International Law

1. International Law: A Dynamic System Shaped by Politics and Economics

International law can be defined as ‘the rules governing the legal relationship between nations and states’, but in reality it is much more complex, with political, diplomatic, and socio-economic factors shaping the law and its application.

Beyond Simple Definitions. International law is not merely a set of rules governing nations; it's a complex, evolving system influenced by political, diplomatic, and socio-economic factors. It regulates a vast array of global interactions, from trade and environmental protection to human rights and refugee management. Understanding international law requires recognizing its dynamic nature and the forces that shape it.

Interdependence and Global Challenges. The interconnectedness of the global economy, facilitated by international law, has paradoxically made the world more vulnerable to crises like the Coronavirus pandemic. However, international law also provides the framework for concerted action needed to address such global challenges, highlighting its dual role in both enabling and mitigating global risks.

The Need for Critical Perspective. International law is not politically neutral; it reflects underlying assumptions and power dynamics. Different actors, from states to international organizations and civil society groups, hold varying perspectives on its function and application. A critical approach is essential to understanding its complexities and limitations.

2. The 17th Century: Birth of Modern International Law and the Sovereign State

It was agreed to confirm an earlier arrangement emanating from the 1555 Peace of Augsburg, to the effect that Europe would be divided into a number of territorial units, and that each of these units could decide for itself which religion to adopt: cuius regio eius religio.

Westphalia and the Rise of Sovereignty. The Peace of Westphalia in 1648 marked a turning point, establishing the concept of sovereign states with the right to self-determination within their territories. This agreement ended the Thirty Years' War and diminished the secular power of the Pope, paving the way for the modern state system.

Grotius and the Freedom of the Seas. Hugo Grotius's work, particularly "On the Law of War and Peace," significantly shaped international law by advocating for the freedom of the seas. This principle, beneficial to Dutch trading interests, challenged existing monopolies and facilitated the expansion of global commerce.

The State as the Dominant Actor. The state emerged as the dominant form of political organization due to its capacity to guarantee commitments through territorial control and authority. This ability to enforce agreements made the state a reliable actor in the international arena.

3. Colonialism's Enduring Impact on International Law

It is no exaggeration to state that international law has been closely connected with imperialism and colonialism.

International Law and Imperialism. Early modern international law was intertwined with European powers' competition for global influence. Rules like "terra nullius" (territory belonging to no one) justified the seizure of overseas territories, disregarding indigenous populations.

Slavery and the Scramble for Africa. International law played a role in both facilitating and later prohibiting slavery. Ironically, the abolition of slavery was followed by the colonization of Africa, as European powers sought to exploit the continent's resources.

Legacy of Decolonization. International law continues to grapple with the effects of decolonization, including questions of state succession, representation, and substantive justice. The emergence of newly independent states has transformed the international community and challenged existing legal norms.

4. The Absence of Central Authority: A Defining Characteristic of International Law

Indeed, for those who insist that law is only really law if and when it emanates from a single sovereign, international law cannot really be law.

International Law Without a Sovereign. Unlike domestic legal systems, international law lacks a single overarching authority or enforcement mechanism. This absence raises questions about its effectiveness and binding nature.

Explanations for Compliance. Despite the lack of central authority, international law is generally well-complied with due to factors such as:

• States making the law themselves
• Bureaucratic inertia
• Reciprocity
• Legitimacy
• Social sanctions

Mechanisms for Addressing Violations. International law has mechanisms to address violations, including retorsion, countermeasures, self-defense, and collective security action. These measures, though decentralized, contribute to maintaining order and accountability.

5. Navigating Naturalism and Positivism: The Core Tension in International Law

As Koskenniemi in particular has demonstrated, international law has to be both naturalist (in that it has to serve the common good of mankind, in today’s version – the direct link to God is thought to have little credibility these days, and leaves unanswered the question whose God it concerns) and positivist (reflecting state practice and interests) at the same time.

The Natural Law vs. Positivism Debate. International law constantly seeks a compromise between natural law (universal moral principles) and positivism (state consent and practice). This tension shapes the interpretation and application of international legal rules.

Koskenniemi's Critical Perspective. Martti Koskenniemi argues that international law's need to balance justice and state interests makes it inherently political. It provides a framework for debate but cannot offer definitive solutions.

Political Positions in International Law. The inherently political nature of international law means that its positions can be elucidated. Scholars have studied its relationship to colonialism, global capitalism, and emancipatory movements, revealing its underlying biases and potential for change.

6. International Law's Relevance in International Relations Theory

First, self-proclaimed realists tend to view international law as largely irrelevant.

Realism's Skepticism. Realists view international law as largely irrelevant, seeing the international system as a struggle for power where states only respect law when it aligns with their interests.

Liberal Institutionalism's Qualified Acceptance. Liberal institutionalists believe international law can be relevant if designed to account for states' self-interest. Law can reduce transaction costs and create certainty in areas like trade and investment.

Constructivism's Societal Role. Constructivists see international law as helping to construct society by enabling political dialogue and shaping perceptions of actions. Law provides the framework and vocabulary for international politics.

7. Globalization and Global Governance: Reshaping International Law

With globalization comes localization, with social disembeddedness comes a desire to feel embedded again.

Globalization's Impact. Globalization has strengthened the connection between law and economics, demanding a global legal framework. It has also spurred cultural and social changes, giving rise to both global and local identities.

Challenges of Global Governance. Global governance, the exercise of authority outside traditional legal structures, poses challenges to international law. It requires rethinking concepts like statehood and treaty to account for the role of non-state actors.

Re-inventing International Law. International lawyers are adapting to globalization by embracing international criminal law and considering topics like international taxation and migration as part of global governance.

8. Ethics and International Law: Competing Conceptions of Proper Behavior

It is sometimes claimed that international law is not very ethical, but that is a debatable claim.

Ethics in International Law. The ethical content of international law is not always clear-cut, with different conceptions of ethics competing with each other. What may seem ethical from one perspective can be problematic from another.

The Challenge of Global Ethics. Global ethics remains underdeveloped, partly because moral philosophers tend to focus on individual duties rather than those of collective actors like states.

Towards Virtue? Some international lawyers are looking to virtue ethics, emphasizing the importance of the personality and character of individuals who apply international law.

9. The Critical Perspective: Justifying Behavior Within Legal Frameworks

Thus the critical school has presented a useful tool for the explanation of international law – many of the uncertainties of international law can be traced back to the tension between naturalism and positivism, or between the community interest and the individual state interest, in more modern language.

Methodology of the Critical Approach. The critical approach emphasizes that international law must navigate between naturalism and positivism, leading to inherent uncertainties and indeterminacy.

Justifying Behavior Legally. Instead of judging behavior as lawful or unlawful, the critical perspective focuses on whether behavior can be legally justified within the existing framework.

The Role of International Organizations. International organizations play a crucial role in formulating rules, facilitating debate, and monitoring compliance, making them essential to understanding international law.

Last updated: February 26, 2025