Lecture 4: History of the development of international law (II)

Question 1

What 2 rules did IL serve for colonialism?

Answer 1

1. Stating conditions for the takeover of new territories
2. Mediated conflicts between colonial powers (e.g. Conference of Berlin 1885)

Question 2

IL’s universalization is inextricably linked with…

Answer 2

The formal and informal spread of European empires

Question 3

What 7 other entities exited under the early “Westphalian system”?

Answer 3

1. Colonies (no sovereignty)
2. Protectorates (entity under protection, given up some autonomy)
3. Private companies chartered by colonial powers, e.g. ‘Congo Free State’
4. Condominiums (governed by 2 powers)
5. Suzerain/vassal (protection, expressed in feudalism)
6. Dominions
7. Leased territories

Question 4

When did the Westphalian state system become hegemonic?

Answer 4

Middle of 20th century

Question 5

Definition: standard of civilization

Answer 5

A putative set of criteria that (usually non-Western) states had to meet before being admitted into the Family of Nations

Question 6

Debate regarding SoC?

Answer 6

Was it an objective and fair set of criteria to be achieved (Gong)

Or a moving goal that could never be achieved (Anghie), permanently classifying non-Western states as 2nd class

Question 7

The 19th century’s emergence of new international legal institutions (IGOs, codification treaties etc.) coincided with what

Answer 7

The shift from natural law to positivism, as there was more state practice to draw on (positivism requires a body of law)

Question 8

What was the first type of entity other than states to have distinct legal personality?

Answer 8

IGOs

Question 9

Definition: Legal personality

Answer 9

Existence acknowledge by law

Question 10

Name 4 of the most important first IGOs and NGOs

Answer 10

1. Central Commission for Navigation on the Rhine
2. International Telegraph Union
3. Universal Postal Union
4. The International Committee of the Red Cross

Question 11

What was an important impetus for the development of IGOs?

Answer 11

Growth in technology to make coordination between states possible (e.g. telegraphs, postal unions)

Question 12

What is a codification treaty?

Answer 12

Consolidating existing (customary) law into one place, one big body of law

Question 13

Why did Jeremy Bentham push for the codification of IL?

Answer 13

He believed it would enhance its binding effect

Question 14

What did the Congress of Vienna (1815) codify?

Answer 14

Laws on diplomatic agents and diplomatic missions

Question 15

What did the First Geneva Convention (1864) codify?

Answer 15

How to treat those not involved in the war, e.g. treatment of wounded combatants and civilians

= beginning of modern international humanitarian law

Question 16

What did the Hague Conventions (1899, 1907) codify? - 3 points

Answer 16

1. Permanent Court of Arbitration
2. Laws of war
3. Prohibition on use of certain weapons

Question 17

The League of Nations (1920) was created by the Treaty of Versailles (191) to maintain world peace through these 3

Answer 17

1. Disarmament (stopping arms race that caused WW1)
2. Collective security (if one country was invaded for no good reason, other countries obliged to help)
3. Peaceful settlement of international disputes, via. Permanent Court of International Justice

Question 18

The League of Nations and the principle of self-determination

Answer 18

Self-determination become the main idea of the LoN, but in practice self-determination did not extend to non-Western people

Question 19

League of Nations’ International Trusteeship - 4 points

Answer 19

1. Created to prevent Germany from keeping colonies after WW1 but also to prevent colonies from gaining independence
2. 3 categories according to the colonized’s “level of civilization”
3. Colonial powers supported with administrative powers to develop colonized countries to a “level of civilization” that allowd them to become independent
4. With the idea that they should all become sovereign states at some point, expressed for the first time in IL

Question 20

The mixed track record of the League of Nations

Answer 20

1. It solved a number of international disputes, combatted epidemics and slavery, resettled WW1 refugees, strengthened IL, concluded disarmament treaties etc.
2. But collective security measures failed to prevent outbreak of WW2

Question 21

3 major failures of the League of Nations

Answer 21

1. Japanese invasion of Manchuria (1931) -> Japan withdrew from the League because commission determined they had no reason to invade
2. Italian invasion of Abyssinia (1935) -> LoN imposed half-hearted, ineffective sanctions that were dropped by most powers in order to try to prevent Mussolini from joining sides with the Nazis
3. Soviet invasion of Finland -> LoN expelled USSR, but had already seized to function

Question 22

What is the idea behind international criminal justice?

Answer 22

That individuals can be held legally responsible for international crimes

Question 23

When (and with what 2) did international criminal law come into being?

Answer 23

After WW2, with:

1. Nuremberg trials: prosecuting leaders of Nazi Germany
2. International Tribunal for the far East: prosecution of Japanese war criminals

Question 24

The defendants in Nuremberg and Tokyo were prosecuted for a whole new body of law, namely these 3

Answer 24

1. Crimes against humanity
2. Crime of aggression (invasion with no good reason)
3. War crimes (incl. genocide that had not been created yet)

Question 25

Name 5 important treaties post-WW2

Answer 25

1. Universal Declaration of Human Rights (1948)
2. Refugee Convention (1951) - often ignored and challenged today
3. General Agreement on Tariffs and Trade (1947)
4. Treaty of Paris (1951) - creation of ECSC
5. NATO (1949)

Question 26

What are the 4 main UN components relevant for IL?

Answer 26

1. General Assembly (non-binding power, soft law)
2. Security Council (enforcement in major breaches of IL)
3. International Court of Justice (settlement of disputes, voluntary cases)
4. International Law Commission (body of experts that promotes progressive codification of IL)

Question 27

Much post-war decolonization took place before…

Answer 27

The emergence of an international norm against colonization

Question 28

UNGA Resolution 1514: Declaration on the Granting of Independence to Colonial Countries and Peoples (1960)

Answer 28

Soft law (not binding) that colonies should gain independence ASAP because having colonies is contrary to IL

Question 29

What happened after UNGA Resolution 1514?

Answer 29

UN became a platform of colonized countries to delegitimize colonialism and promoting that sovereign states are the only acceptable mode of self-determination

Question 30

Uti possidetis juris

Answer 30

=as you possessed

Guiding principle of UN: colonies achieve independence within existing colonial boundaries (with possibility of votes at time of independence if 2 distinct groups did/did not get along)

Question 31

What is the problem with uti possidetis juris?

Answer 31

Boundaries were often artificial and made by Western countries - was meant to prevent civil wars, but many civil wars ensued because of it

Question 32

3 key areas of contention after the Cold War

Answer 32

1. Sovereignty and non-interference vs. protecting human rights and democracy (often non-West vs. West)
2. Institutions do not reflect changes in power, new countries, and the decline of Europe
3. Rules are biased in favor of Western Europe and US, creating questions of the legitimacy of IL