Public International Law – Amann Fall 2014
International Law Theories
Early Theories
I. Historical Underpinnings:
a. Fall of Holy Roman Empire: brought about collapse of nominally centralized order in Europe and foreshadowed the need for a different legal system
i. Independent & Universalist: with the fall came the rise of independent powers in limited specific jurisdictions, and the need to regulate their coexistence and relations
1. Universalist: old system; subordination and super-ordination under the reign of one emperor and pope
2. Independent: rise of feudalistic entities in a system of coordination among sovereign rules
b. Principle of Territoriality: one sovereign ruler as the basis of the state, created legal consequences…
i. Absolutism: absolute power & exclusive jurisdiction of one ruler in his/her territory
ii. No Interference: prohibition of interference by other monarch in state’s internal affairs
iii. Immunity: sovereign cannot commit a legal wrong; immune from civil/criminal suit
iv. Diplomatic Equality: equality among states in diplomatic practice and of the principles regulating this practice
c. Resolving Disputes: need more!
i. War: at this time, war is seen as morally neutral way of resolving disputes b/w nations
ii. Law: rise of a legal system to resolve dispute based on following theories
II. Divine Naturalism – School of Salamanca [Spain 1400-1500s]
a. Defined: regulation of relations b/w nations and peoples governed by law that is inherent to all by virtue of its divine source
i. Universal: b/c the divine is the source of the power/law à universally applicable
ii. Colonialism: developed due to state’s actions, i.e. Spain was colonizing, conquering, and stripping lands of resources à need justification for harming others
iii. Spanish Priests: Francisco de Vitorio & Franciso Suarez
b. Just War Theory: violence must meet religious or philosophical ends/goals
i. Absolutism: sovereign ruler has divine right, can do no wrong à answers only to God
1. NB: provides naturalism w/a source of authority missing in positivism
ii. Civilizing Mission: exporting religion as part of their way of life, justifies brutality as a duty to spread the gospels as a better form of life or lifestyle
c. Modern Application: divine naturalism and just war theory still exists today in US policy
i. Spread Democracy: presumption that democracy is a better form of life à duty to let other people share in democracy à justifies presence/interference w/other states
ii. Just War Theory: used by both President Bush (Iraq) and Obama (Libya)
III. Secular Positivism – Alberico Gentili [Italy 1500-1600s]
a. Defined: law is created by humans for definite conditions and purposes rather than by some supreme being for all eternity
i. Affirmative Action: law develops through positive/affirmative action, i.e. doing something to make it, as opposed to “God told me, and I know”
1. Statute/Treaty: people got together and affirmatively made law; wrote it down
2. Common Law: softer, but still judge made law, i.e. they did something
ii. Secular: Italian Alberico Gentili à emphasizing secular nature of int’l law
b. Process Problem: pure positivism isn’t grounded in faith/word of god à doesn't necessarily bend toward justice, i.e. law is only justified by affirmative action/acceptance
i. Nazi Germany: followed positive process, and yet got the fuckin Holocaust
ii. US Constitutional Law: analogy to the tyranny of the majority
IV. Eclectic School – Grotius [Netherlands 1500-1600s]
a. Defined: foundation of international law is a combination of natural and positive law
i. Synthesis: avoided commitment to a particular religion b/c int’l law must be acceptable to all in order to be effective
1. Positivism: law is made through affirmative human actions, but requires
2. Natural Rights: rights we all agree, i.e. moral element derived from naturalism
b. Doctrines: developed by Grotius that are still relevant today
i. Laws of War: applicable to all parties regardless of the justness of the war
ii. Freedom of Seas: see below
iii. Extraterritoriality of Ambassadors: exempting diplomatic agencies/persons operating in a foreign country from the jurisdiction of the host country
V. Neoclassical Realism – Nature and Person of Sovereignty [Hobbes Leviathan]
a. See below
Family of Nations – 19th Century Colonization
I. Family of Nations – Rise of the State
a. Historical Underpinnings
i. End of Absolutism: the American/French Revolutions changed perspective of the state, now more identified w/its people, rather than w/the person of its monarch
ii. Doctrine of Justification: developed to justify acquisition of territory by colonial powers
b. State Sovereignty: state becomes subject of international law (rather than divine rule) and is sovereign as a representative of the collected people of the nation
i. Legal Personality: way of talking about, in courts of law or negotiation of treaties, what persons/entities deserve a seat at the table
ii. Artificial Persons: entities that can use legal rights w/o physical existence
1. US Law: corporations are artificial entities that can use legal rights
2. Intl Law: states, as artificial collective of people, have legal rights
c. Family of Nations
i. Elements from Amann
1. Civilized: Europeans; those states that follow the Judeo-Christian moral tradition
2. Territory: state must control territory
3. Consent: state must consent to belong to society
4. Community: needs to consent to the state belonging à mutual relations among states in society
II. Theories of the Family of Nations
a. Eurocentric (Oppenheim): int’l law only exists amongst the family of nations, i.e. mutual relations among states in society
i. Exclusivity: entrance into the family of nations is based on common consent, requires…
1. Civilized: state is in constant intercourse w/members of the Family of Nations
a. Shared Values: Europeans; Judeo-Christian moral tradition
b. Stability: these shared values are what stabilizes the law
2. Individual Consent: state must consent to be bound, expressly or tacitly, for its future int’l conduct by the rules of int’l law
3. Family/Common Consent: all other members of the Family must, expressly or tacitly, consent to reception of the new member state
a. NB: this is the lynchpin for entrance really
ii. Dismembered Territory: territory need not only consist of the motherland, colonial states rank as territory of the motherland, though they have complete self-government
1. “Civilizing Mission”: there is no law outside the family, if not in the family you do not exist à justifies colonial mindset b/c non Europeans must join to get law
a. Terra Nullius: no man’s land; territory outside family is a law free zone
i. Individuals: often rely on int’l law to assert claims in domestic and int’l for a
ii. Tribunals: domestic and int’l regularly apply int’l to decide disputes
c. Spectrum: question of where int’l falls on spectrum of obligation
i. No Obligation: deviations may be so great that parties see no law at all, and therefore no obligation or fear of consequences when they disobey
1. Terrible Consequences: Syria 200k dead à often see there as being no int’l law
ii. Obligatory: more than popular discourse suggests
1. Generally Followed: “Most states in the world, obey most of the public int’l law, most of the time.” ~ Lou Hankin
II. Sources of International Law: Statute of the Int’l Court of Justice, Art. 38
a. Int’l Conventions: general/particular, establishing rules expressly recognized by parties
i. Charter of United Nations: law the ICJ starts with for making its decisions
ii. International Conventions: treaties b/w states, take many names w/diff connotations…
1. Charter: suggests it's a founding document
2. Statute: often used when setting up a court
3. Covenant: carries religious tone for fundamental laws à gives more oomf
4. Convention: typically multilateral, lots of countries agreeing on principles
b. Customary International Law: int’l custom, as evidence of general practice accepted as law
c. General Principles: of int’l law recognized by civilized nations
i. Catch-All: used when treaties and customary int’l law fail to offer needed rule
ii. Comparative Law Analysis: proposition of law so fundamental that it will be found in virtually every legal systemà presumed that principle should be attributed to fill the gap
d. Judges & Publicists: judicial decisions and the teaching of the most highly qualified publicists (scholars) of the various nations, as subsidiary means for determination of rules of law
i. “Subsidiary Means”: this is your last resort
1. Implicitly Lower: listed after other three à given the lowest status
2. Modern Role: often suggested that the role for judges & scholars is collecting data necessary to establish/explicate rules dawn from the other three sources
ii. “Judicial Decisions”: looking to decisions of int’l courts that are authoritative
1. ICJ: int’l organization w/famous judges à if they say law is x, it’s authoritative
2. European Court of Human Rights: another big/established court w/authority
3. Highest Courts in Nations: may be authoritative if speaking about int’l law
a. Paquete Habana: explicitly stating looking at works of jurists and commentators well acquainted w/the subject
iii. “Qualified Publicist”: doctrines and words of academic scholars
1. Treaties: applies in particular regard to treaties
2. Discomfort: b/c scholars aren’t necessarily impartial, nor necessarily accountable
