group of individuals (rebels or insurgents) takes arms against another
group or against the state, thereby illegally resorting to private armed violence. Until the
1977 II Additional Protocol to the 1949 Geneva Conventions (which deals with high inten-
sity non- international armed confl icts), the only provision applicable to non- international
armed confl icts was the one contained in the four 1949 Geneva Conventions: common
Article 3. This provision spells out basic humanitarian principles to be respected in con-
fl icts of non- international character, and requires that all persons except those engaging
in fi ghting must be protected in all circumstances and be spared from violence to life and
limb (such as murder, mutilation, torture, cruel treatment). In addition, common Article 3
prohibits other conduct, such as the taking of hostages, and the passing of sentences and
the execution of penalties without judgment by a regular constituted court and fair trial.
The 1977 II Additional Protocol has expanded and supplemented the protection afforded
by common Article 3, and contains a few rudimentary provisions on the regulation of the
conduct of hostilities in non- international armed confl icts.

Against this background, one can easily understand why, to establish whether a war
crime has been committed, one has fi rst to classify the confl ict as international or
non- international in nature (since a different set of rules apply to these two kinds of con-
fl icts). Once having classifi ed the armed confl ict, a war crime may consist either in the seri-
ous violation of a rule on the conduct of hostilities, or a rule protecting the victims of war.
Therefore, there are four different classes of war crimes.

International criminal law 267

Crimes against humanity and genocide

As for serious violations of human rights amounting to crimes against humanity and
genocide, the case is slightly different. The path towards their international criminali-
zation is not rooted in national criminal legal systems, as is the case with war crimes,
but started at the international level with the adoption of the Statute of the IMT and
the Nuremberg trial. The story is well known: the Allies had to fi nd a way to come
to terms with odious crimes committed by the Nazis against Germans, or against the
civilian population of the Allies of the Third Reich. These crimes did not fall under
the notion of war crimes (that can be committed only against an enemy population,
or enemy combatants). Moreover, under traditional international law the treatment
by a state of its own citizens or those of Allied countries was a matter pertaining to
the ‘internal and external affairs’ of states, and no interference from other states was
envisaged or allowed. Crimes against humanity were therefore conceived of as a sort of
‘umbrella’ notion, to be applied if necessary to fi ll the lacunae left by the notion of war
crimes, subject however to an important limitation: these crimes had to be linked to the
perpetration of war crimes or crimes against peace, i.e. they had to be connected with
war. However, after these truly international fi rst steps, the notion of crimes against
humanity remained ‘dormant’ for a long time, and the process of its international
criminalization never went through the adoption of specifi c treaty provisions, as was
the case in war crimes such as grave breaches of the 1949 Geneva Conventions. On
the contrary: the notion of crimes against humanity was by some national courts con-
ceived of as strictly connected to World War II and the punishment of German and
Japanese criminals, as if there was no international rule prohibiting crimes against
humanity except for the one that had evolved from the Nuremberg Charter.3

In international armed confl icts, war crimes consist of: (1) serious violations of the Hague
law (such as attacking an undefended village, directly attacking the civilian population or
individual civilians, using weapons causing unnecessary sufferings); (2) serious violations
of the Geneva law, in particular those listed by the 1949 Geneva Conventions as ‘grave
breaches’ (murder, torture, inhumane treatment, and other prohibited acts against per-
sons protected by the Conventions, namely sick, wounded, prisoners of war, and civilians in
internment camp or in occupied territories).

In non- international armed confl icts, war crimes consists of: (1) serious violations of the
laws on the conduct of hostilities applicable to non- international armed confl icts (some
of them are codifi ed in Additional Protocol II); (2) serious violations of common Article 3 of
the Geneva Conventions.

268 Part III Topics in international law

Genocide, which was punished at Nuremberg as part of the wider notion
of crimes against humanity in the form of persecution or extermination, took
a different route. Its international prohibition was solemnly incorporated in the
1948 Convention for the Prevention and Punishment of Genocide. On the one
hand, this Convention requests contracting states to criminalize genocide within
their legal orders and obliges the territorial state to punish persons responsible
for genocide; on the other hand it went so far as to envisage the future establish-
ment of an international criminal court endowed with jurisdiction over acts of
genocide. The Genocide Convention was rapidly ratifi ed by a large number of
states, and the general revulsion against this crime quickly gave rise to a cus-
tomary rule contemplating genocide not only as an individual crime, but also
as a very serious international wrongful act of states. This explains why, when
international criminal courts such as the ICTY, the ICTR, and the ICC were
established in the 1990s, the defi nition of genocide was taken verbatim from
the Genocide Convention without much discussion, and again inserted in all

Box 12.4 Defi nition of crimes against humanity

Crimes against humanity were fi rst defi ned by the London Charter establishing the
Nuremberg Tribunal as ‘murder, extermination, enslavement, deportation, and other inhu-
mane acts committed against any civilian population, before or during the war, or persecu-
tions on political, racial or religious grounds in execution of or in connection with any crime
within the jurisdiction of the IMT, whether or not in violation of the domestic law of the
country where perpetrated’. As is clear from this defi nition, crimes against humanity could
be punished only if they were linked or connected to the commission of the other two
crimes under the jurisdiction of the Nuremberg Tribunal, namely war crimes and crimes
against peace. In practice, it required a link with the war. Therefore, the Tribunal decided
that this link certainly existed for acts committed after 1 September 1939, which was when
World War II started, and did not take into consideration acts committed before that date.

The defi nition of crimes against humanity was the object of intense negotiations at the
Rome Conference for the establishment of the ICC, since there were numerous delegations
who wished to retain the requirement of the link with an armed confl ict. This position was
eventually defeated, and Article 7 of the ICC Statute provides that crimes against humanity
consist of some conducts (expressly enumerated by the Article itself, such as murder, rape,
torture, and so on) when committed as part of widespread or systematic attack against
a civilian population, with the knowledge of the attack, without requiring a nexus with an
armed confl ict.

International criminal law 269

subsequent instruments instituting other international or mixed tribunals for
the repression of international crimes. By contrast, at the time of the adoption
of the Statute of the ICTY, the ICTR, and the ICC the notion of crimes against
humanity was still highly controversial, as the Rome negotiations for the ICC
made abundantly clear.

Box 12.5 Defi nition of genocide

Article II of the Genocide Convention defi nes genocide as:

any of the following acts committed with intent to destroy, in whole or in part,
a national, ethnical, racial or religious group, as such:

a. Killing members of the group;

b. Causing serious bodily or mental harm to members of the group;

c. Deliberately infl icting on the group conditions of life calculated to bring about its
physical destruction in whole or in part;

d. Imposing measures intended to prevent births within the group;

e. Forcibly transferring children of the group to another group.

The list of the acts constituting genocide is exhaustive (practices such as ethnic cleansing
are not included in the defi nition). In addition, only the four groups mentioned in the
defi nition are groups protected by the commission of acts of genocide (political and cultural
groups, for instance, are not protected by the Convention). Finally, the crucial element of
genocide is the existence of a particular mental element on the part of the perpetrator,
namely his/her intention to destroy a group ‘as such’ in total or in part.

Clearly, the crime of genocide does not require that the objective of the destruction
of a particular group, in total or in part, is realized. On the contrary, genocide is perpe-
trated when an individual, by carrying out one of the prohibited conducts listed in Article
II of the Genocide Convention, possesses the requisite special intent to destroy one of the
protected groups, without this intent necessarily being accomplished. However, it is not
clear whether genocide, as a criminal act entailing individual criminal accountability, also
requires—as a legal constitutive element—the existence of a context of violence against
a protected group (similar to the case of crimes against humanity, where the existence of
a widespread or systematic attack against a civilian population is a legal ingredient of this
class of crimes). The defi nition of genocide enshrined in the Genocide Convention does
not provide for such an additional element, as the ICTY and the ICTR have stressed in their
case law. However, at trial, the existence of such a context could help the prosecution to
demonstrate that the person charged with genocide did possess the requisite genocidal
intent.

270 Part III Topics in international law

The reasons for the different path of the international
criminalization of war crimes with respect to crimes
against humanity and genocide

One can speculate on the reasons why the process of international criminalization
of crimes against humanity and genocide was different from that relating to war
crimes. Arguably, for war crimes the ‘national’ origin of their international criminal-
ization can be explained by taking into account that states had a narrowly defi ned
self- interest in the criminal repression of these crimes within their national legal sys-
tems. Despite the humanitarian considerations behind the birth and development of
the laws of war, it is a fact that these laws could apply solely within the context of
an interstate relationship (i.e. they were conceived to regulate international armed
confl icts), and hence were synallagmatic in nature. For a long time, no humanitar-
ian reason was weighty enough to force or convince states to regulate civil strife as
well. The notion of war crimes served various purposes: when it applied to national
military servicemen, repression of violations of the laws of war served to impose
military discipline and to protect the honour of armed forces; with regard to enemy
combatants, such repression constituted an effective tool to discourage breaches of
the rules of warfare by the belligerent enemy. The notions of crimes against human-
ity and genocide were born from a totally different seed: the concept that states are
not the absolute owners of the lives and human dignity of their citizens, but that
individuals’ and groups’ fundamental rights must be respected. At Nuremberg, for
the fi rst time, the right of the international community was proclaimed to lift the
veil of state sovereignty and to interfere in the relationship between the state and
its citizens when it is the state that systematically tramples upon their basic human
rights. This was an unexpected revolution. True, the drafters of the Nuremberg
Charter carefully tried to confi ne the notion of crimes against humanity to the his-
torical events of World War II to avoid future interferences by the international
community in their internal affairs as regards the treatment of their citizens; two
US Military Tribunals sitting at Nuremberg even asserted that the notion of crimes
against humanity could apply to extermination through euthanasia only if the
victims were foreigners!4 A similar cautious development can be seen in the UN
Charter; for example, the powers of the new organization in matters of human
rights were originally limited to the adoption of general resolutions, while the pass-
ing of resolutions condemning a state for violating human rights was regarded as
intervening in the domestic jurisdiction of each member state under Article 2.7 of
the Charter. However, the seeds of the human rights doctrine had been sown. In the
1990s, this doctrine was embedded enough in the ‘conscience’ of the international

International criminal law 271

community to allow the notion of individual criminal responsibility for large- scale
violations of human rights to fl ourish and gain state support. The Rome negotiations
for the ICC Statute and the adoption of Articles 6 and 7 of this Statute (on genocide
and crimes against humanity) are the outcome of the process on the international
criminalization of these two classes of crimes that started and developed, with some
stops (for crimes against humanity), entirely at the international level.

The enforcement of international criminal
law at the international level

The ad hoc criminal tribunals and the ICC: an overview

As noted above, the birth and assertion of international criminal law as a branch of inter-
national law is closely linked to the establishment of truly international criminal tribu-
nals for the prosecution and punishment of international crimes. After the Nuremberg
and the Tokyo Tribunals (which can be better described as common organs of the
group of states which established them), the ICTY (1993) and the ICTR (1994) were
the fi rst international criminal tribunals ever created by Security Council Resolutions
(see Chapter 8). The ICTY has jurisdiction over genocide, crimes against humanity,
grave breaches of the 1949 Geneva Conventions, and other war crimes, committed on
the territory of the former Yugoslavia after 1 September 1991. The ICTR has jurisdic-
tion over genocide, crimes against humanity, and violations of common Article 3 of the
1949 Geneva Conventions. Its temporal jurisdiction is limited to conducts which took
place between 1 January and 31 December 1994. Both Tribunals can only exercise
jurisdiction over natural persons, and not over states or juridical persons.

These two ad hoc Tribunals were often accused of not being impartial. For
instance, the decision by the Prosecutor of the ICTY not to launch an investiga-
tion over the alleged crimes committed by NATO during the bombing of Serbia
in 1999 has attracted much criticism. Similarly, the lack of any indictment by the
ICTR Prosecutor against any member of the Rwanda Patriotic Front (RPF)—which
fought the war against the Hutu- led government—has been frequently raised to
accuse the ICTR of being biased against the Hutu. In practice, those Tribunals have
been accused of being ‘partial’ not only in the historical sense, because they have
been set up to deal with crimes committed on a specifi c part of the globe and not
elsewhere, but also at the level of their judicial activity.

272 Part III Topics in international law

Unlike the ICTY and the ICTR, the ICC is a permanent institution, established
by way of a treaty (the Rome Statute, adopted on 17 July 1998) which can dispense
justice for crimes after the entry into force of its Statute (1 July 2002). Its jurisdic-
tion covers war crimes (committed both during an international and an internal
armed confl ict), crimes against humanity, and genocide. The ICC can also exercise
its jurisdiction over the crime of aggression, provided that the member states of the
ICC (i.e. the states which are party to the Rome Statute) will agree upon a defi ni-
tion of this offence in the future. The ICC prosecutor can start investigations pro-
prio motu (on his/her own initiative, subject to an authorization by the judges of
a pre- trial Chamber, i.e. subject to judicial control) or at the request of a state party
to the Statute or of the Security Council (in which case, if the prosecutor decides to
launch an investigation, there is no need to obtain an authorization by the pre- trial
chamber). The ICC, however, can exercise its criminal jurisdiction only if the crime
has been committed in the territory of a state party, or if the crime has been com-
mitted by a national of a state party. This exposes nationals of states not parties to
the Rome Statute to the jurisdiction of the ICC, in so far as they can be accused of
having committed crimes in the territory of a state party.

Box 12.6 International political support for the ICC

The creation of international criminal law is a puzzle for international relations and law
scholars who hold that states would only commit to international institutions when the
compliance costs are low. In the case of the ICC it is clear that the compliance costs are high
as government offi cials, including heads of states, can be prosecuted and punished by the
ICC for international crimes. As of 2009 over 100 states are parties to the ICC and a further
forty have indicated intention to join it, but three out of the fi ve permanent members of the
Security Council, the United States, the Russian Federation, and China, are not yet parties
to the ICC. What does the strong support from a large number of states and current lack of
support from the United States, the Russian Federation, and China tell us about the future
of this institution?

The United Nations Security Council and the
International Criminal Court

The United Nations Security Council can exercise very broad powers with respect
to the ICC. It can expand the jurisdiction of the Court over crimes committed by
whomsoever and everywhere in the world (i.e. irrespective of whether the crimes

International criminal law 273

have been perpetrated by the nationals of a state party or in the territory of a state
party). It can also compress the exercise of the ICC jurisdiction, since Article 16
provides that ‘no investigation or prosecution may be commenced or proceeded
with . . . for a period of twelve months if the Security Council, in a resolution adopted
under Chapter VII of the Charter of the United Nations, has requested the Court
to that effect’. Such deferral ‘may be renewed by the Council under the same condi-
tions’. The Security Council has already used its authority with respect to the ICC
in both ways. On 31 March 2005, it referred the situation in Darfur (Sudan) to the
ICC prosecutor, therefore allowing the Court to exercise its jurisdiction over crimes
committed in the territory of a state not party to the Statute. On two occasions,
however, the Security Council has exercised its authority to halt the commencement
of investigations by the ICC prosecution: on 12 July 2002, at the initiative of the
US, it adopted Resolution 1422 whereby it requested the Court not to commence
or to proceed with investigations or prosecutions with respect to members of UN
peace- keeping forces, or forces acting on authorization by the Security Council, if
such members were nationals of states not parties to the ICC Statute. This request
was renewed on 12 June 2003, for twelve months, by way of Resolution 1487.

The powers that the Security Council can exercise with respect to the ICC risk
putting into question the credibility of this Court as an independent judicial body, capa-
ble to dispense justice regardless of the political interests of the big powers sitting in
the Security Council as permanent members (and therefore allowed to exercise a veto
power) and their principal allies. These are genuine concerns, which, however, are not
unique to the ICC. In various degrees, the risk of bending justice to politics may also
affect national criminal courts. The danger that justice may be subject to, or at least
contaminated by politics is inherent in any society. That is why a famous Italian criminal
lawyer, Francesco Carrara, wrote more than a century ago ‘When politics gets in by the
door, justice is scared away through the window.’5 International politics contributed to
the establishment of international criminal courts and tribunals to prosecute and punish
the persons responsible for odious crimes, such as genocide, crimes against humanity
and war crimes. It also made it possible to build the temples of justice. It is now up to the
judges, the investigators, the prosecutors of the international courts and tribunals, and
also to all of us who believe in the rule of law, to make sure that politics stops outside
the temple, leaving only justice inside. This position stands fi rmly in contrast to argu-
ments which view international law and its institutions as subservient to international
politics. Such arguments overlook the fact that once international institutions, such as
the ICC, are created they strengthen the international normative frameworks by inter-
preting them and applying them. They further contribute to the socialization process of
international criminal law amongst states (see also Chapter 2).

274 Part III Topics in international law

The pros and cons of international criminal proceedings

Criminal proceedings for the repression of international crimes before international
courts have numerous advantages as opposed to national proceedings.

First, international courts apply international criminal law directly. For domestic
courts, international criminal law often needs to be incorporated into the national
legal order by virtue of the enactment of appropriate implementing legislation to
be applicable. Therefore it may happen that international criminal law is ‘lost in
translation’ because the national implementing legislation has incorrectly trans-
formed the rule of international criminal law into the national one to be applied by
the national judges. In short, international criminal courts are in a better position
to know and apply international criminal law, and at the same time to guarantee
a certain level of uniformity in the interpretation of this body of law.

Second, international criminal courts are in a better position to deal with the very
complex legal issues raised by the prosecution and punishment of international
crimes. These crimes are often committed in the context of widespread collective
violence: the trial against a person accused of an international crime can prove very
diffi cult, at the level of the establishment both of the determining of the facts and
of the individual role played by the accused in the commission of crimes of a ‘col-
lective’ nature. A special legal expertise is therefore needed in this regard, and such
expertise is often lacking at the national level.

Third, and more importantly, international trials enjoy greater visibility than
national proceedings. Therefore, they can better signal the will by the international
community not to accept that individuals responsible for heinous crimes go unpun-
ished. The hope is that the stigmatization of deviant behaviour at the international
level and the great visibility of international criminal trials (especially those against
political and military leaders) may also have a modicum of a deterrent effect, and
prevent the commission of similar crimes in the future.

However, international criminal proceedings are not fl awless. The major short-
coming is the need for international criminal courts to rely upon state coopera-
tion for their judicial activity. Those courts are judicial organs not assisted by any
enforcement power in the territory of any state. As a consequence, to collect one sin-
gle testimony or other evidence, these courts have to request the relevant state to do
so or to provide the necessary assistance for allowing the international investigators
to collect evidence in its territory. As for the arrest and surrender of an accused per-
son, again they have to rely upon the cooperation of the state where the accused is
present. If the state does not comply with the request to assist the international crim-
inal court, there is very little this court can do: usually, it can only make a judicial

International criminal law 275

fi nding whereby it registers the lack of cooperation of the state. This judicial fi nding
can be transmitted either to the Security Council (in the case of the ICTY and ICTR,
or the ICC but only when its jurisdiction has been triggered by the Security Council),
or—in the case of the ICC—to the Assembly of State Parties (which is the organ
where all the states parties to the ICC are represented). Clearly, the necessity for
international criminal courts and tribunals to rely upon state cooperation, and the
lack of any effective enforcement mechanism in case of non- compliance by states, is
among the weakest points of the current institutional system of international crimi-
nal justice. Here again politics rather than the existence of international obligations
may heavily infl uence the decision of a state to cooperate, or not cooperate, with an
international criminal court. However, international criminal courts and tribunals
are relatively young institutions. Time is needed for them to grow up and to assert
themselves as indispensable and more autonomous law enforcement mechanisms
of the international community. The marriage between politics and international
criminal justice is a diffi cult and highly problematic one, and will not last forever.

International proceedings also face hurdles of a practical nature in their day- to-
day functioning. International criminal courts have working languages which often
are not the languages of the suspects or the accused, nor of the state where the crimes
have been committed. Every document or testimony must therefore be translated
into all the offi cial languages of the international court and/or in the language of the
suspect or the accused. The same is true at the trial, where simultaneous translations
are required. Language barriers slow down the proceedings which already tend to
be very long because of the complexity of the facts and legal issues involved, and the
diffi culty in collecting evidence both for the prosecution and the defence. Finally, the
length of the proceedings is enhanced by the adoption of the accusatorial model of
common law systems: this model is based on the assumption that the evidence must
be brought orally at the trial, and be subject to examination and cross- examination
by the Prosecution and the Defence. This also means that a fact such as the weather
conditions on a particular day at a particular place must be proven at trial ‘orally’ by
witnesses, who will be examined and cross- examined on that specifi c issue.

The relationship between international criminal
courts and national courts: primacy versus
complementarity

The prosecution and punishment of international crimes by international
criminal courts and tribunals does not rule out the possibility for national

276 Part III Topics in international law

courts to exercise their criminal jurisdiction over the same crimes. A problem
of coordination between the action of international courts and that of national
courts therefore arises.

This problem has been solved differently by the statutes of the relevant inter-
national criminal court or tribunal. The two ad hoc Tribunals set up by the
Security Council, the ICTY and the ICTR, have been given primacy with respect
to national jurisdictions. This means that at any stage of the procedure, the ad
hoc Tribunals may request the national courts of any state to defer a case they are
dealing with to their competence. The two ad hoc Tribunals may issue a request
for deferral when (1) the act being investigated or prosecuted at the domestic level
is characterized as a domestic offence and not as an international crime (i.e. mur-
der, and not war crime); (2) there is a lack of impartiality and independence of
the domestic proceedings, which are carried out for the purpose of shielding the
accused from criminal responsibility, or the case is not diligently prosecuted; (3) if
the issue is closely linked, or involves signifi cant factual or legal questions, which
may have implications for investigations or prosecution by the international
criminal tribunal.

On the contrary, the ICC is built on the assumption that its jurisdiction is com-
plementary to that of national courts (including the national courts of states not
parties to the Rome Statute). The ICC respects the sovereignty of states if they
have a domestic judicial system which can guarantee that criminal proceedings
are carried out genuinely. Complementarity means that cases before the ICC are
admissible provided that the state possessing jurisdiction is unable or unwilling
to genuinely carry out the criminal proceedings. In other words, under the ICC
Statute, national courts have priority of jurisdiction: the ICC plays a subsidiary
role, and steps in to exercise its jurisdiction only when domestic courts fail to
do so. The ICC Statute provides that a state is unwilling to genuinely carry out
the criminal proceedings when there is a lack of independence and impartiality
by the domestic judicial courts that, in the circumstances of the case, is incon-
sistent with an intent to bring the person concerned to justice. With regard to
inability, the ICC Statute establishes that a state is unable to genuinely carry out
the proceedings when, due to a total or substantial collapse or unavailability of
its judicial system, it cannot obtain the accused, or the necessary evidence and
testimony.

The fact that the jurisdiction of international criminal courts and tribunals over
international crimes is not exclusive, but rather concurrent with that of domestic
courts, should come as no surprise in the current international system. International
society operates horizontally and states have a primary role in the enforcement of

International criminal law 277

international law. The principle of complementary is also sound policy. The fi ght
against impunity needs to be conducted at all levels, national and international.
In addition, the judicial authorities of every state (and not only those of the state
most affected by those crimes, primarily the territorial state) should be ready to play
a role in this regard. Complementarity is also conducive to national ownership of
international criminal law. It enables the spread of a new ethos among nations and
national judges. The international legal framework particularly empowers national
judicial authorities to consider themselves as the guardians of universal values, pro-
tecting the life and limb and the dignity of human beings. International criminal
law recognizes domestic judges as important actors who can enforce those values
against those who, all over the world, and often by abusing their state authority and
powers, trample upon them and strike at its very heart, the strenuous attempt to
guarantee a world of peace and prosperity for all.

Box 12.7 Universal jurisdiction

National courts usually assert their criminal jurisdiction over a particular conduct provided
that there is a link with that conduct, i.e. there is ‘a jurisdictional link’. The most widely used
and accepted jurisdictional link is that of territoriality, which is when the conduct is carried
out on the territory of the state, or produces its effects in the territory of the state. Another
accepted link is that of the nationality of the person, which enables the courts of a state
to sit in judgment over the conducts carried out by the nationals of that state wherever
in the world. These two jurisdictional links, however, may prove inadequate in the fi eld of
repression of international crimes. As noted above, those crimes are often committed by
state offi cials and backed by the state apparatus. It is, therefore, unlikely that the courts of
the state where the crimes have been committed will exercise their jurisdiction.

This is the reason why, for the repression of international crimes, another principle of
jurisdiction should come into play: the universality principle. This principle would enable
national judicial authorities to prosecute crimes regardless of the place of commission or
the nationality of the offender. It can, therefore, be crucial in the matter of international
crimes, for it would allow national judges to enforce universal values such as those pro-
tected by international crimes, without requiring a specifi c link with the crimes. It is still
debated, however, to what extent the principle of universality is allowed under interna-
tional law. There is a growing consensus among scholars that the universality of jurisdic-
tion is always permitted, under customary international law, for the repression of the core
crimes. Nonetheless, some states challenge this assertion and contend that the principle
of universality is permitted only to the extent it is provided for in a treaty.

278 Part III Topics in international law

Conclusion

International law directly provides for the criminalization of some individual
conducts, known as ‘international crimes’. These crimes offend values common
to the international community as a whole. The international criminalization of
such individual conducts is a major achievement and it has radically reshaped the
relationship between international law and national jurisdictions in the fi eld of
criminal law. International crimes are usually committed by individuals acting as
state offi cials or backed by the state apparatus—and so are likely to escape domestic
prosecution. Their international criminalization can thus be seen as a step towards
ending impunity for all, and especially powerful, actors. International law still has
to come to terms with some basic contradictions that have emerged from the proc-
ess of international criminalization of individual conducts. In particular, the author-
ity of the United Nations Security Council under Chapter VII of the United Nations
Charter to expand and to express the exercise of criminal jurisdiction by the ICC
has been criticized as yet another tool in the hands of powerful states to pursue
their specifi c interests. Another concern has been that the international prosecution
of powerful actors might sometimes stand in the way of national reconciliation
after times of confl ict. This debate emphasizes once more how international law
and international politics are intertwined. Time will show to what extent the ICC
with its international law approach can contribute to greater international justice,
and to what extent its success depends on political and other considerations. It is to
be hoped that in one way or another, the ICC will be able to assert itself as a cred-
ible institution, ‘able and willing’ also to prosecute the crimes committed by the
nationals of the most powerful countries, and to dispense justice for all.

Questions

1. What is international criminal law?

2. When did this body of law start to develop and affi rm itself?

3. Which crimes come under the scope of application of international criminal law?

4. What is the difference between international crimes and transnational crimes?

5. What role do international criminal courts and tribunals play to enforce international
criminal law?

6. What are the merits and demerits of international criminal proceedings?

7. What is the role of national criminal courts in the repression of international crimes?

International criminal law 279

8. Can the criminal courts of a state assert their jurisdiction over international crimes
under the universality principle?

9. What is the relationship between the Security Council and the International Criminal
Court?

10. How do you evaluate the relationship between international politics and international
criminal justice?

Further reading

Cassese, A. (2008) International Criminal
Law, 2nd edn. (Oxford: Oxford University
Press). This book combines the classic com-
mon law and more theoretical approaches
to the subject, it expounds the fundamentals
of both substantive and procedural interna-
tional criminal law, and provides a theoretical
framework to understand the rules, princi-
ples, concepts, and legal constructs key to the
subject.

Cassese, A. (ed.) (2009) The Oxford Compan-
ion to International Criminal Justice (Oxford:
Oxford University Press). This book analyses
and comments upon every aspect of interna-
tional criminal justice and provides a com-
plete overview of this emerging fi eld.

Cassese, A., Gaeta, P., and Jones, J.R.W.D. (eds.)
(2002) The Rome Statute of the International
Criminal Court: A Commentary (Oxford: Oxford
University Press). This Commentary takes
a thematic look at the whole of international
criminal law, appraising the contributions of
international tribunals such as the Nuremberg
and Tokyo Tribunals and the ad hoc Tribunals
for Yugoslavia and Rwanda, as well as those
of national courts.

Cryer, R., Friman, H., Robinson, D., and Wilmshurst,
E. (2007) An Introduction to International
Criminal Law and Procedure (Cambridge:
Cambridge University Press). This book cov-
ers all aspects of international criminal law
in a very accessible way, while setting out

sophisticated and stimulating arguments to
engage the reader.

Gutman, R., Rieff, D., and Dworkin, A. (eds.) (2007)
Crimes of War: What the Public Should Know
(New York: Norton and Company). This is an
A- to-Z guidebook of the atrocities that are
committed in wartime, written by distinguished
experts from the media, military, law, and
human rights groups.

Lee, R. S. (ed.) (1999) The International Criminal
Court: the Making of the Rome Statute (The
Hague: Kluwer Law International). A collec-
tion of commentaries on the negotiations
which led to the adoption of the Rome Statute
of the International Criminal Court written
by some of the key players in the negotiations;
it covers in a clear and detailed manner the
various issues tackled by the drafters of the
Statute.

Mettraux, G. (2005) International Crimes and the
Ad Hoc Tribunals (Oxford: Oxford University
Press). A comprehensive analysis of the case
law of the International Criminal Tribunal for
the former Yugoslavia and the International
Criminal Tribunal for Rwanda.

Peskin, V. (2008) International Justice in Rwanda
and the Balkans: Virtual Trials and the Strug-
gle for State Cooperation (Cambridge: Cam-
bridge University Press). A study focusing on
the problem of state cooperation with inter-
national criminal courts and addresses the
diffi cult relationship between Serbia, Croatia,

280 Part III Topics in international law

Websites

http://www. icc- cpi.int/ The website of the International Criminal Court offers information on the
structure of the court, as well as cases, legal texts, and current news updates on its activities.

http://www.icty.org/ Among others, the website of the International Criminal Tribunal for the
Former Yugoslavia contains a detailed database on the cases before the tribunal.

http://avalon.law.yale.edu/subject_menus/imt.asp The Avalon Project based at Yale Law School
compiles all the relevant information and documents related to the Nuremberg Trials.

http://www.un.org/ictr/ This website gives access to detailed information related to the activities of
the International Criminal Tribunal for Rwanda.

http://www.ucl.ac.uk/laws/cict/ The Centre for International Courts and Tribunals is the Lon-
don home of the Project on International Courts and Tribunals (see Chapter 8)—on its website it
announces current research and events related to it.

Visit the Online Resource Centre that accompanies this book to access more learning resources
www.oxfordtextbooks.co.uk/orc/cali/

Chapter endnotes

and Rwanda with the two ad hoc internation-
al criminal tribunals.

Schabas, W. A. (2004) An Introduction to the
International Criminal Court, 2nd edn. (Cam-
bridge: Cambridge University Press). The book
reviews the history of international criminal

prosecution, the drafting of the Rome Stat-
ute of the International Criminal Court and
the principles of its operation and addresses
the diffi culties created by US opposition, and
analyses the various measures taken by Wash-
ington to obstruct the Court.

1. See the judgment of the Israeli Supreme
Court of 29 May 1962 in the trial against Eich-
mann, where the Court stated: ‘Not only do all
the crimes attributed to the appellant bear an
international character, but their harmful and
murderous effects were so embracing and wide-
spread as to shake the international community to
its very foundations. The State of Israel therefore
was entitled, pursuant to the principle of univer-
sal jurisdiction and in the capacity of a guardian
of international law and an agent for its enforce-
ment, to try the appellant. That being the case,
no importance attaches to the fact that the State
of Israel did not exist when the offences were
committed’ (emphasis added). The judgment is
available online at http://www.nizkor.org. See
also 36 International Law Reports (1968) 304.

2. Article 228 of the Treaty of Versailles
provided as follows: ‘The German Govern-
ment recognizes the right of the allied and
associated powers to bring before military tri-
bunals persons accused of having committed
acts in violation of the laws and customs of
war . . .’

3. See the Boudarel case (Sobanski Wladyslav),
decided on 1 April 1993 by the French Court of
Cassation, in RGDIP (1994) 471–4.

4. See in this regard the cases reported in
Cassese (2003: 88–9).

5. ‘Quando la politica entra dalla porta,
la giustizia fugge impaurita dalla fi nestra’,
Programma del Corso di diritto criminale, vol.
VII, Lucca 1871.

Chapter 13

International human rights law
Basak Çalı

CHAPTER CONTENTS

• Introduction

• What makes up international human rights law and where do we fi nd it?

• International human rights law institutions

• The relevance of international human rights law in international relations

• Compliance with international human rights law

• New international actors and international human rights law

• Conclusion

CHAPTER OVERVIEW

This chapter sets out international human rights law (IHRL), its institutions and the contribu-

tion that the corpus of international human rights law has made to our understanding of the

international system. The chapter fi rst addresses the question of where we fi nd international

human rights law and sets out a brief history of international human rights institutions. It

then analyses the relationship between this body of law and state sovereignty in the fi elds of

military intervention, the empowerment of individuals in the international system, the status

of non- citizens and the states sovereign right to control its borders and state responsibil-

ity outside its own territory. The chapter fi nally discusses whether the state- focused IHRL

is adequate in dealing with the rise of powerful economic actors and in what ways we can

approach compliance with IHRL.

282 Part III Topics in international law

Introduction

Of the many concepts employed in international law and international relations, ‘human
rights’ is one of the most controversial . Human rights, and its legal m anifestation inter-
national human rights law (IHRL), are very complex domains of international theory
and practice. Human rights initiates the most heated debates in international relations
classrooms. It divides students along the lines of ‘idealists’ and ‘realists’, ‘moralists’ and
‘pragmatists’ or ‘rationalists’, and ‘constructivists’ (see Chapter 2). Students and schol-
ars of international relations disagree about what human rights are, how important
they are, what they do in international relations and whether they have any signifi cant
impact on state behaviour. When examined closely it becomes clear that simplifi cations
about human rights are misleading, if possible at all. In the light of this complexity and
controversy, the aim of this chapter is to make international human rights law and its
effects on international relations more transparent and accessible. It will also look at
the different ways IHRL fi gures in international relations theory and practice.

The chapter starts by describing what makes up IHRL and where it is found. It
then discusses the relevance of IHRL in international relations by way of a three- level
analysis setting out the relevance of human rights: (1) for debates on the character
of the international system as a whole; (2) for what we expect from states as politi-
cal agents; and (3) for new actors in the international system. It then discusses the
ways in which we conceptualize compliance with IHRL.

What makes up international human rights
law and where do we fi nd it?

Box 13.1 What is IHRL?

IHRL is a system of international treaties and principles that aim to protect and promote
the rights of individuals from state interference and state negligence.

International human rights law, like any other form of international law, is made up
of treaties, customary international law and soft law. Multilateral treaties are the most
common way of creating international human rights law. Both the United Nations and

International human rights law 283

The interaction between international human rights treaties and customary inter-
national law of human rights is close. The recognition of a right in an international
human rights treaty that is ratifi ed by a large number of states, and not challenged
by non- ratifying states, supports strong arguments about the customary nature of

the regional organizations have a large number of human rights treaties. International
human rights treaties can focus on a single right (for example, the United Nations
Convention against Torture), they can have a long list of rights under a specifi c theme
(for example, civil and political rights, or economic, social and cultural rights) or they
can focus on protecting the rights of specifi c groups (for example, rights of the disa-
bled, rights of migrant workers, rights of women, rights of children).

Box 13.2 Core international human rights treaties and monitoring bodies

United Nations human rights treaties
There are eight core international human rights treaties, each of which has a committee

of experts to monitor implementation and compliance.
International Convention on the Elimination of All Forms of Racial Discrimination

(ICERD), 1965.
International Covenant on Civil and Political Rights (ICCPR), 1966.
International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966.
Convention on the Elimination of All Forms of Discrimination against Women

(CEDAW), 1979.
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment (CAT), 1984.
Convention on the Rights of the Child (CRC), 1989.
International Convention on the Protection of the Rights of All Migrant Workers

and Members of Their Families, 1990.
Convention on the Rights of Persons with Disabilities, 2008.

284 Part III Topics in international law

the provisions of those human rights treaties (see Chapter 6). Some of the human
rights recognized in treaties are emblematic of a larger commitment to setting con-
straints on the use of state powers in international law. For example, the prohibition
of torture is not just any law. It represents the boundaries of state- sanctioned power
in the legal system. It is for this reason that some categories of human rights law
are also considered as ius cogens norms (peremptory norms) and norms erga omnes
(norms that create duties toward all) (see Chapters 5 and 6). This means that if state
A and state B made an agreement to torture terrorist suspects to extract vital infor-
mation, this agreement would be null and void in international law and it would be
prohibited for third states to deport and extradite individuals to these countries.

The origins of international human rights law

It is common for international lawyers to start the history of IHRL with the United
Nations Charter in 1945 and the Universal Declaration of Human Rights in 1948.
While these dates do not tell us much about the history of human rights as an idea
in philosophy, they are signifi cant because they mark the international and political
manifestation of the idea of human rights. The United Nations Charter in its pream-
ble states that the peoples of the United Nations are determined to ‘save succeeding
generations from the scourge of war, which twice in our lifetime has brought untold
sorrow to mankind’ and ‘reaffi rm faith in fundamental human rights’. Article 1 of
the United Nations Charter identifi es ‘promoting and encouraging respect for human
rights and for fundamental freedoms for all without distinction as to race, sex, lan-
guage, or religion’ as one of the purposes of the United Nations along with main-
taining international peace and security, to develop friendly relations, and to achieve
international cooperation. The emphasis on human rights in post- World War II inter-
national politics and organization is closely related to the shortcomings of domestic
laws and political processes in Europe to protect mass- scale discrimination and the
subsequent Holocaust. The emphasis on human rights in the United Nations Charter
signals that the treatment of individuals by states and the use of political powers are
not simply domestic matters for individual states to deal with.

This emphasis on human rights within the United Nations Charter led to the cre-
ation of human rights bodies and declarations internationally and regionally. The
Human Rights Commission was the fi rst intergovernmental commission set up in
1946. It was given the aim of guiding the overall human rights work of the United
Nations. It was while this Commission was working on a draft of the Universal

International human rights law 285

Declaration of Human Rights (UDHR), that the American Declaration of the Rights
and Duties of Man was declared. Issued in April 1948, this was the world’s fi rst inter-
national human rights instrument of a general nature.

Box 13.3 Regional human rights treaties and implementation mechanisms

Regional human rights treaties
European Convention on Human Rights and Fundamental Freedoms (Council of Europe,

1950), compulsory European Commission on Human Rights and optional European Court of
Human Rights (1959–1998), compulsory European Court of Human Rights since 1998.

American Convention on Human Rights (Organization of American States, 1969),
C ompulsory Inter- American Convention on Human Rights and Optional Inter- American
Court of Human Rights.

African Charter on Human and Peoples’ Rights (African Union 1979, 1986), Compulsory
African Commission on Human and Peoples’ Rights and optional African Court of Human
and Peoples’ Rights (latter established in 2006).

Arab Charter on Human Rights (Council of the League of Arab States 1994, revised
2004 and entered into force 2008).

On 10 December 1948 (now celebrated annually as Human Rights Day),
the United Nations General Assembly voted for the Universal Declaration
of Human Rights. Forty- eight votes fell in its favour, with Byelorussia,
Czechoslovakia, Poland, Saudi Arabia, the South African Union, Ukraine,
the USSR, and Yugoslavia abstaining. There was no vote in opposition. The
UDHR was not presented as an international treaty, but a declaration of the
General Assembly of the United Nations’ states. This means that states are
not legally bound to enforce the rights it proclaims. Nor does it provide for
the enforcement of these rights. The UDHR states that human rights are ‘a
common standard of achievement for all peoples and all nations’. It provides
a list of twenty- eight rights that are internationally recognized by the United
Nations General Assembly. The significance and ongoing relevance of the
UDHR in international law and relations lies in its originality and universal
support it has attracted over the years. It was the first time the organized
community of nations made a declaration on human rights and fundamen-
tal freedoms. The document received the backing by the United Nations as a
whole and it inspired a generation of international human rights instruments
and institution- building within the United Nations.

286 Part III Topics in international law

Box 13.4 Human rights institutions created by the United Nations

Human Rights Council

The Human Rights Council which replaced the Commission on Human Rights is an inter-
governmental body within the UN system made up of forty- seven states responsible for
strengthening the promotion and protection of human rights internationally. It was created
by the UN General Assembly in 2006 with the main purpose of addressing situations of
human rights violations and making recommendations on them.

One way in which the Council assesses human rights situations is through the Universal
Periodic Review mechanism.

The Universal Periodic Review (UPR) involves a review of the human rights records of
all 192 UN member states once every four years. The UPR is a state- driven process, under
the auspices of the Human Rights Council, which provides the opportunity for each state to
declare what actions they have taken to improve the human rights situations in their coun-
tries and to fulfi l their human rights obligations. As one of the main features of the Council,
the UPR is designed to ensure equal treatment for every country when their human rights
situations are assessed.

The UPR was created through the UN General Assembly on 15 March 2006 by Resolution
60/251, which established the Human Rights Council itself. It is a cooperative process which,
by 2011, will have reviewed the human rights records of every country. Currently, no other uni-
versal mechanism of this kind exists. The UPR is one of the key elements of the new Council
which reminds states of their responsibility to fully respect and implement all human rights
and fundamental freedoms. The ultimate aim of this new mechanism is to improve the human
rights situation in all countries and address human rights violations wherever they occur.

Special procedures

‘Special procedures’ is the general name given to the mechanisms established by the
Commission on Human Rights and assumed by the Human Rights Council to address either
specifi c country situations or thematic issues in all parts of the world. Currently, there are
thirty thematic and eight country mandates.

Special procedures’ mandate holders are asked to examine, monitor, advise, and publicly
report on human rights situations in specifi c countries or territories, known as country
mandates, or on specifi c topics relating to human rights violations worldwide (thematic
mandates). Various activities can be undertaken by special procedures, including respond-
ing to individual complaints, conducting studies, providing advice on technical cooperation
at the country level, and engaging in general promotional activities.

Special procedures are either individuals (called ‘Special Rapporteur’, ‘Special Repre-
sentative of the Secretary-General’, ‘Representative of the Secretary-General’ or ‘Inde-
pendent Expert’) or working groups usually composed of fi ve members (one from each
region). Mandate holders of the special procedures do not receive salaries or any other
fi nancial compensation for their work, which is supposed to help secure their impartiality.

International human rights law 287

International human rights law institutions

If the UDHR is the point when the idea of human rights was universally proclaimed
and recognized, the period since 1948 has seen the legalization, interpretation,
and implementation of human rights ideals. This has happened in three different
ways. First, states drafted a number of international human rights treaties under
the auspices of a variety of international organizations—the United Nations, the
Organization of American States (OAS), the Council of Europe (CoE), and the
African Union (formerly the Organization of African Unity). These also established
international mechanisms to oversee the implementation of these treaties.

Second, international organizations sought to mainstream human rights in their
work in order to realize the human rights aims declared in the United Nations
Charter. This led to the proliferation of guidelines, principles, soft laws, resolutions,
and declarations created by the United Nations and regional international organi-
zations. Third, the universal application and relevance of these rights led to the
proliferation of non- governmental organizations (NGOs), which advocate human
rights internationally. These NGOs have become an essential part of the interna-
tional human rights protection and monitoring machinery (see Chapter 7).

These three developments are interrelated. Most of the political work of the inter-
national organizations has led to the drafting and coming into force of new inter-
national human rights law treaties. The very existence of legal commitments in the
fi eld of international human rights has empowered NGOs to legitimately claim
these rights and to campaign for them. Because NGOs had an increased capacity
to raise human rights problems internationally, the political organs of the United
Nations and other regional organizations have raised a diversity of concrete and
real life human rights problems as requiring international guiding principles (see
Chapter 7). This latter development has also led to the understanding that many

United Nations Offi ce of the High Commissioner for Human Rights (OHCHR)

OHCHR has a mandate from the United Nations General Assembly to promote and pro-
tect all human rights. It is led by the High Commissioner for Human Rights, the principal
human rights offi cer of the United Nations. The OHCHR aims ensure that international
human rights standards are implemented on the ground in the United Nations member
states. It provides leadership to United Nations agencies on human rights matters and
builds and supports partnership with civil society and UN agencies. It also supports the
work of the United Nations human rights mechanisms, such as the Human Rights Council
and the core treaty bodies (see Box 13.1).

288 Part III Topics in international law

human rights principles are part of customary international law and therefore bind
states who have not signed up to a particular treaty (see Chapter 6). Which human
rights are part of customary international law is a debate in international law as
there is no fi nal authority which can confi rm the precise list of these rights and
their meanings. This does not mean, however, that this is not a convincing or futile
debate. The (former) Commission on Human Rights, for example, affi rmed that
the ban on the imposition of the death penalty on juveniles and pregnant women
as found in Article 6 of the ICCPR is customary international law (Commission on
Human Rights Resolution 2005/59) and this has been used as a legal and campaign-
ing tool in may countries.

The key distinction between international human rights treaty law and human
rights as customary law is the type of legal consequences attached to the former. First,
if a state has ratifi ed an international human rights treaty it becomes much easier
to identify the content of that state’s international legal commitments. The state in
question also cannot deny in principle that it has made legal commitments. Second,
becoming a part of an international human rights treaty makes a state answerable to
the monitoring body of that treaty. This means that there is a degree of international
accountability to ensure that states keep their promises. The degree of accountability
varies from regime to regime.

The United Nations human rights treaties, for instance, have the most univer-
sal coverage, but the weakest accountability provisions. All of these UN treaties
require the state parties to submit periodic reports and enter into constructive dia-
logue with a monitoring body made up of experts who review state reports and
issue ‘concluding observations’ on the state of implementation and further steps to
be taken. Individuals are able to bring complaints against states, but only if a state
explicitly agrees through signing up to an optional protocol to the treaty. When a
treaty- monitoring body examines an individual complaint, it can only make recom-
mendations to states if it determines a violation of the treaty provisions. Such rec-
ommendations are not legally binding.1 UN treaty- monitoring bodies further issue
interpretations of the provisions of the human rights treaties (such as the right to
health, the right to privacy) in order to provide guidance to states.

The regional systems, on the other hand, provide for stronger forms of account-
ability. The Organization of American States and the African Union have Human
Rights Commissions, which issue reports on human rights situations and where
individuals can submit complaints of human rights violations by states. Both sys-
tems also have courts, but these courts are optional and not all states that are par-
ties to the treaties are also parties to the court. The Council of Europe Human
Rights system provides the strongest form of accountability and oversight. It has

International human rights law 289

a permanent court, which is compulsory for all member states of the Council of
Europe. The result is that, in the European system, over 800 million individuals
have the right of access to a human rights court in order to bring cases against their
states should they require.

Unlike international relations scholars, international lawyers see much of the
human rights research problems as hidden in the detailed argument and analysis
rather than in general patterns of compliance. This is due to the fact that the idea
of human rights is in need of constant interpretation, reinterpretation, and concre-
tization in order to have relevance and action- guiding effect in actual situations.
International monitoring mechanisms (be they UN or regional) interpret human
rights law to give it concrete application. For example, there is no human rights
treaty that says ‘water boarding’ (pouring water over the face of a person when
he/she is stretched on his/her back or hung upside down and his/her face/mouth
is c overed) is prohibited in international law, but the United Nations Committee
against Torture interprets it to be torture, which is prohibited. Similarly, United
Nations human rights treaties focus on specifi c categories of rights holders such
as women, children, the disabled, migrant workers, or specifi c categories of rights
such as freedom from racial discrimination and torture in order to clarify the spe-
cifi c duties of states for different categories of human rights concern. International
human rights law, therefore, is a complex web of principles, interpretations, and
institutions that react to emerging contexts and concrete events.

There is a relationship between the existence of external institutions with powers

to monitor and enforce human rights law and how human rights are understood

and supported in specifi c contexts. The more external interpretations of human

rights law are viewed as authoritative and persuasive by states the easier it becomes

to internalize human rights as objective international standards. It is also true, how-

ever, that commitment to human rights is an important factor for states to support

the a ctivities and interpretations of international human rights bodies. There is a

danger that states make legal human rights commitments as a reputational move

or as part of a p olitical bargain. In doing so, they may enter a long list of reser-

vations that means that most of the provisions of a treaty do not meaningfully

apply to them. In such cases of half- hearted commitments, however, other states

and non- governmental organizations gain legitimate grounds for criticizing a state

with legal human rights commitments. It is for these reasons that the cross- cutting

debates on international human rights law focus on creating strong international

institutions that are seen to rise above the selective policy preferences of individual

states. It is naïve to expect that human rights will not have a political dimension. It

290 Part III Topics in international law

is, however, also necessary that the meaning and application of human rights are not

fully subject to the political preferences of states.
Following the process of the legalization of human rights and the consolidation

of the interpretations of treaty provisions, a number of general interpretive princi-
ples emerged with respect to what IHRL means:

1. IHRL assigns rights to individuals and duties to states;

2. states have both negative (the duty not to interfere with a right) and positive
duties (the duty to protect individuals from third parties, the duty to plan
policies to realize rights);

3. international human rights law applies in times of peace and war. States may
derogate from some rights during war or civil confl ict;

4. freedom from slavery, freedom from torture, and right to a fair trial
are absolute rights and they should be protected at all times in a non-
discriminatory way;

5. states must always show reasons for restricting rights. Arbitrary restrictions
of rights are prohibited;

6. states must have long- term strategies for the realization of rights;

7. states should not take measures that will have retrogressive effects on human
rights protections;

8. states may be responsible for the protection of the rights of individuals
outside of their territory when they invade another country or when they
have military operations overseas;

9. states may be responsible for the actions of third parties if they act negligently
in preventing rights violations over which they have jurisdiction; and

10. states owe duties of humane treatment and due process to non- citizens in
their territory, including asylum seekers and illegal immigrants.

The relevance of international human rights
law in international relations

The relevance of IHRL in international relations needs to be tackled by differentiat-
ing between the different types of functions international human rights law has in
international relations. There are three central ways to understand the relevancy

International human rights law 291

of IHRL in international relations. First, provided that IHRL pronounces common
standards for the treatment of individuals by all states, do states have a duty to act
when another state fails to maintain these standards or deliberately acts to under-
mine them? Second, is IHRL a way of usurping state sovereignty? Third, given the
prominence of the rise of non- state actors in international relations (be it transna-
tional corporations or non- governmental organizations), is the state- focused IHRL
really relevant in the current international system? These questions are challenging,
but they are also basic to understanding the complex standing of IHRL in interna-
tional relations.

IHRL and intervention in the internal affairs of other states

As discussed earlier in this chapter, human rights law can have the character of ius
cogens and erga omnes norms. When we assert, for example, that the prohibition
of slavery is ius cogens we also imply that any state that carries out slavery should
face some consequences for engaging in it. When we assert that human rights norms
are erga omnes we also imply that other states have an interest in putting an end
to the breach of such a norm. Indeed, some international treaties (for example,
the International Covenant on Civil and Political Rights, the Convention against
Torture and the European Convention on Human Rights) incorporate this prin-
ciple of third- party interest in human rights law violations. These treaties allow
for a state to bring a complaint against another state for breaching human rights
law. Real examples of this can be seen in the European Convention on Human
Rights where cases have been brought against Greece (by Denmark and Sweden),
the United Kingdom (by Ireland), Turkey (by Cyprus) and Russia (by Georgia).
Interstate complaints have not been used before the United Nations Human Rights
treaty monitoring bodies. Because of the character of the international system, usage
of erga omnes human rights are viewed as political in character and in contradiction
with the cornerstone principle of non- intervention in the internal affairs of states
by other states. This is part of the reason why interstate complaint mechanisms
are underutilized in international human rights law and when they are used there
is scepticism about the motives for their use over and beyond their erga omnes
character.

The international human rights law system responds to this interventionist scep-
ticism by supporting multilateralism as the basic structure for the protection of
human rights internationally. The response is to create a general, non- contradictory,
and stable interpretative framework that applies to all states and that is transpar-
ent and accessible by way of international human rights bodies and courts. It is

292 Part III Topics in international law

inevitable that there will be disagreements about the application of IHRL and
whether a state has breached its obligations or not. Such disagreements are often
about the application of principles to facts. Interpretive confl icts over human
rights law make international human rights institutions an all the more important
part in the implementation of human rights law. The creation of human rights
special rapporteurs, country specifi c rapporteurs, fact- fi nding missions and work-
ing groups, treaty- monitoring bodies, and human rights courts serves to objectify
the application of IHRL in the eyes of the states. This institutional development is
by no means perfect and the charge against states of using IHRL for self- serving
purposes can only stop if all the world’s states fully support multilateral, inde-
pendent human rights institutions rather than their own self- assessments of their
own human rights records and those of other states.

There is a further interventionist element that is closely associated with human
rights in international relations. That is the use of ‘human rights violations’ as a
reason for military intervention in a state. This debate is not part of IHRL as such
because breaches of IHRL have consequences for states only as long as states are
plugged into the international human rights regime and these consequences are
invariably legal. They are solved by asking states to remedy human rights violations,
requesting them to ensure similar violations do not take place again and openly
criticizing states for the breach of their duties under IHRL. Regional organizations
(the AU, the OAS, and the CoE) have the powers to suspend membership, and
serious breaches of international law may be a ground to use such a sanction. But
the United Nations Security Council is the only legitimate international institution
in international law that has the power to link breaches of international human
rights violations with military measures (see Chapter 10). Under the Charter, the
Security Council has the mandate to maintain international peace and security and
it has linked serious violations of international human rights law with a threat to
international peace and security when authorizing peace enforcement missions, for
example as in the case of Sudan, Democratic Republic of Congo, and the former
Federal Republic of Yugoslavia. However, in the practice of the Security Council
only a specifi c category of rights is relevant to authorize the use of military force
and those rights must be massively or systematically violated for such authorization
to happen. In other words, only massive or systematic actual attacks on the lives of
individuals would trigger military intervention and those attacks may be committed
by state actors or non- state actors, and it is worth noting that the United Nations
Security Council calls the former serious violations of international law and the
latter serious violations of humanitarian law. If attacks on the lives of civilians
reach a serious level of severity and are part of a policy, they could constitute crimes

International human rights law 293

against humanity or genocide (see Chapter 12). In short, ‘military intervention for
human rights’ is popular discourse. IHRL does not authorize such intervention.
Together with international humanitarian law and international crimes, it provides
a conceptual framework to assess when reasons to respect a state’s sovereignty no
longer exist.

IHRL and state sovereignty

The system of international human rights law rests on an apparent puzzle. On the one
hand, it is argued that IHRL takes the sovereignty of states away and that this is not
necessarily a good thing. On the other hand, IHRL exists because states have drafted
and ratifi ed international treaties and they continuously support multi lateral action
through international organizations and by attending human rights meetings, voting
on human rights resolutions and declarations, and criticizing each other’s human rights
records. The way in which IHRL scholars approach this puzzle is not to ask whether
IHRL really takes away the sovereignty of states. Instead, they seek to defi ne the way we
understand the very concept of sovereignty in the fi rst place by drawing the boundaries
of sovereign discretion. There is an apparent tension in this approach because IHRL
aims to change the ways in which political power is employed by states, but it also
accepts that sovereignty is a necessary institution. When the problem of sovereignty in
IHRL is framed in this way the question is no longer whether human rights law trumps
sovereignty, but what space is occupied by sovereign rights and IHRL respectively.
There are a number of ways in which international human rights law accommodates
the sovereignty of states, but at the same time it aims to place constraints on how that
sovereignty is exercised.

Temporary derogation from IHRL

All major human rights treaties recognize that a state may temporarily limit some
IHRL protections if there exists a public emergency threatening the life of a nation.
In IHRL, this is called derogation. IHRL treaties also provide a list of rights where
restrictions are not provided at any time. These are called non- derogable rights.
International and internal confl icts, major terrorist threats, and natural disasters are
some examples of public emergencies. The core idea behind derogation from IHRL
is that public authorities may need to restrict the freedoms of individuals in certain
times and places in order to protect the safety and well- being of the very same indi-
viduals. Temporary restrictions on the freedom of assembly where there are credible
threats of terrorist attacks or imposition of curfews limiting the freedom of move-
ment in certain places where an internal armed confl ict is taking place are examples

294 Part III Topics in international law

of such restrictions. Undoubtedly, derogating from IHRL is a highly sensitive matter
and each derogation invites a discussion of whether the derogation is necessary and
proportionate. IHRL bodies, for example the Human Rights Committee, recognizes
this problem and demands that states provide public and detailed reasons for tempo-
rary derogations, how it addresses the specifi c emergency, and review such reasons
regularly with the view of lifting the restrictions. Derogations, which discriminate
amongst the population in terms of their effects, are not permitted.

Box 13.5 Procedural requirements for derogation and non- derogable human
rights provisions under the ICCPR

International human rights law allows states to derogate from (that is, temporarily s uspend)
rights during periods of ‘public emergency’ under Article 4(1) of the ICCPR.

There is, however, a group of rights which can never be restricted nor derogated from.
These non- derogable rights are:

• the rights to be free from arbitrary deprivation of life;

• torture and other ill- treatment;

• slavery; imprisonment for debt;

• retroactive penalty;

• non- recognition of the law; and

• infringement of freedom of thought, conscience, and religion (Article 4(2)).

ICCPR provisions underline the exceptional nature of derogations from rights guaranteed
in the Covenant. Procedural conditions under which derogations from rights are
p ermitted by international law are:

• evidence of existence of a threat to the life of the nation;

• offi cial proclamation of the state of emergency;

• derogations to be strictly required by the exigencies of the situation;

• derogations not to be inconsistent with other international obligations of the state;

• derogations not be discriminatory; and

• non- derogable rights to be respected.

IHRL as last resort

If an international human rights treaty allows for individuals to make complaints against
states, individuals have to exhaust all domestic remedies before they can bring such an
international complaint. In IHRL this is called the ‘exhaustion of domestic remedies’
principle. This principle says that a state’s domestic courts are the fi rst place where indi-

vidual complaints about human rights violations should be heard. There are two reasons

International human rights law 295

for this. First, when a state signs up to an i nternational human rights treaty that treaty

should become the law of the land. In other words, states should eliminate the discrepan-

cies between their domestic laws and practices and international promises about human

rights. This assumption places the onus on the state to be the fi rst body to investigate and

remedy allegations of violations of human rights law made against it. It is only in cases

where a state is unwilling or unable to address violations, or when violations occur on a

massive scale that international human rights bodies and international security mecha-

nisms step in. This means that under normal circumstances of proper o verall application

of IHRL complaints, only a few of those will fi nd their way to i nternational human rights

bodies and courts. This is why individual complaints are viewed as ‘barometers’ of politi-

cal domestic systems. When states become more totalitarian or slip into internal confl ict,

their ability or willingness to observe international human rights protections signifi cantly

diminish. Complaints from individuals may also diminish because of the high risk to the

individual’s safety from making such complaints. Indeed, the United Nations has a special

mechanism in the shape of the Special rapporteur on human rights defenders. The rappor-

teur’s role is to monitor and report abuses and attacks against human rights defenders.

Box 13.6 Human rights cases

Human rights cases are the most popular ways of familiarizing with IHRL provisions.
Individuals challenging states internationally is one of the most innovative developments
in international law.

Each human rights court or treaty body has different procedures to admit and decide on
in human rights cases. When a human rights court delivers a decision, it is legally binding.
If a human rights court fi nds a violation of their human rights treaty, states may have to pay
compensation to individuals, re- institute the situation of the individual, change legislation
or policy, or prosecute state agents for their actions.

Three of the fi ve permanent members of the Security Council—UK, France, and Russia—
have accepted the compulsory jurisdiction of the European Court of Human Rights. The US
and China have not accepted the right to individual petition before any regional court or
international body.

IHRL and economic, social, and cultural policy

Political theorists, policy- makers, and international lawyers have long discussed
whether economic and social rights can be adequately protected by IHRL. The
discussion focuses on the resource implications of economic and social rights, such

296 Part III Topics in international law

as the right to health, education, and food and diffi culties of having common stand-
ards across countries with different levels of economic development and historically
divergent views on economic and social policy. These discussions have had an effect
on the drafting of the ICESCR. Compared to other treaties, ICESRC has a distinct
approach which stipulates that states should ‘take steps’ towards the ‘progressive
achievement of the rights’. It, however, asks states to show that it is taking steps and
report to the CESRC what these steps are. States, therefore, have a margin of discre-
tion to decide on how best to implement IHRL on economic, social, and cultural
rights. IHRL, nevertheless, introduces principles that block policy options of states
and asks states to assist other state parties in the realization of economic, social, and
cultural rights. States have also drafted an individual complaint mechanism for the
ICESCR, which is open to adoption. The individual complaint is based on a dual
principle that a person or a group has to show that they suffer signifi cant disadvan-
tage of their economic, social, and cultural rights and that the states must show that
they have taken reasonable steps.

Box 13.7 IHRL constraints on domestic economic, social, and cultural policy

• Every state has a duty to prioritize minimum core obligations to ensure the satisfac-
tion of, at the very least, minimum essential levels of each of the rights irrespective
of the availability of resources.

• States should not deny ESC rights in a discriminatory fashion.

• When a state is unable to fulfi l its obligations, it has the burden of proving this is the
case.

• States should suffi ciently regulate non- state actors that have an impact on the
enjoyment of ESC rights.

• States should not take deliberate retrogressive measures.

• States should not actively deny ESC rights.

• State should have policies and plans in place for progressive realization of ESC rights.

IHRL, citizenship, refugees, and migrants

IHRL assigns rights to persons as individuals and not as citizens. The sovereign right
to give citizenship to an individual, however, is untouched by this. A non- citizen
does not have the right to become a citizen of any county he/she wishes. States,
on the other hand, do not have the right to deny nationality to their own citizens
as stated in Article 15 of the UDHR. A non- citizen is entitled to IHRL protection

International human rights law 297

so long as he/she legally resides in another country. The UN Migrant Worker
Convention further aims to specify the duties of states towards migrant workers
and their families.

In contemporary international politics IHRL often comes into confl ict with the
rights of states to decide who enters and who remains in their territory. Political
oppression and persecution, civil wars, poverty, and unemployment mean that mil-
lions of people are on the move in the world. IHRL sets out guidelines on how these
people should be treated by states. The entry requirements into a country and stand-
ards for deportation are two areas where IHRL has had the most impact.

Article 14 of the UDHR gives everyone the right to seek and enjoy asylum from
prosecution and wars. The Refugee Convention of 1950 and the 1967 Additional
Protocol set out specifi c guidelines and obligations for states to process asylum
applications. The minimum a state has to do is to assess the merits of the indi-
vidual’s claims, provide a fair hearing and decision- making process, and treat the
person humanely during the waiting period. States have further obligations towards
accompanied and non- accompanied minors seeking asylum with respect to their
education and support. Apart from giving refugee status to an individual, states
also have duties not to return individuals to countries where they may face torture
or risk to their lives. This is called the non- refoulement principle. IHRL introduces
constraints on the rights of states to admit or deport non- citizens. States not only
have to consider why a person leaves his/her country, but also the situation he/she
may return to when deported.

A non-citizen’s right to remain in the country is at the discretion of the sovereign
state. He/she is also vulnerable to deportation if he/she does not adhere to local
laws. This view frequently clashes with states’ immigration and security policies.
Under IHRL a state cannot adopt a policy to expel a non- citizen without consid-
ering the ties the non- citizen has to that country and without assessing whether
the non- citizen faces risk to his/her life in the country to which he/she would be
expelled. Policies to deport individuals when they are viewed as security threats
have become common in international relations and states view this as an integral
part of their sovereignty. IHRL demands that states consider the life of the deported
individual as an important part of any policy. This means that, in considering depor-
tation, any risk to the life of the individual and his/her family needs to be part of
the state’s decision- making process and must be balanced against any perceived
security risks of non- deportation.

Non- citizens (or aliens) face discrimination and disadvantage in civil, political,
and economic life in the countries they reside. International human rights treaties,
such as the Migrant Workers Convention and International Labour Organization

298 Part III Topics in international law

Conventions, aim to reduce arbitrary forms of discrimination and disadvantage
towards non- citizens. These treaties, however, only apply to states that have
ratifi ed them. IHRL, therefore, has uneven impact on the treatment of migrants
internationally.

IHRL outside of the territory of a state

A central contribution of IHRL to our understanding of sovereignty lies in how
the former sees the latter as a functional entity. IHRL conceives states as carry-
ing out politically sanctioned legislative, judicial, and executive functions. States
have human rights responsibilities for the laws they enact, for the decisions its
courts take, and for the actions of its executive bodies. States traditionally under-
take all three functions in their own territory. But we also know that states carry
out activities through their security forces and military outside of their own ter-
ritories. The framework of IHRL requires states to fulfi l their human rights law
responsibilities even when acting outside their own territory. In IHRL, these are
called extra- territorial human rights obligations. This becomes relevant when a
state invades another state and starts effectively running that country, when a state
establishes prisons or detention centres in the territories of other states, or when
states engage in torture practices on planes, sea vessels, or in the territory of other
states. It is for this reason that the Human Rights Committee, which is the monitor-
ing body of the International Covenant on Civil and Political Rights, decided, for
example, that Israel has human rights law obligations for individuals in its occu-
pied territories (Concluding Observation of HRC on Israel 1999, UN Doc CCPR
C/79/Add.93 at 10) and that the same obligations apply to Belgian forces operating
under a UN peacekeeping mandate in Somalia (Concluding Observation of HRC on
Belgium 1998, UN Doc CCPR C/79/Add.07 at 14).

Compliance with international human rights law

A central puzzle for international relations research concerns the degree of compli-
ance states have with IHRL. This concern is empirical and asks questions about the
effectiveness of IHRL to guide state behaviour. Given the complexity of IHRL, the
numbers of treaties that exist under the auspices of different international organi-
zations and the different types of obligations IHRL proscribe, the empirical analy-
sis of compliance is not an easy matter. From the proceeding discussion, however,
we can appreciate that compliance is not an ‘either/or’ question and it would not
be factually accurate to divide the world into states complying with international

International human rights law 299

human rights law versus states refusing to comply or disregarding international law.
Compliance with IHRL is a matter of degree and context. Each human rights law
regime has its own historical characteristics and institutional features that deter-
mine questions about compliance. The domestic preferences of the governments
in power, the constitutional character of the state, the perceived authority of the
external human rights institution that demands compliance, and the existence of
coercion or incentives to comply with a specifi c human rights law directive are also
relevant in measuring compliance with human rights treaties.

A further important issue when discussing empirical compliance is the subject
matter of the international human rights treaty in question. It is relatively straight-
forward, for example, to identify whether states comply with the ban on the death
penalty for juveniles if we can have access to worldwide statistics on this issue.
It is not, however, as clear to identify compliance with freedom of expression, as
the restrictions on the right to freedom of expression require adjudication based
on the context of expression in order to identify whether the expression incites
violence or hate or defames or insults private persons. The empirical analyses of
compliance with international human rights law are also sensitive to the research
designs employed. It is not possible to say empirically that no state complies with
IHRL. Neither is it possible to empirically show that compliance is perfect. The
empirical knowledge we have of compliance is time- specifi c, issue- specifi c, and
inherently comparative in time or across countries.

Empirical diffi culties in measuring compliance IHRL, however, are only one
part of the compliance debate. There are also conceptual diffi culties in analysing
compliance. The general approach in the rationalist- realist tradition argues that
compliance with international human rights treaties is inevitably weak because
human rights are norms and therefore relatively inconsequential in international
relations. This approach links up with a number of related assumptions about
international law in general and what determines state behaviour. Given that
IHRL is a very prominent part of international relations and a vast majority
of the world’s states are at least party to one international human rights treaty,
international relations scholars with a more constructivist and institutionalist
bent have used IHRL international human rights law as a test case to prove the
rationalists and realists wrong. This approach links up with a number of related
assumptions on the role of diffusion and socialization of norms through interna-
tional agreements, customs, and usage and the ability of human rights regimes
and networks to alter state preferences. What is to be expected empirically is a
great degree of variation with respect to the explanatory power of these views.
This is due to the important fact that there is not a simple and unifi ed object

300 Part III Topics in international law

called ‘IHRL’ that we can see being complied with in the real world. There are
a number of international treaties, a long and demanding list of rights in each
treaty, and a set of arguments about which rights constitute customary interna-
tional law.

New international actors and
international human rights law

There are a large number of non- state actors and intergovernmental actors that
operate internationally and exert signifi cant infl uence on states. This raises ques-
tions about how IHRL deals with these entities and whether actors other than
states can have international human rights obligations. In contemporary inter-
national relations attention is focused on transnational corporations that oper-
ate in more than one state and have larger budgets than many developing states.
International fi nancial organizations, namely the World Bank and the IMF, have
also received much attention because of the infl uence they have on the economic
evolution of developing states and their fi scal policies. As discussed in the earlier
sections of this chapter, IHRL assigns duties to states with respect to the treat-
ment of individuals. States are the sole parties to international human rights
treaties. Even though transnational corporations have economic and political
powers, they do not have law- making and law- enforcement capabilities. In this
respect, transnational corporations may be involved in serious crimes and assist
human rights violating states but these crimes or wrongs, nevertheless, can only
be remedied by domestic courts.

A clear exception to this logic is when a non- state entity governs a territory and/
or a people. An example of this is the United Nations Interim Administration in
Kosovo (UNMIK) acting as the government of Kosovo after the NATO intervention
of 1999. Indeed, the Human Rights Committee, which only monitors the human
rights commitments of states under the covenant on civil and political rights, asked
UNMIK to present a report about how it protected ICCPR rights of the individuals
residing in Kosovo. This is an important development for understanding the impact
of IHRL on how we understand international accountability. If we are able to point
to an entity, which is not itself a state, but has taken on government- like functions
with respect to a group of people, we have a plausible case to think about the appli-
cability of IHRL to this entity.

In international practice, however, such cases are rare. Most often the problem
arises not because a non- state entity replaces a state, but because it exerts infl uence

International human rights law 301

on the actions of a state or becomes complicit in the human rights violations of
states or because it commits human rights violations under the instructions or direc-
tion of states. There are two ways to advance the debate further in this fi eld: fi rst,
how can we enable states to control powerful non- state actors and, if such control is
not possible; second, what international mechanisms we would need to think about
to hold powerful non- state actors to account?

The question of how we can ensure that states better control the human rights’
impacts of the activities of non- state entities centres on the idea that states are
not only responsible for refraining from committing human rights violations, but
are also responsible for exercising due diligence to protect individuals from third
parties. This idea calls on the state’s legislative and judicial powers to be used to
protect human rights. This could be done, for instance, by according primacy to
IHRL obligations in the domestic constitutions of states when they confl ict with
investment agreements or IMF commitments. In cases of confl ict between an invest-
ment agreement with a transnational corporation or a stand- by agreement with the
International Monetary Fund, individuals should be able to challenge a government’s
policy choices from the perspective of compatibility with IHRL. Governments can
also be called in to exercise powers over their companies acting in other countries.
In cases of complicity with serious human rights violations, such as torture or kill-
ings, the home states of transnational corporations could accept cases against the
parent companies of such corporations. The Alien Torts Claims Act in the US is
an example of this practice. Affected individuals have brought cases against the
US- based companies Chevron, Union Carbide Corporation, and Unocal for com-
plicity in serious human rights violations in Nigeria, India, and Burma (Myanmar)
respectively.

In the face of pressure from civil society organizations, multinational corpo-
rations and international organizations in the fi eld of human rights have also
turned to voluntary self- regulation. The World Bank, for example, has responded
to the international human rights accountability gap in its operations by setting
up the World Bank Inspection Panel. It accepts complaints from anyone, peo-
ple or non- governmental organizations, who believe that they have been or are
likely to be adversely affected as a result of the Bank’s policies. The Panel has
powers to recommend investigations to the World Bank’s board, which takes the
ultimate decision to compensate victims, to halt a project, or to carry out inves-
tigations. A United Nations- guided initiative has established the United Nations
Global Compact and transnational corporations can voluntarily associate with
this in order to show that they observe international human rights principles (as
well as environmental and anti- corruption measures). The Global Compact has

302 Part III Topics in international law

This chapter has set out IHRL and its institutions. It showed that IHRL is a complex

web of international commitments legally recognized by states in varying degrees,

Conclusion

a mechanism called ‘Communication on Progress’, which is a reporting mecha-
nism for transnational corporations about how they live up to their human rights
promises. Transnational corporations are also asked to respond to queries from
the Global Compact offi ce about their performance within three months of the
query being made. The Global Compact makes public its list of corporations
which fail to do this.

A fi nal discussion on international actors and their accountability for complic-
ity in human rights abuses or serious impact on human rights protections con-
cerns the ultimate effectiveness of state- based action towards these actors and the
self- regulation of actors themselves. Economic activity in the international sphere
is not under the control of international human rights law. International human
rights law requires states not to violate human rights and guides them on how to
regulate, prosecute, and punish the actions of non- state actors. But, as we have
seen in previous discussions, one of the reasons for that was that there was such
wide support for the Universal Declaration of Human Rights in 1948 that states
were unable to protect human rights domestically. In cases where states are unable
or unwilling to regulate non- state actors and these actors do not restrain them-
selves voluntarily, there emerges a serious a ccountability gap from the perspective
of the individuals who are affected by the actions of states as well as non- state
actors. The question then becomes whether in ternational actors other than states
should become directly accountable for their negative impact on human rights
protections in international law? This is a new frontier for designing institu-
tions in the international system, but one not without example. The International
Criminal Court (ICC), established in 1999, has complementary jurisdiction over
individuals who commit the most heinous international crimes that states have
been unable or unwilling to prosecute (see Chapter 12). It is indeed a good time to
think about an international tort court, which can have jurisdiction over powerful
international actors whose harmful and criminal activities states have either failed
or not wanted to regulate, prosecute, or punish. The international human rights
law system is the vehicle behind this thinking as it enables us to view the interna-
tional system not merely as a space for interstate interactions with immunity and
impunity, but as a space where international responsibility is a natural extension
of international conduct.

International human rights law 303

but that many rights, such as those of right to life, freedom from torture, fair trial,

and freedom from slavery are also regarded as customary international law bind-

ing on all states. The chapter then considered the relevance of international human

rights law in contemporary international relations. It set out that IHRL bears on

a number of cross- cutting debates in international relations, namely military inter-

vention, the empowerment of individuals against states internationally, and the

treatment of non- citizens, migrants, and refugees. The chapter further discussed the

interrelationship between the rise of non- state actors and IHRL. The chapter fi nally

addressed the question of compliance with international human rights law and the

consequences that an issue-based, a treaty-based, or a rights-based approach may

have on understanding compliance.

Case Study 13.1 IHRL and advocacy

You are approached by a local civil society organization, Arcadia Rights Centre (ARC), in
Draconia with a small Arcadian minority. The ARC would like to advocate their rights by
using IHRL before international human rights institutions and bodies as they feel that the
Draconian state is not responding to their complaints of non- discrimination and accuse
them of separatism by claiming rights. In particular, they tell you that:

• Arcadian Rights Centre activists are arbitrarily detained and tortured;

• a number of Arcadian newspapers have been banned; and

• Arcadians are forcefully evicted from their homes because of the Draconian inter-
state highway project funded by major multinational corporations.

Draconia is a member of the United Nations, party to core UN human rights treaties, but
not party to any of the regional courts or individual complaints mechanisms.

Advise ARC on which provisions of IHRL they can invoke and before which UN bodies
they can bring their complaints.

Questions

1. What are the sources of international human rights law?

2. Why do states create and sign international human rights law treaties?

3. What is the difference between international human rights law and rights recognized
in domestic constitutions and laws?

4. What does it mean to suggest that a human right is part of customary international law?

304 Part III Topics in international law

Clapham, A . (2006) Human Rights Obligations
of Non- State Actors (Oxford: Oxford Univer-
sity Press). A seminal discussion of how
armed groups, international organizations,
and multi national corporations can be
accountable for their involvement or com-
plicity in IHRL violations.

Conte, A. and Burchill, R. (2009) Defi ning Civil and
Political Rights: The Jurisprudence of the United
Nations Human Rights Committee (Farnham:
Ashgate). A comprehensive collection of the
interpretation of international human rights
law by the monitoring body of the Internation-
al Covenant on Civil and Political Rights.

Craven, M. (1998) International Covenant on
Economic, Social and Cultural Rights (Oxford:
Oxford University Press). A comprehensive
discussion of how IHRL protects economic,
social, and cultural rights.

Freeman, M. (2002) Human Rights: An
Interdisciplinary Approach (Cambridge: Pol-
ity Press). An introductory book to the
idea of human rights and its international
development.

Harris, D., O’Boyle, M. and Warbrick, C. (2009) The
Law of the European Convention on Human
Rights (Oxford: Oxford University Press). A
right- by- right analysis of the case law of the
European Court of Human Rights.

Meckled- Garcia, S. and Cali, B. (eds.) (2006) The
Legalisation of Human Rights: Multidisciplinary
Perspectives on Human Rights and Human
Rights Law (London: Routledge). An edited
collection that sets out the complex interaction
between human rights as a moral ideal, as law,
and as a political project.

Mertus, J. (2009) United Nations and Human Rights,
2nd edn. (London: Routledge). A comprehen-
sive account of the work of all of the organs of
the United Nations in the human rights fi eld.

Nickel, J. (2007) Making Sense of Human Rights,
2nd edn. (Oxford: Wiley- Blackwell). A com-
prehensive discussion of international law and
its justifi cation and feasibility with a focus on
economic, social, and cultural rights.

Okafor, O. C. (2007) The African Human Rights
System, Activist Forces and International Insti-
tutions (Cambridge: Cambridge University
Press). A constructivist account of how IHRL
systems and NGO advocacy can affect attitudes
towards human rights in domestic contexts.

Steiner, H., Alston, P., and Goodman, R. (eds.)
(2007) International Human Rights in Context:
Law, Politics and Morals, 3rd edn. (New York:
Oxford University Press). A comprehensive
resource book on a wide range of topics on
international human rights law with excerpts
from leading articles and documents.

5. In what ways does human rights law affect our understanding of state sovereignty?

6. What is the relationship between a state’s security policy and IHRL?

7. What is the relationship between IHRL and military interventions?

8. How does IHRL address the rise of powerful multinational corporations and their
activities? Is this adequate?

9. In what ways should we approach the empirical compliance with IHRL?

10. In what ways does IHRL pose questions to realist understandings of international
relations?

Further reading

International human rights law 305

Chapter endnote

1. Some of the United Nations Treaty bodies
have additional powers. The Sub- Committee on
Prevention of Torture created under an Optional
Protocol is able to make visits to state parties
to monitor places of detention. The Committee
on the Elimination of Racial Discrimination has

early warning measures, which aim at prevent-
ing existing situations escalating into confl icts
and urgent procedures to respond to problems
requiring immediate attention to prevent or
limit the scale or number of serious violations
of the CERD.

http://www.ohchr.org/ The website of the Offi ce of the High Commissioner for Human Rights con-
tains a great wealth of information relating to human rights—such as on UN human rights bodies,

human rights instruments, national human rights institutions, and country situations.

http://www2.ohchr.org/english/law/ All the international legal documents relating to human
rights are compiled in this website.

http://www.coe.int/ The Council of Europe website provides detailed information on the Euro-
pean regional human rights system, and informs about the activities of the European Court of

Human Rights, the Commissioner for Human Rights, as well as the Parliamentary Assembly and the

Committee of Ministers.

http://www.oas.org/oaspage/humanrights.htm The website of the Organization of American
States informs about the institutions of the Inter- American human rights system—the Inter- American

Commission on Human Rights and the Inter- American Court of Human Rights.

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Chapter 14

International law for
environmental protection
David M. Ong

CHAPTER CONTENTS

• Introduction

• International treaties for environmental protection

• International environmental principles and the sustainable development paradigm

• Environmental treaty non- compliance mechanisms

• Non- state actors and environmental protection

• A mixed regime for international environmental law?

• Conclusion

CHAPTER OVERVIEW

This chapter examines the development of international environmental law in interna-

tional relations. International environmental law draws from a diverse range of sources,

namely, international treaties, soft law principles, compliance mechanisms, and voluntary

self- regulation by non- state actors. The chapter analyses these sources in turn and discuss-

es the implications of a diversity of sources and actors for the effective protection of the

environment. The chapter puts a further emphasis on the coexistence of interstate com-

mitments, regimes and non- state actor voluntary regulation in this fi eld and the potential of

incorporating non- state actors as standard setters in the fi eld of environmental protection.

International law for environmental protection 307

Introduction

Everyone—states, companies, individuals, civil society—agrees that the environ-
ment matters and that action has to be taken to protect it. All the more so because of
increasing scientifi c evidence that the contemporary condition of the environment is
one of degradation affecting the health and well- being of humans as well as the eco-
systems of the world. It has also become clearer that human activities and choices
are having direct effects on environmental outcomes. Despite this general agreement
on its importance and the pressing need to protect or improve it, however, there is
little agreement on what counts as an environmental issue or threat, what should
be done, and who should do something about it and how. The environment is a dif-
fi cult term to defi ne. It covers a wide range of issues such as climate change, air pol-
lution, the protection of eco- systems and endangered species, and the management
of harmful substances, such as toxic chemicals. Furthermore, environmental threats
are in constant need of assessment in the light of changing circumstances. The pro-
tection of the environment or the regulation of environmental issues presents a col-
lective action problem both domestically and internationally. The uncoordinated
actions of each actor, be they state or non- state actors, does not necessarily result
in the best outcome in terms of protecting the environment. There is, therefore, an
incentive for cooperation. But there are also disagreements on the best route of
action and who should bear the costs involved in protecting the environment. This
leads to attitudes to avoid cooperation and regulation.

This complex background is central for any approach to international
environmental law in international relations and for understanding the develop-
ment of international law that concerns the environment. There is no globally
applicable multilateral instrument which defi nes any international law of environ-
mental protection as there is, for example, in the case of international trade law
(see Chapter 15). Instead, international environmental law has developed on three
main fronts. First, states have met in a number of international conferences and
articulated general principles aimed at guiding states towards ensuring environ-
mental protection. These principles developed in the form of non- legally binding
commitments or soft law (see Chapter 7). Second, specifi c treaty regimes have been
created which have addressed particular environmental problems. These treaties
have established detailed and technical international regulatory regimes aimed at
controlling specifi c environmental threats. Third, non- state actors have created vol-
untary self- regulatory frameworks for environmental impact and risk assessment.
These three strands of international environmental law- making together offer us an
account of development of this dynamic fi eld.

308 Part III Topics in international law

This chapter will fi rst identify the international treaties that have been devel-
oped for the protection of the environment. It will then focus on the soft law
environmental principles and discuss their content and status. The chapter will
next address compliance mechanisms for international environmental law and the
signifi cance of the cooperation of non- state actors with states, as well as non- state
actor efforts to self- regulate industries in order to achieve environmental protec-
tion. The chapter will conclude with a discussion of the limits for international
cooperation for the protection of the environment and in what ways we can assess
the involvement of non- state actors as voluntary standard- setters in the fi eld of
environment.

International treaties for environmental protection

The international law for environmental protection has mainly developed
through the adoption of multilateral treaty regimes addressing specifi c environ-
mental threats. There are two types of environmental law treaties. First, there are
globally applicable, but issue- specifi c, treaties. Second, there are treaties that are

Table 14.1 Types of international environmental treaties

A. Global and issue- specifi c treaties B. Regional regulatory frameworks of pollution

The 1973 Convention on International Trade in
Endangered Species (CITES)
Treaties with compliance mechanisms:
The 1987 Montreal Protocol to the 1985
Vienna Convention on Substances that
Deplete the Ozone Layer

The United Nations Environment Programme
(UNEP) Regional Seas Programme, managed
the 1976 Barcelona Convention for the
Mediterranean Sea, the 1983 Cartagena
Convention for the Wider Caribbean Region,
and the 1985 Nairobi Convention for Eastern
African Region

The 1989 Basel Convention on the Transboundary
Movement of Hazardous and Other Wastes
The 1992 United Nations Framework Convention
on Climate Change

The 1997 Kyoto Protocol to the 1992 Framework
Convention on Climate Change
The 1998 Aarhus Convention on Access to
Information, Public Participation in Decision-
Making and Access to Justice in Environmental
Matters

Independently managed:
1992 Bucharest Convention for the Black Sea,
The 1981 Lima Convention for the Protection of
the Marine Environment and Coastal Areas of
the South- East Pacifi c,

Economic Commission for Europe (ECE) treaties
such as the 1979 Geneva Convention on Long
Range Transboundary Air Pollution, and its
related Protocols

International law for environmental protection 309

expressly confi ned to a clearly defi ned regional space, most usually in the form of
a semi- enclosed sea, for example, but encompass within their overall regulatory
framework several pollution sources in that region. These international treaties
come with innovative procedural mechanisms to ensure compliance with these
specifi c obligations and standards.

We can make two preliminary observations by looking at how international
environmental treaties evolved in international relations. First, there are a lot of
environmental treaties on a wide range of issues. Second, most of these treaties are
specialized. The proliferation and specialization of international environment trea-
ties has both positive and negative aspects from the perspective of environmental
protection. It is possible to envisage a relatively seamless international regime con-
sisting of general principles to guide state behaviour, together with individual treaty
rules establishing specifi c legal obligations and standards. All of these obligations
act to constrain the environmentally damaging effects of state activities. Indeed, it is
possible to suggest that a gradual knitting process is underway here, with the global
and regional regulatory threads becoming entwined over time to form a universal
regulation (whether global and/or regional in form) covering all types of general
and specifi c environmental threats.

It is, however, also possible to ask whether these multi- layered Multilateral
Environmental Agreements (MEAs) are either necessary, or effective. There are
important gaps both with regard to the participation of states in international
environmental treaties, as well as with the coverage of environmental issues. Certain
regions in the world are much better regulated than others. In particular, Western
and Northern Europe and its marine regions are the subject of a wide range of
regional environmental treaties.1 In other parts of the world, this is not the case.
Particularly in regions effected by economic underdevelopment, there is little pros-
pect in the short- to- medium term timeframe for this regulatory gap to be bridged, at
least in terms of the range of environmental threats covered by individual regional
instruments. The third- party (pacta tertis) rule of international treaty law stipulates
that non- party states, no matter how well- supported the treaty is, cannot have any
treaty obligations. This means that none of the international environmental treaties
achieves universal coverage—a systemic diffi culty generally encountered by inter-
national environmental law.

A further problem for the effectiveness of international environmental law con-
cerns the issue areas it covers. Whilst the present international regulatory frame-
work of global and regional treaties covers a whole range of environmental threats
(even though general and region-specifi c) these treaties cannot easily be expanded
to cover newly perceived environmental threats. So the increase of specialized

310 Part III Topics in international law

environmental treaties, often overlapping in subject matter with other instruments,
tends to occur in full knowledge of such existing environmental treaty regimes.

There are diffi culties in invoking general environmental principles before dispute
settlement mechanisms. The World Trade Organization Panel in the EC- Biotech
Products case, for example, decided that an international environmental treaty
matters at this forum when all WTO members in the dispute are party to it.2 In
this case, this meant that neither the 1992 Biodiversity Convention, nor its 1999
Cartagena Protocol on Biosafety, was regarded as relevant to the dispute because
the United States was not a party to those. This is a sign of a continuing sense of
uncertainty among governments, judicial bodies, and international lawyers, both
international and domestic, as to the legal status and scope of general principles of
‘international environmental law’ or customary international law and what inter-
national environmental treaties tell us about these.

International environmental principles and
the sustainable development paradigm

There are fi ve central and well- accepted environmental principles in international
law. They were recognized at the 1972 United Nations Convention on the Human
Environment (UNCHE), held in Stockholm and further confi rmed in 1992 at the
United Nations Conference on Environment and Development by members of the
United Nations. These are: (1) the environmental integration principle, entailing
the inclusion of environmental considerations within socio- economic develop-
ment activities; (2) the preventive and precautionary principles, providing that
such activities do not cause environmental harm or damage; (3) the polluter- pays
principle, requiring that polluters should pay for the environmentally damaging
causes of their activities; (4) the environmental impact assessment (EIA) principle,
providing that the environmental impact of proposed socio- economic activities is
fully accounted for; and (5) the principle of public participation on environmental
issues in decision- making processes relating to such socio- economic development
activities. International public policy points to the overall goal of these principles
as the achievement of ‘sustainable development’. ‘Sustainable development’ was
fi rst authoritatively defi ned as: ‘development that satisfi es the needs of present
generations without compromising the ability of future generations to meet their
own needs’ by the World Commission on Environment and Development (WCED)
in 1987. Environmental principles recognize foremost that states have a right to

International law for environmental protection 311

exploit their own resources for the well- being of their citizens. States are also free
to formulate their own environmental and developmental policies. The only sub-
stantive constraint on states’ choice of environmental and development policy is
the responsibility to ensure that activities within their jurisdiction or control do
not cause damage to the environment of other states or of areas beyond the limits
of national jurisdiction. The remaining environmental principles are of a proce-
dural character and aim to guide states to put environmental concerns into the
policy- making and implementation agenda. It is helpful to fi rst go through these
principles to identify their normative content and what kinds of interpretation and
implementation problems they raise for policy- makers and international lawyers.
We will then turn to the status of environmental principles and how they interact
with international environmental treaties.

The integration principle

This principle provides for the integration of environmental considerations into
socio- economic policies.

Box 14.1 Integration principle

Principle 4 of the 1992 Rio Declaration
‘In order to achieve sustainable development, environmental protection shall consti-

tute an integral part of the development process and cannot be considered in isolation
from it.’

The duty this principle identifi es is procedural. It requires governments to ask the
‘environment question’ when they engage with social and economic policy. There
is continuing uncertainty over the extent to which the integration principle applies
beyond the realm of the state or government policy- making, and especially whether
it extends to non- governmental entities generally and companies, in particular. For
example, should the integration principle be included in and applied to contractual
arrangements between host states and investing companies for major infrastruc-
ture projects within so- called Transnational Investment Agreements (TIAs) or Host
Government Agreements (HGAs) that are clearly part of the ‘development process’
for the countries involved in these state- investor agreements?

312 Part III Topics in international law

The preventive and precautionary principles

These two principles are increasingly taken together and constitute an imperative
and the single most important principle for environmental protection embedded in
environmental law: to take a priori measures to prevent harm to the environment,
rather than ex post facto, reactive responses assigning responsibility and liability to
compensate for damaged environments.

Box 14.2 Preventive and precautionary principle

Principle 15 of the Rio Declaration
‘In order to protect the environment, the precautionary approach shall be widely applied

by States according to their capabilities. Where there are threats of serious and irrevers-
ible damage, lack of full scientifi c certainty shall not be used as a reason for postponing
cost- effective measures to prevent environmental degradation.’

In spite of the compromised language, ambiguous phrases and qualifying clauses
contained within this statement of the principle, it nevertheless highlights the main
thrust of current environmental law- making processes, for example, within the inter-
national climate change regime. Article 3(3) of the 1992 Framework Convention on
Climate Change provides as follows: ‘The Parties should take precautionary meas-
ures to anticipate, prevent or minimize the causes of climate change and mitigate
its adverse effects. Where there are threats of serious or irreversible damage, lack of
full scientifi c certainty should not be used as a reason for postponing such measures,
taking into account that policies and measures to deal with climate change should
be cost- effective so as to ensure global benefi ts at the lowest possible cost.’

Box 14.3 International treaties and negotiations on climate change

The Framework Convention on Climate Change (came into force in 1994)
This Convention sets an overall framework for intergovernmental efforts to tackle the

challenge posed by climate change. The Convention enjoys near universal membership
committing states to gather and share information on greenhouse gas emissions, national
policies and best practices, launch national strategies for addressing greenhouse gas emis-
sions, and adapting to expected impacts, including the provision of fi nancial and techno-
logical support to developing countries, and cooperating in preparing for adaptation to the
impacts of climate change.

The Kyoto Protocol to the Convention on Climate Change (came into force in 2005)

International law for environmental protection 313

The polluter pays principle

There are different conceptions of this principle, ranging from a simple, but arguably
simplistic, interpretation requiring actual polluters to be liable for the environmental
consequences of their activities, to the more sophisticated interpretation that envis-
ages this principle as requiring the ‘internalization’ (a well- known concept in
economics) of environmental costs incurred from polluting activities that would
otherwise be left to society as a whole to absorb. Principle 16 of the Rio Declaration
favours the latter approach.

The Kyoto Protocol sets binding targets for thirty- seven industrialized countries and the
European community for reducing greenhouse gas (GHG) emissions. The major distinc-
tion between the Protocol and the Convention is that while the Convention encouraged
industrialized countries to stabilize GHG emissions, the Protocol commits them to do so.
The Protocol places a heavier burden on developed nations under the principle of ‘com-
mon but differentiated’ responsibilities. The Protocol is ratifi ed by 193 countries and the
European Union.

Post- Kyoto negotiations
Negotiations are underway for a post- Kyoto instrument to be adopted at the next (15th)

Conference of Parties to the Framework Convention on Climate Change at Copenhagen in
December 2009. The Copenhagen meeting will continue to carry on the task of address-
ing human- induced greenhouse gas emissions, as well as the facilitation of mitigation and
adaptation efforts for climate change generally.

Canada, France, Germany, Italy, Japan, Russia, the United Kingdom, the United States,
Brazil, China, India, Mexico, and South Africa adopted the non- binding Washington
Declaration on 16 February 2007 and agreed in principle to a global ‘ cap- and-trade’ or
greenhouse gases emissions trading system that would apply to both industrialized nations
and developing countries.

Box 14.4 Polluter pays principle

Principle 16 of the Rio Declaration
‘National authorities should endeavour to promote the internalisation of environmental

costs and the use of economic instruments, taking into account the approach that the pol-
luter should, in principle, bear the cost of pollution.’

314 Part III Topics in international law

Increasingly however, the emphasis of the polluter pays principle in legal terms
is focusing also on liability for what is known as ‘pure’ environmental damage, or
ecological damage, i.e. damage to natural elements of the environment, especially
wildlife species and their habitats. Principle 13 of the Rio Declaration, for example,
provides that ‘States shall develop national law regarding liability and compensa-
tion for victims of pollution and other environmental damage’ (emphasis added).
This trend is also in line with a wider conception of what the phrase ‘environmental
protection’ should entail. Multilateral treaties providing for civil liability on behalf
of so- called ultra- hazardous industrial activities such as oil tanker shipping and
nuclear power generation now expressly include the possibility of incorporating
(as a separate liability heading) claims for clean- up measures aimed at restoring
damaged aspects of the natural environment, in addition to the traditional tort
liability headings of personal injury, property damage, and economic loss. A good
example of the recent emphasis on compensating for the rejuvenation of wildlife
damage is the inclusion of such claims under a separate liability heading under
the European Community’s Environmental Liability Directive. Compensation has
also been a well- known concept in US federal environmental legislation, as the
1980 Comprehensive Environmental Response, Compensation and Liability Act
(CERCLA) and related domestic case law show.

The principle of environmental impact assessment (EIA)

Box 14.5 Environmental impact assessment

Principle 17 of the Rio Declaration
‘Environmental impact assessment, as a national instrument, shall be undertak-

en for proposed activities that are likely to have signifi cant adverse impact on the
environment.’

This principle is now provided for in numerous multilateral, bilateral, and domes-
tic environmental instruments. The almost universal application of this principle
within developed, transitional and even developing country economies is a typical
example of the progressive changes wrought by environmental regulation and their
impact on general trade and investment relationships. An environmental impact
assessment (EIA) exercise is limited in its punitive reach. It merely requires the
assessment of effects on the environment, but does not necessarily oblige the entity

International law for environmental protection 315

whose activities are having a negative impact to mitigate such impacts. Nevertheless,
the publication of EIA information fulfi ls the transparency requirements of both the
principles of access to environmental information and public participation in envi-
ronmental decision- making.

The importance of greater transparency for ensuring better accountability is espe-
cially pertinent in situations where infrastructure projects have negative impacts
on wildlife habitats. While local communities can reasonably be expected to make
use of public consultation mechanisms provided for them under the EIA process,
such mechanisms will clearly not be useful to the wildlife without well- organized,
grassroots support networks among local community raising the issue of poten-
tial destruction of such wildlife habitat by the planned infrastructure projects. Of
course, relying on local support for wildlife habitat preservation where impover-
ished communities are being offered relatively large sums of money for the sale or
use of their land may not be very effective.

The tension between immediate or mid- term benefi ts of economic develop-
ment and environmental protection has led to the development of the concept
of strategic environmental assessment (SEA). SEA represents a progressive evo-
lution in the standard EIA exercise and is now required on a regional basis
within the member states of the European Union, especially in the context of
marine environmental protection within their offshore jurisdictions. While the
EIA process embodies a proactive approach, the SEA operates on a much larger
scale than the individual projects that are subject to EIAs. Moreover, each SEA
exercise is both comprehensive in its coverage of nearly all aspects of develop-
ment projects with environmental implications, as well as subject to review by
stakeholder groups, to ensure the fi nal version of the SEA is as up to date and
as accurate as possible.

The principles of access to environmental information, public
participation in the environmental decision- making process,
and access to environmental justice

Box 14.6 Environmental information

Principle 10 of the Rio Declaration
‘Environmental issues are best handled with the participation of all concerned citizens,

at the relevant level.’

316 Part III Topics in international law

This principle has three aspects: (1) the duty to give access to environmental
information, especially in respect of hazardous activities; (2) the duty to provide
opportunities for public participation; and (3) the duty to allow effective access
to judicial proceedings to seek redress for any failings in respect of the fi rst two
aspects.

All these elements are present in a range of regional environmental treaties. For
example, the 1991 Espoo Convention on Transboundary Environmental Impact
Assessment provides that each state party must establish an Environmental Impact
Assessment procedure that permits public participation in respect of the proposed
activities listed under Appendix I that are likely to cause signifi cant adverse trans-
boundary impact. Such public participation includes notifi cation and consultation.
Building on the successful entry into force of the Espoo Convention, the Economic
Commission for Europe (ECE) adopted the 1998 Aarhus Convention which is
regarded as being the most advanced international treaty on public participation
in environmental issues so far. Article 4 of this Convention provides for access to
‘environmental information’, with a broad defi nition of what this constitutes under
Article 2(3). It then follows this up with a fairly comprehensive right to public
participation in various environmental decision- making processes described under
Articles 6, 7, and 8, and particularly in relation to certain activities specifi ed in
Annex I to the Convention, as well as activities that ‘may have a signifi cant effect on
the environment.’ Especially signifi cant in this context is the fact that the defi nition
of ‘the public concerned’ (i.e. the public affected, or likely to be affected by environ-
mental decision- making processes) envisages Non- Governmental Organizations
(NGOs) to play an important role. However, both of these regional treaties are ECE
Conventions and thus geographically limited in their application only to certain
European and North American states. Their progressive application of the princi-
ples of access to environmental information, public participation, and even judi-
cial review of environmental decision- making processes must be replicated within
other regional or bilateral agreements across the world before it can be argued
that their present formulations transcend their individual instruments to inform the
development of, and moreover, contribute to the customary sources of international
environmental law.

The rights to environmental information, public participation, and access to jus-
tice, are procedural, rather than substantive, rights. A substantive right to a healthy
or clean environment is not as well- established under international law as the pro-
cedural rights enumerated above. Moreover, procedural environmental rights suffer
from a major defect as they rely on the presence of well equipped and informed
environmental NGOs and facilitation of their role in policy- making. Explicit legal

International law for environmental protection 317

recognition of such a role for environmental NGOs has so far been mainly confi ned
to the legal systems of a handful of developed or industrialized countries.

Status of environmental principles in international law

All these principles are now well accepted by states as international environmen-
tal norms, but the legal authority of these norms is a subject of debate. This has
a knock- on effect on their specifi c implementation, both between and within states.
The continuing legal diffi culties raised by these principles for the progressive devel-
opment of international environmental ‘rules’ (as opposed to ‘principles’) of law are
twofold in nature. First, they are usually articulated in non- legally binding interna-
tional instruments such as Declarations, Resolutions and Programmes of Action.
Secondly, the question arises as to whether these environmental ‘principles’, cur-
rently articulated in ‘general’ terms within these international instruments, have
developed into much more normatively signifi cant ‘rules’ of customary international
law, containing specifi c rights and duties for individual states in the environmental
protection fi eld.

Box 14.7 Soft law or custom?

The 1992 Rio Declaration on the Environment and Development is a non- legally binding
international instrument. In 2002 the World Summit on Sustainable Development reaf-
fi rmed commitment to the Rio Declaration.

Does this continuing support for the principles make them binding under customary
international law?

The status of environmental principles in international law and what duties these
principles trigger for states is an important discussion in international law. We can
identify three perspectives about the function of these principles: a legal, a political,
and usage- oriented perspective. The fi rst one emphasizes the legal relevance of the
principles and the duties of states to take them into account. The emphasis here is
that environmental principles are a very important form of law, which may be ‘soft’,
but which should not be confused with ‘non-binding’ law (Boyle 1999: 907).

The political perspective points out that environmental principles enable con-
forming states to put political pressure on dissenting states to comply with the soft
law norms contained within these instruments. This pressuring process is political
rather than legal because of the lack of express legal consent of states to the prin-
ciples. Shelton therefore concludes that ‘nonbinding norms and informal social

318 Part III Topics in international law

norms can be effective and offer a fl exible and effi cient way to order responses
to common problems. They are not law and they do not need to be in order to
infl uence conduct in the desired manner’ (Shelton 2006a: 322). The fl exibility
of such environmental principles, due to the non- legally binding nature of their
sources and their hortatory rather than imperative language, does however come
at a price. This price is their uncertain legal status under international law: Are
they general ‘principles’ or specifi c customary ‘rules’ of international environmen-
tal law?

The usage oriented perspective looks at whether and how states use the principles
before dispute settlement mechanisms. Indeed several of these environmental prin-
ciples have been invoked by states in the context of legal claims against other states
adjudicated before international tribunals. Boyle observes in this respect that these
principles ‘. . . may lay down parameters which affect the way courts decide cases
or the way an international institution exercises its discretionary powers. They can
set limits, or provide guidance, or determine how confl icts between other rules or
principles will be resolved’ (Boyle 1999: 901). The use of environmental principles
before international judicial organs, however, also comes with limitations. Judicial
pronouncements from international tribunals seized of environmental issues do not
have the capacity to confi rm the global application of these principles as rules of cus-
tomary international law above and beyond the environmental treaty regimes where
these principles are re- iterated as specifi c rules. Indeed, the analysis of a number of
signifi cant cases before different international tribunals, namely, the International
Court of Justice (ICJ), the WTO Panels and Appellate Body and the International
Tribunal for the Law of the Sea (ITLOS), suggests that there is a lack of confi rming
jurisprudence in favour of the application of signifi cant environmental principles,
such that there is arguably a lack of a certain ‘animating spirit’ within international
environmental law. This lack of an ‘animating spirit’ does not allow these undoubt-
edly well- accepted, but generally- worded and in themselves non- binding, environ-
mental principles to be applied in such a way that they can transcend their specifi c
articulation within individual environmental treaties, and facilitate their transition
to rules of customary international law providing for environmental protection.

A fi nal consideration about the status of the environmental principles is that there
is little evidence of long- standing state practice pointing to observation of these
general environmental principles fully, both as between themselves, and within their
domestic legal regimes. This is so even where these principles are now articulated
more specifi cally in individual treaty regimes, addressing particular environmen-
tal problems identifi ed for concerted action by these very same states. State prac-
tice does not refl ect uniform implementation of these principles. This suggests that

International law for environmental protection 319

states take the principles merely as guidance for their domestic environmental poli-
cies, rather than implement them within their environmental laws.

This analysis shows that the really critical questions regarding the legal status
and application of these general environmental principles remain unanswered. It is
still a debate, therefore, whether successful transition from ‘political slogans to legal
rules’ have been made when it comes to the protection of the environment (Sadeleer
2005). There are signifi cant differences between regarding general environmental
principles as mere guidelines for state behaviour in the environmental policy- making
fi eld, or as obligatory rules of customary international law both legally and politi-
cally. Legally, only obligatory legal principles can trickle down to domestic legal
system and can be invoked in interstate disputes about the environment effectively.
Politically, it is diffi cult to level the playing fi eld internationally when states give
confl icting signals as to what their mutual expectations are. The very nature of
the issues at stake in environmental protection also poses important problems. It
is diffi cult to argue that the environment as a whole can be protected by bilateral
agreements, which are generally more conducive to protect reciprocal state inter-
ests and preferences (except for the principle that states have an obligation not
to infl ict transboundary environmental damage). Some international lawyers insist
that environmental principles should be conceived as multilateral rules entailing
erga omnes obligations owed by each state to every other state, on the basis that
all states have an interest in global environmental protection. So a state would be
able to bring proceedings against another state merely on the basis that the latter
is harming the global environment. The International Court of Justice declined an
opportunity to enunciate on this very issue in respect of the Australian applica-
tion to intervene in the 1995 Nuclear Tests case, brought by New Zealand against
France. Moreover, the further question as to whether erga omnes obligations (even
where they can be proved to apply to a particular situation) in turn give rise to the
exercise of an actio popularis right by any state to enforce such obligations was also
not addressed by the ICJ in the initial, 1974 Nuclear Tests cases.3 The approach by
the Court is not surprising, given that the concept of ius cogens norms is still nascent
in its development even within general international law.

Environmental treaty non- compliance mechanisms

The reality is that few, if any, of the environmental principles have been applied
in such a way as to directly constrain the environmentally degrading actions of

320 Part III Topics in international law

states. International environmental law pursued an alternative pathway in order
to achieve compliance by establishing non- compliance mechanisms. The fi rst of
the treaty- based non- compliance procedures was introduced in the 1987 Montreal
Protocol to the 1985 Vienna Convention on Substances that Deplete the Ozone
Layer. More recently, these non- compliance mechanisms have arisen in the context
of the 1997 Kyoto Protocol to the 1992 Framework Convention on Climate Change,
and the 1989 Basel Convention on Transboundary Movement of Hazardous and
Other Wastes. These mechanisms aim at securing the cooperation of states to fi rst
accept and then act upon their non- compliant behaviour. The emergence of these
mechanisms implicitly highlights the shortcomings of the dispute settlement systems
established by the multilateral environmental agreements (Churchill and Ulfstein
2000). However, in any case, traditional judicial dispute settlement mechanisms are
not necessarily well- suited to prevent environmental harm, as they are usually only
engaged after the alleged non- compliance has already led to damage (Fitzmaurice
and Redgewell 2000: 43–4).

Non- compliance mechanisms are formulated as alternatives rather than replace-
ments for the traditional means of international law enforcement through peaceful
dispute settlement. These procedures have two important characteristics. First, they
monitor all parties to a treaty equally in order to increase the protection of the environ-
ment multilaterally. Second, their aim is to facilitate and increase cooperation amongst
states rather than increase confrontation (Churchill and Ulfstein 2000: 644–5).

Indeed, with the exception of the Kyoto Protocol, which established enforcement
as well as facilitative branches in the Compliance Committee, these environmen-
tal treaty compliance mechanisms do not include provisions for exerting sanctions
against the non- compliant states. They are designed to play mainly facilitative,
rather than enforcement, roles in ensuring compliance with specifi c environmental
treaty obligations. For example, all these compliance regimes adopt, as an alterna-
tive to the traditional confrontational style of international judicial dispute settle-
ment, the possibility for a ‘confessional’-type procedure. When a state party realizes
that it may not be able to comply with its international obligations under the spe-
cifi c environmental treaty regime, it can present itself before the compliance com-
mittee/commission and request assistance to achieve compliance. The cooperative
model underlying the confession approach is in contrast to coercive models, which
is characteristic of international sanctions.

It appears at fi rst glance that international environmental law has developed
an innovative means to ensure compliance with substantive rules and standards
provided within the individual environmental treaty regimes. However, these indi-
vidual non- compliance mechanisms are not able to inform the general development

International law for environmental protection 321

of international environmental law, and so do not contribute to the development
of optimum standards for state compliance with environmental rules and stand-
ards. This is because non- compliance procedures developed within specifi c treaty
regimes do not apply to state parties. They also cannot cover emerging environmen-
tal threats. The autonomous nature of each compliance procedure also means that it
is not possible for innovative best practice within one of these regimes to be applied
to any other treaty compliance regimes.

Box 14.8 The Aarhus Convention non- compliance procedure: a model for future
environmental protection?

The United Nations Economic Commission for Europe (UNECE) Convention on Access
to Information, Public Participation in Decision- Making and Access to Justice in
Environmental Matters was adopted on 25 June 1998 in the Danish city of Aarhus.

The Aarhus Convention extends the right to complaint against a state party’s alleged
non- compliance to individual members of the public and also to environmental and/or
human rights non- governmental organizations. The complainants do not have to prove
a direct interest in the environmental information requested. Moreover, any person com-
plaining need not be a citizen of the state party concerned, nor in the case of an NGO
complaint, need it be based in the state party concerned.

As of April 2009, Aarhus Convention has forty- two state parties.

Non- state actors and environmental protection

Contemporary international relations under the condition of economic globalization
has witnessed an increase in the numbers of transnational corporations, private invest-
ment banks, and fi nancial institutions as well as agreements between states and these
actors in order to facilitate trade and investment. In order to understand the role of
non- state actors in environmental protection, it is helpful fi rst to identify types of actors
and agreements. Two types of non- state actors are signifi cant for the protection of the
environment: international organizations and transnational corporations (TNCs).

Table 14.2 Non- state actors and environmental protection

International organizations Profi t- making actors

Examples: Examples:

The World Bank Group Transnational corporations

International Maritime Organization Private banks lending money for investment projects

322 Part III Topics in international law

First, there are international organizations created with the agreement of
governments, and whose sphere of activity has an effect on the protection of the
environment. Two examples of such international organizations are the World Bank
and the International Maritime Organization. The World Bank is a collection of
organizations that offer loans, credits, and grants to developing countries for a wide
array of purposes that include investments in education, health, public adminis-
tration, infrastructure, fi nancial and private sector development, agriculture. The
International Maritime Organization (IMO) is an intergovernmental organization
with the task to develop and maintain a regulatory framework for shipping—its
remit includes environmental concerns, legal matters, technical cooperation, mari-
time security, and the effi ciency of shipping. In the case of the World Bank, major
development projects have signifi cant environmental consequences. In the case of
the IMO, maritime pollution is an important source of environmental degradation.
Both the World Bank and the IMO have codes, standards, and procedures that aim
to reduce environmental risks in their sphere of activities. One way of seeing these
organizations is as standard setters for states. World Bank development projects
are subject to environmental impact assessments and the IMO takes the lead on air
pollution by shipping vessels, safety of oil tankers, and ship recycling. Furthermore,
the World Bank Group’s Environmental, Health and Safety Guidelines (also known
as the EHS Guidelines) indicate that when host country regulations differ from
the levels and measures presented in the EHS Guidelines, projects are expected to
achieve whichever is more stringent. Another way of seeing these non- state actors is
in terms of their lack of accountability for the decisions they take affecting the envi-
ronment. A central question in this regard is whether those actors should be legally
bound by environmental principles when designing policies and procedures—a
question all the more diffi cult to answer as the issue of bindingness has not yet even
been resolved with regard to states.

Second, there are the profi t- making non- state actors, which operate in more than
one country. These are known as transnational corporations (or multinational cor-
porations), but we can also include private banks in this category. TNCs carry out
their economic activities by signing agreements with states in which they oper-
ate. These are called host government agreements or state/ non- state actor tran-
snational investment agreements, and they accord reciprocal rights to states and
TNCs. Disputes between host states and TNCs are not subject to domestic laws,
but to international dispute settlement. Unlike states, TNCs have no international
law obligations to protect the environment. They are bound by the terms of the
contract they sign with host states. A host government agreement which brings
together a state that is unable or unwilling to take international environmental

International law for environmental protection 323

law obligations seriously and a TNC with no regard to environmental impact or
environmental risk is a recipe for environmental disaster. States may be unable to
negotiate effectively with TNCs because of civil war, corruption, or lack of technical
knowledge about environmental risks—as in the case of the logging contracts issued
in the Congo Basin Forest (the world’s second largest rain forest, located in the
Democratic Republic of Congo) by TNCs trading rain forest timber. In most cases,
however, the environmental impact of TNC activity can be subtle and complex and
requires detailed analysis and consultation. Because most developing states regard
foreign investment as central to economic development they may be unwilling to
scare off investment by imposing environmental requirements on TNCs.

Self- regulation by TNCs in the fi eld of environment: the
Equator Principles

An important development for the protection of the environment is the emergence of
self- regulation by TNCs. In this section, we will focus on the Equator Principles drafted
by a group of commercial lending banks which, along with the World Bank Group’s
International Finance Corporation (IFC), established a banking industry framework
for addressing environmental and social risks in the project fi nance sector.

There are a number of factors that have made TNC self- regulation possible in inter-
national relations. The fi rst factor has to do with the structure of transnational project
fi nance. Project fi nance is a bank lending method whereby the lender relies primarily
on the revenues generated by a specifi c project run by a project company, as the source
of repayment for the original loan, as well as the security for the exposure of the lend-
ing bank itself. 4 Finance- type projects entail a high exposure to risk on the part of the
lending bank and are more likely to be located in higher risk countries. Such commer-
cial lending practices to fi rms that are often located in foreign jurisdictions have given
the banks concerned a more signifi cant stake in the borrowers’ fi nancial performance.
This relationship in turn provides the banks with not only a fi nancial, but perhaps
more importantly, a reputational motive in the overall success of the project. Second,
there has been increased attention on TNC activities, especially in countries with civil
wars and authoritarian regimes, by environmental and human rights organizations.
Public and media attention have created a strong reputational incentive for TNCs
to consider the environmental, social (and other) risks. This is especially the case
where the projects involve large- scale extractive and/or infrastructure- type develop-
ment activities, such as oil and gas exploration, mining, dam building, and the laying
down of highways/motorways, etc. Both the scale and impacts of these projects are
the central focus of campaigning environmental and human rights NGOs.

324 Part III Topics in international law

Three reasons explaining why private sector actors voluntarily place limits on their
environmental behaviour (even if these limits are not very constraining and, perhaps
more signifi cantly, weakly enforced) have been put forward. These are: (1) risk reduc-
tion; (2) reputation enhancement; and (3) learning (Haufl er 2001). From the last of
these reasons, namely, corporate ‘learning’, we can discern a shift in attitude and
strategy from ‘defensive reaction’ to ‘opportunity grasping’. Indeed, many private
actors have departed from the reactive or responsive attitudes of their peers and
clearly hope to achieve a number of implicit or even explicit goals in their private
or self- regulatory efforts. In this respect, there are also positive effects of ‘clubbing
together’ by business corporations in the fi eld of environment (Prakash and Potoski
2006: 17–27 and 34–80). As these authors note, ‘(e)ffective green clubs induce par-
ticipating fi rms to incur the private costs of undertaking progressive environmental
action beyond what they would take unilaterally’ (Prakash and Potoski 2006: 17).

The Equator Principles were decided in June 2003. By mid 2007 the Principles had
been agreed to by fi fty-one Equator Bank countries accounting for nearly 90 % of
emerging market project fi nance. The Principles represent a common set of environmen-
tal and social policies and guidelines that are applicable globally and across all industry
sectors. Each participating fi nancial institution has adopted the Principles individually
and declared that it will put into place internal policies, procedures, and processes that
are consistent with these Principles. Notwithstanding the explicitly ‘soft’ or non- binding
nature of these Principles, they have arguably become the standard for assessing and
managing environmental and social risk within project fi nancings. There are also close
links between these Principles and the environmental, social, and health and safety
guidelines and conditionalities utilized by the state- funded multilateral/global fi nancing
institutions such as the World Bank. This is because many of these projects ultimately
rely on a mixture of public and private sources for funding and credit provision, espe-
cially when they concern the building and operation of large infrastructure projects. The
Equator Principles represent the establishment of a common framework for the private
PF industry based on external and respected benchmarks established by public sector
international fi nancial institutions, namely, the World Bank and IFC Guidelines.

A mixed regime for international
environmental law?

International environmental law exposes some of the most signifi cant implications of
economic globalization for international law. In the sphere of economic activity, the

International law for environmental protection 325

role of the traditional nation state is changing. Previous governmental functions are
increasingly being undertaken by quasi- public, mixed, public- private, or even entirely
private, non- state actors. Where these non- state actors remain within the territorial
jurisdiction of just one state, they can arguably still be effectively controlled by the
domestic legal regime. However, many of these actors, especially when they are in the
form of transnational business entities, now traverse the world in pursuit of their eco-
nomic goals. This phenomenon gives rise to a dilemma for international environmen-
tal law (and general international law), since in formal terms this legal discipline only
binds states and creates limited rights and obligations for non- state actors only when
states agree to this. On the other hand, when private, non- state actors’ activity with
direct impact on the protection of the environment takes place with the agreement of
states, transnational actor practice can arguably also be seen as contributing to the
process of international norm formation, despite its non- state origins. Non- state actor
self- regulatory practice in the fi eld of environment, therefore, has potential to contrib-
ute to the development of a mixed regime of international environmental law.

A danger in encouraging self- regulation of non- state actors in the fi eld of environ-
ment is the negative consequences of this for state responsibility and regulation. Even
though it is desirable that all non- state actors, TNCs and international organizations
follow the same standards for environmental protection, states still remain the key
actor with prescriptive powers to hold actors to account and allow citizen participa-
tion. States therefore still fulfi l an important regulatory and accountability task at
domestic and international levels. Special interest non- governmental organizations
(NGOs), especially in the environmental, human rights, and labour standards fi elds,
have campaigned against the perceived takeover, especially by private entities, of what
had previously been conceived as state- controlled fi elds, or areas, of regulation.

From an international legal policy perspective one can argue that the self- regulation
of non- state actors is a welcome development given that states themselves have
been unable to create a globally applicable regime. There are wide discrepancies
in states’ environmental protection practices and developing states are known to
be less willing to impose high environmental costs on state or non- state- led eco-
nomic development processes. The self- regulatory transnational law forms part of
an internalization or socialization process (as opposed to a regime based on threat
of sanctions) of principles concerning the protection of the environment. Due to
the multi- faceted nature of the problem of the protection of the environment, and
the complexity of the actors involved in potentially damaging or improving it, it is
positive that there are parallel processes of law- making. The challenge of coordinat-
ing states as well as non- state actors in coherently interpreting the environmental
principles, however, remains.

326 Part III Topics in international law

Conclusion

In this chapter we have identifi ed that international environmental law suffers from
both substantive and systemic diffi culties. There are general environmental princi-
ples, but they are enunciated in non- binding international instruments, such as the
1992 Rio Declaration. There are international environmental treaties, but these are
either sector specifi c in their orientation or regional in their scope of application.
This developmental gap between general environmental principles and specifi c treaty
rules points towards a substantive failing within international environmental law as
a viable regulatory framework. Environmental treaty compliance procedures, while
performing a valuable role in ascertaining compliance with the specifi c treaty regime
concerned, do not yield authoritative judgments contributing to an understanding of
the application of the accepted environmental principles for the wider international
community as decisions of international courts and tribunals would do.

Environmental protection through international law also suffers systemic diffi –
culties in the international system. The lack of an equally comprehensive treaty cov-
ering all major environmental threats is due to the lack of disagreements about the
appropriate concrete collective steps to be taken to protect the environment inter-
nationally. States at different stages of economic development have different views
on international action. The signifi cant capacities of non- state actors, in particular,
international organizations and TNCs, further complicate the picture for inter-
national coordination for action. An important development in this regard is the
increasing numbers and strength of patterns and networks of international environ-
mental governance with its focus on the prevention of environmental harm, rather
than the allocation of fault, blame, and liability for its remediation. This alterna-
tive regulatory approach offers a possibility for the internalization of international
environmental principles and standards by non- state actors, especially when these
environmental principles have not been fully implemented within domestic legal
regimes.

Questions

1. What are the sources of international environmental law?

2. What types of environmental treaties are there?

3. What is the status of environmental principles in international law; why does this
matter?

International law for environmental protection 327

4. What is the relationship between environmental principles and sustainable
development?

5. The protection of the environment is a global phenomenon. Why is there not a global
environmental treaty?

6. In what way do non- compliance mechanisms guide state behaviour in the fi eld of
environment?

7. What is a confessionary proceeding? What is its use?

8. What role do non- state actors play in environmental protection?

9. Why are there self- regulatory non- state actor regimes?

10. What is the relationship between international law and transnational law for the
protection of the environment?

11. What are the prospects for a more comprehensive and effective regulation in the fi eld
of environment?

Further reading

Abbott, K. W., Keohane, R. O., Moravscik, A.,
Slaughter, A.-M., and Snidal, D. (2000) ‘The
Concept of Legalisation’ International Organ-
ization 54/3: 401–19. This paper, along with
several other articles within this Special Issue,
all draw from different theoretical perspec-
tives and approaches of political science to
examine the relationship between interna-
tional relations and international law.

Birnie, P., Boyle, A., and Redgwell, C. (2009) Inter-
national Law and the Environment, 3rd edn.
(Oxford: Oxford University Press). Arguably
the pre- eminent textbook on international
environmental law, now fully updated in its
third edition.

Bodansky, D., Brunnee, J., and Hey, E. (eds.)
(2007) The Oxford Handbook of International
Environmental Law (Oxford: Oxford University
Press). Excellent volume of essays offering
a comprehensive and yet also in- depth indi-
vidual treatment of a whole range of issues
and written by the pre- eminent authors in this
fi eld.

Broude, T. and Shany, Y. (eds.) (2008) The Shifting
Allocation of Authority in International Law
(Oxford: Hart). This volume brings together
the thoughts of several eminent international
lawyers on this theme: ‘the allocation of
authority in international law’ and in doing
so allows them to reappraise basic concepts
such as ‘sovereignty’ and ‘authority’ within
international law and consider their relation-
ship with newer concepts such as ‘govern-
ance’, ‘fragmentation’, and ‘subsidiarity’.

Djelic, M.-L. and Sahlin- Andersson, K. (eds.) (2006)
Transnational Governance: Institutional Dynam-
ics of Regulation (Cambridge: Cambridge
University Press). Explores the relationships
between states, international and transnational
organizations in the regulation of certain fi elds.

Hall, R. B. and Biersteker, T. J. (eds.) (2002) The
Emergence of Private Authority in Global Gov-
ernance (New York: Cambridge University
Press). One of the fi rst volumes of essays
devoted to describing and explaining the
growth in private authority supplementing

328 Part III Topics in international law

Websites

http://unfccc.int/kyoto_protocol/items/2830.php The website of the Kyoto Protocol offers access
to documents, informs about the Kyoto mechanisms, emission targets, the status of ratifi cations, and
other related issues.

http://www.unep.org/Documents.Multilingual/Default.asp?DocumentID=78&ArticleID=1163 Here
the United Nations Environment Programme publishes the Rio Declaration on Environment and
Development as well as related resources.

http://www.imo.org The International Maritime Organization provides access to its documents and
news related to the environmental protection of oceans.

http://www.ifc.org/sustainability The International Finance Corporation of the World Bank has
developed principles on environmental sustainability which you can fi nd in detail on this website.

http://www. equator- principles.com/index.shtml Here you can fi nd the ‘Equator Principles’, an
industry approach for fi nancial institutions in determining, assessing, and managing social and
environmental risks in project fi nancing.

Visit the Online Resource Centre that accompanies this book to access more learning resources
www.oxfordtextbooks.co.uk/orc/cali/

and potentially superseding public (state)
authority in the global governance of certain
fi elds.

Jessup, P. (1956) Transnational Law (New
Haven: Yale University Press). Possibly
the fi rst monograph to introduce the term
‘ transnational’ law for the consideration of the
implications of the whole range of legal rela-
tionships between states, as well as between
states and other international or ‘transnation-
al’ actors, including private entities.

Koh, H. (1996) ‘Transnational Legal Process’ Nebras-
ka Law Review 75: 181–206 This seminal article
appraises the evolution of ‘transnational law’
and makes a sustained case for its recognition
as a further normative impulse within states
and their ‘transnational’ private actors.

Slaughter, A.-M., Tulumello, A. S., and Wood, S.
(1998) ‘International Law and International
Relations Theory: A New Generation of Inter-
disciplinary Scholarship’ American Journal of
International Law 92/3: 367–97 An attempt
by eminent international lawyers to assess the
potential value of theories of international
relations to explain the normative relation-
ships between states, as well as between states
and other international actors.

Winter, G. (ed.) (2006) Multilevel Govern-
ance of Global Environmental Change: Per-
spectives from Science, Sociology and the
Law (Cambridge: Cambridge University
Press). Multi- disciplinary approaches explor-
ing the problem of effective management of
global environmental change.

International law for environmental protection 329

Chapter endnotes

1. For example, the 1976 Barcelona Conven-
tion on Mediterranean Sea, the 1979 Geneva
Convention on Long Range Transboundary
Air Pollution, the 1991 Espoo Convention,
the 1992 Paris Convention, the 1994 Baltic
Convention, the 1998 Aarhus Convention, as
well as their related Protocols. There are also
environmental protection Regulations and
Directives promulgated by the relevant Euro-
pean Union institutions, to be implemented
and enforced within each of the member states
of the EU.

2. Full title: EC- Biotech Products, US, Canada,
Argentina v EC, WT/DS291R, WT/DS292R,
WT/DS293R, 29 September, 2006.

3. Nuclear Tests Cases (Australia v France, New
Zealand v France) (1974) ICJ Reports 253, at 387.

4. This is distinguished from corporate
fi nance- type projects, whereby the lending bank’s
capital exposure is secured both on the corporate
assets of the investing company (usually a foreign
TNC) as well as the project company assets and
revenues.

Chapter 15

World trade and international
law
Thomas Sebastian

CHAPTER CONTENTS

• Introduction

• The rationale for trade treaties

• Types of trade treaties

• The WTO: negotiating forum and monitoring institution

• Basic disciplines: limiting protectionism

• Advanced disciplines: constraints on regulatory freedom

• Loopholes and exceptions

• Criticisms of the WTO: a biased forum?

• Conclusion

CHAPTER OVERVIEW

This chapter describes the international law relating to international trade, focusing

specifi cally on the World Trade Organization (WTO) treaty system. In broad terms, countries

conclude trade treaties in order to obtain access to each other’s markets. The WTO provides

a forum within which countries can conclude such agreement and monitor compliance. The

basic WTO disciplines are geared towards facilitating the negotiation of commitments to limit

protectionism and ensuring that those commitments are not undermined. These disciplines

leave countries with considerable freedom to regulate. However, advanced disciplines, intro-

duced more recently, constrain the ability of countries to regulate in a variety of important

areas, such as intellectual property policy and risk regulation.

World trade and international law 331

Introduction

In 2007, countries imported goods worth approximately 14 trillion dollars and
commercial services worth 2 trillion dollars (WTO 2008: 11–15). This fl ow of
goods and services is only possible because individual governments have allowed it
to occur. This chapter examines how international law has contributed to making
this fl ow of goods and services possible. It explores how governments have used
international law as a means to facilitate cooperation on matters of trade policy,
the limitations they have accepted on their sovereignty, and the institutions they
have built to serve their objectives.

We begin by examining the rationale for trade treaties and main types of
trade treaties. We then turn to the WTO Agreements and examine the struc-
ture and functions of the institution created by that treaty. Following this, we
review the major disciplines, a set of interlinked obligations which limit state
action, established by the WTO Agreements as well as the major exceptions
from these disciplines. We fi nally examine certain criticisms of the WTO regime
and conclude.

The rationale for trade treaties

Take two countries, A and B. Both of them have car industries. For whatever reason,
B’s car industry is more competitive than A’s industry. Cars from country B are
cheaper, more reliable, and perform better than similar cars from country A. Sensing
a good commercial opportunity, B’s car industry wants to export cars to country A.
A’s car industry reacts to this threat (to its profi ts and market share) by lobbying its
government to take steps to make it more diffi cult for B’s car industry to compete
in the domestic market. In other words it lobbies for ‘protection’ from imports. The
obstacles that the government of A (the importing country) can impose on imports
of cars from B can take a variety of forms:

1. Import prohibitions: The most extreme step that A can take is to prohibit
imports of cars altogether. An import prohibition would completely insulate
A’s domestic car industry from foreign competition. B’s car industry would
then face an insurmountable barrier to trade; it simply could not enter the
market for automobiles in A.

332 Part III Topics in international law

2. Import quotas: Less extreme would be for A to impose quotas on imports
of cars. Quotas are numerical limits on the amount of imports that can
enter a country in a given year. Assume that the annual demand for new
cars in A is around 100,000 cars. A can impose a 50,000 annual quota on
imported cars. Effectively, this means that half of the automobile market
is reserved for A’s domestic car industry. Depending on how much of
the domestic market it insulates from competition, a quota can present
a signifi cant obstacle to trade.

3. Tariffs: A could also impose tariffs on imports of cars from B. A tariff is a tax
levied on goods when they cross an international border. For instance it
could impose a tariff of 20% of the price of every car imported from B. This
effectively would raise the costs of cars imported from B by 20%. Because
A’s domestic car industry does not pay any tariffs, this measure delivers
a competitive advantage to A’s domestic car industry equal to the value of
the tariff paid by B’s car industry. Regardless of level, all tariffs operate as
obstacles, high or low, to market access.

4. Discriminatory internal taxes and regulations: A could decide to protect
its domestic industry by imposing higher internal taxes on imported cars.
So if the sales tax on a domestically produced car is 20%, A could levy
a substantially higher sales tax on imported cars, say 40%. The 20%
tax differential confers a competitive disadvantage on B’s domestic car
industry in precisely the same way as a 20% import tariff does. A could
also impose discriminatory regulatory requirements on imported cars.
For instance, A could specify that imported cars have to be fi tted with
expensive pollution control technology while exempting domestically
produced cars from this requirement. The consequence is that B’s car
industry would have to incur costs that the domestic car industry in A can
completely avoid.

5. Production subsidies: A could decide to protect its domestic industry by
giving it subsidies, i.e. giving cash payments to domestic car producing fi rms.
Unlike tariffs or discriminatory internal taxes or regulations which have the
effect of increasing the costs borne by imported cars, the effect of a subsidy is
to reduce the costs borne by domestic producers. If subsidies are high enough
domestic car producers can reduce their prices to a level where it becomes
impossible for B’s car industry to compete. Accordingly, subsidies can also
operate as obstacles to international trade.

World trade and international law 333

Going back to the car industry in country B which hopes to enter the market in
country A, can international law assist country B in its endeavour of removing these
obstacles to trade?

To begin with, it is important to note that under customary international law, every
state has an absolute right to restrict trade with other countries and to discriminate
against foreign goods and services (Schwarzenberger 1971: 163–5).1 States are free,
under customary international law, to deploy the fi ve instruments discussed above.
Constraints on the ability of states to impose obstacles on international trade cannot be
derived from customary international law; instead they must be derived from treaties,
from obligations voluntarily assumed as part of an agreement with another state.

The potential for a treaty bargain in these circumstances seems clear. If under cus-
tomary international law the United States is free to impose tariffs on imports of cars
from Japan, the converse is also true—Japan is equally free to impose tariffs on imports
of, for instance, computers from the United States. The United States may commit to
reduce or eliminate restrictions on trade from Japan in exchange for similar commit-
ments by Japan to reduce or eliminate restrictions on trade from the United States.

This basic structure—an exchange of commitments on market access—underlies
all trade treaties. State A agrees to provide access to its market in exchange for

Box 15.1 Examples of the use of policy instruments to protect domestic
economies

These fi ve policy instruments are the ones most frequently utilized by governments when
they attempt to protect domestic economic actors from foreign competition. Thailand pro-
hibited imports of cigarettes until the early 1990s which helped its local cigarette manufac-
turers. The United States imposed quotas on textile imports from China from 2006 to 2008
to protect textile producers in North Carolina and other states. India currently imposes
tariffs of around 100% on imported wine with the aim of protecting its emerging domestic
wine industry. At one time Japan taxed imported alcoholic beverages more heavily than
their locally produced competitors while Canada subjected imported alcohol products to
more onerous regulatory requirements. The European Union famously protects its farmers
by giving them massive subsidies under the Common Agricultural Policy. While all of these
examples relate to trade in goods, analogous policy instruments are deployed to protect
domestic service providers from foreign competition. For instance, a Chinese construction
fi rm cannot bid for a construction project in Switzerland and march its employees into
Switzerland to do the building work at Chinese wage levels. Swiss immigration laws would
act as a bar to such a transaction—in much the same way as an import prohibition acts as
a bar to trade in goods.

334 Part III Topics in international law

Types of trade treaties

Trade treaties come in several forms.
First, there are bilateral trade treaties. These are trade treaties between two

countries. The earliest trade treaties were bilateral. Two states would enter into

a corresponding commitment by state B. Exporting enterprises in one state benefi t
from improved market access opportunities in the other state. A given state will
enter into a given trade treaty as long as the benefi ts that it receives as a result of the
treaty exceed its costs of compliance.

However, from an economic point of view there is a diffi culty with this descrip-
tion. Under standard economic theory, a state will always benefi t from reducing
trade barriers, so it should do so regardless of whether or not other states grant
market access under a trade treaty.

Box 15.2 A puzzle for economists

The puzzle for economists is why countries would need trade treaties to commit to a policy
(free trade) that is in their own interest. Indeed, on this standard view, there should not be
any trade treaties because states should not have any market access barriers to begin with.
In the words of Krugman (1997: 113) ‘if economists ruled the world there would be no need
for a World Trade Organization’. On the standard view, the explanation for the persistence
of trade barriers comes from political economy factors: because producer interests are
fewer and better organized than consumers they are in a better position to infl uence politi-
cal offi cials. Political offi cials adopt trade restrictive policies which benefi t these producer
interests. In this environment, market access barriers will persist and, consequently, there
is a role for trade treaties.

Economists explain that trade treaties eliminate ‘ time- inconsistency problems’ by reduc-
ing the likelihood that politicians will reinstate protectionism in response to domestic polit-
ical pressure. Trade treaties alter the domestic political calculus: exporters will lobby for
domestic liberalization as a means of obtaining and maintaining access to the markets of
treaty partners and it becomes diffi cult for politicians to respond to domestic rent- seeking
groups without hurting an exporting constituency.

It is important to note that there are contrary views on all of this. The notion that free
trade policies are invariably welfare- enhancing and associated with economic growth has
come under attack from a dissident strain of economic scholarship (Rodrik 2007; Chang
2008). Moreover, policy- makers (and displaced workers) have always had a diffi cult time
digesting this notion.

World trade and international law 335

agreement slashing tariffs on each others imports. A contemporary example is the
US- Australia Free Trade Agreement concluded in 2004. Under this treaty Australia
and the United States made commitments on a broad range of issues, for instance
the duties to be applied on lamb imports to the United States, permissible levels of
export subsidies and the content of regulation in the telecoms and fi nancial services
sectors.

Second, there is an in- between category of trade treaties which we will call
regional trade treaties. These are trade treaties that are concluded between more
than two countries (so they are not bilateral trade treaties) but less than all 153
WTO members. The most prominent contemporary example is the treaty establish-
ing the European Union, the so- called Treaty of Rome concluded in 1957, which
currently binds twenty- seven countries. As part of this treaty, all twenty- seven mem-
ber states of the European Union have agreed not to impose barriers on trade in
each other’s goods and services. Another example is the North American Free Trade
Agreement between Canada, Mexico, and the United States. It should be noted that
regional trade treaties, as we have used the term, also encompasses treaties between
three or more countries that are not in the same geographical area. An example is
the EFTA- SACU free trade agreement which binds thirty countries in Europe and
fi ve countries in Africa.

Third, there are multilateral trade treaties, i.e. the WTO Agreements. These
are treaties between all the 153 member countries of the WTO. Any country in
the world can apply to become a member of the WTO so in theory these trea-
ties are open to all countries. All the major economies, with the exception of
Russia, are now members of the WTO. As a consequence, almost all of world
trade is conducted under the WTO Agreements. Moreover, none of the four
major trading powers, the United States, the European Union, Japan, and China,
have entered into bilateral or regional trade treaties with each other. For these
reasons, the multilateral trade treaties are the most signifi cant category of trade
agreements.

From a legal point of view, bilateral and regional trade treaties are treated as
a single category distinct from the multilateral trade treaties. Whenever a WTO
member enters into a bilateral or regional trade treaty it must ensure that the treaty
meets a set of complex requirements set out in the WTO Agreements.

Countries frequently use all three types of trade treaties to achieve their trade
policy goals. So going back to our previous example, B could obtain market access
for its car industry by including market access for cars in A’s WTO commitments,
negotiating a bilateral trade treaty with A or entering into a regional trade treaty
which includes A. Which route offers the best prospects of success is ultimately

336 Part III Topics in international law

a matter of political judgement. This chapter does not examine the content of the
approximately 400 bilateral and regional trade treaties currently in force. Instead,
our focus is limited to the regime established under the multilateral trade treaties,
i.e. the WTO Agreements.

The WTO: negotiating forum and monitoring
institution

The WTO was established in 1995 and currently has 153 member states. Countries
agreed to create the WTO at the conclusion of the Uruguay Round of trade negotia-
tions that lasted from 1986 to 1994. The Uruguay Round negotiations were con-
ducted under the auspices of the General Agreement on Trade and Tariffs (GATT)
and the WTO is the successor organization to the GATT.

The GATT was signed in 1947 by twenty- three countries (eleven of which were
developing countries) and was originally meant to be an interim arrangement but
it persisted and eventually gave rise to an informal organization, also called the
GATT, which became the dominant institution for cooperation on trade policy in
the postwar period. In the forty- eight years between the signing of the GATT and
the creation of the WTO, eight rounds of multilateral negotiations were held under
its auspices—Geneva (1947), Annecy (1948), Torquay (1950), Geneva (1956), the
Dillon Round (1960–1), the Kennedy Round (1964–7), the Tokyo Round (1973–9)
and the abovementioned Uruguay Round (1986–94). In this period the GATT grew
from 23 to 125 countries. Earlier rounds focused exclusively on tariffs but later
rounds tackled non- tariff barriers as well.

Like the GATT, the WTO has two primary functions: (1) it facilitates negotia-
tions between its members on trade policy matters, (2) it monitors compliance with
relevant treaty obligations. Before examining how the WTO carries out those func-
tions it is worth dealing with the decision- making process.

As a formal matter every member has one vote and there is no weighted voting
in the institution. Moreover, in practice, almost all decisions in the WTO are taken
on the basis of consensus. For this reason, the WTO is often described as a ‘mem-
ber driven organization’. The implication often drawn is that it is not possible to
attribute agency to the WTO; to blame ‘the WTO’ for a misguided decision is some-
what like blaming a parliamentary building, as opposed to legislators, for a mis-
guided piece of domestic legislation. As we shall see, although all members have
equal rights, it does not necessarily follow that every member wields equal power.

World trade and international law 337

Facilitating bargains

The WTO is fi rst and foremost a negotiating forum. Its 153 members gather to
strike bargains on trade policy, as Collier (2008: 170) puts it ‘[the WTO] is not
a purposive organization but rather a marketplace. The WTO Secretariat is there
merely to set up the stalls each day, sweep the fl oor each evening, and regulate the
opening hours. What happens is determined by bargaining’. In the current Doha
Development Round countries are negotiating on a broad range of issues, from
the level of tariffs on agricultural goods to how national patent systems should
approach inventions embodying particular types of genetic resources. Negotiating
with a broad range of countries and to a common timetable permits countries to
reach agreements that they could not reach bilaterally or in small groups.

A key feature of the WTO is that no member can be bound by the results of
a negotiation unless it agrees with them and formally accepts the resulting treaty.
There is no formal mechanism in the WTO to impose a treaty obligation on a coun-
try that is unwilling to accept it. In this sense, even the smallest WTO member has
control, at least in theory, over the content of its treaty obligations. Consequently,
all WTO rules can be traced back to a unanimous agreement between members.

Bargaining at the WTO, like bargaining anywhere, is conducted on the basis of
reciprocity. This means that if a participant does not contribute something of interest
to its negotiating partners then it risks getting nothing of interest from those part-
ners. The ‘currency’ of these negotiations is typically market opening and closing. As
a consequence, countries with large import markets tend to have greater bargain-
ing power. The European Union has much more bargaining power than Malawi,
simply because of the greater size, and hence importance, of its import market.
Bargaining power differences were very much in evidence at the conclusion of the
Uruguay Round. At that point, the major economies of the GATT, the United States,
the European Union, and Japan, presented developing country participants with
a choice—accept the Uruguay Round package they proposed (including massively
controversial disciplines on intellectual property and services) or they would with-
draw from the GATT. Facing the prospect of a complete loss of access to major
import markets the developing countries folded and accepted the Uruguay Round
package paving the way for the creation of the WTO (Steinberg 2002: 359–60).

Monitoring compliance

The WTO not only facilitates the process of bargaining, it also monitors compliance
with bargains reached under its auspices. At the core of the institution are the set of

338 Part III Topics in international law

A key function of the WTO is to facilitate the monitoring of compliance with
these agreements. It does so in two ways.

agreements reached at the end of the Uruguay Round of negotiations—collectively
known as the WTO Agreements. The WTO Agreements actually consist of a variety
of instruments, best understood as chapters of a single treaty, dealing with different
aspects of trade policy. Box 15.3 lists the structure of the WTO Agreements:

Box 15.3 The structure of WTO Agreements

Institutional

1. Agreement Establishing the World Trade Organization

2. Understanding on Rules and Procedures Governing the Settlement of Disputes
(DSU)

Goods

1. General Agreement on Tariffs and Trade (GATT)

2. Agreement on Agriculture

3. Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agree-
ment)

4. Agreement on Textiles and Clothing

5. Agreement on Technical Barriers to Trade (TBT Agreement)

6. Agreement on Trade- Related Investment Measures

7. Agreement on Implementation of Article VI of the General Agreement on Tariffs and
Trade 1994

8. Agreement on Implementation of Article VII of the General Agreement on Tariffs and
Trade 1994

9. Agreement on Preshipment Inspection

10. Agreement on Rules of Origin

11. Agreement on Import Licensing Procedures

12. Agreement on Subsidies and Countervailing Measures (SCM Agreement)

13. Agreement on Safeguards

Services
General Agreement on Trade in Services (GATS)

Intellectual property
Agreement on Trade- Related Aspects of Intellectual Property Rights (TRIPS Agreement)

World trade and international law 339

First, the WTO allows for information sharing and review through the committee
system. Members have to make regular notifi cations and respond to specifi c que-
ries on their trade policies before various specialized committees in the WTO. For
example, the Committee on Agriculture receives notifi cations from every member
on the amount of subsidies provided in a given year. These notifi cations help other
WTO members to assess compliance. The process of discussion before the com-
mittee permits members to obtain a better understanding of each others positions
and allows for a form of ‘naming and shaming’ pressure to be exerted on members
that are demonstrably in breach of their commitments. This process of ‘cooperative
regulation’ has been remarkably successful (Scott 2007: 41–75).

Second, the WTO provides for binding dispute resolution. Any WTO member that
considers another member to be not in compliance with its treaty obligations can
initiate a complaint. A three- person tribunal, called a ‘panel’, hears the complaint
and issues its ruling on the basis of the submissions of both parties and third party
WTO members. Either party can appeal against the panel’s ruling to a standing
body, called the ‘Appellate Body’, which can reverse a panel ruling if the ruling is
based on erroneous interpretations of the WTO Agreements. If a WTO member is
found to be in breach of its obligations under the WTO Agreement