Week 1 - History and Nature of PIL Flashcards
What Event is the Start of Modern PIL?
Peace of Westphalia (1648)
What terminated in the Peace of Westphalia?
The Thirty Years’ War (1618-48); sparked by Protestant Reformation
What were the results (2) of the Peace of Westphalia?
1) The pope lost secular power over States’ internal affairs
2) move away from IL rooted in Christianity (Nussbaum)
Problems (2) with ‘Westphalia Thesis’ (as origin of IL)
1) Westphalia Thesis focus too much on conceptual basis, rather than function of IL (treaties, jurisdiction, immunities) which goes back millenia (Lowe)
2) Eurocentric
De Vattel (1714-67) proponed what doctrines (2)?
1) Equality of states irrespective of relative power (rebuttal of Wolff)
2) Positivism
Wolff (1679-1754) proponed what doctrine?
One overarching ‘supreme state’ bringing together all nations in ‘following the leadership of nature’
When was Congress of Vienna established?
1815
Significances (3) of Congress of Vienna?
1) First time ‘Great Powers’ could intervene for peace
2) States now had responsibilities under IL
3) based on presumption that values needed safeguarding through IL (peace and balance of power)
What is Positivism in IL?
only laws consented to by states were valid (only states could create IL)
When and why did positivism dominate IL thinking?
1) 19th century
2) Vitoria, Grotius, Vattel and Enlightenment ideas
Consequences (3) of positivist thinking in IL?
1) abandonment of natural law based in Christian universalism (less focus on morality and ethics)
2) IL became instrument to achieve political goals (rather than the source of them)
3) increased state cooperation (International Telegraphic Union, Geneva Convention, Hague Peace Conferences)
How did EUR lawyers advance IL (Koskenniemi) in 19th cent (3)?
1) depoliticised and professionalised themselves (politically/diplomatically neutral)
2) IR particpation limited to Christian states
3) USA + S.AMER only participate as EUR off-shoot
Positive Role of IL in Colonialism (4)?
1) Vitoria: claim to limit SPA colonisation in S.AMER
2) Grotius: some resources cannot be appropriated (sea)
3) 1807: GB abolish slave trade and intervened on foreign ships
4) 1884: Congress of Berlin: standards of treatment of native pops
Negative Role of IL in Colonialism (5)?
1) Terra Nullius: non-christian inhabitants did not posses land
2) end 19th: indigenous pops not sovereign but capable of unfavourable trade deals
3) Grotius: freedom of sea facilitated colonisation
4) slave trade explicitly lawful until Brussels Conference 1890
5) 1884 Berlin Conference: facilitate scramble for AFR
What is Charlesworth’s argument?
IL’s history should not only be told through crises and conflicts as it justifies status quo
How did WWI shift dominance of International Order?
Now USA play larger role (not just EUR)
When was Covenant of LoN signed?
1919
Weaknesses of LoN (2)?
1) Lack of Support from crucial powers
2) Failed to prevent WWII
From which states did LoN lack support (4)?
1) USA (not member to avoid ‘foreign entanglements’)
2) USSR only join 1934 (communism) and expelled 1939 (invade FIN)
3) GER (only admitted 1926 and withdrew 1933)
4) JAP (withdrew to invade MAN)
5) ITA (withdrew to invade ABY)
When was Charter of UN signed
1945
Permanent Members of UNSC (5)?
1) CHI
2) FRA
3) UK
4) USA
5) RUS
What are the Three Pillars of the UN?
1) Prohibition on Use of Force (Art 2(4))
2) Promotion of International Cooperation
3) Self-determination and Sovereignty of Former colonies
How did international order revitalise after fall of USSR (4)?
1) UNSC authorised interventions in KUW, SOM, BOS-HER, YUG and HAI
2) ICJ decide more cases 1990’s-2000’s than entire lifespan + PICJ
3) ECHR was created
4) ICC, ICTY, ICTR were created
UNC provision recognising sovereign equality
Art 2(1) UN Charter
2 Dimensions of Sovereignty
1) Inwards-facing: exclusive power over subjects in territory
2) outwards-facing: freedom from interference from other states
What are the 2 types of state-consent and who describes them?
1) Express consent
2) Tacit consent (implied)
Described by Lauterpacht
Verdross and Simma’s challenge to consent-based view of IL
a ‘shapeless consensus’ binds states. IL goes beyond state consent and includes ‘original norms’ required for law-creation
Anne Peters’ challenge to consent-based view of IL
IL has undergone ‘humanization’. Thus, turned into sustem focused on interests of individuals
Who rejects Anne Peters ‘humanization’ theory
Combacau: IL is only the acts of the state without any overarching structure.
Example of Natural law notions in IL
Marten’s clause in IHL: if no rules governing the situation people must be treated according to public conscience
Is IL a legal system according to Austin?
No, since there is no sovereign
Critical views (5) of IL as Legal System
1) No compulsory enforcement (Morgenthau)
2) No courts with compulsory jurisdiction
3) Limited number of rules
4) IR: IL is the result of international politics
5) IL is western/eurocentric
Arguments in favour of IL as legal system (5)
1) States feel bound by IL
2) IL is not just vocabulary but the grammar of IR
3) International interdependence creates reciprocity (as enforcement mechanism)
4) IL might have gaps but is also highly developed and increasingly fragmentised
5) Courts are not the only enforcement mechanism (monitoring bodies under treaties, and UNSC)
What is TWAIL?
Third World Approaches to IL.
It focuses on IL’s colonial history and how this has shaped current society
What is the Feminist Critique of IL?
Focus on how IL is a vehicle for male freedom to the exclusion of female decision-making and involvement
What is the Marxist approach to IL?
It challenges the capitalist foundations of IL
What are the IR perspectives on IL?
1) Realism
2) Institutionalism
3) Network Theories of Transnational Communication
4) Constructivism
What is Realism and who propones it (1)?
1) Sees law as secondary. Focus on states’ struggle for power
2) Guzmán
What is Institutionalism and who propones it (1)?
1) institutions compel states to respect the law
2) Keohane
What is Network Theories of Transnational Communication and who propones it (1)?
1) individuals are primary actors in IOs and society
2) Slaughter
What is Constructivism and who propones it?
1) IL is simply a vocabulary used to justify behaviour
2) Toope
What is Dualism and who propones it (1)?
1) Focus on sovereignty and distinctiveness of municipal law
2) Triepel
What is a problem with dualism (1)?
Better fit historically when IL and ML did not overlap. Now (e.g.) HR makes the formalism inconvenient.
What is Monism and who propones it?
1) coherent and unified relationship between IL and ML
2) Kelsen
Who criticises the monism-dualism dichotomy and how?
1) Crawford
2) neither accommodates the practice of international and national courts
Does monism-dualism tell us anything about IL’s nature?
Arguably not since it is more about how the individual state understands it relation to IL
Who debates whether a third alternative to dualism-monism exists (2)?
1) Kelsen: no middle way is possible
2) Fitzmaurice: IL and ML are distinct systems. Breaches of IL through ML simply creates state liability
Which case supports Fitzmaurice’s middle-way theory
Nottebohm - ICJ only look at international effect of LIEC’s naturalisation (not domestic validity)
What happens when ML breaches IL (and which case informs us)?
1) LaGrand
2) ML is not invalidated but state is liable under StateRes
