The Concept of International Law in Context

AuthorJohn H. Currie; Craig Forcese; Joanna Harrington; Valerie Oosterveld
The Concept of International Law in Context
For many years, the study of international law in common law countries was surprisingly
ahistorical and markedly theory poor. Scholars of international law and international rela-
tions were traditionally preoccupied with what were viewed as monolithic states, sometimes
ignoring the intra-state nuances emphasized by their domestically focused counterparts in
the elds of domestic public law and political science. In its crudest form, international law
was viewed as what states do, while international relations, in their crudest and most sim-
plistic form, were viewed as manifestations of the whims of hegemonic states. Put these
two approaches together and international law was what powerful states wanted it to be.
For those taking this perspective, there was little need for theory or anything 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.” “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 , “we are going to
kick some ass.” On the other hand, a state’s ability to inuence other states can be negatively
aected by its perceived failure to abide by international law. US President Barack Obama
acknowledged, upon his acceptance of the  Nobel Peace Prize, that no state “can insist
that others follow the rules of the road if we refuse to follow them ourselves.”
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, conrming prior authorization of) their invasion of Iraq in . Nor is inter-
national law controlled by such states. If it were, the campaigns to create the International
See, however, Alexander Orakhelashvili, ed, Research Handbook on the Theory and History of International
Law (Cheltenham, UK: Edward Elgar, ); Bardo Fassbender & Anne Peters, eds, The Oxford Handbook
of the History of International Law (Oxford: Oxford University Press, ) [Fassbender & Peters]. See
also generally the Journal of the History of International Law / Revue d’histoire du droit international.
Cited in Wilhelm Grewe, “The Role of International Law in Diplomatic Practice” ()  J Hist Int’l L
 at .
Richard A Clarke, Against All Enemies: Inside America’s War on Terror (New York: Free Press, ) at .
Barack H Obama, “A Just and Lasting Peace,” Nobel Lecture, Oslo, Norway,  December ,
Criminal Court and ban the use of anti-personnel landmines 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
believe, by investing some eort in examining history and theory so as to provide context.
Accordingly, in this chapter we undertake three tasks: rst, we oer a denition of inter-
national law, one that probes several dierent 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 and international relations theory, we examine the question: does inter-
national law matter?
1) International Law as the Law Among States
“International law” is simple to dene but dicult to explain. The actual expression “inter-
national law” is usually attributed to Jeremy Bentham, in his Introduction to the Principles
of Morals and Legislation (). 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, suciently analogous and intelligible. It
is calculated to express, in a more signicant way, the branch of law which goes commonly
under the name of the law of nations.” The “law of nations” is, therefore, the classical 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 meaning:
the law as between nations. However, they may also obscure international law’s traditional
reach. “International” is dened in the Oxford English Dictionary in the manner one might
expect: “Designating or relating to relations between two or more nations or organizations
made up of nations…,” whereas “international law” is dened as the law “under which
nations are regarded as individual members of a common polity, bound by a common rule
of agreement or custom.” But the word “nation,” upon which these denitions depend,
has an ambiguous meaning. It may be dened 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, language, culture, history, or occupation of the same territory, so
 Rome Statute of the International Criminal Court,  July ,  UNTS , Can TS  No , ()
 ILM , in force  July .
 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines
and on Their Destruction,  September ,  UNTS , Can TS  No , in force  March 
[Landmines Convention].
 Jeremy Bentham, An Introduction to the Principles of Morals and Legislation () (London: W Pickering,
), c XVII at para  [emphasis in the original].
 Oxford English Dictionary, sv “international,” online: [OED].
 Ibid, sv “law, international law, the law of nations.”
 Ibid, sv “nation.”
Cha pter : T he Concept of Internation al Law in Context 13
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 community or, alternatively, a political state.
The “state” — in French, l’état — in turn is dened by the Oxford English Dictionary as “[t]he
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.” The Oxford English Dictionary also denes “state” as “[a] commonwealth or polity”
and “[a] community of people living in a dened territory and organized under its own gov-
ernment; a commonwealth, a nation.”
As for the distinction between state and nation, the two concepts are usually con-
ated. Thus, for much of the twentieth century, it was 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 dened 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); (more generally) any
independent political state.” As we shall see, international law — and in particular, the prin-
ciple of self-determination — has tended to fuel this conation of “state” and “nation,” argu-
ably contributing to much of the ethnic conict and bloodshed of the immediate post-colonial
and post–Cold War periods.
In its classic guise, however, international law was denitely not the law governing rela-
tions between “nations” cum peoples. It was — and largely remains — the law among states,
those centralized political institutions able to claim “sovereignty” over a xed piece of terri-
tory. Thus, the renowned German jurist (and British law professor) Lassa Oppenheim dened
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. Similarly, Starke’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 com-
monly observe in their relations with each other. For these reasons, it has been suggested
that, in Bentham’s era, the expression “interstatal” law, though less elegant, would have been
a more accurate descriptor than “international” law.
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 organizations,
their relations with each other, and their relations with states and individuals” as well as “cer-
tain rules of law relating to individuals and non-state entities so far as the rights and duties of
such individuals and non-state entities are the concern of the international community. A
similar acceptance of the widening of international law can be found in subsequent editions
 Ibid.
 Ibid, sv “state.”
 Ibid.
 Ibid, sv “nation-state.”
 Lassa Oppenheim, International Law: A Treatise, vol  (London: Longmans, ) at , s .
 Ivan A Shearer, ed, Starke’s International Law, th ed (London: Butterworths, ) at  [Shearer].
 See, for example, Arthur Nussbaum, A Concise History of the Law of Nations (New York: Macmillan,
) at  [Nussbaum].
 Shearer, above note  at .

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