Lecture notes International Law & Human Rights

L1 – INTL LAW AND INTL RELATIONS
1. Situate international law into a broader historical trajectory
o Empires replaced with states/nation-states
o 2nd wave of ‘civilised family of nations’ (LoN), decolonisation
o Content sits at the end of where we left off in global history
2. Analyse the dynamics between IL and intl politics
3. Identify core controversies and debates in IL
4. Deconstruct the methodological commitments of IR theories about IL
5. Apply IL to simple cases
COURSE STRUCTURE
 Part 1: theories and histories of IL
 Part 2: structures and mechanics of IL
 Part 3: core issues of IL
WHAT IS LAW?
 Law – the recognised, mostly codified, legitimate standard of behaviour that binds community
together
Law tends to have 3 specific characteristics:
1. Law is universal (applies to everyone equally) (used to be sovereign power given from God,
but now sovereignty)
2. Law is coercive (transgressions and violations are punished) (if we have a legal system but it
isn’t implemented, we need to question its validity)
3. Law is open: individuals can establish their own relationships within the law and shape it
WHY HAVE LAW?
Large societies need formal rules that can be enforced because
 You can make long-term decisions (establishes the relationship between e.g. uni and the time
frame for finishing our degree)
 Brings order (otherwise undermined)
 Predictability of outcome (2 cases are substantially similar and have a substantial outcome
after running them through the legal machinery)
 You can trade with people who are far away (basic confines of IL origins: the first true IL is
private IL, roman law, which was specific trade law, allowing groups of people from different
nations to trade with each other)
 There is someone to enforce the rules when you have a dispute
WHY IN IR?
 IR is the study of relations between actors across national borders
 IL informs foreign policy decisions
 IL is a way of solving problems with a global scope
o The fundamental idea of IL was to establish peace, push violence to the
margins/curbing war and solving conflicts diplomatically
 IL has expanded significantly in the last century and continues to accelerate
o Only became formalised in the 80s, used to exist in the margins
o Enters legal scene and IR scene because of globalisation in the 90s and trade done
across boundaries needs dispute resolution that isn’t reliant on domestic courts
 IR scholars have to engage with public IL

,IL AND FOREIGN POLICY
 IL has played an outsized role in informing foreign policy
o Pres Coolidge, 1920
 Key aim of public policy is to reduce “domestic and foreign relations to a system of laws”
 Pres Obama’s national security strategy: “strengthen enforcement of IL and our commitment
to engage and modernise intl institutions and frameworks. Strengthening of intl norms and
enforcement of IL is not a task for the US alone—but together with like-minded nations, it is a
task we can lead”
o Not the first to apply this idea: UK implementing a legal code across the world and
disregarding the differences across the globe (e.g. British people who never left the
UK and writing penal codes for a society they had never seen or interacted with, based
simply on their ability to make laws)
o Comes with a certain baggage: US taking over = considers themselves not as an
imperial force (came about through anti-imperial struggle)
WHAT IS INTL LAW?
There are 2 types of IL
 Public international law – a set of rules states create to regulate and order their own behaviour
and that are intended to bind states in their relationships with each other
 Private international law – areas of conflict between national laws and international actors
Public international law
 PIL is what IR scholars study when they say IL
 PIL is what we are looking at in this course
 PIL is what you would intuitively consider to be ‘international law’
 PIL are for instance: human rights, world trade organisation
Private international law
 Covers areas dealing with the clash of domestic laws and domestic laws with international law
 Traces its history to Roman law and has not been the focus of IR scholars
 Focuses on businesses that have contractual obligations in multiple countries and jurisdictions
 Focuses on legal disagreements between private parties
 Dispute settlement (arbitration) outside of domestic legal frameworks
INTL LAW IS NOT DOMESTIC LAW
 Domestic law – formal rules with some type of enforcement
o Sovereign makes law and uses force to make people comply
 International law
o There is not one sovereign = no sovereign
o Can’t use force to ensure compliance, so force plays a limited role
o Other forms of sanctions required to make states comply

THEORIES OF IL IN IR
Theoretical perspectives have very different views of IL; They disagree about what motivates actors
Realist approaches
 Analytical focus on state power and state interest
 Intl law reflects power and interest of states

,  There is no need to explain proliferation of legal agreements as the question is not central to
world politics
 Compliance of states to IL is seen as an expression of their national interest
 IL is inconsequential and only epiphenomenal to power and self-preservation
Functionalist/rationalist approaches
 Look at the world: it is organised in large cooperative structures  so, nation states must care
about IL
 States enjoy order and the benefits that come from cooperation over time
 States spend money and time justifying their actions
 They accept the central realist tenet of rational egoism but argue that realists have focused on
too short-term gains too narrowly
 Interest isn’t a zero-sum game, all states can win if they cooperate
 International law matters
Constructivist approaches
 Focus less on materialistic and strategic approaches to theorise IL and more on sociological
and contextual views
 There is an inherently sociological nature of the development of intl regimes
 Understanding the actors’ purpose and intentions is central to understanding the existence and
operation of it
 IL reflects and informs struggles over intl legitimacy
 IL is a reflection of social purpose
Marxist approaches
Critical approaches
WHY DO STATES SIGN INTL LEGAL AGREEMENTS?
 Realism: primarily for cynical reasons, little expectation of compliance
 Functionalism: states want to realise joint future gains
costs of committing are lower than benefits to be gained
 Constructivists: states commit because they are persuaded of the appropriateness of such
action and to fashion themselves as a legitimate state
HOW IS INTL LAW IMPLEMENTED?
 Different legal systems absorb international law in different ways
 There are 2 broad theories of understanding the interaction of international and domestic law:
1 - Dualism (Heinrich Triepel)
 Mainly prevalent in common law jurisdictions (UK, US, India)
 Emphasizes the difference between national and international law
 For IL to be valid it has to be adopted and translated into national law (through legislature,
sovereign)
 National law has priority over IL that hasn’t been incorporated
 In more extreme cases, dualists hold that IL doesn’t exist as law
o Strong school that still holds sway in many jurisdictions

2 – Monism (Hans Kelsen)
 Mainly prevalent in civil law jurisdictions (e.g. NL, DE, FR, IT)
 The intl legal framework and the internal legal system form a unity

, o Had Roman law as the fallback for dispute settlement/jurisdiction, it was always much
easier to accept an external corpus of law to revert to if they cannot adjudicate
 In a Monist state, IL doesn’t need to be translated into national law  it has direct domestic
effect
 At extremes, there is a hierarchy of law, with IL at the top and domestic law below
(supersedes domestic law)
NATIONAL LAW FROM AN IL PERSPECTIVE
 Vienna convention on the law of treaties, 1969
o Ratified by 35 states
 According to VCLT national law cannot be invoked to justify
noncompliance with IL
 Article 46 (VCLT): a state may not invoke the fact that its
consent to be bound by a treaty has been expressed in violation of a provision of its internal
law regarding competence to conclude treaties as invalidating its consent unless that violation
was manifest and concerned a rule of its internal law of fundamental importance
LaGrand case (Germany v USA) 2001
 Famous case decided by ICJ
 Germany had grievance: US death sentence of brothers (bank robbery) who were also German
citizens (unbeknownst to them), and Germany wanted to seek consular representation and the
US didn’t allow them
o If a citizen is arrested abroad, they can be provided with legal advice from a
representative from their country (consular or representation)
 Germany brought the case up to the supreme court, who also said they had no standing, and
eventually brought it to the ICJ
o ICJ reaffirms Germany’s right to seek consular representation

Avena case (Mexico v USA), 2004
 “The rights granted under the convention (on consular relations) are treaty rights which the US
has undertaken to comply with in relation to the individual concerned, irrespective of the due
process rights under the US constitutional law” (§139)
Germany v Poland (1926), PCIJ
 “International Law is a primitive type of law resembling the kind of law which prevails in
certain preliterate societies, such as the Australian aborigines and the Yurok of Northern
California. It is a primitive type of law primarily because it is almost completely decentralised
law. It is decentralised with regard to the three basic functions which any legal system must
fulfil: legislation, adjudication, and enforcement.”
 Nationalisation tribe
 Empirical rule protecting and securitising minority rights (esp. property ownership of
Oberschlesische Stickstoffwerke)
 Germany brings case against Poland that this was illegitimate and this should have remained
in German hands
how does domestic law look in the framework of intl law?
 From the perspective of intl law, domestic law is more of an admin act, and intl law is really
about the treaties signed and their interpretation (domestic laws cannot be in conflict e.g. with
the Geneva convention)
1. This was repeated in the LaGrand case and the Avena case)