The concept of international law in context

AuthorJohn H. Currie, Craig Forcese, Joanna Harrington, Valerie Oosterveld
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: izes/peace/laureates/2009/obama-lecture_en.html.
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?
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 [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].

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT