International Law: History, Theory and Purpose: 1.1 The Approach To International Law in This Book

1.
International law: history, theory

and purpose
1.1 THE APPROACH TO INTERNATIONAL LAW IN
THIS BOOK
The focus of this book is upon principles and perspectives in international

law. International law is made up of a framework of broadly accepted
principles from which rules are developed and applied. The status and
precise nature of these principles vary depending upon the views of the
states, courts, scholars or practitioners examining them. This does not
mean that they necessarily lack certainty or clarity; rather, it reflects the
variegated nature of international law, lacking as it does a constitutional
or parliamentary framework, and infused as it is with international
politics.
This book explains the content and structure of public international
law and how it works. It critically examines what the law is, how it has
evolved and is applied, and contemporary and future trends. In doing so,
it will at times look beyond the legal to consider the political and other
extralegal considerations that are an essential aspect of international
law. This book does not, however, endeavour to exhaustively describe
the entire international legal system. Thus there are no discrete chap-
ters on the Law of the Sea, International Trade Law, Environmental
Law, Humanitarian Law, Human Rights or International Criminal Law
(although these will each be introduced later in this chapter1). Rather,
these areas of the practice of international law are examined in the context
of the principle of international law under examination. For example,
Chapter 5 considers individuals as subjects of international law and the
rights and obligations that have accrued through the international human
rights and criminal law regimes, in the context of non-state actors. Case
studies and contemporary examples are infused in the discussion on a
particular topic, and critical analysis and the prospective development of
international law are given prominence. In this way, this book will provide
1 See section 1.5 below.
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2 Public international law
a solid understanding of the fundamentals of international law, how they

are practised and applied, and – where appropriate – what the future
holds.
1.2 THE CONCEPT OF INTERNATIONAL LAW
For some, international law is an anarchic system of inter-state relations,

used and misused by states and their representatives in a position to exert
their power and influence, both over less powerful states and people. For
others, it is a promise of peace, justice and a global society that can amelio-
rate poverty and persecution. Questions about the purpose and nature of
international law (and what it is) are many and varied, as are conceptions
about what it should be. Like all systems of law, and certainly all social
and political systems, international law cannot serve all the interests of all
of its stakeholders. It is imperfect to be sure, and acts to entrench and per-
petuate certain power paradigms that adversely impact upon those who
need it most. At the same time, it is a reflection of the capacity of human-
ity to work towards a common good, to ameliorate harm and protect the
vulnerable.
The following sections of this chapter will examine some of the infra-
structural aspects of international law. After considering the place of
international law in history, certain different theories will be consid-
ered, reflecting the diverse conceptions and perspectives of the system
and how it operates. Finally, the question of what is international law
will be considered. That international law serves a myriad of functions,
forming and regulating an extraordinary range of behaviour outside and
between the domestic domain of states, has not silenced questions about
whether there even exists a system of international law as such – and if
so, what can and should it achieve, and how? These concerns may be
more than mere theoretical abstractions and need to be addressed before
a consideration of the fundamental aspects of international law can be
pursued.
1.3 THE PLACE OF INTERNATIONAL LAW IN

HISTORY
In the first lecture delivered to the Academy of International Law at The

Hague, Baron Korff asserted that, since ancient times, international rela-
tions developed among and between relatively equally civilized peoples,
‘and thus always bore the unquestionable mark of cultural and legal
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International law: history, theory and purpose 3
equality’.2 The extent to which this idea reflects reality or has always been
a naive or convenient fiction remains the subject of scholarly debate.
Writing in 1924, Korff points to nineteenth-century legal scholarship as
wrongly conceiving of international law as a product of modern think-
ing, developed since the Peace of Westphalia in 1648.3 One thing that
legal scholars disagree little on now is that international law is far from a
modern construct.4
In fact, many modern rules of international law can be traced back
through millennia to different civilizations, including the areas of diplo-
matic immunity, the resort to and conduct of war and even what are now
more or less universally accepted human rights principles. Despite the
complaint, no doubt merited, that ‘[n]o area of international law has been
so little explored by scholars as the history of the subject’,5 there is enough
understood of the lives of ancient and more modern civilizations to glean
the nature of their external relations, and the ways in which they regulated
these relations with a system of rules. Reason was considered fundamental
by Roman philosopher Cicero: ‘a veritable law, true reason . . . in con-
formity with nature, universal, immutable and eternal, the commands of
which constitute a call to duty and the prohibitions of which avert evil.’6
In the seventeenth century, the philosopher and jurist Pufendorf stated
that the common rule of actions, or the law of nature, required humans
to ‘cultivate and maintain towards others a peaceable sociality that is
2 Baron S.A. Korff, ‘An Introduction to the History of International Law’
(1924) 18 American Journal of International Law 246, 259. See also Ernest Nys,
‘The Development and Formation of International Law’ (1912) 6 American
Journal of International Law 1.
3 Korff, above note 2, 247. See section 1.3.2, below.
4 See, Malcolm Shaw, International Law (Cambridge; New York: Cambridge
University Press, 2008, 6th edn), 14; D.J. Bederman, International Law in Antiquity
(Cambridge: Cambridge University Press, 2001), 14. See also Arthur Nussbaum,
A Concise History of the Law of Nations (New York: MacMillan, 1954, 2nd edn),
1–2, referring to an example of international law existing in a treaty between two
Mesopotamian city states dating from 3100 BC.
5 Stephen C. Neff, ‘A Short History of International Law’, in Malcolm D.
Evans, International Law (Oxford: Oxford University Press, 2006, 2nd edn), 31.
Georg Schwarzenberger also described the history of international law as ‘the
Cinderella of the doctrine of international law’: Georg Schwarzenberger, ‘The
Frontiers of International Law’ (1952) 6 Yearbook of World Affairs 251, cited in
Alexandra Kemmerer, ‘The Turning Aside: On International Law and its History’,
in R.M. Bratspies and R.A. Miller (eds), Progress in International Law (Leiden;
Boston: Martinus Nijhoff Publishers, 2008), 72.
6 Nys, above note 2, 1.
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consistent with the native character and end of humankind in general.’7

Modern rules of international law can be traced even to classical literature,
such as Shakespeare’s Henry V, in which a demand for war reparations is
depicted.8
1.3.1 The Ancient Roots of International Law
One of the obvious areas in which international law has persistently

emerged as a system of rules and structures is where trade and commerce
with the outside world has been required. Greece stands as an example of
an ancient civilization which constructed a system of law to regulate trade
and travel. This system reflected civilizations that had come before it (for
example, the Egyptian and Babylonian civilizations). It developed rules
for the creation and enforcement of treaties and contracts, the develop-
ment of permanent channels of diplomatic exchange, and the protection
and granting of extraterritorial privileges to ambassadors.9 Greece also
developed a system to deal with the presence of foreigners on its territories,
including such sophisticated processes as rules for the extradition of crimi-
nals10 – an area of international law still giving rise to significant complex-
ity as between international and municipal law.11
The Roman Empire is seen as one of the most significant civilizations
in the development of international law as we understand it today. Rome
developed ambassadorial missions with a system of rights and privileges,
and developed procedures for concluding treaties and receiving foreign
envoys. Ambassadorial immunities were systematized, as evidenced by
Cicero: ‘The inviolability of ambassadors is protected by divine and
7 Michael Seidler, ‘Pudendorf’s Moral and Political Philosophy’, The

Stanford Encyclopedia of Philosophy (Summer 2011 edn), Edward N. Zalta (ed.),
forthcoming, available at http://plato.stanford.edu/archives/sum2011/entries/
pufendor-moral/
8 Theodor Meron, Bloody Constraint: War and Chivalry in Shakespeare
(Oxford; New York: Oxford University Press, 1998), 28

9 Shaw, above note 4, 16; see also Nussbaum, above note 4, 5–9; Coleman
Phillipson, International Law and Custom of Ancient Greece and Rome, Volume 1
(London: Macmillan & Co. Ltd, 1911, 1st edn), 136–56.
10 See Korff, above note 2, 250–51. See also Coleman Phillipson, above note
9, Volume 2, 257–63.
11 Examples of such complexities were well emphasized in the Pinochet pro-
ceedings: see Andrea Bianci, ‘Immunity versus Human Rights: The Pinochet
Case’, (1999) 10 European Journal of International Law 237; J. Craig Barker,
Colin Warbrick and Dominic McGoldrick, ‘The Future of Former Head of State
Immunity after ex parte Pinochet’ (1999) 48 The International and Comparative
Law Quarterly 937.
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human laws; their person is sacred and inviolable not only between allies,
but also during their sojourn among enemies.’12 The Romans developed
a system of international relations, under which the state was bound by
agreements and treaties much like private contracts, revealing a relatively
sophisticated system of international law. This system was comprised of
two parts: jus gentium and jus inter gentes. Jus gentium, or ‘law of nations’,
originally formed part of Roman civil law applied to special circumstances
concerning Rome’s dealings with foreigners, distinct from the narrower
system of law applicable only to Roman citizens (jus civile).13 However,
as the rules of jus gentium gradually supplanted the jus civile system, jus
gentium subsequently came to encompass the natural or common law of
Rome, considered to be of universal application among nations (what
might today be termed customary international law). In contrast, jus inter
gentes, meaning ‘law between the peoples’, refers to the body of treaty law,
now recognizable in UN conventions and other international agreements
that form a major part of public international law.
The distinction between jus gentium and jus inter gentes can be difficult
to grasp given that writers often use ‘international law’ as a synonym for
either term.14 The original meaning of jus gentium is extremely broad,
embodying the consensus on legal principles amongst the world’s judges,
jurists and lawmakers.15 However, following the rise of the statist ter-
ritorial order, and as international law continued to grow and develop,
legal positivists such as Bentham posited that jus gentium was no more
than ‘the mutual transactions between sovereigns’.16 In other words, jus
gentium had been subsumed under international law and jus inter gentes
interactions. However, this merger with jus inter gentes was never entirely
complete.17 Residual connotations of jus gentium allow it to capture issues
beyond the scope of matters between sovereigns, especially significant
to the emergence of human rights law.18 When considered in the light of
12 Cicero, quoted in Korff, above note 2, 254. See also Korff, above note 2,
253; Meredith B. Colket, Jr, ‘The Inviolability of Diplomatic Archives’ (1945) 8
The American Archivist 26.
13 See Shaw, above note 4, 17.
14 Francisco Forrest Martin et al., International Human Rights and Humanitarian
Law: Treaties, Cases and Analysis (Cambridge; New York: Cambridge University
Press, 2006), 1.
15 Jeremy Waldron, ‘Foreign Law and the Modern Ius Gentium’ (2005–06)
119 Harvard Law Review 129, 132.

16 Jeremy Bentham, An Introduction to the Principles of Morals and Legislation
(Oxford: Clarendon Press, 1907), 327.

17 Waldron, above note 15, 135.
18 Ibid., 32.
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the nature of modern international law, Rome clearly set out a complex
system that serves, in many profound ways, as the root of modern public
international law.19
Another crucial area in the development of the international law of
nations throughout the ages has been the rules relating to recourse to and
the conduct of war. Often cited as being developed by St Augustine in the
Middle Ages, it was the Romans who developed the idea of the just war,
thereby providing Rome with a legal justification for its many wars of
aggression.20 The concept of a just war occupied much of the literature on
war and the law of nations during the Middle Ages and the Renaissance. 21
In Henry VI, the title character declares: ‘God will, in justice, ward you as
his soldiers.’22 The concept of a ‘just cause’ was thus characterized as pro-
tective: its presence was considered to absolve one from sin and damnation
for causing the loss of innocent life.
Much earlier, in Sumer – one of the early civilizations of the Ancient
Near East in what is today south-eastern Iraq – evidence exists that war
was regulated, which included the provision of immunity for enemy nego-
tiators.23 The Code of Hammurabi, dating from 1728 to 1686, BC, pro-
vided for the protection of the weak against oppression by the strong, the
release of hostages on payment of ransom, and a catalogue of sanctions
aimed at repairing the prejudices caused to both victims and society.24
The Law of Hittites required respect for the inhabitants of an enemy city
that had capitulated.25 In the sixth century BC, Cyrus the Great of Persia
prescribed the treatment of enemy soldiers as though they were his own.
The Proclamation of Cyrus was divided into three parts: the first two parts
explained why Cyrus conquered Babylon, while the third part was recited
as a factual account of what he did upon seizing Babylon. This part reveals
some extraordinary principles of present-day international humanitarian
19 See Korff, above note 2, 253. See also Phillipson, above note 10, Chapter III.
See generally on the Ancient Roman legal system, Nussbaum, above note 4, 10–16.
20 See Korff, above note 2, 252; Nussbaum, above note 4, 10–11 (‘in fact, the
invention of the “just war” doctrine constitutes the foremost Roman contribution
to the history of international law’); Phillipson, above note 10, Chapter XXII, see
particularly 178–9.
21 Meron, above note 8, 30.
22 Ibid.
23 See Christopher Greenwood, ‘Historical Development and Legal Basis’,
in Dieter Fleck (ed.), The Handbook of Humanitarian Law in Armed Conflicts

(Oxford: Oxford University Press, 1995), [107].
24 Ibid.
25 Ibid. The Hittites were an ancient people who established a kingdom centred
at Hattusa in north-central Anatolia from the eighteenth century BC.
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law and human rights law, including the freedom of thought, conscience
and religion, and the protection of civilians and their property.26
In the middle ages, St Augustine espoused the popular (but not always
or often respected) principle of protecting women, children and the
elderly from hostilities.27 The Code of Chivalry, which originally devel-
oped as a moral code of conduct in warfare among knights, had the
more general effect of humane treatment for non-combatants in armed
conflict.28 Richard II of England, in the fourteenth century, issued rules
for the conduct of war known as the ‘Articles of War’, which included
a prohibition on the taking of booty, robbery and pillage, as well as the
‘forcing’ of women.29 And in Japan, Bushido, the Japanese medieval code
of honour, espoused the principle of humanity in war, which extended to
prisoners of war.30 However, there was general agreement that in war the
innocent would always suffer with the guilty. Chivalric authors, therefore,
discussed war as akin to a medicine which cures but also produces adverse
effects – war was considered a means to establish peace. These chivalric
themes are depicted in the literature of the time. In Shakespeare’s Henry
VI, a leader of the rebellion proclaims that his aim is ‘[n]ot to break peace,
or any breach of it, [b]ut to establish here a peace indeed’.31 Thus, there
seem to be inherent limitations to the conduct considered appropriate in
warfare.
These examples of a system of international law regulating the conduct
of hostilities and the fundamental rights of human beings across ages
and cultures is further evidence that a system of international law is an
inevitable consequence of any civilization.32 Where the need arises nations
26 See Hirad Abtahi, ‘Reflections on the Ambiguous Universality of
Human Rights: Cyrus the Great’s Proclamation as a Challenge to the Athenian

Democracy’s Perceived Monopoly on Human Rights’, in Hirad Abtahi and
Gideon Boas (eds), The Dynamics of International Criminal Justice: Essays in
Honour of Sir Richard May (Leiden: Martinus Nijhoff Publishers, 2005), 14–21;
Hilaire McCoubrey, International Humanitarian Law: The Regulation of Armed
Conflict (Aldershot, UK: Dartmouth Publishing, 1990), 6–11.
27 See Greenwood, above note 23, [109].
28 See, generally, Gerald Draper, ‘The Interaction of Christianity and Chivalry
in the Historical Development of the Law of War’, (1965) 46 International Review

of the Red Cross 3. See also Greenwood, above note 23, [109].
29 See Leslie C. Green, Essays on the Modern Law of War (Dobbs Ferry, NY:
Transnational Publishers, 1985), 360.

30 See Greenwood, above note 23, [109]. See also M. Cherif Bassiouni, ‘Crimes
against Humanity’, in Bassiouni (ed.), International Criminal Law (The Hague and
London: Kluwer Law International, 1999, 2nd edn), 196–7.
31 Meron, above note 8, 19–20.
32 Korff, above note 2, 248.
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have developed sometimes sophisticated systems of rules that bear the

hallmarks of the modern international law system.
1.3.2 The Peace of Westphalia and the Development of Modern

International Law
The seventeenth century was an important period in the development

of international law. In the early 1600s, the conception of international
law was developed by the practitioner and scholar Hugo Grotius, in his
famous work On the Law of War and Peace.33 His key contribution to the
development of international law was to distinguish the ‘law of nations’
from natural law, by creating a set of rules applicable solely to states. This
was a crucial development because, as Neff notes, ‘for the first time in
history, there was a clear conception of a systematic body of law applica-
ble specifically to the relationship between nations’.34
The modern structure and form of the international system can largely
be traced back to the Peace of Westphalia in 1648, bringing about the end
of the vicious Thirty Years War – a war that came to involve virtually the
entirety of Europe in a struggle for political and military domination.35
Gerry Simpson describes the Peace of Westphalia (really two treaties
adopted at Münster and Osnabrück) as ‘the transition from empire to
sovereignty’.36 A key development emerging from Westphalia was a
substantial reduction in the role played by religion in the international
system, through the decline of the ‘presence of two poles of authority: the
Pope at the head of the Catholic Church, and the Emperor at the head of
the Holy Roman Empire’.37 This decline opened the door for the begin-
33 Neff, above note 5, 35.

34 Ibid.
35 Indeed, the Preamble to the Treaty of Westphalia provides a long and strik-
ing list of interlocutors: Treaty of Westphalia, Peace Treaty between the Holy
Roman Emperor and the King of France and their respective Allies, reproduced
at http://avalon.law.yale.edu/17th_century/westphal.asp (last accessed 20 June
2011). See also Nussbaum, above note 4, 115; S. Beaulac, ‘The Westphalian
Legal Orthodoxy – Myth or Reality?’, 2 Journal of the History of International
Law, 2000, 148; Leo Gross, ‘The Peace of Westphalia’, 42(1) American Journal of
International Law 21; Shaw, above note 4, 26.
36 Gerry Simpson, ‘International Law in Diplomatic History’, in James
Crawford and Martti Koskenniemi (eds), The Cambridge Companion to

International Law (Cambridge: Cambridge University Press, 2012). Although
Simpson notes that states were later themselves to become (colonial) empires.
37 Antonio Cassese, International Law (Oxford: Oxford University Press, 2005,
2nd edn), 23.
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nings of the modern international law system, leading to the rise of the
nation state as the key actor in international law and politics. As Cassese
notes:
In short, the Peace of Westphalia testified to the rapid decline of the Church
(an institution which had already suffered many blows) and to the de facto
disintegration of the Empire. By the same token it recorded the birth of an
international system based on a plurality of independent States, recognizing no
superior authority over them.38
This development of the concept of the nation state increasingly caused

states to be seen as ‘permanently existing, corporate entities in their own
right, separate from the rulers who governed them at any given time’.39
One of the key concepts to come out of the development of the nation
state was that the law of nations only governed inter-state relations, and
that rulers were free to ‘govern as they please’ within their state.40 This can
be seen as the beginnings of the concept of state sovereignty. This excit-
ing development in international law, reflecting a significant evolution
in the rights of states within the sphere of international law, has soured
increasingly over the past two centuries. The idea of the complete equal-
ity of states (no matter how large or small) in international law became
lost during the nineteenth century ‘under the influence of the diametrically
opposed idea of the hegemony of the great Powers’.41 The same senti-
ment is reflected in the twentieth-century revolt against massive human
rights violations committed by the leadership of states against their own
citizens.42
Nonetheless, the principle of state sovereignty was and remains
the fundamental principle upon which modern international law
is based, reflected in the UN Charter,43 representing the now
38 Ibid., 24; Gross, above note 35, 20.

40 Ibid.
41 Ibid., 259.
42 Of the myriad of examples, see William A. Schabas, Genocide in International
Law (Cambridge: Cambridge University Press, 2000), 1 (referring to the tacit

acceptance of the commission of genocide by states under the veil of sovereign
equality); see also Gideon Boas, James L. Bischoff and Natalie L. Reid, Elements
of Crimes Under International Law (Cambridge: Cambridge University Press,
2008), Chapter 2, section 2.1.1 (discussing the failed pre-First World War endeav-
ours to criminalize crimes against humanity, including in the context of the
Armenian genocide).
43 United Nations, Charter of the United Nations (24 October 1945) 1 UNTS
XVI, Art. 2.
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paramount importance of the principle of sovereignty in international

law.44
1.4 THEORIES OF INTERNATIONAL LAW
1.4.1 The Framework for International Law and the Importance of

Norms
Traditionally, international law has been seen as ‘a complex of norms

regulating the mutual behaviour of states, the specific subjects of inter-
national law’.45 These norms can be distinguished from rules, which may
govern other areas of law such as domestic law. By ‘norms’ is meant
‘standards of behaviour defined in terms of rights and obligations’.46
Rules, in contrast, are the ‘specific application of norms to particular situ-
ations’ that prescribe or proscribe particular acts.47
Rosalyn Higgins views international law not as a system of rules, but as
a normative system:
All organized groups and structures require a system of normative conduct –

that is to say, conduct which is regarded by each actor, and by the group as a
whole, as being obligatory, and for which violation carries a price. Normative
systems make possible that degree of order if society is to maximize the
common good – and, indeed, even to avoid chaos in the web of bilateral and
multilateral relationships that society embraces.48
While bearing in mind the importance of these norms and the attraction of
viewing international law as a process, it is equally important to note that
44 See Cassese, above note 37, 48 (‘It is safe to conclude that sovereign equal-
ity constitutes the linchpin of the whole body of international legal standards, the
fundamental premise on which all international relations rest.’) For a detailed
discussion of states and sovereignty, see Chapter 4.
45 Hans Kelsen, Pure Theory of Law (Berkeley, CA: University of California
Press, 1967), 320.

46 Stephen Krasner, ‘Structural Causes and Regime Consequences: Regimes
as Intervening Variables’ in Stephen Krasner (ed.), International Regimes (Ithaca,

NY: Cornell University Press, 1983), 2.
47 Andrew P. Cortell and James W. Davis Jr, ‘How Do International
Institutions Matter? The Domestic Impact of International Rules and Norms’

(1996) 40 International Studies Quarterly 451, 452.
48 Rosalyn Higgins, Problems and Process: International Law and How We Use
It (Oxford: Clarendon Press, 1994), 1.
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international law does not exist in an ‘intellectual vacuum’.49 These norms

must also be viewed within a theoretical framework (or frameworks). This
is because theories, at least in part, underpin the action of states, which
in turn leads to the creation of norms, which become international law.
International law theory, therefore, essentially relates to understanding,
explaining and critiquing the basic propositions of international law. As
we shall see, certain theoretical perspectives challenge the legitimacy and
threaten the operation of international law; yet others call for reform or
the space for different voices in the international legal system.
The role of states in defining and developing international law is well
understood. Clearly, it is the contractual behaviour of states that develops
the law through treaty. It is also the practice of states, and their belief in
that practice, that develops customary international law.50 Hans Kelsen
states:
International law consists of norms which were created by custom, that is, by
acts of the national states or, more correctly formulated, by the state organs
authorized by national legal orders to regulate interstate relations. These are
the norms of ‘general’ international law, because they create obligations or
rights for all states.51
This idea itself raises an interesting question. Why is it that the state as
opposed to any other body or actor is given this power? The historical
evolution of international law from the Peace of Westphalia, and its
little challenged reflection in the sources of law under Article 38(1) of
the Statute of the International Court of Justice,52 provides one answer.
Another answer lies in the crucial norm of pacta sunt servanda which
‘authorizes the states as the subjects of the international community to
regulate by treaty their mutual behaviour, that is, the behaviour of their
own organs and subjects in relation to the organs and subjects of other
states’.53 Therefore, it is this norm that gives the state the legitimacy to act
49 Iain Scobbie, ‘Wicked Heresies or Legitimate Perspectives? Theory and

International Law’, in Evans, above note 5, 83, 92.
50 The sources of international law are discussed in Chapter 2. In brief, trea-
ties are bilateral or multilateral agreements between states giving rise to rights
and responsibilities as between those contracting states in relation to a particular
issue or issues. Customary international law rules are created by the uniform and
consistent practice of a significant number of states (the things states say and do
in different fora) and their belief that this practice is derived from legal obligation.
51 Kelsen, above note 45, 323.
52 United Nations, Statute of the International Court of Justice, 18 April 1946.
53 Kelsen, above note 45, 323.
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on behalf of its subjects as one body. The reason why pacta sunt servanda
presents only one answer to this question is that it provides but one theo-
retical framework for an understanding of how international law operates:
certainly the predominant post-Westphalian model. Of course, predating
this period it was possible to talk about the importance of the development
and control of international law by different entities, including protector-
ates and empires, let alone the extensive political and legal control exer-
cised by the Church. The modern question of the state as the paramount
subject of international law, and the relationship of non-state actors with
the creation and operation of international law, is a subject giving rise to
increasing debate, and will be revisited in other contexts throughout this
book.
1.4.2 Different Theoretical Conceptions of International Law
1.4.2.1 Natural and positive law theories

Natural law as a theory of international law held sway for many centuries.
Roman jurists viewed natural law as the law derived from the nature of
human beings, and as law expressive of the basic ideas of justice.54 Cicero
saw natural law as something immutable.55 At heart, natural law views
law as embodying axiomatic truths. It is because of this universal applica-
tion that the principles of natural law were equally applicable to either
domestic or international law. In the Middle Ages in Europe, natural law
diversified into two key schools of thought. The first viewed it as created
by God and discoverable by humans. The second, more popular and
enduring school of thought was the ‘rationalistic’ approach, articulated
by Thomas Aquinas, holding that natural law could be discovered and
applied through human reason and analysis, as opposed to religious rev-
elation. This interpretation viewed all law as already existing, waiting to be
discovered. Hugo Grotius further developed this secular interpretation of
international law. He focused particularly on the applicability of natural
law to an international law framework, seeing natural law as one of the
basic elements and sources of international law.56 He viewed law as gov-
erning nations as well as people by universal principle based on morality
54 See, e.g., Philip Allott, ‘International Law and the Idea of History’, (1999) 1
Journal of History and International Law 1.
55 Alexander Orakhelashvili, ‘Natural Law and Justice’, in R. Wolfrum (ed.),
Max Planck Encyclopedia of Public International Law (Heidelberg: Max-Planck-

Institut, 2010), [7].
56 Ibid., [9]. See also Amos S. Hershey, ‘International Law since the Peace of
Westphalia’ (1912) 6 American Journal of International Law 30, 31–2.
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and divine justice,57 although his ‘eclectic’ approach to international law

entrenched principles of modern international law – such as legal equality,
territorial sovereignty and the independence of states – in the European,
and eventually global, political landscape.
While the rise of positive law theory in the sixteenth century clearly led
to a substantial decline in support for natural law theory, some scholars
contend that natural law still continues to play an important part in the
international law system through the principles it provides for, such as
natural justice.58 The development in the twentieth century of the prohibi-
tion against crimes against humanity and genocide borrow deeply from
the naturalist idea that there are laws of humanity that are immutable
and give rise to rights and obligations that transcend the conscious or
positive acts of states.59 Reading Justice Jackson’s Opening at Nuremberg,
for example, one is struck by the evangelical (in the sense of carrying an
almost religious truth) language, reminiscent of naturalist thinking:
The doctrine was that one could not be regarded as criminal for committing the
usual violent acts in the conduct of legitimate warfare. The age of imperialistic
expansion during the eighteenth and nineteenth centuries added the foul doc-
trine . . . that all wars are to be regarded as legitimate wars. The sum of these
two doctrines was to give war-making a complete immunity from accountabil-
ity to law.
This was intolerable for an age that called itself civilized. Plain people with
their earthy common sense, revolted at such fictions and legalisms so contrary
to ethical principles and demanded checks on war immunities.60
The reasoning that scaffolded Jackson’s arguments was legally flimsy but
morally irresistible, reminding us of Cicero’s belief in the immutability of
law.
Indeed, certain developments in areas of fundamental human rights
and even the use of force based on ‘humanitarian intervention’ may
57 De Jure Belli ac Pacis Libri Tres (1625).

58 Orakhelashvili, above note 55, [35].
59 See, e.g., the Martens Clause – which first appeared in the Preamble to the
1899 Hague Convention II and the 1907 Hague Convention IV and is most likely
the legal foundation for crimes against humanity – which states that ‘populations
and belligerents remain under the protection and empire of the principles of inter-
national law, as they result from the usages established between civilized nations,
from the laws of humanity and the requirements of the public conscience’. See Boas
et al., above note 42, Chapter 2, section 2.2.1.
60 Opening Speech of Justice Jackson before the Nuremberg Tribunal, in Trial
of the Major War Criminals before the International Military Tribunal, Nuremberg,
Vol. II, 98–102.
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signal something of a naturalist view of some norms being deeply rooted

in the international legal conscience, not requiring discovery through
the usual sources of international law.61 Although these developments
require appraisal from a modern understanding of international law, one
is reminded of the words of Pierre Joseph Proudhon from the nineteenth
century: ‘Whoever invokes humanity wants to cheat.’62
Positivist legal theory grew in large part as a reaction to naturalist
thought. Originally conceived by the French philosopher Auguste Comte,
positivism ‘promised to bring the true and final liberation of the human
mind from the superstitions and dogmas of the past’.63 While natural
law holds that all law already exists waiting to be discovered, positivist
theory views law not as a set of pre-existing or pre-ordained legal rules
derived from some mystical source; rather, positivism views interna-
tional law as discoverable through a scientific, objective or empirical
process.64
Positivist law was developed in the writings of John Austin, who defined
61 Antonio Cassese appears to call on something like natural law when he
suggests that where a rule of international law concerns the ‘laws of humanity’
or the ‘dictates of conscience’, it may be unnecessary to look at state practice as
the foundation of its legal status (see Cassese, above note 37, 160–1). This seems
to suggest that there are some rules that are simply given, justified by virtue
purely of their nature and content. Apart from the less controversial references
to the prohibition of genocide and crimes against humanity, justification for the
NATO bombing of Serbia in the late 1990s as based on ‘humanitarian interven-
tion’ has a certain natural law (or even ‘just war’) ring to it. Kartashkin refers to
humanitarian interventions ‘justified by common interests and humane considera-
tions, such as natural law principles’: Vladimir Kartashkin, ‘Human Rights and
Humanitarian Intervention’, in Lori Fisler Damrosch and David J. Scheffer (eds),
Law and Force in the New International Order (Boulder, CO: Westview, 1991), 202,
203–4. See also Antonio Cassese, ‘Ex Injuria Ius Oritur: Are we Moving towards
International Legitimation of Forcible Humanitarian Countermeasures in the
World Community?’ (1999) European Journal of International Law 23; cf. Brownlie,
who believes ‘there is very little evidence to support assertions that a new principle
of customary law legitimising humanitarian intervention has crystallised’: Ian
Brownlie, ‘International Law and the Use of Force – Revisited’, speech delivered
at the Graduate Institute of International Studies, Geneva, 1 February 2010, avail-
able at http://www.europaeum.org/files/publications/pamphlets/IanBrownlie.pdf;
Higgins, above note 48, 245–8. See also J.B. Scott (ed.), The Hague Conventions
and Declarations of 1899 and 1907 (New York: Oxford University Press, 1915),
101–2.
62 Quoted by Carl Schmitt and cited in Marttii Koskenniemi, ‘What is
International Law For?’ in Evans, above note 5, 64.

64 Ibid.
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it as ‘set by a sovereign individual or a sovereign body of individuals, to

a person or persons in a state of subjection to its author’.65 Interestingly,
while such a conception of law is clearly a rejection of natural law theory,
it has deep links to Hugo Grotius’ ‘law of nations’. Grotius transformed
the Romanic jus gentium66 into his idea of a law of nations, which led to
it being identified as a body of law distinct from natural law, an idea that
Jeremy Bentham would eventually refer to for the first time as ‘interna-
tional law’.67
For Neff, ‘[b]y positivism is meant such a wealth of things that it may be
best to avoid using the term altogether’.68 Indeed, the use of the term legal
positivism in international legal scholarship represents a myriad of ideas.
Austin’s positivism views law as essentially anarchistic – rules set by those
individuals or bodies who hold power over others.
The twentieth-century realist, Hans Morgenthau, describes positivism
in terms of strict legalism:
The juridic positivist delimits the subject-matter of his research in a dual

way. On the one hand, he proposes to deal exclusively with matters legal,
and for this purpose strictly separates the legal sphere from ethics and mores
as well as psychology and sociology. Hence, his legalism. On the other
hand, he restricts his attention within the legal sphere to the legal rules
enacted by the state, and excludes all law whose existence cannot be traced
to the statute books or the decisions of the courts. Hence his étatist monism.
This ‘positive’ law the positivist accepts as it is, without passing judgment
upon its ethical value or questioning its practical appropriateness. Hence
his agnosticism. The positivist cherishes the belief that the ‘positive’ law is
a logically coherent system which virtually contains, and through a mere
process of logical deduction will actually produce, all rules necessary for
the decision of all possible cases. Hence, his system worship and dogmatic
conceptualism.69
65 John Austin, in R. Campbell (ed.), Lectures on Jurisprudence, or The
Philosophy of Positive Law, two volumes (Bristol: Thoemmes Press reprint, 2002),
35. See also John Austin, The Province of Jurisprudence Determined (London: John
Murray, 1832). See Gerry Simpson’s articulation of Austin’s conception of inter-
national law as anarchic in text accompanying note 201 below. See also Bernard
Röling, International Law in an Expanded World (Amsterdam: Djambatan, 1960),
who viewed international law (like all law) as having ‘the inclination to serve pri-
marily the interests of the powerful’, at 230.
66 See section 1.3.1 above for the Roman Law roots of this concept.
67 Jeremy Bentham, Principles of Morals and Legislation (Oxford: Clarendon
Press, 1789).
69 Hans J. Morgenthau, ‘Positivism, Functionalism, and International Law’,
(1940) 34 American Journal of International Law 260, 261.
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Traditional positivism denotes a formalism, a search for law objectively,

without interference from the extralegal. The attraction of such an
approach to law can easily be understood when seen as emerging out of
the mysticism and religious trappings of natural law theory. Modern posi-
tivism as a search for objective law eschews the teleological development
of law (law as it should be), which is interesting when viewed through a
humanist lens. Some of the most profound developments in modern inter-
national law challenge the firm positivist grip on the discipline. Human
rights law and humanitarian law have, in recent years, received platinum
teleological treatment before the most exacting and conservative juridical
forum of all: criminal courts. The meteoric development of international
criminal law in the brief life of the International Criminal Tribunal for the
former Yugoslavia, for example, shows how modern international law can
be very much a case of law as it should be. This enthusiastic humanism
surely paved the way for the doctrine of responsibility to protect, and what
Gerry Simpson calls belligerent humanitarianism.70
At heart, positivism emerged from the creation of a law of nations, born
of a contract (or rather a complex and ever changing web of contracts)
between nations consciously dictating their own destiny.71 In this way
international law can be viewed at once as liberating (rescued from the
vagaries of dogma and the control of religious institutions)72 and, at the
same time, as a reflection of state power paradigms (out of the frying pan
and into the fire). The latter observation is particularly powerful when
considering the contention, advanced by Boyle, that continued investiga-
tion of the source of international law is, in short, an attempt to ‘develop
some conceptual way of differentiating between law and politics’.73 In the
context of modern international law, plagued by challenges to state-cen-
trism, the cold formalism of positivist theory (born of the idea of state as
the supreme and self-determiner of the rules of international law) is under
something of a challenge. Questions continue to arise regarding how a sov-
70 Gerry Simpson, above note 36.

71 Ago explains that the development of Grotius’ writings in the eighteenth
century by scholars such as Emer de Vattel, Christian Wolff George and Frederick
de Martens led to the view that ‘“positive international law” within the body of
law in force in international society is that part of law which is laid down by the
tacit and expressed consent of different states’: Roberto Ago, ‘Positive Law and
International Law’ (1957) 51 American Journal of International Law 691, 693.
72 See, e.g., SS ‘Lotus’ (Judgment No. 9) (1927) PCIJ (Ser. A) No. 10, 14
(describing the rules of law binding upon states as emanating ‘from their own free
will’).
73 Gerry Simpson, above note 36, 279.
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ereign can bind itself to bind itself in the future,74 and the circularity which
legal positivism appears unable to shake in the search for a source which
can ‘imbue the sovereign’s consent with the kind of normative force’75
required by this doctrine. Considerations of these challenges posed to the
positivist theory will re-emerge throughout this book.
1.4.2.2 Relationship between international relations, international law,

and different theories of international law
All law has a relationship with politics. Because international law is largely
created by the actions of states and their organs, there is an inevitably
strong relationship between international relations and international law.
Indeed, the international political environment compels states to behave in
particular ways, which in turn leads to the variation and creation of inter-
national law. Many aspects of international relations and politics have
impacted on the theoretical conception of international law. As the voices
in the community of the international system grow, as they have dramati-
cally done in the latter half of the twentieth and beginning of the twenty-
first centuries, so too theories develop to reflect differing perspectives. In
this way one sees the development of theories based on social policy and
international relations/politics (such as realism and liberalism, the new
haven and socialist schools), of theories developed around counter-culture
(critical legal studies), as well as theories developed in response to oppres-
sive aspects of the conservative and exclusive system of international
law (feminist theory; lesbian, gay, bisexual and transgender/transsexual
theory; Third World theory). While all of these theories merit considera-
tion and reflect important voices in the milieu of international law, only a
few will be discussed in this section (and only briefly) to enable an under-
standing of the international law landscape and to assist in considering, in
the final section of this chapter, what is international law.
All forms of law are inevitably subjected to theories that describe,
explain and critique them. Such theory may be presented as the origin
of a system of law; or to explain, rationalize, justify or challenge it. A
unique aspect of international law, however, is the extent to which theory
becomes so crucial both in dictating the direction of the law itself, and the
set of politics that is intrinsic to it.76 This is at least in part because the
74 Ibid., 285.
75 Ibid.
76 See, Shaw, above note 4, 12: ‘Politics is much closer to the heart of the [inter-
national] system than is perceived within national legal orders, and power much
more in evidence. The interplay of law and politics in world affairs is much more
complex and difficult to unravel.’ Anne-Marie Slaughter, ‘International Law in a
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ideology adhered to by a state or group of states influences their approach

to international relations and in turn determines their behaviour in the
international sphere. This behaviour, or ‘state practice’, assists in the
development of custom, which itself leads to the creation of international
law.
1.4.2.2.1 Realism and liberalism Realism and liberalism are two interna-
tional relations theories used to explain, predict, and justify the actions of
states. These are by no means the only international relations theories, but
are the dominant ones in contemporary thought.77
1.4.2.2.1.1 realism The fundamental concept underpinning the realist

school of thought is that states are mutually self-interested actors that, in
situations where they must choose a particular course of action out of mul-
tiple alternatives, will engage in a cost–benefit analysis of each option. To
realist legal scholars, states will inevitably make the only ‘rational’ choice;
they will act in a way that best promotes their own interests, to the exclu-
sion of the interests of others. This assumption forms the basis of Rational
Choice Theory, which is currently the dominant theoretical paradigm in
economic modeling.78 The predominance of Rational Choice Theory in
economic scholarship is, today, possibly the most visible and well-known
manifestation of realism.
World of Liberal States’, (1995) 6 European Journal of International Law 503, 503:
‘International Law and international politics cohabit the same conceptual space.
Together they comprise the rules and the reality of “the international system”, an
intellectual construct that lawyers, political scientists, and policymakers use to
describe the world they study and seek to manipulate. As a distinguished group
of international lawyers and a growing number of political scientists have recog-
nized, it makes little sense to study one without the other.’ An interesting example
of this relationship can be found in war crimes law: see Gerry Simpson, Law War
and Crime (2008), 11–12: ‘[W]ar crimes are political trials. They are political not
because they lack a foundation in law or because they are the crude product of
political forces but because war crimes law is saturated with conversations about
what it means to engage in politics or law, as well as a series of projects that seek
to employ these terms in the service of various ideological preferences. War crimes
are political trials because concepts of the political remain perpetually in play . . .
In the end, war crimes law is a place where politics happens.’
77 Slaughter, above note 76, 506.
78 In 1881, F.Y. Edgeworth stated that ‘the first principle of Economics is that
every agent is actuated only by self-interest’: Mathematical Psychics: An Essay on

the Application of Mathematics for the Moral Sciences (London: C. Kegan Paul &
Co., 1881), 6; available at http://socserv.mcmaster.ca/~econ/ugcm/3ll3/edgeworth/
mathpsychics.pdf.
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This egoistic model, however, generates gloomy predictions regard-

ing the nature of state interactions and for international law in general.
In 1513, Niccolò Machiavelli wrote: ‘They who lay down the founda-
tions of a State and furnish it with laws must . . . assume that all men are
bad, and will always, when they have free field, give loose to their evil
inclinations.’79 Slaughter explains that, for realists, states interact with
one another within an uncertain and anarchical system like billiard balls:
hard, opaque, unitary actors colliding with one another.80 In this way,
the internal dynamics, political system and ideology of an individual state
are irrelevant.81 All states will act accordingly, leading to a troubling view
of international law: ‘International norms serve only an instrumental
purpose, and are likely to be enforced or enforceable only by a hegemon.
The likelihood of positive-sum games in which all states will benefit for
cooperation is relatively low.’82 Thus, from a purely realist perspective,
the value of international law to the international community is highly
questionable.
1.4.2.2.1.2 liberalism The realist school can be contrasted with lib-

eralism. A key difference between liberalist and realist thought is that
while realists focus on relations between states to the exclusion of inter-
nal relations, liberalists focus on the relationship between the state and
society. Moravcsik refers to three core liberalist assumptions.83 First, ‘the
fundamental actors in politics are members of domestic society, under-
stood as individuals and privately constituted groups seeking to promote
their independent interests’,84 a clear difference from the statist approach
taken under realism. The second core assumption is that ‘governments
represent some segment of domestic society, whose interests are reflected
79 Niccolò Machiavelli, Discourses on the First Decade of Titus Livius, Book

I, Chapter III (Ninian Hill Thomson trans, 1883), 28; available at http://www2.
hn.psu.edu/faculty/jmanis/machiavelli/Machiavelli-Discourses-Titus-Livius.pdf.
80 Slaughter, above note 76, 507 (of the billiard balls metaphor, Slaughter
explains that this is the classic Realist metaphor first used by Arnold Wolfers,
Discord and Collaboration: Essays on International Politics (Baltimore: John
Hopkins Press, 1962), 19–24.
81 Ibid., 507; Christian Reus-Smith, ‘The Strange Death of Liberal International
Theory’ (2001) 12(3) European Journal of International Law, 573, 581–2.

82 Slaughter, above note 76, 507.
83 See A.M. Moravcsik, Liberalism and International Relations Theory (Center
for International Affairs, Harvard University, Working Paper No. 92-6, 1992). See
also Slaughter, above note 76 (endorsing Moravcsik’s classification of the broad
principles of liberalist theory), 508.
84 Moravcsik, above note 83, 6.
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in state policy’.85 This differs from the realist approach which divorces
internal domestic matters from the factors that affect how a state will act
in the international sphere. The third core liberalist assumption is that the
behaviour of states – and hence levels of international conflict and coop-
eration – reflects ‘the nature and configuration of state preferences’.86
1.4.2.2.1.3 realism and liberalism as alternatives The interplay

between international law and politics became particularly pronounced
during the Cold War. During this period, theories were advanced by schol-
ars from both the United States and the USSR, which had the effect of
justifying these political regimes’ own respective and opposing ideologies.
Policy-oriented schools of international legal theory during this period
impacted significantly on global politics and therefore on the interpreta-
tion and development of international law.
However, while realism and liberalism were often used during this
period in counteraction to the other, it is equally conceivable that the
two are not truly alternatives, let alone mutually exclusive. Indeed, the
better understanding of the interaction between these two theories is that
liberalism is an offspring of realism. Liberalism, although in a sense more
nuanced than realism, nonetheless remains rooted in the foundational
principle that states act out of self-interest. The distinction lies in the fact
that the range of interests considered to be of relevance by liberals is wider
than those accepted by traditional realists.
1.4.2.2.1.4 constructivism The more plausible alternative to realism

is constructivism. Although the term ‘constructivism’ was only coined
in 1989, key tenets of constructivism can be found in the works of main-
stream international political science theorists in the 1950s.87 To construc-
tivists, the international community is an environment of communication
and learning in which states come to form expectations about others’
behaviour. Whereas realism assumes that the interests of states are fixed
and exogenous, constructivism views the interests and identities of states
as endogenous and constituted through interaction with other states on
the basis of shared norms.88 International law, therefore, has a much more
85 Ibid., 9.
86 Ibid., 10.
87 Jutta Brunee and Stephen J. Toope, ‘International Law and Constructivism:
Elements of an Interactional Theory of International Law’, (2000–01) 39 Columbia

Journal of Transnational Law 19.
88 Anne-Marie Slaughter, Andrew S. Tulumello and Stepan Wood,
‘International Law and International Relations Theory: A New Generation of
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positive role to play in constructivist theory, cultivating a sense of shared

identity and destiny, and engendering enhanced cooperation and trust
between states.
1.4.2.2.2 Post-Cold War Two schools of political theory that shaped

the polarized international law landscape during the Cold War were the
New Haven and Soviet theories. The New Haven School was created
by American scholars, and represented essentially an embrace of demo-
cratic values, growing out of the Second World War and the emergence
of communism as an international political force.89 This theory reflected
an argument for ‘clearly defined democratic values in all the areas of
social life where lawyers have or can assert responsibility’.90 In stark
contrast, Soviet theory – developed by Soviet scholars during the Cold
War period, particularly Tunkin – was a ‘diametrical opposite to the New
Haven School, both in its professed structure and envisaged political
outcome.’91
The intense and obvious interplay between international law theory and
politics during the Cold War period has since become more subtle, but is
clearly still influential. While the age of diametrically opposed theories
may have passed, states still utilize and rely upon international law theory
to justify policy. A recent and relevant example of this was the use of
the hegemonic theory by the US administration under George W. Bush
to justify its treatment of ‘enemy combatants’ following the invasion of
Interdisciplinary Scholarship’, (1998) 92 American Society of International Law

367, 373, 384; See, generally, Friedrich Kratochwil, Rules, Norms and Decisions:
On the Conditions of Practical and Legal Reasoning in International Relations and
Domestic Affairs (Cambridge: Cambridge University Press, 1989); Harold Hongju
Koh ‘Why do Nations Obey International Law?’, (1997) 106 Yale Law Journal
2599.
89 Scobbie, above note 49, 93. Generally on the New Haven theory, see Hilary
Charlesworth, ‘Current Trends in International Legal Theory’, in S.K.N. Blay,

R.W. Piotrowicz and B.M. Tsamenyi, Public International Law: An Australian
Perspective (Oxford: Oxford University Press, 1997), 403; Shaw, above note 4,
58–62.
90 Harold D. Laswell and Myers S. McDougal, ‘Legal Education and Public
Policy: Professional Training in the Public Interest’, (1943) 52 Yale Law Journal
203, 207.
91 Scobbie, above note 49, 96 and 97 (referencing G.I. Tunkin, Theory
of International Law (Cambridge, MA: Harvard University Press, 1974) and

Lori Fisler Damrosch, Gennady M. Danilenko and Rein Mullerson, Beyond
Confrontation: International Law for the Post-Cold War Era (Boulder, CO:
Westview Press, 1995)).
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Afghanistan in 2001. This theory, adopting a strongly dualist stance,92

argues that a ‘radical freedom of action’ for the United States is to be
put first and foremost before any form of international law. An unrecon-
structed advocate of this theory, John Bolton, argues:
We should be unashamed, unapologetic, uncompromising American con-

stitutional hegemonists. International law is not superior to, and does
not trump the Constitution. The rest of the world may not like that
approach, but abandoning it is the first step to abandoning the United States
of America.93
This theory was used as a justification for US policy in the treatment of

‘enemy combatants’ at Guantanamo Bay and Abu Ghraib. By applying
hegemonic theory and rejecting any form of law that has not been ratified
by the US Congress, the Bush Administration was able to act in a way
‘denying the applicability of the Geneva Conventions and international
prohibitions on torture and inhumane treatment’,94 leading to wide-scale
systematic human rights abuse.95 This presents just one example, and a
depressing one at that, of how international law theory is still used to
justify the political behaviour of states.
Other theories of international law have a political content, in the
broader sense of the term.
1.4.2.2.3 Marxist theory Marxist theory takes its name from Karl Marx,
whose writings, along with Friedrich Engels’, established an account of
international law based upon a materialistic interpretation of history,
criticism of capitalism and a theory of social change produced by eco-
nomic conditions.96 In general terms, Marxism is a description of the soci-
etal shift to communism, and an account of the inevitability of this shift,
driven as it is by social inequality. The result is a broad-based social and
political theory that encompasses multitudes of interpretations of Marx’s
92 For an explanation of ‘monist’ and ‘dualist’ theories of international law,

see Chapter 3, section 3.1.
93 John R. Bolton, ‘Is There Really “Law” in International Affairs?’ (2000) 10
Transnational Law and Contemporary Problems, 1, 48.

94 Scobbie, above note 49, 106.
95 See, e.g., George Aldrich, ‘The Taliban, al Qaeda, and the Determination
of Illegal Combatants’, (2002) 96 American Journal of International Law

891.
96 Susan R. Marks, ‘Introduction’, in Susan R. Marks (ed.), International Law
on the Left: Re-Examining Marxist Legacies (Cambridge: Cambridge University

Press, 2008), 1–3.
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philosophy, producing categories such as ‘Classical Marxism’, ‘Official

Marxism’, and ‘Alternative Marxism’.97
Of the current incarnation of the school of Marxist theory, Chimni –
who is at the forefront of current endeavours to recast mainstream
accounts of international law in a Marxist mould – outlines the distinc-
tive features of critical Marxist international law scholarship (CMILS).98
First, the definition of ‘national interest’ is informed by historical
phases, group and class interests.99 Second, the democratic transfor-
mation of international law is recognized to be subject to structural
constraints such as power-driven conceptions of sources of interna-
tional law.100 Thirdly, whereas mainstream theories contain notions
of objectivity in interpretations of fact and law, and the New Haven
School adopts a position of radical indeterminacy, CMILS occupies a
middle-ground between the two.101 Fourthly, CMILS attempts to take
an inclusive approach to international law and acknowledges alterna-
tive theories rather than lending credence to the characterization of
American and European perspectives as the universal story of interna-
tional law.102
As it stands, proponents of Marxism remain engaged in the challenge to
gain greater legitimacy as a more accurate and meaningful alternative to
more mainstream theories of international law.
1.4.2.2.4 Critical legal studies Critical legal studies challenge accepted

norms in the international community and question the assumptions
‘common to most legal systems that they are rational, objective and sup-
ported by evidence’.103 Regarding the current world order, critical legal
theorists argue that the ‘liberal underpinnings of western international
law and the notion of universality based on the consensus of states, are
97 China Miéville, ‘The Commodity Form Theory of International Law: An
Introduction’, (2004) 17 Leiden Journal of International Law 271, 276–9.

98 B.S. Chimni, ‘An Outline of a Marxist Course on Public International
Law’, (2004) 17 Leiden Journal of International Law 1, 3–5; B.S. Chimni, ‘Marxism
and International Law: A Contemporary Analysis’, (1999) 34 Economics and
Political Weekly 337.
99 B.S. Chimni, ‘An Outline of a Marxist Course on Public International
Law’, above note 98, 3.

100 Ibid., 4.
101 Ibid.
102 Ibid.
103 Gillian Triggs, International Law: Contemporary Principles and Practices
(Sydney: LexisNexis Butterworths, 2011, 2nd edn), 13; Charlesworth, above note
89, 404.
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illusory’.104 This is due in part to the fact that ‘liberalism tries constantly
to balance individual freedom and social order and, it is argued, inevitably
ends up siding with one or other of those propositions’.105
Critical legal studies have been described as a ‘political location’,
lacking any essential intellectual component, and presently occupied by
many fundamentally different and even sometimes contradictory sub-
groups, including various feminists, critical race theorists, post-modernists
and political economists.106 Nonetheless, several common themes can
be discerned. The first is a strong view of the flaws in objectivism and
formalism.107 Another is the proposition that law is politics, that is, an
analysis of the assumptions that form the foundation of the law will reveal
that these assumptions operate to advance the interests of some political
grouping.108 Further, critical legal scholars stress the contradictions and
indeterminacy inherent in legal rules.109 Martii Koskenniemi, for example,
argues that international legal analysis cannot provide an objective reso-
lution of disputes because the recognition of sovereign states as the basic
unit of international society is itself a normative, value judgement:110
[I]nternational law is singularly useless as a means for justifying or criticiz-

ing international behaviour. Because it is based on contradictory premises it
remains both over- and under-legitimizing: it is over-legitimizing as it can be
ultimately invoked to justify any behaviour (apologism), it is under-legitimizing
because it is incapable of providing a convincing argument on the legitimacy of
any practices (utopianism).111
Koskenniemi attributes the inability of international legal analysis to

objectively resolve disputes to the inherent ‘reversibility’ of international
legal arguments. He argues that patterns of argument ostensibly appeal to
autonomy (which is characterized as an ascending pattern of argument) or
community (which is characterized as descending).112 In international law,
ascending patterns of argument are countered by descending patterns of
104 Charlesworth, ibid., 404.

105 Marttii Koskenniemi, From Apology to Utopia: The Structure of
International Legal Argument (Cambridge: Cambridge University Press, 2005), 52.
106 Mark Tushnet, ‘Critical Legal Studies: A Political History’, (1991) 100 Yale
Law Journal 1515, 1516–18.

107 See, generally, Roberto Mangabeira Unger, ‘The Critical Legal Studies
Movement’, (1983) 96 Harvard Law Review, 561.

108 Tushnet, above note 106, 1517.
109 Shaw, above note 4, 63–4.
110 Koskenniemi, above note 105, 192–3.
111 Ibid., 48.
112 Ibid., 503–4.
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argument – for example, an argument for independence (ascending) will

be countered by an argument for equality (descending). However, because
the concept of independence can be justified by reference to principles of
equality and vice versa, Koskenniemi argues that the characterizations of
all legal arguments can be reversed.113 Their underlying bases are fluid,
inherently reversible concepts. Therefore, when making a decision as to
the supremacy of one argument over another, there is no objective manner
in which that decision can be made.114 It cannot be said that one pattern
of argument, or one particular conceptual category, should always be
supreme. Such opinions emblematize the differing conceptions of interna-
tional law and lead to the quintessential question of what is international
law.115
1.4.2.2.5 Third World theory Third World theory presents a critical

approach to international law that argues for change in the role and
objectives of the current international order with particular regard for
the perceived disempowerment of Third World states.116 Third World
theorists eschew attempts to define ‘Third World’ as having a distinct
geographical definition, acknowledging lack of total cohesion amongst
its members, and focusing instead on shared traits of under-development
and marginalization.117 This approach criticizes the role of international
law in entrenching power imbalance between the developed and devel-
oping states, and assumptions of its universal application. Instead, it is
argued that the rules of international law – which were conceived to serve
the interests of the ruling powers of the time – should be re-evaluated
given the emergence of developing Asian and African states,118 and the
radical changes in the make-up of the international community since the
inception of international law. Third World theory is not a ‘method’ for
an analysis of what is international law, per se. Rather, it is a framework
within which legal scholars argue for the need for international law to
113 Ibid., 505.

114 Ibid., 508.
115 See discussion of this issue below at section 1.6.
116 See, generally, A.A. Fatouros, ‘International Law and the Third World’,
(1964) 50 Virginia Law Review 783, and Maurice Flory, ‘Adapting International
Law to the Development of the Third World’, (1982) 26 Journal of African Law 12.
117 Fatouros, above note 116, 785.
118 See, generally, Wolfgang Friedmann, ‘The Position of Underdeveloped
Countries and the Universality of International Law’, (1963) 2 Columbia Society

of International Law, 78, and R.P. Anand, ‘Role of the “New” Asian-African
Countries in the Present International Legal Order’, (1962) 56 American Society of
International Law, 383.
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reflect a consensus amongst the international community, including newly

emerged states.119
1.4.2.2.6 Feminist theory A feminist approach to international law is

based on the same principles that underpin feminist theory at a domestic
level. Feminist theory at the international level thus contends that the
structure, actors and processes of international law fail adequately to take
into account females and are inherently skewed towards a male gender
bias. Feminist theory in relation to the international field has only gained
significant traction since the early 1990s,120 although feminist activism in
the international sphere has been long established.
While there exist different feminist theories, a broad feminist approach
at a national level is to question ‘the claims of national legal systems to
impartiality and objectivity, arguing that they deliver a sexed and gen-
dered system of justice’.121 Applying this to international law, feminists
‘scrutinise international law and . . . challenge its universal basis’.122
Charlesworth and Chinkin see feminist analysis of international law as
having two main roles.123 The first is the ‘deconstruction of the explicit and
implicit values of the international legal system, challenging their claim
to objectivity and rationality because of the limited base on which they
are built’.124 This is based upon the idea that as women have been largely
excluded from the ‘construction’ of international law, the values adopted
by the international legal system do not have a female perspective and thus
must be challenged, or deconstructed. The second role is that of recon-
struction. This ‘requires rebuilding the basic concepts of international law
in a way that they do not support or reinforce the domination of women
119 Anand, above note 118, 387.

120 Charlesworth, above note 89, 407.
121 Ibid. For a history of the evolution of feminist theory, see Elizabeth
Gross, ‘What is Feminist Theory?’, in Carole Pateman and Elizabeth Gross (eds),
Feminist Challenges: Social and Political Theory (Sydney and London: Allen &
Unwin, 1986), 190.
122 Charlesworth, above note 89, 407.
123 Hilary Charlesworth and Christine M. Chinkin, The Boundaries of
International Law: A Feminist Analysis (Executive Park, NY: Juris Publishing

Inc., 2000), 60. See also Hilary Charlesworth, Christine Chinkin and Shelly
Wright, ‘Feminist Approaches to International Law’, in Robert J. Beck, Anthony
Clark Arend and Robert D. Vander Lugt (eds), International Rules: Approaches
from International Law and International Relations (Oxford and New York:
Oxford University Press, 1996), 256; Christine Chinkin, ‘Feminism, Approach to
International Law’, Max Planck Encyclopedia of Public International Law (2010);
Charlesworth, above note 89, 407–9.
124 Charlesworth and Chinkin, above note 123, 60.
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by men’.125 It is argued that this would benefit not just women but also
allow the major aims of the UN Charter ‘to be defined in new, inclusive,
ways’.126
Feminist theory has had some influence and success within the inter-
national system. The advancement of women has been given institutional
support through the UN system, in particular through the Committee on
the Elimination of Discrimination against Women (CEDAW), a body
dedicated to investigating human rights abuses committed against women,
and improving the human rights of women worldwide. Other examples
are reflected in the area of international war crimes prosecutions, where
radical developments have occurred in relation to both the role of women
in armed conflict, and the recognition and more appropriate criminalizing
of massive human rights violations against them as a group.127
1.5 SPECIALIST AREAS OF INTERNATIONAL LAW
1.5.1 The International Law of the Sea
The international law of the sea is the body of public international law
concerned with defining permissible maritime activities, navigational
rights, mineral rights, jurisdiction over coastal waters and the relationship
between states and the seas.
From the seventeenth century until the mid-twentieth century, the inter-
national law of the sea was dominated by the concept of ‘freedom of the
seas’ as promoted by Grotius in his Latin text, Mare Liberum.128 During
this time, states enjoyed freedom to pursue their interests unhindered in all
areas of the sea, save for the three nautical miles from a state’s coastline,
125 Ibid., 61.

126 Ibid.
127 See Charlesworth and Chinkin, above note 123, 330: ‘The jurisdiction and
emerging jurisprudence of the ad hoc Tribunals suggest that the silence about the
suffering of women in all forms of armed conflict has been broken’, and at 333: ‘All
these developments suggest that the international legal system has responded well
in taking women’s lives into account in the context of international criminal law.
In some ways, however, the response has been very limited.’
128 Hugo Grotius, ‘The Freedom of the Seas or The Right Which Belongs to
the Dutch to Take Part in the East Indian Trade’ (Ralph van Demen Magoffin
trans., New York, Oxford University Press, 1916) [translation of Mare Liberum
(1609)]; Edward W. Allen, ‘Freedom of the Sea’, (1966) 60 American Journal of
International Law 814, 814.
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which remained within the control of the coastal state (otherwise known
as the ‘cannon shot’ rule).
This absolute freedom of activity began to give way as a result of a
number of factors – which included a shift in geo-political priorities, the
desire to extend national claims, concerns regarding the exploitation of the
seabed’s resources, protection of marine environments and fish stocks, and
enforcement of pollution controls, migration laws and counter-terrorism.
States began to conclude various lesser treaties to regulate limited aspects
of maritime activity.129
The key milestone came in 1958 with the first United Nations Conference
on the Law of the Sea in Geneva that aimed to produce a codification of the
customary international law of the sea. It resulted in a series of multilat-
eral treaties on the territorial sea and contiguous zone,130 the high seas,131
fishing and environmental conservation in the high seas,132 the continental
shelf,133 and an optional protocol concerning the compulsory settlement
of disputes.134 However, the success of the conference was limited as states
were able to pick and choose which conventions to participate in, with most
ignoring the optional protocol, leaving the international law of the sea in
a state of disunity. These issues remained unaddressed at the conclusion of
the second United Nations Conference on the Law of the Sea, which failed
to garner the necessary majority to effect any more than two minor proce-
dural changes. This was changed, however, by the third and final United
Nations Conference on the Law of the Sea, convened with an ambitious
agenda and concluded in 1982. The result was a convention encompassing
a range of rights and obligations – the 1982 United Nations Convention
on the Law of the Sea (UNCLOS).135 Participation in the convention is
129 Such as the Convention for Regulating the Police of the North Sea
Fisheries, 6 May 1882, 160 CTS 219; and the Convention for the Protection of
Submarine Cables, 14 March 1884, 163 CTS 391.
130 Convention on the Territorial Sea and the Contiguous Zone (adopted 29
April 1958, entered into force 10 September 1964) 516 UNTS 205.
131 Convention on the High Seas (adopted 29 April 1958, entered into force 30
September 1962) 450 UNTS 11.

132 Convention on Fishing and Conservation of the Living Resources of the
High Seas (adopted 29 April 1958, entered into force 20 March 1966) 559 UNTS
285.
133 Convention on the Continental Shelf (adopted 29 April 1958, entered into
force 10 June 1964) 499 UNTS 311.

134 The Optional Protocol of Signature Concerning the Compulsory Settlement
of Disputes (adopted 29 April 1958, entered into force 30 September 1962) 450
UNTS 169.
135 United Nations Convention on the Law of the Sea (adopted 10 December
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‘all-or-nothing’; to opt into the convention is to accept all entailing rights

and obligations. With more than 160 ratifications,136 the convention is
arguably one of the most successful examples of customary law codifica-
tion and international law-making.
The UNCLOS provides for compulsory dispute resolution through
the International Tribunal for the Law of the Sea (ITLOS).137 It prevails
over the 1958 Conventions,138 although where a party is not an UNCLOS
signatory but is a signatory to the 1958 Convention, the 1958 Convention
will prevail. Where a party is not a signatory to any convention, then
the UNCLOS serves only as a source of customary law in the case of a
dispute.139
A final note on the operation of the UNCLOS is its careful delimi-
tation of areas of sea, and the apportioning of rights and obligations
attached. The fundamental guiding principle is that the ‘land dominates
the sea’ so that any delimitations of the sea are made with reference to
the land territory of the coastal state.140 Such delimitations include the
continental shelf, the Exclusive Economic Zone (EEZ), the contiguous
zone, archipelagic waters, territorial seas and internal waters. Internal
waters are treated as territorial land.141 The territorial sea, in most cases,
constitutes the area of sea within 12 nautical miles measured from the
coastal state’s baselines.142 The coastal state may exercise its sovereignty
within this area, albeit subject to the right to innocent passage by vessels
(although this may be suspended by the state if it deems it necessary
for security reasons). The contiguous zone extends a further 12 nauti-
cal miles from the territorial sea.143 In the contiguous zone a state may
continue to set and enforce rules regarding pollution, taxation, customs
and immigration. The EEZ covers an area of 200 nautical miles from the
1982, entered into force 16 November 1994) 1833 UNTS 397 (hereinafter
‘UNCLOS’).
136 United Nations, ‘Chronological Lists of Ratifications of Accessions and
Successions to the Convention and the related Agreements as at 15 November

2010’, The United Nations, 15 November 2010, available at http://www.un.org/
Depts/los/reference_files/chronological_lists_of_ratifications.htm.
137 UNCLOS, above note 135, Pt 15, Arts 279, 280, 281 and 284.
138 Ibid., Art. 311(1) states: ‘this Convention shall prevail, as between the
States Parties, over the Geneva Conventions on the Law of the Sea of 29 April
1958’.
139 Triggs, above note 103, 270.
140 Shaw, above note 4, 553.
141 See Chapter 6.
142 UNCLOS, above note 135, Arts 2, 3.
143 Ibid., Art 23.
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baseline,144 within which the coastal nation has exclusive rights to the
exploitation of natural resources. Finally, the continental shelf is a geolog-
ical ledge projecting from the continental land mass into the sea, covered
by a typically shallow body of water. Where the continental shelf extends
beyond the EEZ, it may correspondingly extend the area of state control
up to a maximum of 350 nautical miles from the baseline of the coast.145
Any areas of sea beyond the scope of state control are known as the high
seas and are not open to acquisition by occupation by any state.146
1.5.2 International Trade Law
Public international trade law addresses the rules and customs regarding
trade between states. For the most part, this area of law is governed by bilat-
eral agreements, many of which exist beneath the overarching multilateral
framework formed by the World Trade Organization (WTO)147 (encom-
passing the General Agreement on Tariffs and Trade (GATT) 1947,148 and
the GATT 1994149). The WTO is based around principles of elimination of
trade barriers and non-discrimination between trading states.150
This global approach to trade found its impetus in the ruins of the
Second World War. As the Allies set about the task of rebuilding a dev-
astated Europe and ensuring that such wars never occurred again, it was
suggested that a liberal model of free trade would eliminate economic
instability, which was considered to be one of the factors that leads to
regional conflict. Accordingly, the GATT 1947 was established, providing
an informal framework for international trade until its replacement by the
WTO in 1995. The original GATT 1947 remains operational within the
WTO structure, subject to the GATT 1994 amendments.151
144 Ibid., Arts 55, 57.

145 Ibid., Art. 76(1).
146 Ibid., Art. 86; Ian Brownlie, Principles of Public International Law,
(Oxford: Oxford University Press, 2008, 7th edn), 224.

147 Marrakesh Agreement Establishing the World Trade Organization
(adopted 15 April 1994, entered into force 1 January 1995) 1867 UNTS 3 (herein-
after ‘the WTO Agreement’).
148 General Agreement on Tariffs and Trade, 30 October 1947, 55 UNTS 194
(hereinafter ‘GATT 1947’).

149 General Agreement on Tariffs and Trade, 15 April 1994, Marrakesh
Agreement Establishing the World Trade Organization (adopted for signature 15

April 1994, entered into force 1 January 1995) 1867 UNTS 3 (hereinafter ‘GATT
1994’).
150 Ibid., Arts 1(1), 3(1) and 11(1).
151 Ibid., Art. 1(b)(ii).
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The fundamental aim of the WTO Agreement is the establishment of

trade relations with a view to raising standards of living, ensuring full
employment, increasing trade, pursuing an increase in trade and effective
use of resources, sustainable development and environmental protection,
in a manner consistent with the needs of different states.152
Similar to the UNCLOS, parties to the WTO Agreement are assent-
ing to all annexed agreements. There are, however, some allowances for
special agreements and measures for certain developing countries.153
By far the most significant development in international trade law has
been the establishment of extensive and sophisticated procedures for
the settlement of disputes under the WTO, in the form of the Dispute
Settlement Understanding (DSU).154 The DSU has extraordinary powers
to hear disputes and impose decisions that are binding on all Member
States. In the first ten years since its introduction, the number of disputes
heard under the DSU exceeded the combined total of disputes heard by the
International Court of Justice and the Permanent Court of International
Justice in 85 years.155 These statistics are a credit to the DSU as a powerful
and compelling procedure for dispute resolution.
1.5.3 International Environmental Law
The issues of environmental management and transnational pollution

pose unique and serious challenges to the international community.
An increased awareness of risks to the environment in recent times has
prompted a spate of bilateral, regional and multilateral measures target-
ing a wide range of areas from terrestrial to atmospheric pollution, wildlife
conservation and sustainability.156 Yet, because approaches to these issues
are often informed by human and social priorities, disagreements about
the level of responsibility of different states and the right to development,
152 WTO Agreement, above 147, preamble.

153 Ibid., Arts 11(2) and 20.
154 WTO Agreement, above 147, Annex 2.
155 Triggs, above note 103, 697.
156 For example, the Convention on the Conservation of Antarctic Marine
Living Resources (adopted 20 May 1980, entered into force 7 April 1982) 1329
UNTS 47; Protocol on Environmental Protection to the Antarctic Treaty (adopted
4 October 1991, entered into force 14 January 1998) 30 ILM 145; the ILC, ‘Draft
Articles on Prevention of Transboundary Harm from Hazardous Activities’ in
ILC, ‘Report of the International Law Commission on the Work of its Fifty-Third
Session’, UN Doc A/56/10(2001), adopted by the General Assembly in Res. 58/84,
12 December 2001; the UNCLOS, above note 135.
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international environmental law lacks the focus and consensus seen in

other areas of international law.157
The lack of a commonly accepted definition of ‘environment’ proves the
first barrier to effective international action. ‘Environment’ was defined in
the 1972 Stockholm Declaration as ‘air, water, land, flora and fauna and
especially representative samples of natural ecosystems’.158 It has been
noted, however, that no single definition of ‘environment’ exists, and its
meaning often changes depending on the context in which it is used.159
The development of environmental law is guided by a number of general
principles common to other areas of international law, such as sovereignty
and state responsibility.160 Other principles more specific to the area of
environmental law include the precautionary principle, the concept of
sustainable development, the polluter pays principle, common but dif-
ferentiated responsibilities, and the common heritage principle.161 The
following provides an outline of some of the key recent developments in
international environmental law.
The United Nations Framework Convention on Climate Change
(UNFCCC), which opened for signature in 1992 at the Earth Summit
in Rio de Janeiro, aimed to achieve ‘stabilization of greenhouse gas con-
centrations in the atmosphere at a level that would prevent dangerous
anthropogenic interference with the climate system’.162 The approach
taken critically emphasizes mitigation rather than cessation of pollution
emission.
Following the Earth Summit, the international community yet again
convened in Kyoto in December 1997, resulting in the Kyoto Protocol.163
Exemplary of the differentiated responsibilities principle, developed coun-
tries agreed to reduce their aggregate levels of greenhouse gas emissions
below 1990 levels by an average of 5.2 per cent during the period 2008 to
157 Brownlie, above note 146, 275.

158 Declaration of the UN Conference on the Human Environment, 16 June
1992, UN Doc. A/CONF/48/14/REV.1, Principle 2.
159 Patricia Birnie and Allan Boyle, International Law and the Environment,
(Oxford: Oxford University Press, 2002, 2nd edn), 3–4.

160 The Trail Smelter (United States v Canada) Arbitration (1938–41) 31 RIAA
1905.
161 See, generally, Brownlie, above note 146, 276–80.
162 United Nations Framework Convention on Climate Change (adopted 4
June 1992, entered into force 21 March 1994) 1771 UNTS 164, Art. 2 (hereinafter
‘UNFCCC’).
163 Protocol to the Framework Convention on Climate Change (opened for
signature 11 December 1997, entered into force 16 February 2005) 37 ILM (1998)
22 (‘Kyoto Protocol’).
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2012, while developing states were not bound to any particular reduction
targets.
Since Kyoto, numerous conferences have been held in various places
including The Hague, Copenhagen and Cancún. The running theme in
the development of this vein of international law is the milieu of diverging
interests and priorities. Developing states assert a right to prioritize their
economic development and to increase their standard of living, demanding
that developed states take responsibility for their historical contribution to
transnational pollution. On the other hand, developing states are called
upon to take responsibility for their projected future contributions. True
cooperation will be difficult to attain at present, given the reluctance of
global powers such as China and the United States to commit to binding
targets. These disputes will continue to pose a major hurdle to effective
international law-making in the future.
1.5.4 International Humanitarian Law
International humanitarian law (also known as the laws of war or the

law of armed conflict)164 emerges chiefly from the concept that conflict,
being an inexorable part of human nature, is inevitable, and hence efforts
should be made to create reasonable guidelines of conduct and to mitigate
harm.165 Primarily derived from international conventions,166 it regulates
the conduct and obligations of belligerent nations, neutral nations and
individuals engaged in war. It also provides for the status and treatment of
protected persons such as civilians.167
Much of international humanitarian law has been codified in the four
Geneva Conventions of 1949,168 which operate subject to amendments in

165 Jean Pictet, Humanitarian Law and the Protection of War Victims (Leyden:
Sijthoff; Geneva: Henry Dunant Institute, 1975), 30.
166 It has been suggested that international customary law principles exist
over and above conventional rules. See Shaw, above note 4, 1167; and Theodor
Meron, ‘Revival of Customary Humanitarian Law’ (2005) 99 American Journal of
International Law 817.
167 Some discussion of the history of IHL can be found above at section 1.3.1.
A more detailed discussion can be found in Boas et al., above note 42, Chapter 4,
section 4.1.2.
168 The four Geneva Conventions of 12 August 1949, which entered into
force on 21 October 1950 are: (1) Geneva Convention for the Amelioration of
the Condition of the Wounded and Sick in Armed Forces in the Field, 75 UNTS
31 (‘Geneva Convention I’); (2) Geneva Convention for the Amelioration of the
Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at
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a further three protocols.169 Today, the Conventions have an essentially

universal participation rate, with 194 parties.170
In determining the applicability of the Geneva Conventions to a con-
flict, much rides on the characterization of the conflict. Common Articles
2 and 3 stipulate that the Conventions operate in relation to declared war
or armed conflicts between nations that have ratified the Conventions.171
Situations lacking the character of an ‘armed conflict’ would fall outside
the scope of the Conventions. Similarly, if the armed conflict lacks an
‘international character’,172 the Conventions will not apply, save for a list
of minimum rules of war contained in Article 3.
The Geneva Conventions are supplemented by an extensive body of cus-
tomary international law, which together give rise to a series of important
principles relating to the protection of persons not directly participating in
an armed conflict. These principles include the distinction between com-
batants and non-combatants, the prohibition on indiscriminate attacks,
the requirement for proportionality in attacks, the respect and protection
to be afforded to prisoners of war, and the prohibition of torture, medical
experimentation and neglect endangering health.173
1.5.5 International Human Rights Law
International human rights law rests upon the foundation of universal-

ism and egalitarianism and can trace its history back to the natural law
philosophies of Roman Law. Its premise is that all humans are ‘born free
Sea, 75 UNTS 85 (‘Geneva Convention II’); (3) Geneva Convention relative to

the Treatment of Prisoners of War, 75 UNTS 135 (‘Geneva Convention III’); (4)
Geneva Convention relative to the Protection of Civilian Persons in Time of War,
75 UNTS 287 (‘Geneva Convention IV’).
169 Protocol Relating to the Protection of Victims of International Armed
Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS
3; Protocol relating to the Protection of Victims of Non-International Armed
Conflict (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS
609; Protocol relating to the Adoption of an Additional Distinctive Emblem, con-
clusion date 8 December 2005 (not yet in force).
170 International Committee of the Red Cross, ‘Geneva Conventions of
12 August 1949’ (2005), available at http://www.icrc.org/ihl.nsf/WebSign?Read

Form&id=375&ps=P.
171 Geneva Conventions, common Arts 2 and 3.
172 For a discussion of the customary rules of IHL, see generally the cus-
tomary law study of the International Committee of the Red Cross: Jean-Marie
Henckaerts and Louise Doswald-Beck, Customary International Humanitarian
Law (Cambridge: Cambridge University Press, 2005).
173 Ibid.
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and equal in dignity and rights’,174 and are entitled to the protection and
promotion of such rights. The human rights movement was galvanized in
the wake of the atrocities of the Second World War.
The modern law of international human rights was founded upon
the Universal Declaration of Human Rights 1948 (UDHR).175 In strict
terms it is a weak legal instrument and was never intended to be binding.
Nevertheless the UDHR formed the platform for the promotion of such
principles as the prohibition against slavery,176 non-discrimination177 and
the right to life,178 which provided a basis for the development of other
related treaties. Such treaties include the International Covenant on Civil
and Political Rights,179 the International Covenant on Social and Cultural
Rights,180 the Convention against Torture,181 the UN Convention on the
Rights of the Child,182 the Convention on the Elimination of All Forms of
Racial Discrimination183 and the Genocide Convention.184
Regional human rights treaties have followed, similar in form and func-
tion to the UN multilateral treaties. The UN also possesses the means
to encourage compliance with human rights treaties at a domestic level
through the Human Rights Council.185 Particular areas of international
human rights law are undergoing rapid change. The concept of human
rights is becoming an increasingly extraterritorial one, while the notion of
state responsibility to prevent human rights abuses is gaining traction.186
174 Universal Declaration of Human Rights, GA Res. 217A (III), UN Doc.

A/810 at 71, Art. 1 (hereinafter ‘UDHR’).
175 Ibid.
176 Ibid., Art. 4.
177 Ibid., Art. 2.
178 Ibid., Art. 3.
179 GA Res. 2200A (XXI) 21 UN GAOR Supp. (No. 16) at 52, UN Doc.
A/6316 (1966), entered into force 23 March 1976.

180 International Covenant on Social and Cultural Rights (adopted 16
December 1966, entered into force 3 January 1976) 993 UNTS 3.

181 United Nations Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (adopted 10 December 1984, entered into

force 26 June 1987)1465 UNTS 85.
182 Convention on the Rights of the Child (adopted 20 November 1989,
entered into force 2 September 1990) 1577 UNTS 3.

183 International Convention on the Elimination of All Forms of Racial
Discrimination (adopted 21 December 1965, entered into force 4 January 1969)

660 UNTS 195.
184 Convention on the Prevention and Punishment of the Crime of Genocide
(adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277.
185 General Assembly, Resolution on the Human Rights Council, GA Res.
60/251, UN GAOR, 6th sess., 72nd plen. mtg, UN Doc. A/RES/60/251 (2006).
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Furthermore, human rights law is becoming increasingly merged with

international humanitarian law.
While the precise nature and role of international human rights law is
the subject of uncertainty,187 it is clear that international human rights law
presents a new and dynamic front for the influence of international law to
effect change in human interactions; its role, function and impact on the
place of the individual in international law will be considered often in this
book.
1.5.6 International Criminal Law
At the core of international criminal law are the concepts that individuals
can be responsible for international crimes, that aggression is illegal, and
the acknowledgement that international law has a role to play regarding
criminality and armed conflict. International criminal law primarily deals
with war crimes, genocide, crimes against humanity and possibly crimes
against peace. The purpose of individual responsibility in international
criminal law is to capture all of the methods and means by which an indi-
vidual may contribute to the commission of a crime, or be held responsible
for a crime under international law.188
Generally speaking, international criminal law provides an enforcement
mechanism for the obligations and prohibitions created by international
humanitarian law. Enforcement is by way of penal sanctions and may be
achieved through reliance on domestic or international mechanisms.
Until the end of the Second World War, the concept of international
crime was not well developed. Piracy and slave trading were arguably
the only recognized crimes against international society. Provided that the
accused was apprehended on the high seas or within the territory of the
prosecuting state, states had universal jurisdiction to prosecute individuals
for these crimes, regardless of the nationality of the accused or where the
alleged crimes were committed.
After the First World War, the Treaty of Versailles provided for
the punishment of German individuals who had violated the laws and
187 Ibid., 265.

188 See Gideon Boas, James L. Bischoff and Natalie L. Reid, Forms of
Responsibility in International Criminal Law (Cambridge: Cambridge University
Press, 2007), Chapter 1; see examples of this expressed in case law: Prosecutor v
Muvunyi, Case No. ICTR-00-55A-T, Judgment, 11 September 2006, [459]–[460];
Prosecutor v Gacumbitsi, Case No. ICTR-2001-64-T, Judgment, 14 June 2004,
[267]; Prosecutor v Delalić, Mucić, Delić and Landžo (Judgment) IT-96-21-T (16
November 1998) [321], [331].
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customs of war – although only a few trials were actually held and within
Germany itself.189 Provision was also made to try Kaiser Wilhelm II
before an international tribunal for ‘a supreme offence against interna-
tional morality and the sanctity of treaties’.190 The clause was, however,
never executed given that the Kaiser fled to the Netherlands, which
refused to extradite him. It was only following the atrocities of the Second
World War that the moral imperative to create an international tribunal
was recognized. The first real international criminal tribunal was the
Nuremburg Tribunal, created to prosecute prominent members of the
German Nazi leadership.191 The tribunal reasoned that its criminal find-
ings were merely expressions of pre-existing customary international
law, although some commentators have questioned the legal basis of this
position.
The Nuremburg Tribunal affirmed numerous principles of international
criminal law, including the rejection of the defence of superior orders and
the criminality of aggressive war.192 It also laid the foundation for the
establishment of numerous subsequent international criminal tribunals,
and prompted calls for a permanent international criminal court. Most
of the subsequent tribunals have been specifically established in response
to particular conflicts. For example, the International Criminal Tribunal
for the former Yugoslavia and the International Criminal Tribunal for
Rwanda were both ad hoc tribunals created by the United Nations Security
Council,193 and were followed by a host of internationalized (or hybrid)
tribunals dealing with specific conflicts – for example, in East Timor,
189 Treaty of Peace between the Allied and Associated Powers and Germany,
and Protocol [1920] ATS 1 (‘Treaty of Versailles’), Art. 228; C. Mullins, The
Leipzig Trials (London: H.F. & G. Witherby, 1921). For a discussion of the
abortive post-First World War trials, see Boas et al., above note 42, Chapter 2,
section 2.1.1; Timothy L.H. McCormack, ‘From Sun Tzu to the Sixth Committee:
The Evolution of an International Criminal Law Regime’, in Timothy L.H.
McCormack and Gerry J. Simpson (eds), The Law of War Crimes: National and
International Approaches (The Hague and Boston, MA: Kluwer Law International,
1997).
190 Treaty of Versailles, above note 189, Art. 227.
191 Allied Resolution on German War Crimes, Inter-Allied Revue, 15 January
1942.
193 Established by UN Security Council, Resolution 827 (1993), adopted by the
Security Council at its 3217th meeting on 25 May 1993, S/RES/827 (1993), avail-

able at http://www.unhcr.org/refworld/docid/3b00f21b1c.html; and UN Security
Council, Security Council Resolution S/RES/955 (1994), 8 November 1994, S/
RES/955 (1994), available at http://www.unhcr.org/refworld/docid/3b00f2742c.
html.
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Sierra Leone and Cambodia.194 In 2002, the International Criminal Court

(ICC) was created.195 The ICC is set up as a permanent court to prosecute
individuals for international crimes. As of October 2010 the ICC has 114
member states, with a further 34 signatory countries that have yet to ratify
the treaty. Importantly, a number of major states, including the US, China
and India are not signatories to the Rome Statute. The absence of these
states poses a significant problem to the legitimacy of ICC jurisdiction.
1.6 WHAT IS INTERNATIONAL LAW?
International law is primarily conceived of as a system of law that regu-

lates the conduct of, and between, states in the exercise of their external
relations with other states. The development in the relations between
states, globalized trade, rules relating to recourse to armed conflict, and
the increasing role of non-state institutions in the development and indeed
creation of international law, means that it is no longer possible to simply
talk of the ‘law of nations’ as synonymous with international law.
Before examining in detail the core principles that embody contem-
porary public international law in the remainder of this book, there is a
key question that must be addressed: what is international law? This is at
once a crucial, and a meaningless, question. All of the theories discussed
or referred to already in this chapter offer some conception or perspective
of what is international law. Many scholars have addressed this question,
most acknowledging that it is a highly perplexing and subjective one.196
Nonetheless, a book about international law can hardly avoid such a
discussion.
A preliminary aspect to this question is whether international law as
such even exists. Scholars at various periods have questioned the existence
194 For a discussion of international criminal law, its institutions and function-
ing, see generally Gideon Boas, James L. Bischoff, Natalie L. Reid and B. Don
Taylor III, International Criminal Procedure (Cambridge: Cambridge University
Press, 2011); Boas et al., above note 42; Boas et al., above note 188; Robert Cryer,
Håkan Friman, Darryl Robinson and Elizabeth Wilmshurst, An Introduction to
International Criminal Law and Procedure (Cambridge: Cambridge University
Press, 2007); Antonio Cassese, International Criminal Law (Oxford: Oxford
University Press, 2008, 2nd edn).
195 Rome Statute of the International Criminal Court (adopted 17 July 1998,
entered into force 1 July 2002) 2187 UNTS 90.

196 See, generally, Shaw, above note 4, 43–68; Kelsen, above note 45, 321–33;
Oscar Schachter, International Law in Theory and Practice (Dordrecht; London:

Martinus Nijhoff Publishers, 1991), 1–16; Higgins, above note 48, 2–12.
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of international law at all, postulating that what we call international law

is really no more than a system of international relations, lacking core
aspects of a legal system as such.
H.L.A. Hart, for example, had this to say:
[T]he absence of an international legislature, courts with compulsory jurisdic-

tion, and centrally organised sanctions have inspired misgivings, at any rate
in the breast of legal theorists. The absence of these institutions means that
the rules for states resemble that simple form of social structure, consisting
only of primary rules of obligation, which, when we find it among societies
of individuals, we are accustomed to contrast with a developed legal system.
It is indeed arguable . . . that international law not only lacks the secondary
rules of change and adjudication which provide for legislature and courts, but
also a unifying rule of recognition specifying ‘sources’ of law and providing
general criteria for the identification of its rules. These differences are indeed
striking and the question ‘Is international law really law?’ can hardly be put
aside.197
A more recent and dangerous challenge to the existence, or at least legiti-

macy, of international law comes from critical legal studies. Simplistically
put, this conception of international law sees it as essentially contradic-
tory, invariably imbued with the social and political such that it cannot
resolve crucial questions posed of it.198 This view of international law
recalls the positivism of John Austin, whereby international law is osten-
sibly the dictate of states and subject to the paradigms of power and
control199 – a paradigm in which powerful states hold all the cards. Such
a perspective precludes a normative system of rules that can be legally
defined, determined and developed.200 Gerry Simpson explains Austin’s
conception of international law as essentially anarchic:
Debate about the compatibility of law and anarchy is a permanent feature of

the intellectual landscape in international law and relations. The question: ‘Is
international law, law?’ derives from an assumed mismatch between condi-
tions of anarchy and the existence of law. John Austin famously questioned
the existence of public international law on precisely these grounds. In the
197 H.L.A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961), 209.
For a discussion of Hart’s statement, see Triggs, above note 103, 3. See also, J.L.
Brierly, The Outlook for International Law (Oxford: Clarendon Press, 1944), 13;
Thomas M. Franck, ‘Legitimacy in the International System’ (1988) 82 American
Journal of International Law 705, 706.
198 See for example, Koskenniemi, above note 105.
199 See also Brierly, above note 197.
200 See the development of these issues in Franck, above note 197.
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absence of a single over-arching world sovereign how could there be law among
sovereigns?201
Thomas Franck defends the system of international law, while acknowl-

edging that its defenders have been less than convincing:
Why study the teleology of law? What are laws for? What causes obedience?
Such basic questions are the meat and potatoes of jurisprudential inquiry.
Any legal system worth taking seriously must address such fundamentals. J. L.
Brierly has speculated that jurisprudence, nowadays, regards international law
as no more than ‘an attorney’s mantle artfully displayed on the shoulders of
arbitrary power’ and ‘a decorous name for a convenience of the chanceller-
ies.’ That seductive epigram captures the still dominant Austinian positivists’
widespread cynicism towards the claim that the rules of the international
system can be studied jurisprudentially. International lawyers have not taken
this sort of marginalization lying down. However, their counterattack has been
both feeble and misdirected, concentrating primarily on efforts to prove that
international law is very similar to the positive law applicable within states.
This strategy has not been intellectually convincing, nor can it be empirically
sustained once divine and naturalist sources of law are discarded in favor of
positivism.202
It is tempting to sweep aside theoretical perambulations about the exist-

ence or otherwise of international law as anachronistic. A pragmatic
response to the debate might be to point to the explosion of international
institutions and courts that are more or less universally recognized as creat-
ing, determining and/or applying ‘international law’. The point is implicit
in Franck’s rhetorical questions: ‘Why should rules, unsupported by an
effective structure of coercion comparable to a national police force, nev-
ertheless elicit so much compliance, even against perceived self-interest, on
the part of sovereign states?’203 If it is not international law then it is some-
thing so profoundly reflecting law in practice – and so clearly accepted as
such by its subjects – that the question itself appears now to be nothing
more than an abstraction. At the risk of being dismissive, to now ques-
tion the existence of international law as a legal – and not purely political
and social – system is to challenge the obvious. A century ago, Nys put it
passionately, if not a little melodramatically: ‘Law even if broken, even if
201 Gerry Simpson, Great Powers and Outlaw States: Unequal Sovereigns in the
International Legal Order (Cambridge; New York: Cambridge University Press,

2004), 63.
202 Franck, above note 197, 706. See generally, Anthony D’Amato,
International Law: Process and Prospect (Dobbs Ferry, NY: Transnational, 1987).
203 Franck, above note 200, 707.
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crushed under foot, is none the less law’.204 Indeed, the recent notorious
practice of the United States in relation to its Guantanamo Bay detention
facility has exemplified how law crushed under foot is still law, and how
threatening essential aspects of the international law system can give rise
to a set of reactions and counter-reactions that reinforce its intrinsic value
and character.
Another strong argument in favour of the existence of international law
comes from even a cursory examination of history.205 As Korff noted:
The fact that the fundamental principles of international law intercourse always
were and are even in our day identical all over the world . . . justifies the theory
that international law is a necessary consequence of any civilization.206
If this was true in 1924, surely the extraordinary development of interna-

tional law norms and institutions since makes it even truer today.
To assert that international law exists does not, however, answer the
question of what it is. Rosalyn Higgins’ view of international law is that
of a normative system, rather than simply a system of rules that must be
identified and applied to the exclusion of the ‘extralegal’, notably social
and political factors.207 This pragmatic view of international law stands
in contrast to the more traditional, positivist view that sees international
law as the ascertainment of objective rules, free of the interference of these
‘extralegal’ factors.208
In her book, Problems and Process, Higgins enters into a kind of dia-
logue with Martii Koskenniemi, with whom she disagrees. She views the
argument – that where international law does more than apply rules, it
risks opening itself to criticism as biased and partial, and open to the
control of the powerful states – as overly simplistic. In certain crucial
respects, international law is the same as domestic law; the social purpose
of law is to regulate the behaviour and conduct of people and institutions
204 Nys, above note 2, 3.

205 See discussion above at section 1.3.
206 Korff, above note 2, 248.
207 See the views of Judges Fitzmaurice and Spender in the South West Africa
cases (Ethiopia v South Africa; Liberia v South Africa) (Preliminary Objections)

[1962] ICJ Rep 319, 466 (joint Dissenting Opinion). These views have, accord-
ing to Higgins, been revived and developed in the more recent work of Martti
Koskenniemi: see From Apology to Utopia, above note 105; ‘The Politics of
International Law’ (1990) 1 European Journal of International Law (cited in
Higgins, above note 48, 9).
208 See discussion of legal positivism above in section 1.4.2.1.
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within a community for the common good.209 There is discretion involved

in all aspects of international law (as in all law), and to ignore a moral
aspect to its identification, determination and application is naive, unreal-
istic and unnecessary.210 Higgins makes a further – and important – point:
by refusing to acknowledge the political and social factors involved in
determining international law, we risk hiding what is a natural and inevi-
table aspect of the process.211
There is a distinct attraction to Higgins’ conception of international
law – for a start, it is an answer to the reductive perspective that critical
theory brings to international law. An additional point needs, however,
to be made about Higgins’ approach. International law as a norma-
tive system that can be legitimately developed in the decision-making of
institutions, as well as courts and tribunals, requires not just an open-
ness about external influences (political or social) on decision-makers.
A further step in reasoning needs to be made. It also demands an open-
ness (and honesty) about the limitation of those rendering decisions and
developing this law. One of the great myths of judicial decision-making,
for example, is that judges, because they are professionals, are unaffected
by context or emotion and are dispassionately discovering and applying
defined rules, even if they are aware of and acknowledge the political and
other extralegal contexts in which such decisions are made. The fiction of
this position exists in all systems of law but is no better exposed than in the
context of international criminal tribunals. An honest discussion about
the competence, capacity and even integrity of these decision-makers is
long overdue. Once again, this theme will re-emerge at different points
throughout this book.
One point of departure between Higgins and Koskenniemi relates to
the extent to which international law is equipped to resolve contradic-
tions. For Higgins, one can make a rational choice between conflicting or
contradictory principles or perspectives by making determinations for the
‘common good’.212 Rules are just past decisions of organs and courts; if
international law is simply about finding and applying the law (formalism)
then it cannot, in Higgins’ view, contribute to and cope with a changing
political world. Judges, legal advisers and others are not simply finding the
rule in relation to a particular issue – part of their role is to determine what
209 Higgins, above note 48, 2. She notes that most law, including international
law, has nothing to do with the settlement of disputes – which is a discrete aspect
of all legal systems.
210 Ibid., 7.
211 Ibid., 48.
212 Ibid., 9.
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the rule is and, in doing so, be aware of political and social context.213 To
Koskenniemi, such determinations require a foray into extralegal social
and political matters not properly the domain of law; they also require
choices to be made about the assertion of certain rights over others – and
how does one exercise this choice?214 An adherence to formal rules, he
argues, lends greater protection to the rule of law and is better placed to
protect the ‘weak’ in international law: ‘from the instrumentalist perspec-
tive, international law exists to realize objectives of some dominant part
of the community; from the formalist perspective, it provides a platform
to evaluate behaviour, including the behaviour of those in dominant
positions’.215
Koskenniemi views formalism as creating an objective basis for the
achievement of the ultimate aims of international law, even if (or perhaps
because) they reflect inflexible rules that are more resistant to political
power paradigms:
[I]nternational law exists as a promise of justice. The agnosticism of political

modernity has made the articulation of this teleological view extremely difficult.
For the justice towards which international law points cannot be enumerated
in substantive values, interests, or objectives. It has no predetermined institu-
tional form. All such languages and suggestions express inadequate and reified
images, (partial) points of view. Even when acceptable in their general formula-
tion, as soon as such principles are translated into particular policies, and start
to prefer some interests or values over others, they become vulnerable to the
critique of ‘false universalism’.
Even if ‘[a] court’s decision or a lawyer’s opinion is always a genuinely

political act, a choice between alternatives not fully dictated by external
criteria’,216 one response to such a concern is: so what? The creation and
interpretation of all law is in part an expression of both the internal and
external influences upon the people forming opinions and rendering deci-
sions. Whether considered through the prism of formalism (adherence to
rules) or normativism (adherence to values and objectives based, say, on
the idea of legitimacy), somebody makes the rules and somebody inter-
prets, applies, ignores and reformulates them. Such is the nature of all
human interaction. Any international lawyer who suggests that his or her
discipline is somehow immune from this is quite misdirected.
213 Ibid., 2–3.

214 Ibid., 9–10, referring to the works of Koskenniemi cited at above notes 105
and 207.
215 Koskenniemi, above note 62, 68–9.
216 Ibid., 72.
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These are important issues and reflect deep divisions in the understand-
ing of the international legal system and what it can achieve. Whatever the
theoretical lens through which one views international law, it is essential
always to ask how it is to be conceptualized and applied to real problems.
Theoretical debate about what international law is and whether it should
be interpreted strictly as a defined set of legal rules exclusive of political
context, or as a process that engages the inevitable extralegal context that
a decision-maker must account for, are important questions. Positivism,
formalism, instrumentalism, realism and other theoretical conceptions
will continue to influence the debate about what is international law. One
is left, however, with the sense that modern international law operates very
much as a normative system of rules that can be ascertained and applied by
courts and other institutions within its political and social context. Even
Koskenniemi acknowledges, when considering ‘what is international law
for’, that notions of ‘peace’, ‘security’ and ‘justice’ are acceptable notions
of the purpose of international law, even if only because ‘of their ability to
gloss over existing disagreement about political choices and distributional
priorities’.217 Higgins’ international law is an international law ‘harnessed
to the achievement of common values’218 – a universal, all-embracing
system that transcends rules complied with or breached. It is flawed to be
sure, but nonetheless it is a normative system capable of delivering such
abstract notions as peace, security and justice. Of course, the temptation
towards the interpretation of international law as instrumentalism, as
a normative system, as a pragmatic response to the question of what is
international law, carries with it a set of problems beyond the theoretical.
In examining the core principles of international law, this book will reveal
how fraught and complex can be the application of international law in a
world of competing needs and interests.
217 Ibid., 58.

218 Higgins, above note 48, 1–2.
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1.

International law: history, theory

The focus of this book is upon principles and perspectives in international

1 See section 1.5 below.

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a solid understanding of the fundamentals of international law, how they

1.2 THE CONCEPT OF INTERNATIONAL LAW

For some, international law is an anarchic system of inter-state relations,

1.3 THE PLACE OF INTERNATIONAL LAW IN

In the first lecture delivered to the Academy of International Law at The

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2 Baron S.A. Korff, ‘An Introduction to the History of International Law’

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consistent with the native character and end of humankind in general.’7

1.3.1 The Ancient Roots of International Law

One of the obvious areas in which international law has persistently

7 Michael Seidler, ‘Pudendorf’s Moral and Political Philosophy’, The

(Oxford; New York: Oxford University Press, 1998), 28

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119 Harvard Law Review 129, 132.

(Oxford: Clarendon Press, 1907), 327.

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in Dieter Fleck (ed.), The Handbook of Humanitarian Law in Armed Conflicts

at Hattusa in north-central Anatolia from the eighteenth century BC.

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26 See Hirad Abtahi, ‘Reflections on the Ambiguous Universality of

Human Rights: Cyrus the Great’s Proclamation as a Challenge to the Athenian

in the Historical Development of the Law of War’, (1965) 46 International Review

Transnational Publishers, 1985), 360.

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have developed sometimes sophisticated systems of rules that bear the

1.3.2 The Peace of Westphalia and the Development of Modern

The seventeenth century was an important period in the development

33 Neff, above note 5, 35.

Crawford and Martti Koskenniemi (eds), The Cambridge Companion to

2nd edn), 23.

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This development of the concept of the nation state increasingly caused

38 Ibid., 24; Gross, above note 35, 20.

Law (Cambridge: Cambridge University Press, 2000), 1 (referring to the tacit

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paramount importance of the principle of sovereignty in international

1.4 THEORIES OF INTERNATIONAL LAW

1.4.1 The Framework for International Law and the Importance of

Traditionally, international law has been seen as ‘a complex of norms

All organized groups and structures require a system of normative conduct –

Press, 1967), 320.

as Intervening Variables’ in Stephen Krasner (ed.), International Regimes (Ithaca,

Institutions Matter? The Domestic Impact of International Rules and Norms’

It (Oxford: Clarendon Press, 1994), 1.

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international law does not exist in an ‘intellectual vacuum’.49 These norms

49 Iain Scobbie, ‘Wicked Heresies or Legitimate Perspectives? Theory and

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1.4.2 Different Theoretical Conceptions of International Law

1.4.2.1 Natural and positive law theories

Max Planck Encyclopedia of Public International Law (Heidelberg: Max-Planck-

Westphalia’ (1912) 6 American Journal of International Law 30, 31–2.

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