Lecture 1

Question 1

What is IL?

Answer 1

• Definition = International law is the body of rules that states consider binding in their mutual relations.
• Law can be understood as
  o A set of rules A professional practice (cf Sir Ian Brownlie’s bank account) An independent social phenomenon An epiphenomenal reflection of power.

Question 2

Is IL really law?

Answer 2

o Compared to municipal law (domestic law), international law has many distinctive features. As a result, many lawyers have traditionally rejected the idea that international law is really law.
o Traditionally, international law is said to have: Based on voluntary adhesion (in most cases). Weak or no enforcement mechanisms (although increasing legalization?). Rules are few in number and vague (again, is this changing?).
o If law is… Sovereign command backed by the threat of sanctions (Austin), international law is probably not law. If law is about a rule identifying which rules are law (Hart’s rule of recognition), international law is… maybe law?
o Many IR scholars today will speak of “hard law” (law as traditionally understood by most people; usually in the form of legally binding treaties) and “soft law”.
o Soft law: “a variety of non-binding normatively worded instruments used in contemporary international relations by States and international organizations”.
o But does the expansion of the definition of law dilute the distinctive nature and authority of legal rules?

Question 3

Study of politics and IL

Answer 3

• International law has always been studied as part of the study international relations. But the relationship between the two has often been contentious.
• From its origins after the end of the First World War to the Second World War, IR had a strong legalist bent. International law was viewed as a key to securing world peace, culminating in the Kellogg–Briand Pact of 1928 which “outlawed” war. But the experience of the Second World War provoked a breach between the two disciplines.

Question 4

Hans Morgenthau

Answer 4

= “during the four hundred years of its existence international law has in most instances been scrupulously observed. When one of its rules was violated, it was, however, not always enforced and, when law enforcement action was actually taken, it was not always effective… There can be no more primitive and no weaker system of law enforcement than this; for it delivers the enforcement of the law to the vicissitudes of the distribution of power between the violator of the law and the victim.”

Question 5

Louis Henkin

Answer 5

“It is probably the case that almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time.”

Question 6

Post war era international lawyers

Answer 6

o Emphasized international law’s separation from politics; Focused on studying specific legal rules and decision-making processes (“doctrinal scholarship”).

Question 7

International relations scholars meanwhile

Answer 7

o Ignored international law, even when it overlapped with their topics of interest; Spoke of “regimes”, “norms”, “institutions” etc, instead of using the dreaded L-word.

Question 8

Paradox IL & IR scholars

Answer 8

• Paradoxically, just as international law’s prestige among IR scholars (and arguably many practitioners) was at its lowest ebb… international law underwent an explosive growth. Key international institutions/treaty/regimes (UN, GATT/WTO, EU, etc) were born after the Second World War. Does this prove international law’s resilience? Or its derivative status from power relations?

Question 9

Since the cold war………

Answer 9

• Since the end of the Cold War, there has been a partial rapprochement between international law and international relations. But the study of international law qua politics still takes a distinct approach from the study of international law qua law. Be mindful of the perspective of the author when you do the readings.

Question 10

To summarise

Answer 10

• International law is a distinct body of rules, practice, etc, which in some respects differs significantly from what people generally think of when they think of law. International law and the study international relations have a long-standing, but convoluted and ambivalent relationship. International relations scholarship approaches the study of international law in a distinctive manner from the approach generally taken by international law scholars.