The concept of international law in context

• Author: John H. Currie, Craig Forcese, Joanna Harrington, Valerie Oosterveld
• Pages: 11-46

11

CHAPTER 1

THE CONCEPT OF INTERNATIONAL LAW

IN CONTEXT

For many years, the study of international law in common law countries has been surpris-

ingly ahistorical and markedly theory-poor.1 Scholars of international law and internation-

al relations were traditionally preoccupied with what were viewed as monolithic states,

sometimes ignoring the intra-state nuances emphasized by their domestically focused

counterparts in the f‌ields of domestic public law and political science. In its crudest form,

international law was viewed as what states do, while international relations, in their crud-

est and most simplistic form, were viewed as manifestations of the whim of hegemonic

states. Put these two approaches together and international law was what powerful states

wanted it to be. For those t aking this perspective, there was little need for theory or any-

thing more than very short-term accounts of history.

Admittedly, there remains some truth to this view. International law often is the prod-

uct of — rather than a restraint on — realpolitik. “The hell with international law,” former

US Secretary of State Dean Acheson reportedly said during the Cuban missile crisis. “It’s

just a series of precedents and decisions that have been made in the past.”2 “I don’t care

what international lawyers say,” US President George W. Bush reportedly stated to his

assembled advisors when questions about the use of force in Afghanistan arose in 2001,

“we are going to kick some ass.”3 On the other hand, a state’s ability to inf‌luence other

states can be negatively affected by its perceived failure to abide by international law. US

President Barack Obama acknowledged, upon his acceptance of the 2009 Nobel Peace

Prize, that no state can “insist that others follow the rules of the road if we refuse to follow

them ourselves.”4

For this reason, it remains the case that powerful — even dominant — states do not

always dictate outcomes in international relations. Witness the failure of the United States

and the United Kingdom to secure a UN Security Council resolution authorizing (or, as

some argued at the time, conf‌irming prior authorization of) their invasion of Iraq in 2003.

Nor is international law controlled by such states. If it were, the campaigns to create the

1 See, however, the recent contr ibutions of Alexander Orakhelashvili, ed, Research Handbook on the The-

ory and Hist ory of Internatio nal Law (Cheltenham: Edward Elgar, 2011); and Bardo Fassbender & Anne

Peters, eds, The O xford Handbook of the His tory of Internat ional Law (Oxford: Oxford Unive rsity Press,

2012) .

2 Cited in Wilhelm Grewe, “The Role of In ternational Law in Diplomatic Practice” (1999) 1 J Hist Int ’l L

22 at 26.

3 Richard A Clarke, Against All En emies: Inside America’s War on Terror (Ne w York: Free Press, 2004) at 24.

4 Barack H Obama, “A Just and Lasting Peace,” Nobel Le cture, Oslo, Norway, 10 December 200 9, online:

www.nobelprize.org/nobel_pr izes/peace/laureates/2009/obama-lecture_en.html.

12 INTERNATIONAL LAW: DOCTRINE, PRACTICE, AND THEORY

International Criminal Court5 and ban the use of anti-personnel landmines6 would have

foundered in the face of opposition by the United States and China in both instances.

From this, we can conclude that international law and international relations are more

nuanced than the crude, simplistic visions outlined above. Nuance is best understood,

we b elieve, by investing some effort in examining history and theory so as to provide

context. Accordingly, in this chapter we under take three tasks: f‌irst, we offer a def‌inition

of international law, one that probes several different theoretical ways of understanding

the concept; second, we provide an analytical history of international law, focusing on the

emergence of sovereign states and the resulting legal developments; and, third, through

the twin prisms of international legal theor y and international relations theory, we exam-

ine the question: does international law matter?

A. DEFINING INTERNATIONAL LAW

1) International Law as the Law among States

“International law” is simple to def‌ine but diff‌icult to explain. The actual expression “inter-

national law” is usually attributed to Jeremy Bentham, in his Introduction to the Principles

of Morals and Legislation (1789). There, Bentham wrote that “mutual transactions between

sovereigns” were the “subject of that branch of jurisprudence which may be properly and

exclusively termed international.” He then observed that “[t]he word international, it must

be acknowledged, is a new one; though, it is hoped, suff‌iciently analogous and intelligible.

It is calculated to express, in a more signif‌icant way, the branch of law which goes com-

monly under the name of the law of nations.”7 The “law of nations” is, therefore, the clas-

sical term for international law, and is the expression employed by its most famous early

exponent, Dutch jurist Hugo Grotius.

These phrases — “law of nations” and “international law” — have an intuitive mean-

ing: the law as bet ween nations. However, the terms “international” and “nations” each

obscure the traditional reach of international law. “International” is de f‌ined in the Oxford

English Dictionary in the manner one might expect: “Existing, constituted, or carried on

between different nations; pertaining to the relations between nations,”8 whereas “inter-

national law” is def‌ined as the law “under which nations are regarded as individual mem-

bers of a common polity, bound by a common rule of agreement or custom.”9 In turn,

the word “nation,” upon which these def‌initions depend, has an ambiguous meaning. It

may be def‌ined as “a people or group of peoples; a political state.” It may also be a “large

aggregate of communities and individuals united by factors such as common descent,

5 Rome Statute of the Int ernational Criminal Cour t, 17 July 1998, 2187 UNTS 3, Can TS 2002 No 13, (1998)

37 ILM 2002, in force 1 July 2002.

6 Convention on the P rohibition of the Use, Stoc kpiling, Product ion and Transfer of Anti-Pers onnel Mines

and on Their Des truction, 18 September 1997, 2056 UNTS 211, Can TS 1999 No 4, in force 1 March 1999

[Landmines Convention].

7 Jeremy Bentham, An Int roduction to the Prin ciples of Morals and Legisla tion (1789) (London: W Pickering,

1823), c XVII at para 2 [emphasis in the original].

8 Oxford Engl ish Dictionary, sv “international,” online: w ww.oed.com [OED].

9 Ibid, sv “law, international law, the law of nations.”

Chap ter 1: The Concept of Inter national Law in Contex t 13

language, culture, history, or occupation of the same territory, so as to form a distinct

people.” Put another way, a “nation” may be a state, or it may not be. The French term

“nation” also includes the dual meaning of its English counterpart: a broad human com-

munity or, alternatively, a political state.

The “State” — in French, l’État — in turn is def‌ined by the Ox ford English Dic tionary

as: “The body politic as organized for supreme civil rule and government; the political

organization which is the basis of civil government. Hence: the supreme civil power or

government of a country or nation; the group of people collectively engaged in exercising

or administering this.”10 The Oxford English Dictionar y also def‌ines “state” as: “A com-

munity of people living in a def‌ined territory and organized under its own government; a

commonwealth, a nation.”11

As for the distinction between state and nation, the two concepts are usually conf‌lat-

ed. Thus, since the twentieth century, it has become commonplace to speak of “nation-

states” — suggesting a coincidence between shared ethnicity, language, and culture, on

the one hand, and the state, on the other. Indeed, the expression “nation-state” is def‌ined

by the Oxford English Dictionary as “[a]n independent political state formed from a people

who share a common national identity (historically, culturally, or ethnically)” and “(more

generally) any independent political state.”12 As we shall see, international law — and in

particular, the twentieth-century doctrine requiring respect for the principle of self-deter-

mination — has tended to fuel this conf‌lation of “state” and “nation,” arguably contrib-

uting to much of the ethnic conf‌lict and bloodshed of the immediate post-colonial and

post–Cold War periods.

In its classic guise, however, international law was very def‌initely not the law governing

relations between “nations” cum peoples. It was — and largely remains — the law among

states, those centralized political institutions able to claim “sovereignty” over a f‌ixed

piece of territory. Thus, the renowned German jurist (and British law professor) Lassa

Oppenheim def‌ined the “Law of Nations or International Law (Droit des gens, Völkerrecht)”

as “ the name for the body of customary and conventional rules which are considered

legally binding by civilised states in their intercourse with each other.”13 Similarly, Stark e’s

International Law tells us that international law is “that body of rules which is composed

for its greater part of the principles and rules of conduct which states feel themselves

bound to observe, and therefore, do commonly observe in their relations with each

oth er.”14 For these reasons, scholars have suggested that, in Bentham’s era, the expres-

sion “interstatal” law, though perhaps less elegant, would have been a more accurate

descriptor than “international” law.15

That said, it would be wrong to view international law exclusively as a code of behav-

iour governing state interaction. As Starke’s International Law also explains, international

law includes “rules of law relating to the functioning of international institutions or or-

10 Ibid, sv “st ate.”

11 Ibid.

12 Ibid, sv “nation-state.”

13 Lassa Oppenheim, International Law: A Treatise, vol 1 (London: Longmans, 1905) at 3, s 1.

14 Ivan A Shearer, ed, Starke’s International Law, 11th ed (London: Butterworths, 1994) at 3.

15 See, for example, Ar thur Nussbaum, A Concise History o f the Law of Nations (New York: Macmillan,

1962) at 136 [Nussbaum].