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Author: Jane Doe

Required knowledge: Link

Learning objectives: Gaining enough background-knowledge on international legal history to understand the references to histories in the following sub-chapters and other chapters of the book.

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A. Introduction

Scholarly disciplines and fields of expertise more generally are constituted through how they tell their own history. Therefore, it is impossible to understand public international law both as a field of study and as an area of practical expertise without understanding its history. This does not mean that one can 'uncover' the 'true nature' of international law by finding a fixed origin or reveal the right way of interpreting specific legal doctrines by looking at their origins. In her book on International Law and the Politics of History, Anne Orford has powerfully laid out why international lawyers' thirst for certainty cannot be quenched by turning to history. What turning to history can do, however, is teach us something about the predominant self-images of the discipline through the way it habitually tells its own history. These self-images play such a crucial role in international legal histories that one may go as far as calling them 'fan fiction'. Of course, histories of international law also teach us something about how certain rules, institutions, concepts, doctrines, and apparent truths were created, and about how the law contributes to carrying 'past' injustices into the present. Perhaps most importantly, learning about how international law came about and about how it contributed to domination, exploitation, and injustice more generally means learning about how the world can be changed for the better.

To this end, the overall approach of this book is to include historical contextualisation in all parts of the book. The purpose of this chapter on the history of international law is to provide the necessary background knowledge to be able to connect these specific historical contextualisation and to place them in a broader picture. To this end, this introductory sub-chapter, first, offers some brief observations on the different ways in which international law as a discipline conceives of its origins, as well as on different ways in which 'origin stories' of individual areas of international law can be told. Second, it expands on some of the most important turning points, which mark a 'before' and 'after' and which are often referenced when talking about the development of important areas of international law. Third, it offers a glimpse into the contradictory nature of international law and its history, by introducing an account of the history of international law as a history of both empire and resistance. The following sub-chapters will then expand on selected topics, which are particularly important for understanding influential accounts of international law's origins, turning points, and contradictions. The origins of international law are further scrutinized in the sub-chapter on founding myths, while important turning points and accounts of domination and resistance are discussed in more detail in the sub-chapters on the nineteenth century and on decolonisation.

B. Origins and International Law

Histories of something necessarily have to start somewhere. Different approaches to history as a discipline and to using history in international law are partly characterised by different ways of both choosing the starting point and portraying the role of this starting point. The standard way of telling the history of international law consists in presenting a starting point that offers a foundation to international law, a point in time that reflects international law's 'original identity', thus assuming ‘the existence of immobile forms that precede the external world of accident and succession’. The most popular starting point in this sense consists of the combination of Hugo Grotius' work De jure belli ac pacis (Latin: Of the Law on War and Peace) in 1625 and the Peace of Westphalia in 1648. This typical starting point in telling the history of international law also typically coincides with a conception of history as an endeavour that portrays 'how it really was' in the past. A different way of conceiving of origins consists in searching for starting points not as points in time marking the 'birth' and foundation of something, but rather as the circumstances that best explain the emergence, formation, and heritage of something. International legal scholars who rely on a (loosely) Foucauldian notion of 'genealogy' adopt this latter stance towards origins. A third way of engaging with history rejects such origin stories altogether, arguing that events, ideas, and people of the past have to be examined not for what they brought about but for the role they played in their own time. However, as Anne Orford has famously remarked, lawyers are typically trained to make meaning move through time.

Moreover, choosing a starting point for the history of international law one wants to write presupposes that one knows, at least roughly, what international law is. If international law is understood as the law that governs the relationship between sovereign States, then the starting point in the history of international law has to depict how States and sovereignty emerged and how and when they started to have relationships governed by law. If international law is, more broadly, understood as the law of global encounters, then one may conclude that the encounters that shaped the laws continuing to govern global encounters today emerged not (primarily and exclusively) in encounters between States, but between Empires such as the Spanish, Portuguese, Dutch, and British Empire and between one or more of these Empires, the people living on the land these Empires sought to conquer, and the companies they sponsored to carry out these conquests.

[Reflections on origin stories of individual branches]

C. Turning Points in the History of International Law

I. Portuguese and Spanish Colonial Conquest and the Treaty of Tordesillas (1494)

As pointed out above, one way of telling the history of international law is as a history of colonial encounter. The first period of European colonialism was marked by a rivalry between Portuguese and Spanish conquistadores (Portuguese and Spanish: 'conquerors'), who were sponsored by the respective monarchs to 'discover' and conquer the rest of the world. While the Portuguese, over the course of the fifteenth century, sailed the Atlantic coast of Africa and reached the Indian Ocean by these routes, the 'Catholic Monarchs' Isabella I of Castile and Ferdinand the II of Aragon provided funds for Christopher Columbus' plan to find a way to the Indies by sailing westward through the Atlantic. Instead of India, Columbus reached the island named Ayiti or Quisqueya by its Taíno inhabitants, but which Columbus claimed to have 'discovered' and proceded to call 'Hispaniola', a Latinized way of saying 'Spanish'. The 'discovery' of this island and other islands in the Caribbean during Columbus' first expedition propmpted the Catholic Monarchs to seek the support of Pope Alexander VI for their claim to the 'New World' immediatley after Columbus' return in 1493. After ongoing colonial rivalries between the Spanish and Portuguese monarchs and respective papal bulls and treaties, the details of which cannot be recounted here, the Catholic Monarchs on one side and Joao II, King of Portugal, on the other side, divided up their speheres of influence in the Atlantic by agreeing on a new demarcation line in the Treaty of Tordesillas, which was signed on June 7th, 1494. The Treaty of Tordesillas marks an important turning point in the history of international law, not only because the spheres of influence outlined in this treaty established the division between Hispanic and Portuguese parts of the Americas - the latter constituting today's State of Brazil - but also because it marks an important step away from relying on purely Papal authority and grounding legal claims in inter-state agreements instead. In this sense, the Treaty of Tordesillas may be seen to be part of the origins of international law both as the law of inter-state relationships and as the law of colonial encounter. Other important steps in this development consist in the Treaty of Zaragoza, signed in 1529, which constitutes the first instance in which one of the colonising states formulated a legal claim to the land in the Americas based on so-called 'first discovery'. A synthesis between different sources of claims to land and authority is formulated by Francisco de Vitoria in 1537-1539 in his lectures De Indis (Latin: 'Of the Indies'), a work which Third World Approaches to International Law (TWAIL) consider to be a decisive element of international law's origins.

II. Sovereignty and Secularism on the European Continent and in the Colonial Encounter

As stated above - and as will be reiterated throughout the book - the dominant way of characterising international law is as the law that governs the relations between sovereign States. The end of the sixteenth and, more importantly, the seventeenth century, are crucial for the emergence of sovereignty as the paradigm governing the relationships between political entities. These political entities, on the European continent, merged from being mainly Empires, cities, leagues of trading posts such as the Hanseatic League, and other actors to being mainly organised as States. When Jean Bodin published his work titled Six Livres de la République (English: 'Six Books of the Republic') in 1576, which contained the now canonical definition of sovereignty as 'absolute and perpetual power' and of accountability of the sovereign Prince 'only to God', this description was still largely counterfactual. Over the course of the seventeenth century, sovereign States did, however, gain the ability to control their territory, as the grounds for authority shifted from an interpersonal to a territorial model. This provided sovereign States with the necessary authority and political continuity to commit themselves externally as States rather than as individual monarchs or other rulers.

Simultaneously, chartered companies like the Dutch East India Company, which was founded in 1602, exerted a slightly different kind of sovereignty on the territories and on the parts of the sea where they sought to establish trading monopolies or, where they lacked the necessary control to establish such a monopoly, to push for freedom of travel and trade. Among the influential figures who advocated for freedom of the seas and free trade in this sense and in the interest of the Dutch East India Company was Hugo Grotius, whose first work, De mare liberum (Latin: 'Of the free sea'), was, in its first version, commissioned by the Dutch East India Company. With his work De jure belli ac pacis libri tres (Latin: 'Three books on war and peace'), Grotius provided a comprehensive work on international law and a synthesis between naturalist conceptions of the law, i.e. conceptions that base the validity of the law on a source outside of the law like God or reason, and positivist conceptions that derive the validity of the law from legal rules themselves and from the will and consent of the sovereign. These two characteristics of De jure belli ac pacis libri tres - its comprehensive systematicity and its combination of naturalist and positivist concepttions of law - earned Grotius the title of 'father of international law', which will be problematised in the following sub-chapter on international law's founding myths. The second element that is, next to Grotius, part of most origin stories of international law is the Peace of Westphalia of 1648. The peace treaties of Münster and Osnabrück, which together form the Peace of Westphalia, marked the end of the Thirty Years War on the European continent, a war fought along religious lines between catholic and protestant rulers. In confirmation of the earlier Peace of Augsburg of 1555, which established the principle cuius regio eius religio (Latin: 'whose realm, their religion'), the Peace of Westphalia was the focal point of a longer development that resulted in the establishment of a system of sovereign States centered around territoriality and the prohibition of outside interference. 'Westphalia' is therefore also often used as a chiffre for describing an international system characterised by unfettered State sovereignty and little to no rules governing how States are to exercise their sovereignty - especially within their territories.

Further Readings

• Source I
• Source II

Conclusion

• Summary I
• Summary II

Footnotes

Author: Sué González Hauck

Required knowledge: Link

Learning objectives: Understanding and contextualizing the debates on the origins of international law, particularly regarding the figures of Hugo Grotius and Francisco de Vitoria and the Peace of Westphalia.

A. Of Fathers and Birth Certificates: The Founding Myths and International Law's Institutional Anxiety

International law as a discipline is famously riddled with its fair share of anxiety. "Does international law even exist?", "Does it matter?" "Is it really law?" and, perhaps most importantly, "Are we, international lawyers, the good guys or are we the baddies?" International law has been able to affirm its existence by grounding itself in a tradition that provided a 'birth certificate' - the Peace Treaties of Münster and Osnabrück or 'Peace of Westphalia' – and a 'father' – mainly Hugo Grotius. Together, the Peace of Westphalia and Grotius' work De iure belli ac pacis libri tres (Three books on the law of war and peace) established State sovereignty as the source of international law's binding force, thus establishing international law as real law that is distinguishable from religious and moral sources of normativity. Simultaneously, grounding its existence in peace treaties that ended a 30-year period of war and chaos on the European continent and casting Hugo Grotius as a secular, peace-loving humanitarian allowed international lawyers to see themselves as invested in a project that served humanity as a whole and that would bring peace, order, and justice to the world.

In recent decades, TWAIL scholars have drawn attention to international law's sustained and central role in legitimizing and maintaining the colonial project. These critical histories of international law draw a different line of continuity from the writings of Hugo Grotius and Francisco de Vitoria to the establishment of international law as a formalized discipline in the nineteenth century and to international law in its present form. Simultaneously, the debates about the place of people like Hugo Grotius and Francisco de Vitoria and of events like the Peace of Westphalia in the history of international law have to be seen against the backdrop of broader methodological debates. Contextualist historical methodologies reject linear narratives altogether and instead aim at placing people and events in the context of their times. In her recent book, Anne Orford responds to the rising influence of these contextualist approaches to the history of international law, insisting that scholars writing histories of international law always create meaning instead of merely finding it.

B. Disputed Parenthood

I. Hugo Grotius, Francisco de Vitoria, and the Colonial Origins of International Law

1. Hugo Grotius and the Grotian Tradition in International Law

Hugo de Groot, whom we know by his Latinized name of Grotius, was born in Delft in 1583, at a time when the Dutch States General had just created the Dutch Republic by abjuring Philip II of Spain and Portugal as the ruler of the Low Countries. The newly founded Dutch Republic was looking to assert itself against Portugal and Spain, which, at the time, were the most important colonial powers. It was in this context that the Dutch East India Company (VOC) asked Grotius to write a defense of the Company's privateering campaign in waters that Portugal had claimed as an Estado de India under Portuguese control. Grotius completed the resulting manuscript, De Indis, in 1607-16-08 and, at the request of the VOC's Director, published chapter twelve of this manuscript in 1609 under the title Mare Liberum (The Free See). This first work of Grotius has long been neglected by mainstream histories of international law, which have focused almost exclusively on De iure belli ac pacis, which is considered to be the first systematic treatise of international law. The myth of Grotius as the 'founding father' of international law is an invention of the late 19th century. Key events in this regard were a commemoration of the tercentenary of Grotius's birth in 1883 at the New Church in Delft, the unveiling of a Grotius statue in the Delft market square in 1886, a ceremonious reburial of Grotius' remains in 1889, and, most importantly, the 1899 Hague Peace Conference.

As scholars of international law and international relations sought to reinvigorate the project of a peaceful international order created and maintained by international law after the Second World War, they did so by reclaiming Grotius and sketching a 'Grotian tradition' of international law and international relations. In a 'Grotian' international community, the power of the sovereign State is supposed to be restricted by the rationality of the law, which is equivalent to its systematicity. Hedley Bull took up the idea of a 'Grotian tradition' and contrasted it with a 'Hobbesian' and a 'Kantian' conception of international relations. Bull and other authors of the English School tradition in International Relations Theory see the Grotian conception of international society as a middle-ground position between, on one hand, a 'realist' or 'Hobbesian' view of international relations based on the unfettered sovereignty of States and, on the other hand, a 'universalist' or 'Kantian' idea of a cosmopolitan world society as a global community of humankind, in which international institutions represent individual human beings and are based on common values and globally shared interests.

'Grotian' may be seen as shorthand for liberal internationalism, i.e. for the idea that ordered law can create order through law in a way that is opposed to unfettered power, and for a belief in progress from a state of war and turmoil to a more just and peaceful international order. Boutros Boutros-Ghali's invocation of a 'Grotian moment' after the end of the Cold War illustrates this way of referring to the Grotian tradition: 'The community of nations has entered a new era. The international system that sustained us in the past has yet to be replaced. We are in the process of building a new international system, and we are doing so under unprecedented conditions. The outset of the modern age, some three and a half centuries ago, was an uncertain time, filled with both promise and peril. The foundations for a stable and progressive system of relations among States were laid, at that time, by Hugo de Groot (1583-1645), known as Grotius, the father of international law. Perhaps we have come to another such 'Grotian moment' in history, one in which a renaissance of international law is needed to help transform the world scene in this new era that all States have entered'. International legal scholars have repeatedly invoked 'Grotian moments', inter alia, to promote an interpretation of state sovereignty that places human rights at the center of said concept and therefore of international law,, to assess the role of international law after the invasion of Iraq in 2003,, to argue for the emergence of instant customary law in the field of international criminal law,, and to describe changes in the law of statehood. Invoking a 'Grotian moment' allows international legal scholars and representatives of international institutions simultaneously to argue for change and to ground their project in tradition.

Recent work focusing on the connection between Grotius's work and colonialism not only calls into question the flattering self-image of international law as a peace-seeking humanitarian discipline. It also challenges the assumption that the origins of modern international law can be found exclusively in Europe. Placing Grotius in the context of his role as legal advisor to the VOC shows that the questions he adressed in his work did not originate on the European continent but, outside Europe, through the colonial encounter.

2. Francisco de Vitoria

Hugo Grotius' strongest competitor for the role of 'father of international law' is Francisco de Vitoria. The argument put forward in favour of granting Vitoria and not Grotius this title is that, while Grotius may have presented the first systematic exposition of what was then called the Law of Nations, Grotius was already writing in a tradition that was founded by the so-called School of Salamanca, of which Francisco de Vitoria was, in turn, the founder and most prominent member. Vitoria was the first scholar to adapt the Roman concept of ius gentium to what we recognize now as an international context. The context to which he applied the term and its legal implications was the encounter between the Spanish empire and indigenous peoples in what is now known as South America and the Caribbean. His two lectures in which he first applied ius gentium were titled De Indis Noviter Inventis ['On the Indians Lately Discovered'] and De Jure Bellis Hispanorum in Barbaros ['On the Law of War Made by the Spaniards on the Barbarians'], and they were obviously concerned with a colonial relationship. The question of whether Vitoria was using ius gentium to condemn or at least reign in colonial violence or whether he was actually justifying and thereby enabling it is a hotly debated question. This question is debated so fiercely, because it is equated with the question of whether international law has been, from the beginning, humanitarian or imperialist in nature.

3. Other Contendants for the Title of 'Father of International Law'

Other figures on whom international legal scholars have relied as founders of include Francisco Suárez (1548-1617), Alberico Gentili (1552-1603), Emer de Vattel (1714-1767),and Jeremy Bentham (1748-1832), who coined the term 'public international law'.

II. Mothers of International Law?

As international law as a discipline is increasingly rallying around the goal of increased female representation not only in international institutions but also in the history of international (legal) thought, Christine de Pizan has emerged as the strongest contendant for the title of 'mother of international law'. Her claim to the title rests on the fact that she wrote a book on the laws of war and that she did so long before Grotius and even before Vitoria, Gentili, and Suárez. She is the author of the book titled Livre de Faits d'armes et de chevalerie(The Book of Deeds of Arms and of Chivalry), which is considered to be one of the first texts on the laws of war.

C. Birth Certificate: 'Westphalia' and the 'Westphalian System'

The myth of ‘Westphalia’ is the familiar story according to which the peace settlements of Münster and Osnabrück established a system of sovereign States in which we still live today. The myth was created in the 19th century and consolidated in its current form mainly based on an article written by Leo Gross in 1948. Gross was not the first one to pinpoint the beginning of ‘modern international law’ to the Peace of Westphalia and he admitted that the peace treaties of Münster and Osnabrück constituted a step ‘in the gradual, though by no means uniform, process which antedates and continues beyond the year 1648’ rather than a radical break. However, Gross also states that ‘Westphalia, for better or worse, marks the end of an epoch and the opening of another. It represents the majestic portal which leads from the old into the new world’. Gross exerted significant influence by unfolding what scholars of international relations and international law came to describe as the ‘Westphalian System’, a chiffre employed to refer to a framework for political and legal thought rather than to a historical reality. He presents a narrative of continuity spanning from the Peace of Westphalia to the Charter of the United Nations. According to this narrative, the Peace of Westphalia as ‘the first great European or world charter’ represents ‘the first of several attempts to establish something resembling world unity on the basis of states exercising untrammeled sovereignty over certain territories and subordinated to no earthly authority’. Gross substantiates this claim by stating that regarding the principle of religious tolerance, the purpose of achieving international cooperation, the guarantee of peace, and the establishment of rules for peaceful settlement of disputes, the UN Charter can be seen as the latest step in a line of evolution that began with the Peace of Westphalia.

The treaties themselves and the political and social circumstances in 1648 do not warrant the characteristics of the ‘Westphalian System’ attributed to it. Attributing the establishment of modern international law as a system based on state sovereignty to the Peace of Westphalia is – at best – a simplification. The developments that are commonly associated with ‘Westphalia’ either started more than a century before 1648 or did not take place until the 19th and 20th centuries. Particularly, the notion of territorial sovereignty that is supposed to be the cornerstone of the ‘Westphalian System’ was not explicitly referenced in the treaties.The peace treaties did indeed presuppose the sovereignty of the Swedish and French kings in the sense that they were not subordinated to the authority of the Emperor or the Pope. This conception of sovereignty, however, differed from the characteristics of the respective nineteenth century conception. The latter is the conception commonly referred to with the chiffre of the ‘Westphalian System’ and it includes the sovereign authority to dispose of the law. In contrast, the kind of sovereignty to which the peace traties of Münster and Osnabrück referred was grounded in natural law ideas and in the ideal of solidarity among monarchs. Instead of introducing a system of abstract territorial sovereignty, the Peace of Westphalia 'maintained a period of personal relations of power [...] in a complex patchwork of imperial and princely sovereignties and quasi-sovereignties until the early-nineteenth century and the final breakdown of the Holy Roman Empire'.

The common simplifications of historical processes and the habitual reference to ‘classical’ international law or ‘classical’ notions of sovereignty as ‘Westphalian’ engenders consequences regarding the conditions of possibility of present-day arguments about international law. By serving as the founding myth of both the system of sovereign states as a political system and the system of international law based on State (note the uppercase) sovereignty, the myth of ‘Westphalia’ not only establishes a hierarchy in which arguments derived from sovereignty seem to ‘fit’ the system and arguments that encroach on this sovereignty have to be framed as justified exceptions to the rule, but it also makes this normative hierarchy seem ‘natural’. By making these conditions of possibility for making international legal arguments seem natural, the myth of 'Westphalia' and all that is associated with it obfuscates how international law functions as a language of power.

Further reading

• Alonso Gurmendi, A Tale of Three Vitorias (Opinio Juris 1 April 2021)
• Martine van Ittersum, 'Hugo Grotius: The Making of a Founding Father of International Law' in Anne Orford and Florian Hoffmann (eds), The Oxford Handbook of the Theory of International Law (OUP 2016)
• Maïa Pal, Jurisdictional Accumulation. An Early Modern History of Law, Empires, and Capital (CUP 2021) 34-38
• Yasuaki Onuma, 'When was the Law of International Society Born?' 2 (2000) Journal of the History of International Law 1
• Stéphane Beaulac, ‘The Westphalian Legal Orthodoxy – Myth or Reality?’ 2 (2000) Journal of the History of International Law 148
• Andreas Osiander, ‘Sovereignty, International Relations, and the Westphalian Myth’ 55 (2001) International Organization 251
• Benno Teschke, The Myth of 1648: Class, Geopolitics, and the Making of Modern International Relations (Verso 2003)
• Richard Joyce, 'Westphalia - Event, memory, myth' in Fleur Johns, Richard Joyce, Sundhya Pahuja (eds), Events: The Force of International Law 55
• José- Manuel Barreto, 'Cerberus: Rethinking Grotius and the Westphalian System', in: Martti Koskenniemi / Walter Rech / Manuel Jiménez Fonseca (eds), International Law and Empire: Historical Explorations (OUP 2017) 149-176

Conclusion

• Summary I
• Summary II

Footnotes

Author: Anam Soomro

Required knowledge: Link

Learning objectives: Understanding XY.

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A. What is Decolonisation?

The term ‘decolonisation’ most typically refers to the dissolution of European empires in the aftermath of the second world war— the time period between 1940’s-1970’s. This period is marked as a watershed moment in the history of international order when a large majority of former European colonies gained independence and became states in their own right. Concurrent to this, international law recognised a fundamental right to self-determination. The acquisition of sovereignty and rights of self-determination of non-European peoples in the mid-20^th century marked the end of an epoch of explicitly racialist international law and politics. At the same time, scholars of third world sovereignty note important limitations to a state-centric theory of decolonisation. For instance, the newly independent states were born into a system, the rules of which had already been largely established against their favour. Scholars of sovereignty have noted the peculiar position of former colonies in the international order even since the dissolution of formal imperialism. Anthony Anghie has put it “the acquisition of sovereignty by the Third World was an extraordinarily significant event; and yet, various limitations and disadvantages appeared to be somehow peculiarly connected with that sovereignty”. Similarly, in his analysis of African independence, Grovogui notes that there is a common misunderstanding in theories of international order which “equate the transfer of political power, however limited, from the coloniser to the colonised, with African self-determination and an assumption of national sovereignty”. Grovogui’s analysis remains pertinent even today, and can be extended far beyond the African continent. The era of formal colonisation is over, nevertheless, the formerly occupied states still remain subordinated members of international order. The terms “global south”, “third world” or “developing countries” try to allude to this power differential. Accordingly, more and more scholars think of decolonisation as something further that needs to be done.

Today, there are at least two ways in which the term ‘decolonisation’ is deployed in the literature. First, decolonisation as the very concrete, legal and political practice whereby former colonies gained their independence, i.e. they began to practice the right of self-determination. It is perhaps more fruitful to refer to this temporal aspect of decolonisation as the decolonisation era or the Independence era, because it is now quite well established that even though territorial empire is now over, western dominance continues in different forms through a number of issue areas including the doctrines, concepts and processes of international law. The second sense in which decolonisation is addressed in the literature really builds on the limitations of the first, and requires us to take stock of our history, ongoing power relations and epistemological practices. This chapter proceeds by first outlining the classical theory of decolonisation in international law and international relations and then considering some of the historical and contemporary critiques of this idea. The main goal is to highlight the different ways in which the term “decolonisation” is used in international law research ties into larger questions about how international legal scholarship either aligns with or ties into the practices of global power.  

B. Decolonisation as ‘Inclusion’ into International Society:  A State-Centric History of International Order

International law scholars borrow their understandings of the term decolonisation from the sister disciplines of political theory and international relations. The classical understanding of decolonisation draws upon Hedley Bull’s 1984 exegesis on the ‘expansion of international society’. In this account of the history of international order, a sharp break is posited between the world during colonialism and the world after it.

The state features as one of the most important basic units in the practice and study of international law and global politics. The history of the state is also vital to understanding the meanings, possibilities and limitations of ‘decolonisation’ in the contemporary age. The origins of the modern state are often narrated as beginning in Europe, with the Treaty of Westphalia 1648. Historians have shown that it is far too simplistic to argue that the modern state was born from the Treaty of Westphalia in the 17th century, and have shown a range of other historical genealogies in which its emergence can rightfully be placed. Nevertheless, the myth of Westphalia remains an important heuristic: a highly simplified analytical tool rather than factual record. As the basic political unit of international order, in international legal theory, a state is a recognised as a “sovereign”. During the longue durée of colonialism, the body of thought that today we will readily accept as international law operated with a pernicious eurocentric and racial bias. While European monarchs, and heads of state were readily accepted as legitimate and worthy members of international society, this was not the case for the rest of the world.

The legal and political theory status of European colonies —the majority world, was firmly organised around the racialised ‘standard of civilisation’. In the worldview of European jurists, non-white and non-Christian societies were seen as too backwards, childlike and savage to be considered complete legal and political subjects. Despite the development of ideas about liberty and equality in Enlightenment Europe, these noble ideas were not reserved for European men. Everybody else was still considered as lacking legal capacity for self-rule. Anghie has powerfully shown that international law imagined the world outside Europe as being devoid of “sovereignty”, an attribute that was solely reserved for European societies. Accordingly, it was posited that European colonial officers would govern these backwards people, and civilise them in the ways of the modern world. This was the infamous “white man’s burden” that continued well into the 20^th century. It is an ugly feature of international law that 19^th and 20^th century doctrine only conferred juridical capacity on the basis of race and religion. Legal theory drew upon a self-serving worldview that placed Europe at the centre and apogee of world development and forced unequal and non-reciprocal relations on the rest of the world via the construct of perpetual and temporary legal burdens: “Permanent burdens encroached on the sovereignty of the other and created effects that impaired the other’s ability to act on its own behalf. Such burdens, designed to last in perpetuity, disallowed all future denunciations by the burdened party.”

Today, it is hardly a controversial claim to say that historically, international law facilitated and justified European colonial expansion and the domination through its theories and doctrine. This starkly unjust system of organising political power comes clearly into focus if we consider Article 22 of the League of Nations Covenant. After the first world war, the Allied powers seized the colonial holdings of the losing powers, namely the Ottoman Empire and Germany. Article 22 states: “To those colonies and territories which as a consequence of the late war have ceased to be under the sovereignty of the States which formerly governed them and which are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world, there should be applied the principle that the well-being and development of such peoples form a sacred trust of civilisation and that securities for the performance of this trust should be embodied in this Covenant.” The same provision further illustrates the racial principle underwriting international legal thought at the time. In article 22, it is further recognised that peoples’ belonging to the former Turkish Empire had reached a “stage of development” sufficient for them to be granted independence. By contrast, the people of Africa, South Pacific Islands and beyond were not yet considered competent for self-government. Subsumed under the sovereignty of Europeans, certain colonial holdings simply passed from one European sovereign to another, like war loot. Getachew stresses how even those exceptional regions that managed to avoid formal colonisation, such as Ethiopia, were similarly rendered into the actions of the League rendered “impossible” black sovereignty. This racial governance was, of course, contested: the problem was that international law itself had not yet acquired sufficient tools and vocabulary to address the problem of colonisation. The historian Erez Manela has shown, when Woodrow Wilson wrote his fourteen points charter for self-determination, it was not intended to apply to the whole world. Rather, Wilson’s campaign for self-determination only extended to peoples of Central and Eastern Europe. Historically, in the eyes of international law, it was inconceivable for a non-European state to exist in relations of equality with their counterparts in Europe. The extension of racial worldviews into legal doctrine meant that non-Europeans could not be bearers of a right to self-determination. As James Crawford notes: “self-determination is, at the most basic level, a principle concerned with the right to be a State.” “Sovereignty” was an essential quality of statehood, which was basically unavailable to most non-European societies. The Montevideo Convention on the Rights and Duties of States 1933 is today considered the formal criteria for statehood in international law. Article 1 lays out the requirement for a) government b) territory c) population and d) a capacity to enter into international relations. While it may very well be argued that numerous non-European polities fulfilled this criteria, racial dogma excluded them from ‘government’ and the ‘capacity to enter into international relations’. As Bull puts it “political entities were entitled to recognition as sovereign states only if they met certain formal criteria of statehood.” And as Anghie has further shown, this was historically considered exclusively the reserve of European peoples. A voluminous literature has highlighted the numerous issues at stake in the recognition of a new state in international law: the two major approaches to state recognition have been the doctrine of ‘constitutive recognition’ and the doctrine of ‘declarative recognition’. The first refers to the historical state practice, where it is not enough for a state to declare itself independent and sovereign, it also had to be accepted by international society. On this point, Bull notes: “the doctrine that states do not have sovereignty apart from recognition of it by others, the doctrine of so-called ‘constitutive recognition’ which European states in the late nineteenth and early twentieth centuries came to apply to Asian and African states is one which is widely viewed today as having been an instrument of European dominance.” The latter —the doctrine of declarative recognition of statehood, is today considered more important, but still, a tension between the two does continue to exist. To this end, we might say that the recognition of statehood remains essentially tied into global power politics.

The above described legal and political doctrines about sovereignty, self-determination and statehood had major implications for what international lawyers considered to be ‘the international’ of international law. During the centuries of colonial rule of the earth, the Westphalian state system only referred to Euro-American international affairs. In the 1950’s, Carl Schmitt, the European international lawyer, wrote that international law was the realm of European states, their practices of knowing and relating to each other. Despite these legal doctrines, and political violence of the colonial international order, ideas about self-determination were appropriated and demanded across the different continents. Throughout the early 20^th century, independence movements were fomenting and culminated in the decolonisation era in the aftermath of the second world war. Between 1940-1970 the majority of European overseas colonies gained their independence from European Empires. In this regard, ‘decolonisation’ is understood as the recognition of right of self-determination of non-European peoples. In the post-1945 era, European powers recognised the statehood and sovereignty of countries in Asia, Africa and Latin America, and this watershed moment in the history of international order is known as the era of “decolonisation”. The fact of decolonisation is marked as a momentous event in the history of international order. Whereas for centuries it was considered that the non-European world had nothing to do with international law, since the 1940’s there had been a steady stream of new additions joining the United Nations, thereby forever changing the composition of ‘the international’. Decolonisation can be best pictured if we consider the evolution of the world map over the past two centuries. Coggins notes that, in 1816, the international system comprised of only 25 members. Over the course of the 20^th century, the international order witnessed the birth of 150 new states. Not all of these were born from the succession of colonial empires, but this does hold true for the vast majority of the new additions. The world went from being represented as a collection of European empires, to a system of neatly bordered, formally equal, political units— the Westphalian state system.

This was the context in which Hedley Bull and Adam Watson, scholars of International Relations wrote their theory of the Expansion of International Society. This account has taken up a canonical status in the history and theory of international order. In their understanding, a truly universal international space only came into being at the time of the decolonisation era. Their main argument was that former colonies, who were up until the moment of their independence excluded from international society, came to be finally ‘included’ in the system of international relations once they gained Independence. In this way, the international realm, once only reserved for European states, transformed into a universal society of states. Today, when we speak of the Westphalian world system, we are alluding to the idea of formally, equal, sovereign states, co-existing together in a condition of anarchy. No legal authority governs over these.

The independence movements that swept the globe during the mid-late 20^th century had profound effects on both the history and theory of “international order”. As Bull suggested, one way of charting the expansion of international society was the expanding membership of the United Nations, and the related fora of international law-making. The presence of an ever more diverse body of representatives at the international organisations, such as the United Nations General Assembly and other international platforms called for a renewed theorisation of these developments of international order. The changing composition of international society also stirred a change in the doctrines of international law. In 1960, General Assembly Declaration on the Granting of Independence to Colonial Countries and Peoples. It declared: “all peoples have the right to self-determination” and to pursue the path of their own economic, social and cultural development. It further condemned and outlawed those historical narratives of colonial domination that posited non-European peoples as childlike and unprepared for self-government. This Declaration was widely pushed through by the African bloc at the United Nations, and Getachew has described it as a “radical rupture” in the history of international order. Within a very short period of time, anticolonial movements had hacked away at the assiduous idea that certain races of mankind were not prepared for self-government and replaced it with the idea that self-determination was a fundamental human right. For instance, the earlier Universal Declaration of Human Rights 1948, makes no mention of self-determination. This was an intentional framing to ensure no further challenges to European territorial empire. By the 1960’s colonialism was considered an international crime, and self-determination emerged as a fundamental human right. In the jurisprudence of international law, the idea was taken up and extended into more concrete principles of international law.  Since the decolonisation era, the international court of justice has declared the principle of self-determination to be a general principle of international law as well as being of such a unique and special nature, as to having an erga omnes .

           Watson and Bull’s ‘inclusion thesis’ posits that “the global south” was included in international society for the first time during the post-world war II era. By inclusion into international society, there is also a further, assumption about ‘the end of colonialism’ and the onset of a fair world system governed by human rights and the rule of law. As Grovogui noted, in the post-1945 order there is a strong assumption that colonialism was over.We can all agree that the decolonisation era was in many respects a rupture from the old, explicitly racialised system of managing international law and politics. Not only were the international institutions undergoing a change with the admission of new states, but also, these new states were sparking new developments in the doctrines of international law. Above we have discussed the recognition and development of the principle of self-determination. By the same token, we should be wary of crediting the historical decades of the 1940’s-70’s, as symbolising a far greater or radical break from the past. Let us now consider some of the shortcomings and critiques of equating the decolonisation era with decolonisation as completed.

C. Thinking Beyond the ‘Inclusion Thesis’ and the Long Road to Decolonisation

A number of problems open up when we take a closer look at this “inclusion thesis”. An enormous volume of international legal and political theory has addressed the shortcomings of taking the Westphalian Peace as our starting point for discussing international affairs. While it is beyond the scope of this essay to cover the breadth of this literature, I will limit my discussion to the problem of the state and the remaining problem of inequality within the international order since the Independence era. The ‘inclusion thesis’ narrates a progressive, eurocentric history of international order. It tells the history of international society as one of constant betterment, whilst also placing Euro-American or Western societies at the centre and the benchmark against which all others are gauged. The main point worth stressing here is that while it is largely assumed that once former colonies gained their status as independent states in their own right, colonialism was over. Instead, in recent years, a critical historiography of international order has highlighted the need to rethink what we mean when we talk about decolonisation. Rather than thinking in terms of a sharp break:  a before and after colonialism, it makes more sense to talk about “decolonisation” as a more hopeful, forward-looking ideal. The recognition of statehood is just one, albeit crucially important step, in the long road to decolonisation.

Both postcolonial and decolonial traditions start from the recognition that inequality in the global order is tied into structural inequalities, formulated in law, reproduced through legal practice and international institutions. While these were born from the colonial era, they have certainly changed form over time. Additionally, in recent years, scholars of international law have started to recognise that international law scholars do not merely describe legal practice, they actively shape it too. To this end, our knowledge systems are equally important in shaping the normative content of international law. The ‘post’ in postcolonial or the ‘de’ in decolonial, as theoretical traditions do not stand for the temporal idea, after colonialism, signifying the end. Rather they point to a body of knowledge, that seeks to contest and highlight colonial domination and its legacies. Third World approaches to International Law (TWAIL) thus try to take on the role of critique and transformation through engaging with the colonial encounter. In the following section, I outline the disjuncture between the theories and practice of Statehood and non-western agency within international order. The objective of my discussion is to show that far from being over, decolonisation is an ongoing practice that involves the practice of reflexivity, critique, and eventually the hope of transformation. As Getachew has put it: “Rather than tether the idea of independent and equal states to the legacy of Westphalia, we should identify this vision of international order with an anti-imperialism that went beyond the demand for the inclusion of new states to imagine an egalitarian world order.”

I. Statehood:  The End or the Beginning of Decolonisation?

The first line of critique is that the formal recognition of statehood did not go far enough to alter the relations of power flowing through the international system of states. There is a common misunderstanding that the post-1945 era somehow also marked the end of colonialism. “The proponents of these views have presumed decolonisation to be an end in itself.” Today we know very well, that the decolonisation era did not birth a perfect international order of equality and justice. While the legal-political theory concept of the Westphalian world system composed of equal, sovereign states is a useful heuristic, this could not be further from reality. Great powers continue to dominate the international order and the most disenfranchised communities of the world continue to suffer exploitation, low standards of living and are also expected to bear the harshest effects of impending environmental and climate disasters. To this end, a number of have argued that the power relations born from imperialism merely transformed or changed shape but the core issues of “civilisation” or essential difference between the west and rest is continually reproduced.

Watson and Bull’s account of the expansion of international society tells a progressive story about the state, as arising through purely European agency during the 17^th century, Peace of Westphalia. The European origins of the state are then placed in a linear story of progress, where over time, the entire world would come to adopt this model of political organisation. As far as the newly independent states were concerned, their main role was to follow the model of Europe and emulate development through the guidance and voluntary charitable development aid of the west. This historical framing is eurocentric, to the extent, that it still places European societies as the universal benchmark, which all others should aspire to and are judged. Further, it leaves us with very limited analytical tools to understand and talk about the power differentials between the global north and south. 

If it is true that European states emerged from the Peace of Westphalia in the 17^th century, what role did colonialism play in the formation of these states? The Westphalian myth implies that these states arose endogenously out of purely European agency. When Vattel was writing about the family of European nations, each equal and sovereign, he was committing a quite problematic theoretical blunder by saying nothing about the same states’ overseas colonial holdings. Bhambra even argues that it does not make sense to even talk about a Westphalian system of states prior to the decolonisation era. All the states that were supposedly involved in this system, were actually imperial-nation states. This point was not unknown to the politicians and thinkers of bygone eras. In fact, we may say this was precisely the context in which early anti-colonial thinkers such as Aimé Césaire spoke of the intimate relationship between the coloniser and the colonised.

As for the newly emergent states, we are the left to wonder why it is despite their putative decolonisation, they continue to be haunted by war, poverty and human suffering. In other words, how do we explain the fact of their ongoing subordination in international society? Positivist understandings of international order will blame these purely on internal factors (corruption, bad governance, cultural deficiency) rather than external factors (their position and role in international society). By contrast, leaders of decolonising nations knew very well that they were being born into a world that was stacked against them. Kwame Nkrumah, a leader of the Pan-African movement, and the first premier of Independent Ghana had devised the term “neo-colonialism” to grasp at the particular problem of third world states. He described neo-colonialism in the following terms: “the State which is subject to it is, in theory, independent and has all the outward trappings of international sovereignty. In reality its economic system and thus its political policy is directed from outside.” In his regard, “independence means much more than merely being able free to fly our own flag and to play our own national anthem.”  Even during the decolonisation decades, many of the thinkers and leaders of anti-colonial movement were quite clear on one thing:  that the recognition of statehood itself did not go far enough in the establishment of de facto equality in the international system. By this token, the recognition of sovereignty was considered merely a formalistic first step, but the more pressing and urgent matter was how a different, more egalitarian world would be made. Contemporaries of the time clearly recognised that the utopian project of building a better world was still a pending matter. The question of how exactly such a future would be built was fraught, but nevertheless, a point worthy of debate and discussion. this point. Moreover, while many of the newly emergent states hoped that international law would be a useful vehicle for enacting change, as we shall see in 3B their efforts to author change has historically been resisted, and thwarted by former colonising powers.

A formalistic fixation on the Westphalian world system as implying de facto equality in the international order has important theoretical implications. In recent years, a large body of global history research has suggested that rather than thinking of the state as having a neatly bordered off history, it is more appropriate to think of it as entangled within a larger web of relations.  Similarly, Marxist inspired understandings of ‘world systems’ also indicate that it is premature to celebrate the end of colonialism. Barkawi and Laffey have instead noted that focusing only on the Westphalian model of international organisation “obscures” the ongoing role of imperialism in international affairs. Instead, they propose “a thick set of relations”. This may include many things, including economic, political, military and social-cultural relations which allow us to gain more meaningful insight into how hierarchy is still a feature of contemporary world affairs. Getachew similarly insists, that we need to revise our understanding of decolonisation to understand what kind of work was being performed by colonialism. She proposes the concept of “unequal integration”. Contra the ‘inclusion thesis’, Getachew powerfully argues that it is wrong to think that at any point in world history, the colonies were somehow ‘outside’ of international society. They have always been part of the same world, but have always been subjected to regimes of domination. She suggests, “colonies and peripheral states were internal to international society but appeared in that space as unequal and subordinated members.” Despite the fictions and self-serving theories of imperial narratives, the colonies were always members of the international realm, but rather they existed in a position of partial and burdened membership in international society. This did not stem from exclusion, but rather from inclusion on more burdened terms. In sum, Getachew suggests that there is a long continuity from empire, to the international to the contemporary era of global governance. She shows how it is both empirically and theoretically incoherent to assume, as Bull and Watson do, that colonies simply didn’t exist in international society. They were very much part of the international family of nations, but they existed in a subordinated position. And they continue to be subordinated. In this sense, despite all the advances and rising powers, for the most part the position of the global south, remains still at the bottom of a hierarchy. This is most starkly visible when we think about climate change, corona virus response and vaccine distribution, and even more everyday governance practices of mobility, refugees, etc.

The ‘inclusion thesis’ posits a limited, state-centric understandings of decolonisation. In the last twenty years, an illustrious list of scholars have turned their focus to the problem of the supposed ‘end’ of colonialism at some point during the post-1945 order. To this end, we might argue that rather than focusing on ‘the state’ as the end-form and goal of decolonisation, it might be argued that it is more appropriate to see the acquisition of sovereignty and statehood as the beginning of the long road to decolonisation. It is important to point out that the primary subject of international law is the state. The Westphalian state system refers to a kind of de jure equality, which means that the law does not account for power hierarchies in its assessment of legal questions. Accordingly, the courts have tended treat “decolonisation” as synonymous with the acquisition of statehood.

The ICJ has attended to a number of cases that dealt with the multifaceted issue of decolonisation. The practice of the courts suggests that “decolonisation” is complete at the moment when political rule is transferred from European hands to local hands —purely as a matter of self-rule. Take for instance the recent advisory opinion on the Chagos Archipelago. The ICJ was asked to advise on whether the decolonisation of Mauritius was complete in 1968 when Britain handed over control of the vast majority of the Islands. In its written submissions, Mauritius itself claimed that decolonisation would only be complete if the territorial integrity of Mauritius was respected and the ongoing occupation of the partitioned Chagos Islands was stopped. To all parties concerned, decolonisation was simply about the ongoing British occupation and administration of parts of territory that belonged to Mauritius. A certain statist logic underlies the very structure of international law—the state is the primary subject of international law. In the jurisprudence we can observe a sharp differentiation between legal and political science approaches to ‘decolonisation’. While international law treats Independence as synonymous with a completed process of decolonisation, social scientific approaches to decolonisation adopt a more cautious approach. In the positivist application of law, courts leave aside, concerns about whether the newly emergent states actually hold any realistic possibilities for breaking from colonial, political, economic and social power asymmetries is simply left untouched. To this end, we can posit a simple question. While international law considers the process of decolonisation as one that is completed upon the acquisition of sovereignty, it leaves open the question of whether this goes far enough?

II. Struggle and Third World Authorship of ‘the International’

Watson and Bull’s theory of international society speaks of the inclusion of former colonies into ‘the international’ as a society of states. While the heuristic of a formally equally system of states is a nice idea, it would be naïve to assume that it is a reality. The Westphalian world system is foremost a theoretical construct. Its key international component—“anarchy” is a recognition that in international law there is no final sovereign authority beyond a state. Nevertheless, as scores of international relations scholars have shown, rather than states actually existing in a state of anarchy, states are embedded in a field of power relations. As we have been discussing in previous sections, it is rather more accurate to say that third world states were born into a world where the rules of international order were firmly entrenched against their favour. The conventional story posits that, by mere inclusion, a truly universal society of states was formed. What then might we say about the relationship between international law and the emergence of a putatively universal international society? Alongside the inclusion thesis, there is a strong assumption that the international law of the post-1945 era was fully decolonised, based on principles of equality and human rights. Rajagopal argues that in this “self-image the new international law of human rights effectively superseded the old international law of colonialism.” There are important qualifications to this sharp break between ‘old international law’ and ‘new international law’. Yasauki suggests that in the decolonisation era, there was no reciprocal and harmonious meeting point of all the world’s legal traditions but rather, there was a universalisation of eurocentric international law. Along with Getachew, we might then argue that the tendency to view ‘decolonisation’ as implying universality and consensus within the international order is more a rhetorical move than it is factual reality. The Inclusion Thesis cuts directly into the question of what is decolonisation, and touches upon the themes of statehood, self-determination and the limits of ‘sovereignty’ as a means of achieving more abstract ideals of global justice and equality. Once upon a time, international law facilitated the colonial expansion and domination of non-western societies. Anghie has shown how the very concept of sovereignty was forged as a legal fiction to aid this practice. Lorca asked how far the rules of international law actually changed after the admission of non-western states? The answer to this question is not so straightforward. Even after sovereignty was extended to non-Europeans, it was clear that this did not translate into a radical revision of global power hierarchies. Moreover, as Lorca suggests, sovereignty itself had run out of steam as a mode of organising international law and relations. What then might we say about international law’s role in facilitating or thwarting the long road to decolonisation?

The answer in large depends on how you understand the history and theory of international order. The ‘inclusion thesis’ narrates historical developments as a process of ‘diffusion’. The diffusion narrative has come under sharp criticism for depoliticising core problems of the international order. This style of re-telling the development of international order completely glosses over the struggles, ideas and agency of the world outside the West. The diffusion narrative tells of the emergence of a decolonised world —the Westphalian world system, through the simple spread of noble ideas, first emerging in Europe and then diffusing through the international order. Europe remains firmly ensconced in the centre:  A major problem with treating colonialism as something that was amicably resolved during the 20^th century is that it ‘forgets’ the long history of struggle that has underwritten third world attempts at rescripting the international order in its favour. Hobson has put it in quite sharp terms:  “non-western agency all but disappears into the deep, shadowy recesses of the blinding light cast by Western civilization”.

A diffusionist account which simply reproduces the same structures of colonial knowledge that binds the rest of the world into the game of ‘catching up’ with European societies and erases the struggle, ideas and voices of the non-western world. Recognising this point, over the years, there has been a shift in how scholars address the problem of the third world and its inclusion, or integration in international society. At the time of decolonisation numerous European international lawyers and politicians worried amongst themselves that status quo would be rendered corrupt and unwieldy with the addition of new members. To this end, third world international lawyers also tried to prove that such a threat was not warranted. They went about showing how the so-called purely European legal constructs and political ideals, actually had shared roots. Across diverse areas of international law (and politics) knowledge, it has been shown that ideas such as equality, women’s rights, the law of the seas, the law of nations, human rights were born from the colonial encounter. Despite the shared roots of many of the legal concepts and doctrines of international law, the problem of eurocentrism remains. A second generation of TWAIL research has shown that power continues to delimit the normative content of international law and thus, the rules of international order.  The benchmark against which all others are measured and it is then asked of them:  how far they have contributed to the development of supposedly universal rules. It is also worth pointing out that no sooner than the UNGA ‘expanded’ to include a fairer representation of international society, other more exclusive platforms of organising world affairs, such as the G7 began to pop up. Moreover, if we consider the constitution of some of the most powerful arms of the United Nations such as the Security Council, again there is dominance of certain colonial powers.

Recent interventions go a bit further to show that non-western attempts at authoring international order suggest that “decolonisation” had more radical potential than merely the recognition of statehood. In her pathbreaking work, Getachew’s historical research has shown that subsumed under the gloss of the ‘inclusion thesis’ it is possible to glean a number of alternative imaginaries of world order. Getachew conceptualises numerous strands of Afro-Caribbean ideational experiments with how the world might be organised in more equal terms as “postcolonial cosmopolitanism”. Indeed, as I mentioned earlier, leaders of the various independence movements in the third world saw Independence as a necessary first step in the longer road to decolonising international society. Leaders of the past were well aware that these precarious new states were being birthed into a world where their historical role had been to supply labour and raw materials to the metropole. Accordingly, their experiments with internationalism and political economy were geared towards a redistribution of wealth between and inside nations. Attending to their efforts of ‘worldmaking’ or rescripting the international order was a forward-looking, hopeful project about redefining the terms on which former colonies and metropoles related to each other. These clearly went beyond just the fact of recognition of sovereignty or statehood.  

The Bandung Conferences illustrate this point well. In 1955, a conference between leaders of the formerly colonised world was held at Bandung, in Indonesia.   Members from newly independent states, states on the cusp of independence, and those still engaged in the struggle. The aim of the conference was to be a show of solidarity between the colonised peoples of the world —the majority world, but also to begin the important work of re-imagining the terms upon which global order would unfold. Bandung was born from many of the struggles that newly emerging states were facing in the post-1945 international order. Great powers and international institutions were rather more hostile to the first waves of independence than is implied in the “diffusion” narrative. As Lyon suggests, in the 1950’s there was a deadlock over United Nations membership for new states, and a severe backlash against independence movements since 1947-8. Further, the United Nations and developments of international law continued to focus on Cold War rivalries as the more important topic of international law and side-lined the concerns and imperatives of the majority world. It has been observed that the various leaders at Bandung disagreed on many things, including the very key question of what they believed ultimately to be the ‘wrong’ of colonialism beyond simplistically, alien-rule. Of the few things they did agree on, was “developmentalism” accompanied with a broader, idealism that the newly founded states would take an active role in restructuring the terms on which they were integrated into international society. As Eslava et.al argue, it was also hoped that international law would play a key role in creatively remaking the world on more equal terms. The various social, political and economic committees of the Bandung conference went about detailing points for how to go about doing this.

According to the third world movements’ program of reordering the world, economic justice took central focus. Development was considered as a way to overcome power differentials between the West and the rest. The UN Declaration on the Right to Development 1968, framed development as an inalienable right. But as Rajagopal and others have highlighted, the robustness of this development discourse petered out by the late 1960s. It is also pertinent to remember the fierce struggle from which this watered down right to development was forged. International lawyers of the global north argued that  development could not be enforced against anyone in particular, and thus was not a legally enforceable right per se. It gave rise to no new obligations or duties. For the rest, particularly the G77, they authored the NIEO it was one of the most important agendas for undoing the violence of colonialism. Pahuja has shown how successive efforts of by third world alliances to renegotiate the international economic order in their favour were thwarted by Global North actors. She charts how the Global South demand to safeguard ‘Permanent Sovereignty over Natural Resources’ in the 1950’s was gradually hollowed away to a meek discussion about safeguarding foreign direct investment instead. She further, tracks how Third World attempts to renegotiate economic relations in the post-cold war era, spoke in the grammar of the rule of international law between states. Pahuja painstakingly shows how this potentially radical demand was reduced to a conversation about good governance and institution building inside developing states. We might then say that Global North actors went about delimiting the normative content of what development would or could be. Hurrell observes that since the decolonisation era, “all of the high-income countries have been extremely vigilant in resisting anything that might be interpreted as a formal commitment to economic justice.” Power and the continued hegemony of the global north has delimited the normative content of what development would or could be.

Let us now return to the question posed at the beginning of this section. What can we say about the relationship between the Third World and international law since the decolonisation era? The inclusion thesis rests on a thin concept of consent and shared values within an international system. Bull wrote, for instance, that a truly international society only came into being when ‘a common international system’ evolved, where the different European and non-European members came to understand themselves as having “common interests a structure of coexistence and co-operation, and tacitly or explicitly consent[ed] to common rules and institutions”. The question of power nevertheless continues to haunt the law and politics of post-1945 world order. Great power politics still dominate international law. And the concerns of the most vulnerable persons in the world seem to be rendered more and more irrelevant to the developments of international law. To this end, Simpson has referred to “legalised hierarchies” within the international order. Others have asked more pessimistically what the third world may expect from international law? If we accept the inclusion thesis, then we can only arrive at a very cynical conclusion about contemporary international law. The West had figured out what the most ideal forms of political organisation were, and it was now up to the rest to catch up to this image of perfection. Yet as recent work on the North-South divide has shown, the historical Brandt line continues to be relevant today. The third world’s efforts at rescripting the international order in its favour have frequently been thwarted. For the most part international law aligned with the interests of Euro-American dominated status quo rather than opening up any new possibilities for uplifting the peoples and places in the global south. In other words, a sharp discontinuity is not quite warranted. The newly emergent states were bound to certain legal traditions, customs and processes, all of which are equally shaped by power — both historical and contemporary. A North-South divide is a regular pattern in the onward development of international law since the 1940’s, and this point is particularly instructive to our discussions about decolonisation in international law. The inequalities of the international order, then get relegated as matters of knowledge and correct interpretation of supposedly universal rules and customs which are known and articulated by the Universal west.  This has been explored in discussions over climate change, development, definition of racism, law of warfare, and beyond. Baxi points out that the struggle over the normative content of international rules often takes place in the form of a contest over “the technical versus the political elements”. In the same vein, Kennedy is sharply critical of the technocratic global governance literature that elides the politics of economic decision-making under a veneer of expertise. Moyn refers puts the matter quite aptly: “to understand expertise is to grasp how the terms of debate and decision about solutions end up reinstating problems.”

It is often suggested that Bandung was a failure. Despite its idealistic appeal, Bandung failed at achieving many of the hopes that it had nurtured. In the long run, Bandung is part of the legacy of anti-colonial movements and solidarity in the international order. To this end, it has been argued that “if Westphalia serves as the creation myth of international law, the myth of Bandung is its counterpoint”. Certainly, it is vital to recover non-western contributions and challenges to international law. At the same time, it is important not to over-romanticise Bandung. The leaders of the third world  were not perfect. Their nationalism has been critiqued from a  number of angles:  in terms of women’s movements, environment, and more. This critical historiography of Bandung, and the third world movement brings us back to the problem of a state-centric analysis. Or, at least the problems of simplistic narratives about decolonisation. As Chimni has suggested we need not only to be wary of treating the entire global south as a monolith:  not only have various third world elites historically sanctioned off economic prospects for their brethren in their obedience to the demands of economic globalisation. Similarly, it might be argued that a discussion entirely focused on North – South conflict, overlooks the newly emerging BRIC powers and newer projects of transnational capitalist land grab and appropriation across the world.

D. Limits and Possibilities of Decolonisation

So far, in this essay I have proceeded by first highlighting the standard account of decolonisation in international law. The classical exposition of ‘decolonisation’ is found in Hedley Bull and Adam Watson’s 1984 text, The Expansion of International Society, which was written more than forty years ago. Since then, a wealth of literature has highlighted the problems with the inclusion thesis. In part C, of this paper I have summarised the main critiques of the inclusion thesis, as underwritten by a progressive, eurocentric history of international order. Whether we think of decolonisation as something that has already happened and “completed” or whether we consider coloniality as a useful lens to view the dynamics of international law largely depends on the history and theory of international law that we subscribe to. In this section, I highlight a second, more recent way in which “decolonisation” is spoken about in the literature. Building upon the insights of new histories and TWAIL engagements with international law, in recent years there have been numerous calls to “decolonise” international law. This second reference to decolonisation departs quite sharply from positivist understandings of decolonisation as something that was completed by the 1980’s and recognises the importance of history and theory in shaping our understanding of what is decolonisation, its limits and possibilities. A eurocentric narrative of decolonisation treats the matter as something that was done and dusted at the time when alien-rule was outlawed in international law.  This second call to “decolonisation” speaks about it  in a more forward-looking way, as something that can be achieved in the future. More crucially, this second call to “decolonisation” also recognises the importance of knowledge in the long road to decolonisation.

In the 1970s, alongside with the full swing of independence movements, the important field of knowledge called postcolonial studies was born. The main argument posited by Said was that power and knowledge go hand in hand. This idea was taken up in numerous ‘critical’ approaches to law, from the Critical legal studies (CLS) to Third World Approaches to International Law (TWAIL) and a more general turn to history in the discipline. Scholars working in the critical tradition recognise the value of critique for positive transformation. They recognise that much of the canon of knowledge is eurocentric and this limits the possibilities of what we think can be achieved by and through international law. They try to answer the same questions that were asked in the mid-20^th century :   can international law be deployed in a way to enact more just economic, social and political relations between the different peoples and places of the world?

Most scholars will accept that the project of decolonisation is a long-term commitment. It requires us to think critically about the foundations of international law, the stories we tell about it, and even the way we teach it at universities. It is in this sense that more recently students of various disciplines across law, the social sciences and humanities have demanded a “decolonisation” of the curriculum of their studies. This second call to decolonise speaks to the decolonisation of international law:  its doctrines, theories and knowledge produced about these. It takes seriously the problem of power and knowledge in shaping our understandings of what is possible through international law. In the past two decades, scholars have turned to the history and theory of international law. And one of the major points of interest for this scholarship have been to question why international law continues to have a fraught relationship with the global south. Nearly concurrently, there is also a debate about the emancipatory potential of international law. Time and again, scholars have shown how the international order is dominated by Great Powers and their interests. Moreover, extensive volumes of research have shown that as a discipline, international law (and international relations)  at least partially, were born from the need to manage Europe’s relations with the rest of the world. Moreover, as I have shown in the above discussion, colonial power did not simply disappear from history after the decolonisation era of the 1940s-1970s. It is more appropriate to say that it transformed and continues to shape controversies across the discipline. What then can we say about decolonisation in international law? Pitts has suggested that international law asserts its universality via rhetoric rather than showing it in practice. Given international law’s constant alignment with power interests some have asked whether it is even worth trying to salvage at this point? Others suggest, that scholarship about international law needs to evolve into more radical, materialist critique. Can these imperial disciplines, be decolonised? This itself is a huge debate, and certainly will not be resolved in the pages of this essay.

They do not provide any concrete answers, but call upon us to observe greater reflexivity in our knowledge production processes. Moreover, Pahuja has also argued that the promise of universality in international law is what makes it so powerful. Since the decolonisation era, different actors from the global south have seized upon this promise in their efforts to enact change. To answer the question of whether it even makes sense to talk about the “decolonisation” of international law, it must be admitted there are no clear answers to give. Perhaps it is misguided to try and fix an answer to this point here and now:  it will rather, be the task of historians of international legal thought to conclude based on future developments. At the same time, we can talk about the limits and possibilities of decolonisation

By now it should be clear that when scholars, courts and international organisations invoke the term “decolonisation” they are not always talking about the same thing.  In the above discussion I have discussed Bull and Watson’s Expansion of International Society as underwriting most conventional understandings of decolonisation in international law. This text, written nearly forty years ago provided the first major attempt at theorising the dissolution of European territorial empires,  and along with it, a rejection of an explicitly racialised system of global order. Since the 1970’s, a rich discussion has unfolded at the intersections of legal and political theory about the limitations of the ‘inclusion thesis’. The main point worth stressing is that the inclusion thesis posits a strong discontinuity between the old world of imperialism and the new world of the Westphalian state system. It posits the acquisition of statehood and sovereignty as beings the marking the final end of colonialism.  While in no way attempting to undermine the importance of the statehood of non-western territories, my purpose has been to highlight the more concrete problems of inequality that continue to mar international affairs. Building upon the insights of critical scholarship over the last three decades, a new usage of the term ‘decolonisation’ has today emerged in international law. In this regard, the call to “decolonise” international law, speaks to numerous activist and scholarly attempts to think beyond the state-centric inclusion theory as simply marking the end of colonisation and demands of us to reflexively approach concrete methods, legal, political and institutional arrangements which reproduce relations of inequality. This second understanding of “decolonisation” compels us to move beyond positivistic understandings of the social world and to engage complexity, and power in its many guises.

Further Readings

• Adom Getachew, Worldmaking After Empire: The Rise and Fall of Self-Determination, (New Jersey:  Princeton University Press, 2019)
• Siba N’ Zatioula Grovogui, Sovereigns, Quasi Sovereigns, and Africans, Race and Self-Determination in International Law,  (Minneapolis:  University of Minnesota Press, 1996)
• Antony Anghie, 2006; 2005; 2016
• Sundhya Pahuja,  Decolonising International Law:  Development, Economic Growth and the Politics of Universality, (Cambridge: Cambridge University Press, 2011)
• Adam Watson and Hedley Bull (eds.) The Expansion of International Society, (Oxford:  Clarendon Press, 1984)
• Luis Eslava, Michael Fakhri and Vasuki Nesiah (eds.) Bandung, Global History and International Law:  Critical Pasts and Pending Futures, (Cambridge: Cambridge University Press, 2017)

Conclusion

• Summary I
• Summary II

Footnotes

Author: Jane Doe

Required knowledge: Link

Learning objectives: Understanding XY.

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Learning objectives: Understanding XY.

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Author: Marnie Lloydd

Required knowledge: None

Learning objectives: Acknowledging that international law seeks to prevent violence but also accepts and regulates certain forms of violence; introducing avenues for critical reflection about the complex relationship between violence and international law.

A. INTRODUCTION

A key aim of the international legal system is to protect future generations from the ‘scourge of war’. International law therefore requires States to settle their international disputes by peaceful means and outlaws aggression between them. Other rules place significant restraints on how wars may be fought; for example, not allowing civilians or hospitals to be targeted, to reduce war’s humanitarian consequences. Many students become interested in international law precisely because it is seen as an aspirational vehicle for ‘making the world a better place’.

Much has been achieved in suppressing the right to make war and restricting the means and methods of warfare. Still, aspirations for a peaceful and just world have not (yet) been achieved. Partly, armed violence occurs in violation of international legal norms – the illegal invasion of a sovereign State, a terrorist attack on a market square, attacks against a particular ethnic group. However, armed violence is also undertaken in compliance with international law. Specifically, self-defence and collective security measures adopted by the UN Security Council (UNSC) are accepted within the system as a way to counter insecurity. Thus, there are important exceptions to the general norm against using force. International law is not pacifist and its functioning as intended involves violence. Reflecting this, the preamble of the UN Charter sets out that ‘armed force shall not be used, save in the common interest’.

It may seem paradoxical that peace and security are sought through war and violence. Because violence can be oppressive but also potentially emancipatory, ‘[p]lacing limits around violence remains . . . one of the hardest challenges of the human condition’. So, who gets to decide what is in the ‘common interest’ and how armed violence might be used ‘in the right way and for the right reasons’? In their application of international law, different thinkers, actors, and traditions will have different readings of a situation and different legal, political, and moral judgements and arguments as to the values and interests to be prioritised. These priorities can change over time and context. The relevant norms and exceptions, and their application, are neither neutral or inevitable nor technical and universally agreed, but highly political and contested.

B. WHAT IS MEANT BY 'VIOLENCE'?

Exploring the relationship(s) between international law and violence is a potentially wide-ranging endeavour since there is no reason the term ‘violence’, and even more so ‘harm’, must be limited to armed force and its direct physical and psychological consequences. For example, the humanitarian consequences of armed conflict can also include knock-on effects such as displacement and the breakdown of essential infrastructure and services leading to increased sickness and death. Importantly, violence could also be thought of as structural, a less visible part of many people’s everyday experiences of discrimination leading to injustice, exploitation or exclusion, economic or political inequalities, or activities that degrade the environment. Moreover, such issues can contribute to conflict and outbreaks of violence.

Nevertheless, this chapter focuses on organised physical violence during armed conflict and discusses international law related to the use of force and the UN Charter (i.e. rules on starting or joining hostilities) and regulating those hostilities once they are underway (known as the law of armed conflict or international humanitarian law [IHL]).

Within that narrower focus, the term ‘violence’ is not defined in international law but does appear in certain international instruments, most commonly related to acts committed against individuals, including violence against women or children, and sexual and gender-based violence. Otherwise, acts of violence are often described through offences such as murder, extermination, torture, enforced disappearance, and bodily or mental harm, or through terms that have been defined or have developed specific meanings, such as ‘attack’, ‘armed attack’, and ‘aggression’. Other language is broader, such as ‘the scourge of war’, ‘use of force’, ‘armed force’, and ‘threat to international peace and security’, referred to in the United Nations Charter.

If ‘violence’ is hard to define, ‘war’, ‘peace’, and ‘security’ can be even more difficult. ‘Peace’ sometimes refers to the absence of war, and sometimes to a more expansive idea including also the achievement of social justice. ‘Security’ often refers to State security but, like ‘peace’, has more recently also been thought of within the broader idea of ‘human security’. Reflecting this, the UN Charter preamble expresses concern not only with international peace and security but human rights and social justice.

C. DISCUSSION: A COMPLEX AND CONTESTED RELATIONSHIP BETWEEN VIOLENCE AND INTERNATIONAL LAW

I. THE EXAMPLE OF THE MILITARY INTERVENTION IN LIBYA 2011

In February 2011, anti-government demonstrations started in the north-eastern city of Benghazi before spreading to other parts of Libya. Libya’s leader, Colonel Muammar al-Qadhafi, responded with military force against dissenters. Helped by some defections from the military, anti-government forces managed to take control of certain areas of eastern Libya. The situation escalated into an armed conflict between opposition forces and forces loyal to the al-Qadhafi regime.

The UNSC quickly demanded an end to the violence, referred the situation to the International Criminal Court, and imposed an arms embargo and other sanctions on members of the Libyan regime.

With the hostilities approaching the opposition stronghold, Benghazi, which the regime had reportedly threatened to attack with ‘no mercy’, the UN Secretary-General expressed concern about the endangering of civilians should an assault on Benghazi occur. Adopting Resolution 1973 on 17 March 2011, the UNSC reaffirmed its ‘strong commitment to the sovereignty, independence, territorial integrity and national unity’ of Libya. It also imposed a no-fly zone and authorised States ‘to take all necessary measures . . . to protect civilians and civilian populated areas under threat of attack’ in Libya. ‘All necessary measures’ is a phrase used by the UNSC to include military force.

NATO member States rapidly initiated military operations on 19 March 2011. In addition to actions to protect civilians from the advancing Libyan government forces and to enforce the no-fly zone, those air operations subsequently directly supported the opposition forces. Intervention operations continued until October 2011, by which time al-Qadhafi had been killed, and a majority of States recognised the opposition National Transitional Council as Libya’s new interim government.

The years following the intervention proved difficult with deteriorating security and reignition of civil war between different Libyan factions in 2014, as well as a growing ISIS presence. Following a 2020 ceasefire agreement, political instability, human rights abuses, and other violations have continued.

II. CONTESTED NATURE OF ACHIEVING PEACE OR PROTECTION OF CIVILIANS THROUGH MILITARY FORCE

Does the Libya 2011 example provoke any particular gut reaction from you?

Some commentators applauded that the UNSC had been able to react promptly to a humanitarian crisis, and that States were willing to take action. This reflects how the promotion of fundamental freedoms and human rights, and the growing notion that mass atrocities within a State could threaten international peace and security, have strengthened the moral authority of arguments justifying armed responses to such threats as being in the common interest. This more expansionist view has, in turn, impacted on what might be described as a more restrictive and universal holding to norms respecting sovereignty and non-intervention. Indeed, Resolution 1973 was the first time that the UNSC had recognised and put into action the so-called responsibility to protect (R2P), which authorised military force as an exception to the general prohibition on the use of force between States for the purpose of protecting individuals at risk where the State in question was not meeting that responsibility. Accepting it might be an imperfect and rather ‘blunt instrument’ but perhaps the best we have in a bad situation, and/or that learning from previous experiences might help ensure future operations do more good than harm, many accept such interventions as the lesser evil because they are conducted in the hope of averting even greater suffering. Regarding Libya, for example, reports indicated that NATO bombing killed 72 civilians but averted a potentially far larger massacre in Benghazi.

Other commentators have expressed concern about the implementation and/or consequences of the intervention. Amongst criticisms is that the NATO intervention exceeded the UNSC’s authorisation in Resolution 1973 by actively supporting regime change, arguably turning the lawful intervention into an unlawful one. This might be compared with the earlier situation in Kosovo where NATO controversially undertook an air campaign against Yugoslavia in 1999 without UNSC authorisation, with the operation subsequently being labelled as ‘illegal’ since it was unauthorised but ‘legitimate’ under the circumstances. Relatedly, while not opposed to R2P, some commentators have examined whether in the particular case of Libya, required legal and ethical thresholds to justify intervention such as last resort, sufficiently serious situation, or purpose, were met. The instability and civil war in the years following the Libya intervention, as well as an argument that NATO operations gave cover to violations committed by anti-regime forces, also led to critiques about ill judgement, the intervention worsening the situation, or, at least, that the international community inadequately supported Libya post-conflict. Those same reasons contributed to arguments that the ‘disaster’ of Libya made it unlikely that similar humanitarian actions would be adopted in the future.

Arguments about ‘mission creep’ were also made by those voicing a broader wariness of military operations undertaken for humanitarian and protective purposes. There is concern, including for many developing States, about seemingly expanding powers of such ‘muscular humanitarianism’ and the risks of exploitation by militarily powerful States. Commentators have noted the discretion and selectivity in responses to situations considered crises. For some, claims that norms justifying military action are universal ring rather hollow given the ‘lopsided global arrangements in which some forms of suffering are recognized while a great many more are not’. This has led to accusations of Western leadership using international law ‘to target its enemies while protecting its friends’. As David Kennedy has expressed,

one must imagine that claims to make war in the name of right will rarely sound sincere or seem persuasive to those who believe the truth lies elsewhere – who oppose the war, are disgusted by the tactic, or simply expect themselves to be maimed or killed.

Relatedly, critical scholarship has pointed out how race, gender, and class continue to be implicated in the legal justifications made for intervention, replicating historical experiences of domination of the so-called Global South in the application of international law, including to curb emancipatory struggles. While not always ruling out the need for military action in exceptional circumstances involving intentional attacks against civilians, some call for prudence and an overwhelming consensus of the international community before the resort to force.

Finally, approaches based in pacifism or non-violence have long accompanied the development of international law and are seeing renewed interest. For some, what is important is that the means used to counter ills such as insecurity or terrorism are ‘consistent with the changes we wish to bring about’. On a practical level, some researchers argue that violent methods have been overused and have largely failed (e.g. to counter terror) while non-violent strategies have proven more successful. Even those supporting R2P have reinforced the importance of preventing violence in preference to military responses once a crisis breaks out.

Once in those crises, the dilemma often appears as one between action and inaction, where ‘doing something’ tends to be understood as a military response. Reflecting this, pacifist or non-violent philosophies have been labelled as overly idealistic and morally challenging, that remaining neutral or non-active implicates the acceptance of violence and might reinforce the dominant order. Yet, nonviolent approaches do not equate with doing nothing and might still persuade or even be coercive. Similarly, there is a vast range of different ways military operations to protect civilians could be undertaken. Limiting the options to either intervening militarily or standing idly by arguably blinkers us to other possible responses, as well as to a situation’s historical and political context; for example, understanding better how the earlier involvement of other States and international institutions might have contributed to the situation at hand. Some thus believe pacifist and non-violent approaches can open up spaces for alternative discussions, destabilising assumptions about militarism, and might have potential for being more global and inclusive than the current international system.

III. CONTESTED NATURE OF CIVILIAN CASUALTIES DURING THE PROTECTION OF CIVILIANS

In Libya in 2011, civilians in several areas became very unsafe because of the fighting and many were killed or injured. This harm was reportedly caused by all parties.

Once an armed conflict starts, IHL places limits on the means and methods of waging war to protect those not participating (e.g. civilians) and no longer participating (e.g. wounded or captured combatants). Reflecting the non-pacifist nature of the international legal system, IHL does not prohibit violence outright, even violence affecting civilians. Rather, trade-offs formulated within IHL accept that wars will happen but place restraints on warring parties, balancing humanitarian protections with military necessity. Concretely, although IHL prohibits direct and indiscriminate attacks against civilians, it accepts certain incidental harm, known colloquially as ‘collateral damage’ (during proportionate attacks on military objectives undertaken with sufficient precautions to avoid civilian harm). Imagine, for example, an air strike targeting enemy forces which also kills a nearby civilian. This means that a civilian casualty in Libya in 2011 might or might not be a result of a violation of IHL depending on the circumstances. IHL is far less protective than the rules otherwise regulating force, such as during law enforcement operations by the police.

IHL advocates argue in support of the vital restraints IHL places on warring parties and point out how beneficial increased compliance would be in protecting people during war; moreover, that IHL also does much good that goes unnoticed.

Other commentators appear less enamoured with IHL. On the abstract level, one might accept some harm to bystanders as unavoidable and part of the ‘lesser evil’. Yet, many people would be unwilling to accept this if they were directly affected, and in practice, not all populations are subject to the same risks. Moreover, in the moment, it presumably matters little to a family whether the bombs they are fleeing were launched compliantly or not; and, in practice, investigations into such civilian harm allegations often struggle to pronounce definitively whether an attack was proportionate or not, or even to determine who is a civilian. IHL’s acceptance that civilians can be lawfully (albeit incidentally) killed, even during operations intended to protect them, can therefore create an underlying uneasiness.

As such, some commentators consider IHL to have been formulated to privilege military necessity over humanitarian considerations. Experience also shows that conflict parties have at times argued, especially related to counterterrorism, that existing rules were insufficient or inapplicable to the response needed for an exceptional threat. This is seen to risk a gradual loosening of the rules, particularly where an operation is for a ‘good cause’ and the underlying ‘fault’ for the violence is perceived to lie with the ‘terrorists’ or other ‘bad guys’. Despite a stated purpose of protecting civilians, the aim might actually be to defeat the enemy, with increased risks for civilians.

Stepping further back, when IHL was first codified in the 19th century, some hoped that rules restraining the means and methods of warfare could progressively lead to greater restrictions and ultimately the elimination of war. Others feared that such rules would operate to shift focus to the legal technicalities, postponing calls in peace activism for the abolition of war. More recent UN ‘Women, Peace, and Security’ initiatives, which endorsed greater institutional participation of women in peace-building and were perhaps hoped by women’s networks to progressively transform militarism, have arguably resulted in a similar muffling of important feminist peace activism and critiques of militarism. Relatedly, some argue that the denunciation of certain forms of violence as particularly problematic, such as the prosecution of war crimes, creates a boundary which normalises other forms of violence.

To conclude, while the formulation of IHL fits within the logic of the current international legal system, and the humanitarian consequences of armed conflict would undoubtedly be less disastrous if warring parties complied more faithfully with IHL, more critical arguments that IHL might ultimately facilitate and legitimate rather than successfully restrain violence also hold some weight. Eyal Weizman describes how some violence occurs with the ‘terrible force of the law’ rather than in violation of it.

IV. INTERNATIONAL LAW OR VIOLENCE, INTERNATIONAL LAW AND VIOLENCE, INTERNATIONAL LAW AS VIOLENCE?

The preceding discussion suggests that it becomes overly simplistic to say that law and war are of two different worlds – that in war, law falls silent or that the presence of violence alerts us to law’s failings. More accurately, while different instances of violence may indeed be of a different nature or purpose, we can recognise the complex relationship(s) between international law and violence. They are not of two different worlds rubbing up against each other but are already ‘an old couple’.

In practice, international law and violence are certainly interconnected since legal argumentation has become a key part of warfighting, often referred to as ‘lawfare’. Concerning legal theory, scholars argue that if we could reach that utopia where peace and security were maintained, the law would lose its driving force; that violence helps establish or construct the law by giving it meaning and social relevance. Part of the social relevance of violence to the law relates to an assumption that we cannot (yet) have both security and non-violence. Security and violence are understood as a natural and never-ending dilemma that needs to be reconciled by finding an appropriate balance, such that certain forms of violence remain a necessary evil. Law works to define the boundaries/balance of what is perceived to be needed. Austin Sarat’s statement about law more generally seems to apply also to international law: law ‘is always violent but never only violent; always oriented towards justice but never fully just’.

D. CONCLUSION

Key instruments of international law, such as the UN Charter or the Geneva Conventions 1949, are commonly seen as significant milestones marking progressive achievement towards the ‘abandonment of the use of force’ and full disarmament. As such, the basic design of collective security might be seen as the only ‘stable workhorse’ available, its imperfect functioning being primarily due to a lack of genuine willingness of States, as well as to the realist view that certain actors need to be allowed to retain their arms in order to enforce the disarmament and defend themselves or others.

Other thinkers appear less willing to sit in the ‘not yet’ of peace and justice, and view international law as having a more contested, even conspiratory, role in violence. Consider, for example, Dianne Otto’s question about ‘how law helps to reproduce the inevitability of the deadly, anthropocentric, imperial, neoliberal military-industrial-complex’ and ‘whether there remain any remnants of opportunity in law’ with which one might yet work if one wanted to imagine alternative notions of peace. In that dire description, current international law no longer appears as an aspirational vehicle for making the world a better place. Rather, the logic, practice, and demonstrated interests of the entire system are being critiqued and challenged.

The point is not only how challenging these questions are, but rather the resulting plurality of views on violence and international law. Different thinkers and actors will have different readings of a situation of violence, and different legal, political, and moral judgements and arguments in their application of international law. International legal argument might appear neutral or universal – for example, when an actor or institution claims to be acting objectively in the interests of humanity or for the common good – but the arguments being relied upon will be based on certain underlying assumptions about the world, about international law, and about particular authorities being able to make those determinations. The values being prioritised are not necessarily held in common, and can also change over time and in different political contexts, or in hindsight. Describing international law as a conversation, David Kennedy says

[i]nternational law reminds us to pay attention to opinion elsewhere in the world, to think about consistency over time, to remember that what we do today may come back to haunt us . . . international law only rarely offers a definitive judgment on who is right.

Regarding not only armed violence but most issues of interest to international law, international lawyers should, then, look closely and empathetically at the particular context, but also consciously and continually step back to reflect critically about the bigger picture. Rather than only working out what, in one’s opinion, the law says, it becomes important to pay attention to narratives being used about any instance of violence, by whom, to serve what purpose, and with what political consequence. Moreover, who gets to decide? Critical reflection can also include considerations of ‘when, how, and at the behest of whom those rules have emerged and developed’.

This final section, therefore, proposes questions which may help foster exploration of students’ individual legal, political, and moral positions around the complex and enduring relationships between violence and international law.

• What language is being used in political or public dialogue to describe the violence or the parties involved? By whom? For what purpose?
• What values are being expressed by a particular actor’s position? Is it being described as objective, universal, or in the common interest?
• If the one who can define or decide what is legitimate and what is not is the one with true power, who is deciding in the situation at hand?
• Do the acts of violence reproduce any power dynamics that made those acts possible in the first place? In your view, ‘[i]s violence necessary at times, and if so, does it, or can it, put an end to further violence’ in the context at hand?
• In what ways has compliance with the law protected people from harm? Or put them at risk of harm?
• In which situations could a non-violent option have been chosen, or in what situations were non-violent responses rejected or made impossible? What future paths do those decisions possibly close off? What might have been the imaginable results of other possible paths not taken or actively rejected?
• Is ‘war talk’ used to frame a crisis, threat, or problem (e.g. war on drugs, fight against climate change)? To what effect?

BOX 2.1.1 Further Readings and Further Resources

Further Readings

• A Alexander, ‘The Ethics of Violence: Recent Literature on the Creation of the Contemporary Regime of Law and War’ (2021) Journal of Genocide Research 1

• H Dexter, ‘Peace and Violence’ in Paul D Williams and Matt McDonald (eds), Security Studies: An Introduction (3rd edn, Routledge 2018)

• D Kennedy, ‘Lawfare and Warfare’ in James Crawford and Martti Koskenniemi (eds), The Cambridge Companion to International Law (CUP 2012)

• M Koskenniemi, ‘ “The Lady Doth Protest Too Much” Kosovo, and the Turn to Ethics in International Law’ (2002) 65(2) MLR 159

• A Martineau, ‘Concerning Violence: A Post-Colonial Reading of the Debate on the Use of Force’ (2016) 29 LJIL 95

Further Resources

• Gavin Hood, ‘Eye in the Sky’ (Entertainment One 2015) (Film)

• Olivier Sarbil, Mosul (PBS/Frontline 2017) (Documentary Series)

• Brad Evans and others, Portraits of Violence: An Illustrated History of Radical Thinking (New Internationalist 2017)

Footnotes

Author: Sué González Hauck

Required knowledge: Link

Learning objectives: Understanding XY.

A. Introduction

Consent is at the heart of the international legal system. The degree to which it is taken to structure the international legal system as a whole depends on whether and to what degree one subscribes to voluntarist theories of validity of international legal rules. The famous Lotus case is the often-cited symbol and point of anchoring for such voluntarist conceptions of international law. The often-cited passe of the Lotus dictum in this context reads:

International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed.

Consent is thus supposed to be the expression of the 'free will' of a sovereign state and the source of obligations under international law. The principle of consent is reflected in the way international law is formed. This is most obvious in the cases of treaties, which are, in principle, only binding on a state if this state has expressed its consent to be bound by the respective treaty (cf. Articles 11-17 VCLT). Consent is also an essential part of international dispute resolution. Under Article 36 of the Statute of the ICJ, states can accept the ICJ's jurisdiction either by signing the ICJ Statute, or by making a special declaration recognizing the ICJ's jurisdiction in a particular case. This means that a state can only be brought before the ICJ if it has consented to the ICJ's jurisdiction either generally or specifically in a particular case.

Two main issues arise regarding this conception of the role of consent in international rule-making: First, given that States are legal entities who cannot form and express a 'free will' in the same way an individual person can, the question of whether and how one can attribute a free will to a State and which expressions of such an attributed will count as expressions of State consent remains one of the enigmas at the heart of international law. Second, the prevailing formalized conception of consent, which flows from the idea of sovereign equality among States, does not take into account material inequalities.

It is commonplace among international lawyers to juxtapose an extreme version of a voluntarist conception of international law, in which consent and only consent is supposed to be the source of obligations under international law, to a conception of international law based on community values. According to Martti Koskenniemi, this contrast between consent and justice is but one of the many ways in which international legal arguments permanently oscillate between 'concreteness' and 'normativity'.

B. Consent, Consensus, and Anarchy

The importance of consent in international law stems from the fact that there is no international government. The absence of government or hierarchical rule in the sense of a centralized authority that can make and enforce laws can be defined as anarchy. The absence of centralized government does not entail the absence of order or rules. In the absence of formal hierarchical rule and thus under conditions of formal equality, the subjects of international law, i.e. mainly States, can only be bound by a rule of international law if they have given their consent. This mirrors the ideal of consensual decision-making and unanimity, which communal anarchist theories embrace. These theories were developed with smaller communities of individuals in mind, not with a global community of States. The difference between this community-oriented idea of anarchy on the one hand and the notion of anarchy, which prevails on the international plain and which focuses on the sovereignty of individual States on the other hand marks the difference between group-oriented notions of consensus and unanimity and individualist voluntarist notions of consent.

C. Types of Consent in International Law

Stephen Neff distinguishes three kinds of consent: ‘outcome consent’, ‘rule consent’, and ‘regime consent’. Outcome consent refers to a specific situation and it transforms the outcome of this situation. An act that would otherwise be unlawful is transformed into a lawful act due to the fact that the state affected by this act has given its consent. Rule consent refers to the voluntary acceptance of a specific rule of international law. This kind of consent is at the basis of classical positivist and voluntarist conceptions of international law sources and of international law’s validity. Regime consent refers not to a specific rule but, more generally, to a be bound by the rules created within a specific system, e.g. international organization. In the terminology introduced by HLA Hart, rule consent can be characterized as consent to primary rules, i.e. rules involving substantive obligations, while regime consent refers to secondary rules, i.e. rules about rule-making. Arguments involving a generalized kind of consent to the whole of international law have played a key role in the era of formal decolonization, i.e. mainly in the 1960s and 1970s. The ‘newly independent states’ that were created as a result of this formal decolonization argued that they had not consented to previously existing international legal rules and could therefore start with a clean slate. The counterargument, which prevailed, was based on a form of regime consent: International lawyers from the Global North argued that the newly independent states had given a generalized consent to the international legal system by attaining independence as states.

D. Consent and Colonialism

State consent obtained its status as the ultimate source of international legal obligations in the nineteenth century, as international law was established as a 'scientific' discipline and as legal positivists purportedly broke ties with the natural law tradition. The nineteenth century was also the time during which European States formalized their colonial endeavours. Consent as a foundational principle of international law was supposed to flow from State sovereignty. Consequently - but not incidentally - there was no place in nineteenth-century positivist accounts of international law for consent of people and communities that were not organized in the form of European States.

On the other hand, colonial powers used a formalized notion of consent to legitimize their claim to colonial domination. While European States did not recognize indigenous polities in the Americas, Africa, and Australia as sovereign entities with the power to contribute to international law-making and with the protection that the principle of non-intervention and other corollaries of sovereignty provide, they did recognize indigenous authorities and their capacity to enter into legally binding obligations when it came to formally ceding title to land. This practice entirely neglected the coercive circumstances that accompanied formal declarations of consent.

Contemporary international legal rules take into account indigenous peoples's rights by requiring their free, prior, and informed consent regarding policies and projects that directly affect them. Key international instruments that explicitly guarantee the right to free, prior, and informed consent for indigenous peoples include the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), International Labour Organization Convention 169 (ILO 169, Article 6), and the Convention on Biological Diversity (CBD, Article 10(c)). According to Article 19 UNDRIP, 'States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them'. The UN Office of the High Commissioner for Human Rights has published the following guidelines on the meaning of free, prior and informed consent:

Free implies that there is no coercion, intimidation or manipulation.

Prior implies that consent is to be sought sufficiently in advance of any authorization or commencement of activities and respect is shown to time requirements of indigenous consultation/consensus processes.

Informed implies that information is provided that covers a range of aspects, including the nature, size, pace, reversibility and scope of any proposed project or activity; the purpose of the project as well as its duration; locality and areas affected; a preliminary assessment of the likely economic, social, cultural and environmental impact, including potential risks; personnel likely to be involved in the execution of the project; and procedures the project may entail. This process may include the option of withholding consent. Consultation and participation are crucial components of a consent process.

E. Limits on State Consent under Contemporary Positive International Law

The most important limits on state consent under contemporary positive law are jus cogens according to Article 53 VCLT and Article 103 of the UN Charter. Both of these norms establish a hierarchy of rules by limiting states' ability to enter into and uphold agreements that conflict either with jus cogens or with the UN Charter. Jus cogens, or a peremptory norm of general international law is, according to Article 53 VCLT, 'a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character'. This means that states cannot modify jus cogens through other treaties or through customary law. Examples of jus cogens include the prohibition of genocide, crimes against humanity, slavery, and torture, and the principle of non-refoulement. Art. 103 of the United Nations Charter is another key aspect of limits to state consent in international law. This article provides that in the event of a conflict between the obligations of a state under the Charter and its obligations under another international agreement, the obligations under the Charter shall take precedence.

F. 'Sexing' Consent

This section introduces Siobhán Airey's work on 'sexing' consent and thus provides an example of how international law can be informed by feminist theories beyond questions that directly involve gender.

Further Readings

• Source I
• Source II

Conclusion

• Summary I
• Summary II

Footnotes

Author: Jane Doe

Required knowledge: Link

Learning objectives: Understanding XY.

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Further Readings

• Source I
• Source II

Conclusion

• Summary I
• Summary II

Footnotes

Author: Max Milas

Required knowledge: Precedent in Domestic Law, Sources of International Law, Interaction

Learning objectives: Evaluating the relevance of cases in international law, researching international cases, applying cases depending on role and objective.

A. Introduction

Cases are not only a "subsidiary means for the determination of rules of law" in international law according to article 38(1)(d) ICJ Statute, but also an influential means of communication in the practice and research of law. For this reason, it is all the more surprising that all popular textbooks of public international law include a section on the relevance of cases, but no section on how to engage with judicial decision as a student, practitioner, or scholar of international law. The following chapter attempts to change that by discussing the relevance of cases, presenting tools to research cases, and introducing methods to use cases in international law. In doing so, this chapter aims to guide students through exams, term papers and moot courts in which case law analysis is key.

B. Relevance of Cases in International Law

According to the traditional reading, cases are one of the four main sources to determine rules of international law. Both judges and scholars of international law deal extensively with prior domestic and international decisions in their publications. Finding and analyzing cases is therefore one of the main tasks of international lawyers.

I. Decisions of International Adjudicative Bodies

On a strict reading of Article 38(1)(d) of the ICJ Statute, judicial decisions are only subsidiary sources of international law. At first glance, this reserved importance is confirmed by the absence of precedents. As cases are generally binding only between the parties involved in the dispute, not against uninvolved parties, no formal concept of precedent exists in international law. This first glance, however, belies the actual realities of international law. Cases shape the modern international legal order at least as much as treaties and customary international law. Courts base their decisions on previous cases to build a coherent system, scholars use cases to adjust their approaches to the realities of international law, and commissions use cases as food for thought when codifying law. This applies not only to judicial decisions but also to communications of commissions, committees, and other quasi-judicial bodies.

International law cases can be differentiated according to different types of applicants and procedures. In most proceedings, two states are in dispute before an international court. This is particularly the case with the ICJ and the International Tribunal for the Law of the Sea (ITLOS). Private parties can also file complaints against states before international human rights courts and investment protection tribunals. Additionally, prosecutors can file cases against individuals before international criminal courts. Finally, international organizations and states can also seek advisory opinions from international tribunals.

Cases can consist of up to four different parts. Under preliminary objections, courts typically address the jurisdiction of the court, the ability of the plaintiff to bring the case to trial (so-called standing), and other admissibility requirements. Under merits, courts present their reasoning and the result of the case. Under reparations, most courts specify the consequences their judgement (e.g., reversal of measures, payment of reparations). Under interpretation, courts may, at the request of the applicant, clarify how a judgment is to be interpreted and whether the respondent has fulfilled its obligations.

II. Domestic Cases in International Law

Domestic court decisions are also covered by 38(1)(d) of the ICJ Statute. It should be noted, however, that domestic decisions are rarely cited. While international decisions are usually cited to ensure a supposed uniformity of the international legal order, the use of domestic decisions often serves to prove customary international law and to secure acceptance by states. By discussing domestic decisions, courts signal to states that their legal traditions are being taken seriously. For this reason, a thorough research on domestic decisions should not only focus on decisions of the usual suspects, but should strive for representativeness.

Although citations are aimed at securing acceptance of international law by all states, studies on citation practices of international courts and textbooks show that primarily cases from Australia, Canada, China, France, Israel, South Africa, the United Kingdom, and the United States are cited. Cases from jurisdictions outside the Global North are very rarely cited. For example, in Arrest Warrant, the ICJ deals solely with the UK House of Lords and French Cour de Cassation. In Jurisdictional Immunities, the ICJ cites decisions from 16 countries in the Global North (Austria, Belgium, Canada, France, Germany, Iceland, Ireland, Italy, New Zealand, Poland, the Netherlands, the United Kingdom, United State, Slovenia, Spain, Switzerland), one regional human rights organization of the Global North (Council of Europe) and only one country in the Global South (Egypt). The White & Case guide for Jessup Moot Court participants on “Researching International Law” echoes this practice and recommends considering decisions from Canada, Australia, and New Zealand for factual matters involving indigenous rights as "those countries have significant indigenous populations", while ignoring Central and South African and South American experiences in addressing indigenous rights.

Admittedly, there are plausible reasons for this: In some cases, only decisions from certain jurisdictions will exist, decisions in English are easy to understand for most international lawyers, many databases contain only judgments from these jurisdictions, and the style of reasoning of these courts is similar to the style of reasoning taught in international law departments around the world. However, this prevalence of English-language decisions in citations is not inevitable, but the result of historical inequalities within the international system. Over the past 400 years, European states in particular have imposed their legal systems on countries on every continent of the world. Today, English is the working language in international institutions, and English-language publications are expected by international law scholars in many regions of the world. In light of these colonial roots of the bias in favour of English-language decisions, a thorough research on domestic decisions should not only try to use decisions of a certain group of states but instead should strive for representativeness. Since discussing domestic decisions serves to establish customary international law and to secure States’ acceptance of international law, the cases used for this must consider as many diverse countries as possible. Otherwise, international law will remain law of only well-recognized states and the international legal order could, with reasonable grounds, lose acceptance, especially in the countries of the Global South.

Advanced: Case Selection

The research of domestic court decisions does not have to include all countries of the world as this would neither be feasible in terms of time nor valuable in terms of insights. Instead, students may strive for so-called theoretically informed sampling. This requires a three-step approach: Firstly, students define their object of interest as precisely as possible (e.g., state practice regarding prosecuting institutionalized mass atrocities). Secondly, students search for states that faced similar problems in their history. Thirdly, students group the relevant states by 'legal families', geographic region, economic and political systems as well as their the position within international power structures. Lastly, students select a representative state from each possible combination for their analysis. The reasons for selection should be presented transparently. While this process is more time-intensive than traditional methods, it will not only provide novel insights but also serves to counteract the exclusion of the majority of states from the process of creating and developing international law, thereby contributing to fulfilling international law's universalist potential.

C. Researching Cases in International Law

Generally, case law analyses have two different starting points: In the first type of question, the student is asked to respond to a general question of international law. The student can only answer this question convincingly if they also engages with international and domestic cases.

Example for general question of international law: Are entry restrictions against foreigners permissible under international law if they serve to combat the COVID-19 pandemic?

In the second type of question, the student must answer a case-specific question. Although this question seems to refer only to one case, the student can only answer this question persuasively if they also considers comparable cases.

Example for case-specific questions: Why did the ICJ reject state responsibility of Serbia and Montenegro for acts in Srebrenica in the Bosnian Genocide Case?

Thus, for both types of questions, students must find the applicable case law for persuasive reasoning. For this, students can resort to libraries and online databases.

I. Finding Cases in Libraries

The most obvious, but also the most challenging source for researching case law is printed law reports. The main advantage of law reports is that they are published either by the courts themselves or by distinguished individuals and institutions. Students can therefore be assured that law reports reflect the development of case law comprehensively and authentically. The major disadvantage, however, is their format. Law reports are often only available in print. Many universities and students cannot afford them. Furthermore, printed collections can only be scanned and skimmed in a very time-consuming and error-prone process. Students should therefore use them with great caution. Nevertheless, law reports remain a common source to research case law. The following list provides an overview of the most common law reports in international law:

• Covering almost all fields of case law in international law
  • International Law Reports (CUP)
  • Oxford Reports on International Law
• Covering international case law from 1929 to 1945: Annual Digest of Public International Law Cases
• Decisions of the International Court of Justice: UN Summaries of Judgments, Advisory Opinions and Orders of the International Court of Justice
• International arbitral and judicial awards: United Nations Reports of International Arbitral Awards
• Decisions of UN judicial bodies: United Nations Juridical Yearbook
• Law of the sea: ITLOS Annual Reports
• Cases in the European human rights system: Tim Eicke (ed.), European Human Rights Reports

Many international law journals also contain sections that summarize and assess cases. However, these journals are only suitable to a limited extent for researching cases. First, journals contain only a sample of current decisions, and second, they focus usually on analyzing individual aspects of the case and not on presenting the entire content of the decision. For this reason, journals are recommended resources for case law analysis only after students have already found the relevant cases for their analysis. Subsequently, contributions to journals can serve as a source of inspiration in one's own analysis of case law.

II. Finding Cases in Online Databases

Nowadays, online databases exist for almost all international courts. Most of these databases enable machine-readable research and parsing of case law. This allows students to filter case law by terms, topics, rules, and years to find the most relevant cases as quickly as possible. For this reason, online databases should usually be the starting point for case law research. Students may use the court's own databases for citations and footnotes as they provide scanned, but original versions of decisions. In this way, students can avoid mistakes in quoting and citing. In contrast, third-party databases are better suited for initial research. These databases often contain more precise options for filtering, so students can use them to find more appropriate cases more quickly. The following list provides an overview of online databases for international courts, tribunals, commissions, and committees:

• Databases covering more than one court or system
  • WorldCourts (open access)
  • World Legal Information Institute (open access)
  • JusMundi (paid, but free for Jessup participants)
  • The Max Planck Encyclopedias of International Law (paid, but free for Jessup participants) with comprehensive summaries of many cases
  • World Court Digest (open access) with a thematic table of contents
• Permanent Court of International Justice: Series A for judgments until 1930, Series B for Advisory Opinions until 1930, and Series A/B for Judgments, Orders and Advisory Opinions from 1931 (open access)
• International Court of Justice: List of All Cases database (open access)
• International criminal courts: ICC Legal Tools Database
• International human rights adjudicative bodies
  • University of Minnesota, Human Rights Library (open access) for almost all international human rights adjudicative bodies
  • UN human rights system
    • UN Treaty Body Database (open access)
    • OHCHR Jurisprudence Database (open access) for United Nations Treaty Bodies
    • UN Human Rights Bodies Database (open access)
  • ECtHR’s HUDOC database (open access) for the European human rights system
  • Inter-American human rights system
    • IACmHR’s Reports on Cases (open access)
    • Judgements of the IACtHR database (open access)
    • Loyola of Los Angeles International and Comparative Law Review’s Inter-American Court of Human Rights Project database (open access)
    • IUSLAT Database on the Inter-American human rights system (open access)
    • SUMMA database on the Inter-American human rights system (open access)
  • African human rights system
    • Cases of the African Court on Human and Peoples’ Rights (open access)
    • Communications of the African Commission on Human and Peoples’ Rights (open access)
    • Database and commentary on jurisprudence of the African Court on Human and Peoples' Rights (open access)
    • African Human Rights Case Law Analyser (open access)
• Other fields of international law
  • International Commercial Law: Case Law on UNCITRAL Texts database (open access)
  • International Centre for Settlement of Investment Disputes: ICSID database (open access)
  • International trade dispute settlement bodies: | WTO Dispute Documents database (open access)
  • International Tribunal for the Law of the Sea: ITLOS Document Search (open access)
  • Intellectual Property Law: WIPO Lex (open access)

To use these databases most effectively, students may think of key phrases that describe the problem to be solved as concretely and as briefly as possible. In some cases, the relevant phrases already emerge from the questions. For instance, our first example asks about the legality of entry restrictions under international law. A student could search the databases for the keywords "entry restrictions" and synonyms. However, this is usually not sufficient to find all cases that are relevant to solving the problem. Instead, students may also search for secondary literature in parallel. In particular, students can use Google, Google Scholar, encyclopedias of international law, the search engines of the major international law publishers (esp. CUP and OUP), and international law blogs for the keywords. After reading suitable articles in journals, books, blogs, and encyclopedias, students should have a deeper understanding of the legal issues. The keywords for the databases can then be adjusted.

This literature review is also particularly important if the question does not contain specific phrases that can already be used as keywords for databases. For instance, our second example asks solely about the lack of state responsibility of Serbia and Montenegro. It would be very tedious to search the databases for "state responsibility," as the keywords are still too general. Instead, students may first read the relevant case (Bosnian Genocide Case) and literature to be able to identify the key legal issues. After reading the case and literature, students can recognize that, among other issues, the question of attribution of private acts is crucial for the state responsibility of Serbia and Montenegro. For this issue, the ICJ has been using the "effective control" test since Nicaragua, whereas the International Criminal Tribunal for the former Yugoslavia (ICTY) uses the "overall control" test. These two phrases (“effective control” v. “overall control”) can be used as keywords for the literature review and databases to locate cases relevant to answer the question.

Some databases also offer to search cases by year, topic, and rule. This is particularly helpful in areas of law with many decisions to filter out the relevant cases. However, as international adjudicative bodies also draw inspiration from decisions outside their own system, students should not only search for cases in the field of law of the question but also look for comparable problems and decisions in other fields of international law. Students may repeat their research several times during the processing period using adjusted keywords to reflect their increased knowledge.

D. Using Cases in International Law

In order to apply the cases found, students should understand the case in a first step and then determine the relevance of the case for their assignment and argument in a second step.

I. Understanding Cases

After finding the relevant cases, students must understand these cases. The tools used to understand cases do not differ, but the way the tools are used does, depending on the role and objective. Every case analysis starts with reading the case as well as annotating and summarizing it (at least in thought). However, the reading, as well as the objects of markings and summaries, differ depending on the position and task of the analyzing student.

In international law, two distinct types of tasks exist in which the analysis of cases becomes relevant. In one case, students must analyze cases strictly doctrinally. This is particularly the case in moot courts and when students have to write a case brief or solve a case from the standpoint of the judge. In this type of task, the focus of analysis should be on locating the cases in the broader context of the relevant field of international law. Students can criticize decisions, provided that the judgments depart from the established canon of the field. In most instances, however, students should instead focus on distinguishing cases or establishing exceptions and qualifications of rules derived from judgments. In the other case, students can analyze cases not only doctrinally but also disruptively. This is particularly the case when students analyze cases not as (imaginary) members of an institution (be it as applicant/respondent or as a judge) but as external observers (e.g., in a critical case analysis). In this task, students should also locate the case in the broader context of the relevant field of international law. However, the primary analysis does not end there. Instead, students can analyze the case in light of decisions from other fields of international law, critical methodological approaches (e.g., Third World Approaches to International Law), or interdisciplinary insights. Nonetheless, students should be aware that these two types of tasks represent two extreme positions of case analyses. In between, there is a continuum of tasks that combine elements from both types.

Regardless of the type of assignment, any case analysis begins with understanding the cases provided or identified. In this respect, a two-tiered approach can significantly facilitate the understanding of cases: Students may first read and annotate the case and secondly summarize it. However, there is no universal approach to reading and summarizing a case, so students can compile their own method based on existing approaches.

1. Reading and Annotating a Case

Before reading the case for the first time, students may make sure that they have understood the assignment as the type of task is crucial for the approach of case analyses. In a second step, students can use the techniques of "skimming” and "scanning" to obtain a first overview of the case. Skimming provides students with a first glimpse of the overarching content of the judgment. Students should not read the entire judgment or entire paragraphs but instead focus on the title and date of the decision, the parties, subheadings, and the first and last sentences of sections. Scanning is used to locate relevant passages within the judgment and then read it. For this purpose, students can be guided by subheadings as well as first and last sentences of sections from skimming and then read only those passages that seem relevant to answering the task. For example, if students are only interested in the legal reasoning, they may bypass all the parts of the judgment describing the facts and the proceedings to focus on the legal reasoning. In a third step, students may read and annotate the case. Annotations are used to visually structure the case and to be able to understand it with little effort even in retrospect.

Advanced: Highlighting Cases

International law cases tend to be very long, so highlighting should be used sparingly. Instead, students should focus on marginal notes by pen when annotating cases. Students can organize the case in the margin into facts, procedural history, admissibility, merits, and reparations. The use of different colors for each level can facilitate subsequent skimming and scanning. Different levels can also be separated from each other by corresponding colored brackets. This keeps the text tidy for underlining and highlighting. In addition, students should write their first thoughts in the margin so that they will not be forgotten. Highlighting should be limited to parties, core issues, core arguments, results, and separate opinions. A separate color should be used for each of these as well.

In the final step of reading and annotating, students may consider rereading the case to review one's annotations and prevent mistakes or oversights. Depending on the assignment, it might be useful to read not only the case itself but also case summaries. Many courts provide these summaries themselves. But also journals or encyclopedias of international law contain case summaries. By supplementing one's own thoughts with thoughts from other lawyers, one's own idea of the case can be verified.

2. Summarizing a Case

After several readings of the case, the case can be summarized at least in thoughts, and for some assignments, in writing. As a rule, this step is not relevant for examiners, but for students. The case summary should comprehensively, but briefly, present the most important aspects of the case. Only by this step can students verify whether they have really understood the case. In addition, it serves to recall the case later without much effort. Thus, the case summary, in addition to the case reading, is a key prerequisite for using cases in international law.

Advanced: Writing a Case Brief

A recommended format for case summaries is the so-called case brief. This is a method from common law legal systems for summarizing cases. A case brief divides the case into general information, facts, legal issues, results, reasoning, separate opinions, and interpretation. Under general information, the title and date of the decision, parties participating in the proceeding, and areas of law involved are specified. Facts include both the underlying dispute of the case and the procedural history. Legal issues should be identified independently of the facts of the case. Results indicate judicial holdings regarding the legal issues and legal reasoning provides the rationales for these holdings. The last two points (separate opinions and interpretation) depend on the assignment. If relevant to the task, separate opinions should be summarized in an assignment-specific way and the interpretation should explain how the judgment can be used to answer the question (including link to prior and subsequent cases, criticism of the judgment, effect of the case on the social environment). A case brief should be no more than two pages long. The focus should be on the results, legal reasoning, and interpretation.

II. Determining the Relevance of a Case

Before students ultimately apply the case, they should determine the relevance of the case for their assignment. The importance of cases for the international legal order was already explained at the beginning of this chapter. Although there is no formal doctrine of precedent in international law, cases shape both the determination of rules and their interpretation. However, this does not imply that judgments which at first glance support one's own argumentation should be used for one's own reasoning without hesitation. Likewise, cases that contradict one's own argumentation at first glance are not a final farewell to one's own reasoning. Instead, cases can be evaluated from both doctrinal and critical perspectives before they are finally presented. The appropriate balance between doctrinal and critical evaluation perspectives depends on the assignment at hand and cannot be determined in the abstract.

1. Approaching Cases Doctrinally

From a doctrinal perspective, there are three elements in particular to consider when students want to determine the relevance of the case to their assignment and argument: First, the applicability of the case to the assignment must be determined. In addition, obiter dicta and individual opinions may be considered.

a) Distinguishing Cases

Before classifying a case as being for or against their reasoning, students may answer two questions: Firstly, students can investigate whether the facts of the case under investigation correspond to the facts of the assignment (so-called factual distinguishing). It may well be that the result and reasoning of a case are clearly against one's own argument, but the cases are so different that the rule and reasoning cannot be transferred automatically. For this, students must closely examine the facts of the case and the assignment and identify similarities that allow the rule to be applied or differences that hinder the rule’s application. Second, the legal elaborations in the case may contain hidden qualifications or exceptions that preclude the application of a case that appears to fit or that justify the application of a case that does not appear to fit the assignment (so-called legal distinguishing). Finally, reasoning in old cases can also be displaced by new legal developments. For a persuasive argument, students should always acknowledge the cursory fit or lack of it in a first step, and then explain why the case actually does or does not fit in a second step. From a doctrinal perspective, it is usually unconvincing to frame a case as false. Instead, these two techniques of factual and legal distinguishing should be employed to exploit the case for one's own argument.

b) Obiter Dicta

Legal interpretations of courts that are not relevant for deciding the case (so-called obiter dicta) may also be considered in analyzing cases. For example, the ICJ defined opinio juris in an obiter dictum in North Sea Continental Shelf and defined obligations erga omnes for the first time in an obiter dictum in Barcelona Traction. In both instances, the legal reasoning was not relevant to the outcome of the case, and yet both obiter dicta continue to shape the international legal order to this day. However, it is disputed whether obiter dicta are "judicial decisions" or "teachings of publicists" in the sense of Art. 38(1)(d) Statute of the ICJ. For this reason, obiter dicta should be treated cautiously. For example, ITLOS in Delimitation of the Maritime Boundary in the Bay of Bengal refused to apply an obiter dictum of the ICJ in Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea.

c) Individual Opinions

Many domestic legal systems allow judges to attach individual opinions to the majority decision if they disagree with the majority’s reasoning (so-called concurring opinion) or result (so-called dissenting opinion). Likewise, almost all international adjudicative bodies permit judges to publish individual opinions.

Example for a clause permitting individual opinions: Article 57 ICJ Statute: "If the judgment does not represent in whole or in part the unanimous opinion of the judges, any judge shall be entitled to deliver a separate opinion."

Although individual opinions have not prevailed within the adjudicative body and are thus not enforceable, they can contribute to the development of legal standards. Individual opinions can assist in interpreting the majority opinion. Concurring opinions often clarify or generalize the court's reasoning. This facilitates the application of the court's reasoning to similar cases. Dissenting opinions not only reveal the rationale for the majority opinion but also criticize this majority opinion. Thereby, dissenting opinions are a good starting point for a critical engagement with majority opinions.

Example for an influential individual opinion: Judge Sir Hersch Lauterpacht delivered two individual opinions in Norwegian Loans and Interhandel against the legality of so-called self-judging reservations to the compulsory jurisdiction of the ICJ, which later became accepted by the majority in Fisheries Jurisdiction (Spain v Canada).

While the relevance of individual opinions should therefore not be underestimated, they should be treated cautiously. Firstly, they are just not part of the majority opinion and thus neither binding for the parties nor enforceable nor “subsidiary means for the determination of rules of law” according to Article 38(1)(d) Statute of the ICJ. Second, individual opinions are frequently results of national or amicable biases.

2. Approaching Cases Critically

From a critical perspective, it is much more difficult to recommend generally accepted approaches. However, one common feature of many critical approaches is to view cases as social facts rather than legal ones. Critical perspectives are therefore not limited to the application of doctrinal standards. Instead, critical approaches address, among other aspects, the sociological conditions of human decision-making in adjudicative bodies, (post-)colonial imprints and effects of decisions, economic conditionalities of law, and ecological consequences of judgments. While the application of these perspectives requires an engagement with their basic methodological assumptions, they usually enrich a case law analysis enormously by unmasking the supposed neutrality of doctrinal methods. Examples of critical engagement with cases include the 'feminist judgment movement', 'trashing' in the sense of critical legal studies, and 'Reading Back, Reading Black'. In the following chapters, this textbook provides insights into how to employ interdisciplinary, (post-)colonial, feminist, and Marxist approaches to case law analyses.

E. Conclusion

Cases are one of the four main sources to determine rules of international law. Despite this particular relevance, the ability of students to locate, understand, and apply cases in exams is often assumed. Many textbooks of international law do not teach case analysis skills, but only knowledge of the law. This chapter has attempted to provide students with an introduction to case analyses. (Un-)fortunately, it is up to these students, along with their teachers and practitioners of international law, to ensure that case analyses in the future no longer only consider decisions from colonising legal systems. This will require a challenging but also rewarding engagement with foreign legal systems, possibly including the learning of new languages (for this, Anglophone readers may feel particularly encouraged), and the critical questioning of traditional citation practices and case analysis techniques. While this process is time-intensive, it will not only promise novel insights but also serves to counteract the exclusion of the majority of states from the process of creating and developing international law, thereby contributing to fulfilling international law's universalist potential.

Conclusion

• Cases are one of the four main sources to determine rules of international law. Finding and analyzing cases is therefore one of the main tasks of international lawyers.
• The most obvious, but also the most challenging source for researching case law is printed law reports. Nowadays, online databases exist for almost all international courts. Most of these databases enable machine-readable research and parsing of case law. This allows students to filter case law by terms, topics, rules, and years to find the most relevant cases as quickly as possible. For this reason, online databases should usually be the starting point for case law research.
• In order to apply the cases found, students should understand the case in a first step and then determine the relevance of the case for their assignment and argument in a second step.
• Before students ultimately apply the case, they should determine the relevance of the case for their assignment. Although there is no formal doctrine of precedent in international law, cases shape both the determination of rules and their interpretation.
• From a doctrinal perspective, there are three elements in particular to consider when students want to determine the relevance of the case to their assignment and argument: First, the applicability of the case to the assignment must be determined. In addition, obiter dicta and individual opinions must be considered.
• From a critical perspective, it is much more difficult to recommend generally accepted approaches. However, one common feature of many critical approaches is to view cases as social facts rather than legal ones.

Further Readings

• Acquaviva G and Pocar F, "Stare decisis", in Anne Peters (ed), The Max Planck Encyclopedias of International Law (Oxford University Press 2021)
• Andenas M and Leiss JR, ‘The Systemic Relevance of “Judicial Decisions” in Article 38 of the ICJ Statute’ (2017) 77 ZaöRV 907
• Bjørge E and Miles CA (eds), Landmark Cases in Public International Law (Hart Publishing 2017)
• Linos K, ‘How to Select and Develop International Law Case Studies: Lessons from Comparative Law and Comparative Politics’ (2015) 109 American Journal of International Law 475
• Roberts A, Is International Law International? (Oxford University Press 2017)
• Shahabuddeen M, Precedent in the World Court (Cambridge University Press 1996)

Further Resources

• Columbia University, Researching Public International Law
• UC Hastings Law, International Law Research Guide: Analysis of International Law
• NYU Law, International Law: General Sources: General tools for finding cases on international law
• The University of Melbourne, Finding International Cases

Footnotes

Authors: Silvia Steininger, Tamsin Phillipa Paige

Required knowledge: none

Learning objectives: This chapter introduces law students to the basics of interdisciplinarity in public international law. Students will learn about the main strands of interdisciplinary scholarship and the most prominent methodological tools available. They will be able to fully grasp the benefits and challenges of adopting an interdisciplinary perspective on international law and receive helpful practical guidance in creating their own interdisciplinary legal research projects.

This chapter introduces basic elements of interdisciplinarity in public international law. While the majority of international law scholarship is still dominated by doctrinal research, adopting interdisciplinary perspectives on the theory, history, and practice of international law has become increasingly important for students of international law. Students are requested to not only familiarize themselves with interdisciplinary methods, but also apply those insights to international law. However, most programs lack a thorough introduction to the conceptual toolbox of interdisciplinary research. This chapter aims to remedy this gap and show students why, when, and how to engage in interdisciplinary research projects.

A. Basics for Interdisciplinarity in Public International Law

The call for 'interdisciplinarity' has become a staple in international legal research. It 'can be seen everywhere, ranging from funding calls, research agendas, grant applications, conference themes and internet blogs to rhetorical manoeuvres.' Yet, the more interdisciplinarity gained in popularity, the fuzzier its meaning actually became. To move between disciplines comes with benefits and challenges. In this section, we want to sketch out the basics for what interdisciplinarity means, why it is useful, and how to start an interdisciplinary research project.

I. What is Interdisciplinarity?

In general terms, interdisciplinarity denotes research projects that aim at synthesizing and harmonizing knowledge and methods between two or more disciplines into a coordinated and coherent whole. It stands opposite of intradisciplinarity, which describes working exclusively in the boundaries of one single discipline. Interdisciplinarity thus requires that the general, theoretical as well as empirical assumptions between two or more disciplines are not in contradiction to each other. Moreover, it necessitates a strong, substantial and methodological understanding of those disciplines, which often takes significant amount of time and exposure to the relevant scholarly communities and their writings. Most international legal scholarship takes the form of transdisciplinary or multidisciplinary research, the latter describing persons from different disciplines working together on a common project, each drawing on their own disciplinary knowledge and expertise. This is usually achieved by multidisciplinary teams of authors. Transdisciplinarity attempts to create a unitary common framework among two or more disciplines, to find common research questions, harmonize definitions, and identify explanations that stretch over the scope of just one disciplinary horizon.

Critics of interdisciplinary scholarship argue that the emergence of x-disciplinarity (inter-, intra-, trans- and multi-disciplinarity) dilutes disciplinary boundaries, threatens the idea of a specialized profession and challenges central understandings such as legal autonomy. In fact, disciplines are not academic silos but overlap and interact with each other constantly. International law suits itself to interdisciplinary approaches, as many research questions necessitate at least a contextual understanding of law. Nevertheless, this should not underestimate the politics behind the turn to interdisciplinarity. In the words of Jan Klabbers, 'interdisciplinarity is a politically charged activity in itself.' Interdisciplinary approaches might reproduce, disguise, or even strengthen existing power relations. Adopting an interdisciplinary research agenda and methodological toolbox further requires additional opportunity costs, for instance to get access to methodological training or resources such as specific programs, which might exacerbates structural inequalities in academia. Interdisciplinarity can thus rupture disciplinary gatekeeping and democratize the creation of new knowledge on fundamental questions of international law, but also create additional barriers and adopt a marketized logic, in which research is guided by the use of fancy methodologies rather than research questions.

II. Why do interdisciplinary research?

Classical, doctrinal scholarship in international law usually adopts an internal view on law. The internal viewpoint takes the perspective of an insider to law, a law student, a professor, or practitioner, who was trained and socialized into the legal community. They participate in the legal discourse, are preoccupied with legal arguments, and decision-oriented. In contrast, interdisciplinary scholarship promotes an external view of law. It usually take the perspective of the outsider, who observes the processes, structures, and norms of international law in action. Interdisciplinary research allows to ask questions which go beyond the internal logic of law. It does not limit itself to how the law is, but also why the law has been applied in a certain way, and how it should be in the future. Interdisciplinary approaches enable the identification of causalities or at least indicate possible explanations for certain situations or developments in international law. They can also illuminate underlying patterns and structures, which have been overlooked, thus benefiting critical engagement with international law and providing support for improvement via interpretation or further development of the law.

III. How to do interdisciplinary research?

Naturally, there are countless options to analyze international law from an interdisciplinary perspective and we will give you more insights in the following section. However, in general, interdisciplinary research requires a more structural approach to international legal research. One can generally distinguish between five steps:

First, you need to familiarize yourself with the respective approaches in depth before the start of the research project. This requires to understand the underlying epistemological considerations, fundamental concepts, and classic authors, who have shaped the particular approach. Moreover, it is helpful to map the existing interdisciplinary engagement with international law. This is important not only to assess the state of the discipline and the topics that are being discussed, but also to identify the respective community, which underpins the respective research project. One can thereby learn how to approach the same topic from different angles, how to transpose fundamental concepts to the study of international law, and to get socialized into the respective academic and writing style.

Secondly, in contrast to classical, doctrinal research, interdisciplinary research embraces a more transparent and open structure. In general, the scholar will first identify the research question(s) and possible hypotheses and counterhypotheses before analyzing the data. That does not not mean that the availability and access to source material cannot guide the respective research design, but it means that the data does not predetermine the research questions. This is different to doctrinal research, in which the identification of structures and the categorization of cases is a major research aim in itself.

Thirdly, it is important that the respective researcher openly and transparently justifies the respective research design. Interdisciplinary scholarship often includes an explicit methodology section. In this section, the author justifies, among others, why this particular approach is useful for the study of international law, how this influences the research question(s), which factors guide the identification of hypotheses, what were the criteria required for the selection of research units, which methodologies are going to be applied, how is the data being gathered, and what are the limitations of this particular method. In general, the various empirical methods can be grouped in either qualitative, focusing on the interpretation of words and meanings of texts, or quantitative, focusing on the interpretation of numbers and statistics. Advanced scholars sometimes also apply so-called 'mixed methods"'which can include a combination of several qualitative and quantitative methods. At this stage, the author can also identify how the project relates to existing research or conflicting approaches and clearly limit the research agenda.

Fourthly, the researcher gathers the necessary data. Again, a variety of options exist, ranging from comparative research designs, to archival work, as well as qualitative and quantitative approaches, which will be highlighted in section D. This step might take significant time and require additional resources such as travel, software etc. It is also heavily reliant on factors outside of the control of the respective researcher, such as access to sources, for instance archives and interview partners.

Finally, the data will be evaluated with respect to the aforementioned research question. This often includes giving a systematic overview and highlighting particularly interesting or unexpected factors. Hypotheses can be confirmed or refuted. Moreover, it is possible to consider some possible explanations for particular outcomes, reaffirm the limitations of the results or identify options to expand on the research in future projects.

B. Types of Interdisciplinary Scholarship in International Law

Throughout the last decades, particular types of interdisciplinary scholarship have emerged in international legal research. This section provides a non-exhaustive overview of main strands and thinkers as a first gateway to glean inspiration for further engagement.

I. International Law and History

Interdisciplinary study of international law and history is perhaps the most common form of interdisciplinarity in the study of international law. This is because it’s a form of study that ties deeply with what is done through doctrinal legal research. Because doctrinal legal research necessarily requires placing the principles espoused by legal instruments or relevant international court decisions in the context in which they were made, in order to understand how they would apply in a new context, the study of international law lends itself towards historical enquiry. Prime examples of this type of scholarship can be found in the work of Arnulf Becker Lorca, James Crawford, Martti Koskenniemi, and Anne Orford. The purpose of international law and history interdisciplinary enquiry is not to determine the 'true' or 'original' meaning of a piece of international law, in line with the originalism doctrine espoused in US Constitutional Law. Rather, scholars engaging historical enquiries of international law often aim to disrupt accepted narratives that established alleged 'legal truths'. The historigraphical turn in international law has also put significant emphasis on researching the history of international law in non-Western regions and peripheries. This includes not only a renewed emphasis on questions of imperialism and colonialism, but also on regional perspectives, for instance on international law and the history of ideas in Latin America, Africa, and Russia, as well inter-civilizational perspectives.

II. International Law and Sociology

The primary goal of legal sociology (as both a discipline and method) is 'to provide insight into an understanding of the law through an empirical study of its practice.' This particular field of interdisciplinary study of international law finds its origins in the work of Pierre Brourdieu, Émile Durkheim, and Max Weber. In terms of empirical and theoretical studies into the practice of international law sociology is relatively small or niche when compared with International Law and International Relations (discussed in this section in conjunction with International Law and Political Science). This can be explained on methodological grounds. Sociology is a methods- and theory-based discipline which means that there is a battery of defined available methods, new methods need to be sufficiently tested, justified, and articulated to be considered valid included and social theory is directly informed by empirical observation of the world. Political science and international relations, however, are subject matter based disciplines and thus have more scope as they adopt the different methodologies from other disciplines such as sociology. In the last two decades, research on sociological perspectives in international law has particularly focused on the practice of international lawyers as a legal profession, the evolution, proliferation, and authority of international courts, the practices of international adjudicators, as well as the emergence and structure of legal fields, for instance in international economic law as well as international criminal law.

III. International Law and Political Science

Political science perspectives on international law primarily focus on the 'development, operation, spread, and impact of international legal norms, agreements, and institutions.' They include theoretical and conceptual framework as well as political science methods, in particular qualitative and quantitative approaches. It expands the study of international law to investigate the role of political organization, government, and structures upon which international law relies. While its beginnings can be traced back to the early 20th century, the most prominent political science approach to international law is international relations. International relations theories usually highlight three facets of international law: power, international cooperation, and domestic politics. Yet, the relevance and understanding of those factors depends on the different strands of international relations theory. In general, one can distinguish between at least four dominant strands: realism (focusing on power), institutionalism (focusing on the role of institutions and regimes), liberalism (focusing on how domestic factors influence international affairs), and constructivism (focusing on the role of norms). Critical approaches such as Marxism, feminism, or post-structuralist strands are also applied. Historically, the disciplines of international law and international relations developed along related but usually not intersecting tracks. However, with the proliferation of international cooperation, the end of realist Cold War politics, and the rise of the US-backed liberal internationalist world order, a vocal community of IL-IR scholars emerged in the 1990s. They included, among others, Kenneth W. Abbott, Robert O. Keohane, and, most prominently, Anne-Marie Slaughter. Prominent IL-IR research strands focus on the compliance with international law, questions of legality and legitimacy, the emergence of norms as well as their contestation, and the proliferation of international courts.

IV. International Law and Literature

International Law and Literature as an interdisciplinary field of study follows the same paths and approaches as the Law and Literature movement more generally. The general goal of this type of interdisciplinary research is to use literature to advance understandings of international law in some way. While this is generally done through the pursuit of academic scholarship, it can also be done through the production of works of fiction. Classic examples of using works of fiction to discuss concepts of international law and justice are the work of China Miéville and The Reader by Bernhard Schlink. When engaging in academic approaches to International Law and Literature interdisciplinary work, authors tend to do one of three things with the literature aspect of this scholarship: 1) use works of fiction to explain and make accessible concepts of international law to non-experts or to illustrate a point of international law to fellow legal scholars; 2) use works of literature as conceptual data to explore societal responses to international law; or 3) use literature as a tool of jurisprudence in order to develop legal theory on particular issues. Often, the aim of international law and literature, as with all law and literature interdisciplinary studies, the tool of the literature is to help people understand international law in a new or more accessible way. The respective type of literature can also move with time, for instance historical-oriented works have focused on the role of world-making in early 20th century fiction while recent scholarship also discussed the depiction of international law in popular culture and modern fiction.

V. International Law and Economics

The economic analysis of international law has emerged in the 2000s, but builds on the more established domestic Law and Economics literature starting from the 1960 in US academia. Its primary aim is to apply economic theory, in particular rational choice approaches, to problems of international law. The core assumption of the economic theory is the rational actor model. Economic analysis of international law thus assumes that states are self-interested and make decisions among alternatives to maximize their gains. They act according to the rational choice model in the design of international agreements and the creation of international law. Methodologically, international law and economics scholarship often applies quantitative methods based on large datasets, as well as experiments. International law and economics sheds lights on two facets of international law: the importance of self-interest for state behavior and how this affects how states design and comply with international law. The economic approach to international law has been focused on the different modes of treaty making, the design of specific clauses such as treaty exits, international dispute settlement, and the legitimacy of customary international law. Economic analyses also investigated how particular rules of institutional design might foster compliance. A more recent but rapidly growing strand of interdisciplinary analysis on the economic analysis of international law is formed under the umbrella of Law and Political Economy (LPE). Research on international law from an LPE perspective investigates how international law creates wealth and inequality and upholds neoliberal hegemony but also how it might 'contribute to understanding and transforming centre–periphery patterns of dynamic inequality in global political economic life.'

VI. International Law and Psychology

International Law and Psychology has been developed in the 2010s and primarily adopts insights of behavioralism and cognitive psychology to international law. There are apparent overlaps between the emerging movement of behavioralist international law and the earlier economic analysis, not only amongst its main proponents but also its substantive questions and methods. Its main difference to economic analysis, however, concerns the rational choice paradigm. Psychological or behavioralist analyses do not assume perfect rationality, but rather want to empirical explore how the different actors in international law 'actually behave'. Behavioralism complements the economic approach by demonstrating that the action of individuals is often not determined by the maximum utility but influenced by several bias. To understand how those biases influence the behavior of individuals, behavioralist often rely on experiments. Yet, the application of experimental insights upon the behavior of states in international law is more challenging than to powerful individual decision-makers such as heads of state, diplomats, or judges. Behavioralist insights have been applied to a variety of international law issues, for instance, on treaty design, treaty interpretation, international trade disputes, bilateral investment treaties, legal theory, international humanitarian law or how to incentivize compliance via rewards.

VII. International Law and Anthropology

Anthropological analysis of international law have been primarily developed after the 1990s, however, earlier works on human rights in socio-cultural contexts can be identified. Anthropology and international law thus attempts to understand the social and cultural contexts of international law, often via ethnographical fieldwork in various local socio-cultural settings. Today, anthropological perspectives are in particular applied to account for the developments in three different international law spaces: the expansion of human rights discourse, the globalization of law, and international organizations. Anthropological perspectives aim at understanding how international law is produced and how it works by focusing on the individuals and communities which create and are affected by international law. Anthropology thus highlights three overlooked facets of international law: First, it allows an anti-formalist approach to international law, i.e. it can be applied to legal norms notwithstanding if they take the form of hard or soft law, written text or oral order. Secondly, it goes against the state centrism of international law by focusing on how individuals and communities as well as non-state actors, corporations, organizations etc create and interact with international law also along transnational lines. Thirdly, it situates the development and function of international law in specific local contexts, thus rejecting the universalist view and allowing for an integration with postcolonial or critical theory. Anthropological perspectives have been applied to understand how human rights have spread globally while also being clearly affected by local dynamics, how social movements engaged with struggles over international law, interactions between indigenous law and international law, the role of professionals such as lawyers and judges, as well as case studies of different legal institutions and regimes, for instance in international criminal justice.

VIII. International Law and Linguistics

International Law and Linguistics primarily focusses on the analysis of the language of international law and its discourses. Its main aim is to uncover the meaning of particular legal provisions by examining how it is being used or understood by different actors. This includes also the study of different languages as well as issues related to the translation of terms. Insights of the linguistic analysis of international law are thus used to understand the drafting, interpretation, and application of legal norms in treaties and jurisprudence. Discourse analysis and text linguistics examines the legal text and its surrounding context. Analysis of syntax focus on how different phrases are combined and connected to form part of text structures. Semantics and pragmatics aim to understand the meaning of terms for instance via their original meaning or by differentiating it from closely related provisions. Studies of historical linguistics and etymology investigate how particular terms have been historically developed and interpreted. Lexicography relies on the understanding of dictionaries. Corpus linguistics and computational linguistics aim at handling large amounts of texts to understand the use of certain words or collocations. Sociolinguistics emphasize how social factors such as class, gender, or age influence our language, while forensic linguistic studies how language is used as evidence in legal processes. In international law, linguistic insights have been applied to the interpretation of international legal norms, the use of references in the decisions of international courts and tribunals as well as self-citation practices in general. Another important strand of research critically reflects on the language(s) in which international law claims universality and challenges the English-centrism of international law.

IX. International Law and Other Approaches

It is essential to point out that there are also a multitude of other types of interdisciplinary approaches to international law and legal research. Those have been particularly popular in new fields of legal research, for instance in the area of climate research, animal studies, or technology and data science. In general, for interactions with philosophy, you can find inspiration in the chapter on positivism, while critical approaches explained in this book such as TWAIL, Marxism, and Feminism & Queer Theory, also suit themselves to interdisciplinary research agendas.

C. Methods of Interdisciplinary International Law Scholarships

While traditional legal scholarship mainly advocates for the doctrinal method, the toolbox of interdisciplinary approaches offers a much wider variety of methods to study international law. In the following, we propose the four main methodological "baskets": comparative method, archival research, qualitative method, and quantitative method. Those four methodological baskets are not mutually exclusive but can be combined and also complement each other, as well as classical doctrinal approaches.

I. Comparative Method

Comparison has long been a staple in comparative legal research, also in international law. Comparison can be generally understood as a method which aims at contrasting two or more research units to identify parallels and differences. Interdisciplinary research puts significant emphasis on justifying the design of a comparison. After identifying the research question, the respective scholar generally justifies the comparability of the respective research units. The respective research units are called a case. The notion of case here is broader than its general use in international law (see Case Analysis). A 'case' in interdisciplinary scholarship can be a judgment, an institution, a court, or even a legal system as such. For instance, comparative international law has focused on understanding how and why national legal cultures differ in their engagement with international law. In particular when there is only a small number of research units, interdisciplinary scholars aim to provide a thick description of the respective institutions or legal regimes, highlighting similarities and differences, and, if possible, how the researcher aims to account for potential divergences.

In the social sciences, most comparisons adopt an inductive method, originally developed by John Stuart Mill in his 1843 book 'A System of Logic', to illustrate their causal research hypothesis. This means that they account for an outcome (the dependent variable) as well as possible explanatory factors (the independent variable(s)). This is also called the 'most different' or 'most similar' cases design. In the former, the two or more cases are different in every relevant characteristic except for the outcome and the explanatory factor, in the latter everything between the two cases is similar except for the explanation and the outcome. Charles Tilly further distinguishes four types of comparative analysis, namely individualizing, universalizing, variation-finding, and encompassing.

II. Archival Research

Archival research is generally associated with forms of historical enquiry; however, given the overlap of historical enquiry to other forms of interdisciplinary research, references to archival material will often crop up in various types of interdisciplinary research and even doctrinal research. Primarily, the purpose of archival research is a search 'for materials that might flesh out the stories and histories of modern rhetoric and composition we were presenting.' Archives can be either physically located or online, but this primary purpose does not change with the venue of the archives. Because the goal of archival work is defined primary sources that flesh out, or improve our understanding of historical narrative, the biggest question related to archival research is the decision about what to include (and perhaps more importantly what to exclude) from a piece of research. Because this is an issue for all forms of empirical research this will be dealt with in more detail below; however, a general guide is that for something to be excluded there needs to be a defensible basis for that decision – if something is relevant to the topic, credible in terms of its origins, as within an acceptable tolerance of verifiability, it likely should be included in the work.

III. Qualitative Research Methods

While quantitative research is an empirical research method grounded in numerically measurable data, qualitative research focuses on an often hermeneutical interpretation of subjective texts. These subjective texts could range from ethnographic observation, interviews (structured, semi-structured, or unstructured), free text answers in surveys, oral histories, historical transcripts (such as official meetings, or speeches), discourse analysis, or participant observations. Those different forms of texts are either created by the researcher, for instance by conducting interviews or surveys among the interested research units themselves, or assembled from existing texts, for instance records of debates of newspapers. The respective number of texts depends on the research question, that means a more specific question requires more specific information. In general, the gathered texts should at least constitute a representative sample to be able to guarantee validity, reliability, and objectivity of the resulting analysis. After a significant amount of text data is gathered, the texts will be analyzed in a structured and previously identified method to identify particular patterns, arguments, or frames in the respective texts. Qualitative research methods enable a researcher to understand why a phenomenon is occurring. This can be contrasted with quantitative based investigations that are more focused on establishing what is occurring. The value of qualitative studies as a supplement to doctrinal analysis is how it permits an understanding of why certain elements of doctrinal law have been developed, or how they play out when implemented on the ground.

IV. Quantitative Research Methods

Quantitative research methods have been an essential element of the so-called empirical turn in international legal scholarship, which combines legal methodology with tools and techniques from the social sciences. Quantitative methods are based on numerical data, which generally means large numbers of texts or codes in international law, for instance from legislation, treaties or jurisprudence. The data is then analyzed to identify the conditions under which international law is formed and has effects. Hence, a major challenge of quantitative methods concerns the collection of data, either manually or through computational methods. For beginners, it is thus advisable to make use of existing databases, either from international courts, international organizations, or academic research projects. Quantitative research methods can be generally differentiated in four types: First, descriptive research, which aims at identifying patterns and structures in the data without necessarily having a hypothesis before data collection. Secondly, correlation-aimed research, which wants to determine the extent of a relationship between two or more variables using statistical data. Thirdly, causality-focused research that attempts to establish cause-effect relationships among the variables in the data. Fourthly, experimental research investigates the cause-effect relationship in a study situation in which an effort is made to control for all other variables except one. Those four types are not mutually exclusive but can be combined, however, they come with specific requirements for data collection, for instance most quantitative studies require at least a medium-N or large-N (N means the number of research units) sample size. Hence, in international law, quantitative methods have so far been applied to the jurisprudence of international courts, as well as legal regimes which feature a large number of legal instruments such as international human rights or investment law.

D. Pitfalls and Challenges

Interdisciplinary research is exciting and illuminating, it demonstrates that a researcher can look beyond the traditional legal methods and, in the best case, find answers that help to understand, analyze, and, in certain instances, improve the functioning of international law. However, interdisciplinary research comes also with unexpected challenges. In the following section, we provide practical recommendations to overcome the most common pitfalls.

I. Finding the Right Method for Your Research Question

Doctrinal law scholars are notoriously bad at articulating their methodology, often stating “I just read some stuff and then I analyse it.” In this dominantly doctrinal-positivist academic culture, interdisciplinary research in law is referred to under the broad umbrella of “socio-legal” research. One of the biggest hurdles faced by this broad and inclusive categorisation research is that it doesn’t provide clarity on what it is the interdisciplinary research is doing and which particular method should be applied. The range of methods that are available to interdisciplinary scholars are extensive and cannot be covered here in full. Interdisciplinary methods constitute a broad and diverse toolbox that can be applied to positivist as well as critical understandings of international law. The key to understanding what method is most appropriate for the question you are trying to address in your research is familiarizing yourself with the other discipline you are working with and the methods that are employed within that space. No method is inherently correct or incorrect for a particular research question – the key lies in how you justify both the theory and method you are bringing to your question and articulating why that method is being used and not a different one. That said, one should be wary of scholarship that defines itself by the method rather than the research question.

II. Selection Bias

Selection bias is when, deliberately or accidentally, you use a dataset that is incomplete. It renders your argument void, because the data you used was not reliable or meaningful. Data-driven research must include all data, even data that may undercut the primary thesis, because otherwise it is incomplete and therefore is without value. This often goes against many legal researchers' instincts, because legal training still largely focuses on advocacy. In advocacy, focusing on the evidence that support your argument is fully appropriate and necessary. However, in data-driven research, it is critical to show that your data includes and accounts for cases that diverge from the pattern you are trying to demonstrate. This also reflects a wider shift needed when moving from a legal mindset to a data mindset: lawyers think in terms of absolute rules; data-driven research seeks to demonstrate tendencies.

III. Understanding External Data

Particularly in interdisciplinary studies in international law, a researcher will use or rely upon an external (usually publicly accessible) data source. Broadly speaking, the data source is considered external if the data was not gathered by the researchers themselves. When using external data sources, it is important to establish the accuracy and integrity of the data, while also acknowledging (or highlighting) any weaknesses that may exist with the dataset. It is also important to justify why the use of an external dataset in this instance is the most appropriate approach to addressing the question at hand. An example of how to manage these questions can be found in the second part of Chapter 2 of Paige’s study on UN Security Council decision making in relation to threat to the peace.

IV. Personal Constraints (Time, Skills, Resources)

When setting out to do an interdisciplinary, data driven study in international law one of the first things to consider at the planning stage of the project is what personal constraints will exist and how that will impact your ability to produce a complete study. The most significant factor when considering personal constraints is time. In a 2013 seminar on doing interdisciplinary research, renowned sociologist of law Angela Melville noted that the best approach to assessing time constraints in empirical research was to generate a realistic timeline and then triple it. Her justification for this was that no planning ever accounts for all the unexpected hurdles that crop up when doing empirical work. The other main constraint to consider is access: Will you have access to the dataset? Will you have access to sufficient interview participants to have a complete dataset? Will you have access to enough resources to continue data gathering until you have reached data saturation? Will you physically be able to get access to the relevant participants themselves? All of these questions need to be considered in the research design phase, and all of the complications that arise around these issues are why any empirical work will take three times longer than you expect.

V. Do’s and Don’ts of Publishing Interdisciplinary Scholarship

There are a significant number of dos and don’ts when it comes to doing data driven interdisciplinary research in international law. In summary, you should be open about the biases you bring to the project and how they have impacted your analysis. You do this for the sake of transparency, and to allow the reader to read your analysis in light of your biases. You should not allow your biases to shape what data gets included or excluded from your study (see the above section on selection bias). You should also not allow your biases to dictate how you read the data – they may always inform your analysis but they should not drive your analysis; good researchers are open to their hypothesis being proven wrong by the data. You should make clear why the method you are using is the most appropriate one to address the research question you have in front of you. You should not shape your research question to fit it in to a preferred methodology – research methodologies are simply tools in a researcher's toolbox and you should choose the right one for the project, not choose the project for the tool. Do acknowledge any weaknesses that exist within your dataset, and factor that into your analysis of the dataset. Do not try and explain away or mitigate those weaknesses, rather you should highlight how they demonstrate and need more data gathering and studying on an issue.

Further Readings

• Eliav Lieblich, "How to Do Research in International Law? A Basic Guide for Beginners", 62 Harvard Journal of International Law (2021) 42-67, https://harvardilj.org/2021/01/how-to-do-research-in-international-law-a-basic-guide-for-beginners/
• Shai Dothan, "A Guide to Quantitative Legal Research", iCourts Working Paper Series, No. 221 (2020), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3719836
• Sundhya Pahuja, "Practical Methodology: Writing about How We Do Research" https://www.academia.edu/41669706/Practical_Methodology_Writing_about_How_We_Do_Research
• Siddharth Peter de Souza and Lisa Hahn, "The Socio-Legal Lab: An Experiential Approach to Research on Law in Action" (free interactive visual workbook) https://openpresstiu.pubpub.org/socio-legal-lab

Conclusion

• Learning: Interdisciplinary research in international law is a rewarding pursuit, but to be done well it requires a strong grounding in international law and the other discipline which you are using for your research. The learning process is never finished.
• Applying: For legal scholars, interdisciplinary perspectives to international law often require to learn not only about new methods and conceptual tools but also to adopt different epistemologies. This means, interdisciplinary research changes how one must structure the research, writing, and publication process.
• Experimenting: International legal scholarship has adopted a broad variety of interdisciplinary research, some dominant strands have been summarized in this chapter, which provide a multitude of entry points to look at international law from an interdisciplinary perspective. They are not mutually exclusive. On the contrary, this variety is an open invitation to young scholars to experiment with interdisciplinary research, to try out new and unfamiliar research questions, methods, and approaches in order to broaden our understanding of international law. There is something for everyone!

Footnotes

Author: Sué González Hauck

Required knowledge: Link

Learning objectives: Understanding XY.

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A. Introduction

This chapter introduces some of the most important approaches to international law, while the next chapter introduces methods in working within international law as a field of study, research, and practical expertise. The distinction between 'approaches' on the one hand and 'methods' on the other hand mirrors the distinction between methodology and method. This introductory sub-chapter, first, introduces this distinction and thereby tries to illustrate what 'approaches' to international law are. Second, it reflects on the traditional approach to international law and on its relationship with positivism. Third, it briefly introduces commonalities among and pluralities within critical approaches to international law more broadly, and, fourth, offers short glimpses into the specific critical approaches on which the following sub-chapters will expand, namely feminist and queer theory approaches, Third World Approaches, and Marxist approaches to international law.

B. What is an Approach? Methodology and Method

The different approaches presented in this chapter represent different methodologies, i.e. different sets of ontological and epistemological premises, which shape any intellectual enterprise. Premises are the starting point of an argument. They are the statements that are taken for granted as the point of departure. Ontological premises, simply put, are premises on what there is in the world, i.e. on whether there is an objective truth and/or fixed reality 'out there' and on which elements in the world determine such truths and realities. Epistemological premises are premises on what we can know and on how we can acquire and establish knowledge. No intellectual enterprise can be carried out consistently, transparently and therefore professionally and rigorously without, at the outset, gaining clarity about the ontological and epistemological premises.

The terms 'method' and 'methodology' are often used interchangeably. However, a useful distinction between the two consists in understanding methodology as a set of ontological and epistemological premises and therefore the point of departure, as explained above, and method as the roadmap guiding the individual steps to be taken from this point of departure. 'Method', then refers to the concrete application of the conceptual apparatus of a specific approach.

C. Traditional International Law and Legal Positivism

Despite influential figures like Ian Brownlie having argued that theory is but fog that obscures the more interesting legal questions, no inquiry into international law is possible without theory. It is necessary to at least be aware of the set of premises from which one is starting. The standard way of engaging with international law in the traditional approach, which Brownlie epitomises, consists in laying out 'what the law is' on a particular question by deriving the relevant rules from the sources of international law (mainly treaties, custom, and general principles, Art. 38(1) ICJ Statute) and by interpreting and applying these rules in accordance with existing authoritative interpretations and applications. This approach can be labeled 'doctrinal', 'traditional', 'orthodox', or simply 'mainstream'. Making a claim to knowledge about 'what the law is', however, necessarily involves adopting a position on what 'law' is and on how we can know it. A position that claims to discard theory altogether will often just adopt an inconsistent theoretical position as the starting point of its argument. This is often the case with the traditional, doctrinal, or orthodox approach. Another label which is often attached to this approach is 'positivist'. Positivism, generally, is a label attached to the set of ontological and epistemological premises according to which there is a single, objective truth 'out there' and that it is possible for human beings to know this truth reliably. Legal positivism, as a philosophical position, adopts these premises only for the established, i.e. 'positive' law, not for moral and other considerations, which are considered to be separate from law. Consequently, at least in 'hard cases', i.e. when the law employs vague terms like 'proportionality' or when the law has to be applied to circumstances not clearly reflected in the law, law is not longer a matter of cognition but of (usually a court's) decision. Philosophical legal positivists therefore agree that, at least in these 'hard cases', there is no single right answer to legal questions. However, practitioners who claim to be only interested in positive law and doctrinal scholars whose commitment to legal positivism mainly consists in adopting the perspective of practitioners and providing guidance by systematising existing legal materials, often operate under the assumption that answers about 'what the law is' have a single correct answer and that this answer can be found. 'Positivism' in the sense of the traditional doctrinal approach is therefore often incompatible with philosophical legal positivism.

D. Critical International Law

Critical approaches to international law emerged from the Critical Legal Studies movement in the United States, which was heavily influenced, first, by postmodern philosophy and, second, by Legal Realism. From postmodern and (post)structuralist philosophy, Critical Legal Studies and critical approaches to international law derive the premises that there is no objective and single truth 'out there' and that knowledge creation is not about neutral and objective cognition of a pre-existing truth but rather about the 'conditions of possibility' for expressing certain claims and for having these claims recognised and count as knowledge. The main characteristic of critical approaches to international law, therefore, consists in the claim that international law is radically indeterminate, i.e. that any course of action can be defended or rejected in terms of international law, and that the question of which position prevails is not a question of sound legal argument or correct legal method but of politics.This critique of the distinction between law and politics is what critical approaches to international law share with Legal Realism.

Martti Koskenniemi, who, together with David Kennedy, has been the main figure in articulating, defending, and popularising this position, argues in his famous work From Apology to Utopia that 'international law is singularly useless as a means for justifying or criticizing international behaviour'. The reason for international law's radical indeterminacy, in Koskenniemi's account, is its fundamentally and irresolvably contradictory nature, which causes international legal arguments to oscillate between the poles of concreteness and normativity, apology and utopia. Legal arguments have to be both concrete and normative to be able to sustain the distinction between international law and politics and to be able to assume that law is more objective than politics. Concreteness means that the law’s content has to be verified ‘not against some political principle but by reference to the concrete behaviour, will and interest of the States’. Simultaneously, the law has to be normative in the sense that it has to be ‘opposable to State policy’. This contradiction inherent in the need for both normativity and concreteness leads to descending and ascending patterns in legal justification. Legal obligations are either traced down to ‘justice, common interests, progress, nature of the world, community or other similar ideas to which it is common that they are anterior, or superior, to State behaviour’ (descending pattern of justification) or legal justifications of obligation and order in international affairs ‘takes as given the existence of States and attempts to construct a normative order on the basis of the “factual” State behaviour, will, and interest’ (ascending pattern of justification)’. Koskenniemi argues that ‘[t]he two patterns – or sets of arguments – are both exhaustive and mutually exclusive’. The dynamics of international legal argument are defined by constant shifts between these positions. The result is the radical indeterminacy of international law, which in turn is a result of this fundamental contradiction: ‘International legal discourse is incoherent as it incorporates contradictory assumptions about what it is to argue objectively about norms. This gives rise to conflicting legal arguments and the inability to prefer any of them’. To seem coherent, individual arguments have to stress either normativity or concreteness, descending or ascending patterns of justification. In doing so, however, they become vulnerable to valid criticism from the opposing perspective. ‘The choice of solution is dependent on an ultimately arbitrary choice to stop the criticisms at one point instead of another’. Koskenniemi highlights, however, that even though it is possible to justify any kind of practice in terms of international legal argument, in practice, it is not arbitrary at all which actions are justified and which ones are condemned. This is due to what Koskenniemi calls 'structural bias', which means that international legal institutions are designed to favour the status quo.

E. Premises of Specific Critical Approaches to International Law

Even though they do not all adopt Koskenniemi's linguistic analysis of international law and differ from Koskenniemi in many other aspects, one way of characterising the other critical approaches to international law, which will be presented in the following sub-chapters, is that they offer focused accounts on specific 'structural biases' of international law. Feminist and queer theory approaches critique international law's bias favouring and centering men, while Third World Approaches focus on how international law is structured in a way that favours the Global North, harming the Global South. Marxist Approaches offer an entirely different view on international law's contradictory nature and oppressive structure. They do, however, share the view that international law produces and favours the status quo with all its exploitation and violence.

F. Conclusion

The approaches presented in this chapter offer different ways of thinking about international law. Any way of engaging with international law presupposes doing so using a specific lens or approach. This is true even and especially for the traditional doctrinal approach, even though this approach is rarely made explicit. The following sub-chapters present positivism, feminist and queer theory, Third World Approaches to International Law, and Marxist approaches to international law in more detail.

Further Readings

• Source I
• Source II

Conclusion

• Summary I
• Summary II

Footnotes

Author: Başak Etkin & Alex Green

Required knowledge: Link

Public International Law/History of International Law/Founding Myths

Public International Law/History of International Law/Nineteenth Century

Public International Law/Nature and Purpose of International Law

Public International Law/Approaches

Learning objectives: Understanding analytical and normative positivism and their differences from international legal positivism, identifying the major critiques of positivism.

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A. Positivism as Method and Ideology

Legal positivism is a theory about law determination. Law determination concerns what it means for the content of the law to be 'fixed' or 'made what it is', (e.g. the threat of use of force is unlawful because art. 2.4 of the UN Charter forbids it). Legal positivism asserts that legal facts are determined by social facts, and all law is posited/positive. In this framework, law’s existence and content are determined by the social facts alone (i.e. value-neutral descriptions of social behaviour, e.g. the fact that people take their hats off when entering a church) recognized by the officials of a legal system, independently of its moral (or other) merits (the ‘social thesis’). Legal positivism first emerged as a reaction to natural law theories in the 18th century. Its roots are in the works of Jeremy Bentham (1748–1832), who sought to criticise and reform natural law theories. Analytical legal positivism is and has been, if not the most, one of the more influential theories on modern legal theory and on international law, though some use 'positivism' to describe with the 'mainstream' doctrinal approach to international law.

I. Analytical Positivism

As their main point of convergence, all legal positivists agree upon the separability thesis (i.e. that law and morality are not necessarily linked) as it is what defines them, despite other differences. It is thanks to the separation of law and morality imposed by positivism that criticising the content of law is a possibility. However, to what degree law and morality are separated has been a point of contention between inclusive (soft) and exclusive (hard) positivists. Inclusive positivists allow for moral elements (e.g. widespread moral beliefs in a society) to be included directly or indirectly in the rule of recognition. Exclusive legal positivists, on the other hand, reject all moral element in the rule of recognition as they defend that this would make the problem of uncertainty remain unsolved. Both sides of the argument agree that when the rule of recognition does not give a clear answer to the question ‘what is the law?’, courts create law.

Analytical positivism was first popularised by John Austin (1790-1859), who developed the command theory, the concept that law consists of ‘orders backed by threats’. Here, the ‘order’ represents the command of the sovereign; this will is habitually obeyed and disobedience is sanctioned by a ‘threat’.

H.L.A. Hart (1907-1992), an English legal philosopher, inclusive legal positivist and a prominent critic of Austin, offered a comprehensive critique of the command theory in his 1961 influential book, ‘The Concept of Law’, and refined legal positivism further. Hart’s rebuttal demonstrated three main issues with the command theory: that it did not include customary law, that not all laws commanded or prohibited specific actions, and the impossibility of identifying a sovereign with unlimited law-making powers. Hart proposed an alternative framework, summarised as ‘a union of primary and secondary rules’. Primary rules establish obligations and confer powers to guide human conduct (e.g. it is forbidden to cross the street when the red light is on). In some communities, described by Hart as ‘primitive’, law consists solely of these primary rules, but primary rules alone do not make a legal system, which also requires secondary rules, which serve as organisational meta-rules, or rules that govern the primary rules. According to Hart, these secondary rules address three main shortcomings: (1) the uncertainty around which rules are valid in this system, (2) the static character of the rules, and (3) the inefficiency of the rules. These problems are solved by, respectively, (1) the rule of recognition, providing the criteria of legal validity and answering the question 'what is the law?', (2) the rule of change establishing the procedures for introducing new primary rules, modifying existing ones, and abolishing old ones, answering the question 'how does the law change?', and (3) the rule of adjudication determining those with the authority to adjudicate and defining the procedure to follow, answering the question 'how to implement the law?'. All secondary rules can be classified under one of these three categories.

Hart is often presented in opposition to his continental counterpart Hans Kelsen (1881-1973), an Austrian jurist, who was more influential in civil law systems. Kelsen was closer to Austin’s look than Hart, as in his view laws were norms addressed to officials and not at subjects – i.e. norms to be applied by courts if an offence was committed. Another point of divergence between Hart and Kelsen was legal validity; for Hart legal validity depended on social recognition but for Kelsen legal validity was a normative ('ought' not 'is') question. He argued that legal rules are deemed valid only when formally grounded in higher norms, following the prescribed procedural frameworks. This stepped construction (Stufenbau) culminates in the concept of the Grundnorm (basic norm), as Kelsen presented in ‘Reine Rechtslehre’. The Grundnorm is the presupposed legal proposition at the foundation of any legal system, a simple fiction to uphold validity.

Another prominent figure in legal positivism is the Israeli legal philosopher Joseph Raz (1939-2022). In his 1979 book ‘The Authority of Law: Essays on Law and Morality’, Raz developed a more modern take on the social thesis and the sources thesis (i.e., that law is identified by reference to its sources), asserting that law’s existence and content cannot rely on moral arguments, but can only be derived from social sources. As an exclusive positivist, Raz further explored the normative aspects of legal systems in ‘Practical Reasons and Norms’ and makes the case that legal rules offer a practical justification for carrying out an obligation while excluding other justifications.

Most recently, the American legal philosopher Scott Shapiro’s book ‘Legality’ offered a new and alternative approach to legal positivism. Shapiro’s planning theory of law advances the idea that legal systems are compulsory planning organizations, and his moral aim thesis suggests that law provides content-independent normative guidance to bypass moral disagreements.

II. International Legal Positivism and Normative Positivism

Normative positivism, perhaps more prevalent in international law than analytical positivism, defends the idea that positivism is not only true, but also valuable. Therefore analytical positivism, which does the intellectual heavy lifting, has to be true for normative positivism to even be considered. It should not be confused with normative approaches, such as Kelsen’s, as seen above. Jeremy Waldron argues that this take is more faithful to positivism’s origins, as Bentham’s intention was not to conceptually separate law and morality but to coordinate conflict resolution between the society’s laws and personal judgments about morality. Lassa Oppenheim (1858-1919) also defended this point of view, suggesting that positivism was the best suited concept to advance moral and political values, as demonstrated by his advocacy of international society. Also adopted by Prosper Weil, this has been a particularly influential approach in international law.

Some aspects of analytical positivism could seem incompatible with international law, such as Austin’s command theory that could cast a doubt on its validity of, given the lack of an almighty sovereign in the international arena. Another such potential issue is around pluralism and Kelsen’s account of legal validity based on normativity that favours monism (i.e. that the different branches of international law and all domestic legal systems taken together make a unified regime). International law is a highly fragmented domain with numerous regional and international regimes, and it is often difficult to establish which are the hierarchically superior norms in a given situation. However, modern legal positivism has evolved quite significantly and has developed sophisticated answers to questions that arise within international law.

International legal positivism (i.e. positivism as understood and upheld by international lawyers), much like its analytical counterpart explained above, is far from being a monolith, and in some ways it diverges from legal positivism. Most notably, international legal positivism is, partially because of the weight given to state will in international law, more often confused with consensualism or voluntarism. However, treaties are the only consent-based source of international law, in the strict and explicit understanding of consent. Therefore, the rule of recognition of international law (which, despite some confusion, is not Article 38 of the Statute of the International Court of Justice) does not include consent and the sources thesis applied to international law does not paint a consensualist picture. While neo-voluntarists survive, many contemporary international legal positivists separate the objective international legal order and the subjective will of states.

International law’s compatibility with positivism is also called into question regarding jus cogens. These peremptory norms are ‘accepted and recognized […] as a norm from which no derogation is permitted’ according to the 1969 Vienna Convention on the Law of Treaties, thus the criteria does not breach the separability thesis, but one can easily identify the moral undertone once a series of examples are given: prohibitions of genocide, torture and slavery. Some exclusive legal positivists believe that acknowledging the existence of jus cogens undermines the separability thesis, but this problem can be solved by saying that the moral belief or judgment shared by states is a social fact, and that is what makes jus cogens, not its inherent moral value.

B. Critiques of Positivism

Legal positivism, as we have seen, is the view that the content of international legal norms is made what it is (that is, determined or ‘fixed’) by social facts alone. These social facts typically relate to the 'pedigree' of those norms: their historical roots in particular social sources, such as treaty texts or expressions of opinio juris. The inverse view, held by ‘non-positivists’, is that international legal norms are necessarily determined not only by social facts but also by facts about political morality, which include moral values, genuine normative principles, and practical reasons that govern how individuals should 'live together', organise themselves, and behave at the collective levels of national and international society.

Example for Non-positivist approaches: Consider a more-or-less uncontroversial legal claim such as ‘the 1969 Vienna Convention on the Law of Treaties expresses true propositions of international law’. For the legal non-positivist, this statement will only be true to the extent that the law-determining function of the Vienna Convention is morally valuable in some way. This reliance upon political morality, perhaps counter-intuitively, is also entailed by the beliefs of normative positivists, like Oppenheim or Weil, who argue that for moral reasons international legal norms must be identified with recourse to social facts alone. To continue with the same example, a normative positivist and a committed non-positivist might both accept that the Vienna Convention helps to determine norms of international law because treaties in general have a coordinating function, which is valuable vis-à-vis the stability and predictability of international relations. For both schools of thought, in other words, treaty texts help to fix the content of international legal norms because there are compelling reasons why those texts should have this effect. (See: Alex Green, ‘The Precarious Rationality of International Law: Critiquing the International Rule of Recognition’ (2022) 22(8) German Law Journal 1613, 1626.)

What, then, distinguishes non-positivists from normative positivists? Non-positivists, whilst agreeing that facts about political morality partly determine the content of the law, disagree that moral reasoning should be excluded from the identification of international legal norms at a more concrete level. Normative positivists, as noted above, argue that international law should be identified with recourse to social facts alone. According to their view, excluding moral considerations from legal reasoning tends to produce international stability, insofar as it avoids the proliferation of inter-state disputes. For the non-positivist, however, the exclusion of moral considerations from legal reasoning is wrongheaded, either because they believe normative positivists to be mistaken about the allegedly destabilising effects of moral reasoning, or because they believe identifying international legal norms to be impossible on the basis of social facts alone. In what follows, we examine a few reasons why one might reject legal positivism wholesale, as it were, and adopt a non-positivist approach instead.

Advanced: The concrete impacts of non-positivist approaches

Non-positivist approaches to international legal reasoning differ at the interpretive and argumentative levels from their more 'formalist' positivist equivalents. In particular, a non-positivist reasoning within any given area of law may be more willing to infer legal conclusions not directly supported by clear precedents than their positivist colleagues. As such, non-positivism is often considered to be the more 'radical' or 'progressive' of the two approaches.

For example, in his non-positivist 'reconstruction' of James Crawford's famous 'The Creation of States in International Law', Alex Green identifies three broad normative commitments that run through Crawford's work on the law that governs the creation of new states. Where Crawford himself - a self-professed positivist - is hesitant to draw direct conclusions from more abstract normative principles of this kind, Green instead contends that such commitments have concrete implications for several questions related to the existence and continuity of states. In particular, he argues that when we engage in legal reasoning based on 'cautious optimism', 'nuance', and 'humanity', we are inevitably pushed towards the conclusion that Small Island Developing States should retain their legal statehood notwithstanding any losses of inhabitable land they may suffer due to human-caused climate change. (See: Alex Green 'The Creation of States as a Cardinal Point: James Crawford’s Contribution to International Legal Scholarship' 2022 40(1) AYBIL 67.)

I. Insufficient Consensus

As we have seen, central to the positivism of Hart, Raz, and others, is the notion that legal validity turns on the existence of one or more rules of recognition. This claim can also be put in the following terms. Within any given legal order, the norms of that order are ultimately determined exclusively in relation to the convergent behaviours and attitudes of law applying officials. The social facts that such officials treat as being sources of law become sources for that reason. Within international law, the relevant legal officials include state representatives and international adjudicative bodies, to name but two examples. One possible reason for rejecting this kind of positivism at the international level is that international law lacks sufficient convergence in official attitude or behaviour, meaning that no rule of recognition can be said to exist within that legal order. So, for instance, although it might be true that the text of a particular bilateral investment treaty is binding on its State Parties because of their consent to be bound by that text, it nonetheless remains the case that the binding force of pacta sunt servanda requires explaining and there is little to no consensus at the international level as to the precise status of that principle (for example, whether it is a general principle of law or custom).

Example for the lack of official consensus on the sources of international law: In his paper 'The Precarious Rationality of International Law: Critiquing the International Rule of Recognition', Alex Green provides the following argument ((2022) 22(8) GLJ 1613: 1630, citations omitted): "...assume that we can discover at least some international law by identifying “international custom, as evidence of a general practice, accepted as law.” Furthermore, assume that this requires at least two things: (i) Public statements or other indications on the part of state representatives that a particular law exists; and (ii) behavior in general conformity with that proposed law on the part of such representatives. Many questions persist. Is an individual state’s consent necessary for such laws to become binding upon it? Should custom-constituting practice be drawn exclusively from state representatives? What is the relevance of UN General Assembly resolutions, or the judgments of international courts and tribunals? Can regional practice give rise to obligations limited by geographical area? Disagreement on such issues suggests that it would be overly optimistic to speak of an extensive consensus on the concrete criteria of validity for norms of customary international law, even if nominal consensus exists at higher levels of abstraction.

This view about the absence of a rule of recognition, interestingly enough, is close to the view that Hart himself professed about international law, even if it has become unpopular amongst positivist international lawyers. Recent scholarship has renewed attacks against positivism within international law along these lines. Importantly, such criticisms raise issues not just for analytical positivism but also for normative varieties. This is so because if international law possesses no rules of recognition (or some set of norms fulfilling the same function and determined both ultimately and exclusively by social facts) then legal reasoning in a fully positivist mode is impossible, no matter how advantageous it might be in principle.

II. ‘Rational’ Determination and Social Facts

Another doubt one may have about rules of recognition concerns the mechanics, as it were, of how such rules supposedly 'fix' the content of international law. Even if sufficiently the attitudes and behaviours of international legal officials are sufficiently convergent for one or more rules of recognition to exist, it is unclear why these attitudes and behaviours alone should be treated as determining the content of international law. Why, in other words, should rules of recognition function in the way that positivists claim that they do? According to a broadly Hartian view of legal validity, the cumulative attitudes and behaviours of legal officials fix to the content of international law by definition. However, given what many non-positivists consider to be the plausible assumption that there must be a rational explanation for why legal norms exist in the way and with the content that they do, it is not obvious why official attitudes and behaviour should be treated this way. For example, if we are asked to explain why pacta sunt servanda holds within international relations, it seems highly unsatisfactory to answer, 'because the relevant people believe that it does'. Positivism, understood in this way, fails to provide a sufficiently rational explanation for the existence of international law. This concern arises because the attitudes and practices of legal officials are social facts, with no necessary normative implications, and therefore cannot provide reasons why international law should be viewed one way, rather than another. Importantly, this critique is inapplicable to normative positivism, which holds that facts about political morality can explain why ultimate and exclusive recourse to a particular set of social facts should be observed. Nonetheless, concerns about the ‘rationality’ of positivism remain applicable to its purely analytical variants, notwithstanding this fact.

Example for 'Rational' Determination and Social Facts - An Imaginary Tribunal: Imagine that an international tribunal (‘the Tribunal’) were to deliver judgment in an ongoing case according to an absurd method: they flip a coin. When doing so, imagine the Tribunal holds that immediately prior to their decision to proceed in this manner, all the usual rules of law determination – the application of treaty texts, customary practices, and so on – were undoubtedly relevant. But all that changed, the Tribunal says, the second before their decision to resort to coin flipping was made. Clearly, the Tribunal is wrong, but why?

The state that lost the coin toss might object that the Tribunal wrongly ignored the relevant social facts. No prior item of state practice or expression of opinio juris, nor any academic or judicial commentary, mentioned that coin flipping would suddenly become the way to resolve complex legal disputes. The Tribunal, this losing state might say, is just ignoring international law. But the Tribunal could respond that this objection is mistaken because, at the moment when coin flipping became the correct way to resolve disputes, every legal rule that was previously applicable, including the ‘old’ rules for identifying international law, became irrelevant. They might also say that any current and continuing legal trends that suggest otherwise are simply mistakes: all legal orders, after all, contain at least some mistaken decisions. How can the losing state answer them?

‘Analytical’ legal positivists have no real answer to this question because everything our absurd imaginary tribunal says is logically consistent with the fact that international disputes ‘used to’ be resolved in the ‘normal way’. This holds because established legal trends, including the established attitudes and behaviour of legal officials, are social facts with no intrinsic normative implications of their own. By themselves such facts leave open the question of which standards they support and which standards they do not.

Once again, the point is not that such arguments are plausible: obviously they are ridiculous. The question is what makes them ridiculous. Non-positivists and normative positivists both have clear answers as to why: the Tribunal in this case is acting illegitimately and exceeding its authority by adopting a standard for the resolution of disputes that undermines the international rule of law. But that answer includes a value judgement – that the international rule of law is something worth promoting and defending – so it is unavailable to anyone who believes that legal argument is a matter of social facts alone.

III. The ‘Positive’ Non-Positivist Case

Finally, one might wish to appeal directly to political morality within legal reasoning for more positive reasons. In the first place, on the assumption that either of the first two critiques presented above are true, then reliance upon more than just social facts alone is inevitable when identifying international law. This being so, there is no point, or so the argument might go, in pretending otherwise. It is preferable to be transparent about one’s reliance upon political morality, instead of obscuring it behind a positivist veneer. Alternatively, one might believe that direct recourse to moral considerations within legal reasoning would be conducive to the promotion of global justice, if for no other reason than it focuses attention on the most morally salient aspects of a given international dispute. Considerations of this sort have motivated a range of contemporary non-positivist scholarship, both in relation to international law in general, and as regards more discrete regimes, such as the law of statehood, international trade law, or the law of human rights.

Further Readings

• Etkin, Başak (2022). "Legal Positivism". Elgar Encyclopedia of Human Rights. Edward Elgar Publishing: 412–417.
• Hart, HLA (1994). The Concept of Law (2nd ed.). OUP.
• Kelsen, Hans (1945). General Theory of Law and State. Translated by Wedberg, A. Harvard University Press.
• Kelsen, Hans (1967). Pure Theory of Law. Translated by Knight, M (2nd ed.). University of California Press.
• Raz, Joseph (2009). The Authority of Law: Essays on Law and Morality (2nd ed.). OUP.
• d’Aspremont, Jean (2017). "International Legal Positivism". Encyclopedia of the Philosophy of Law and Social Philosophy.
• Kammerhofer, Jörg (2016). Orford, Anne; Hoffmann, Florian (eds.). "International Legal Positivism". The Oxford Handbook of the Theory of International Law. OUP: 407–426.
• Dire Tladi (ed), Peremptory Norms of General International Law (Jus Cogens) Disquisitions and Disputations (Brill Nijhoff 2021)
• Nahuel Maisley (2021) Better to see international law this other way: the case against international normative positivism, Jurisprudence, 12:2, 151-174.
• Dworkin, Ronald (1986). Law’s Empire. Hart.
• Greenberg, Mark (2004). How Facts Make Law, 10 Legal Theory 157.

Further Resources

• Borderline Jurisprudence, Episode 3: Adil Haque on International Law and Morality (30 April 2021).
• Borderline Jurisprudence, Special episode "Joseph Raz and International Law: An Unfinished Journey" (25 August 2022).
• Borderline Jurisprudence, Episode 15: Başak Çalı on Authority, Interpretivism, and Human Rights (4 November 2022).
• Borderline Jurisprudence, Episode 19: Alex Green on Natural Law, Statehood and International Law (7 April 2023).

Conclusion

• Legal positivism is a theory about law determination, asserting that legal facts are determined by social facts, and all law is posited/positive. Law’s existence and content are determined by the social facts alone recognized by the officials of a legal system, independently of its moral (or other) merits (the ‘social thesis’). As their main point of convergence, all analytical legal positivists agree upon the separability thesis (i.e. that law and morality are not necessarily linked), and that law is identified by reference to its sources (the 'sources thesis').
• Normative positivism defends the idea that positivism is not only true but also valuable. This has been a particularly influential approach in positivism as understood and upheld by international lawyers, international legal positivism. Some aspects of analytical positivism could seem incompatible with international law, but these issues no longer arise in modern legal positivism or are due to a confusion between positivism and other concepts (such as consensualism).
• The inverse view, held by ‘non-positivists’, is that international legal norms are necessarily determined not only by social facts but also by facts about political morality, which include moral values, genuine normative principles, and practical reasons that govern how individuals should 'live together', organise themselves, and behave at the collective levels of national and international society. Non-positivists, whilst agreeing with normative positivists that facts about political morality partly determine the content of the law, disagree that moral reasoning should be excluded from the identification of international legal norms at a more concrete level.
• Three issues illustrate non-positivism in international law. (1) There is insufficient consensus about a or the rule of recognition in international law. (2) Even if it existed, it is unclear how such rules supposedly 'fix' the content of international law, since many non-positivists consider to be the plausible assumption that there must be a rational explanation for why legal norms exist in the way and with the content that they do. (3) It is preferable to be transparent about one’s reliance upon political morality, instead of obscuring it behind a positivist veneeer, and one might believe that direct recourse to moral considerations within legal reasoning would be conducive to the promotion of global justice.

Footnotes

Authors: Shubhangi Agarwalla, Sué González Hauck, Thamil Venthan Ananthavinayagan

Required knowledge: Link

Learning objectives: Understanding XY.

B. Points of Departure and TWAIL Trajectories

I. Introduction to the Concepts of the Third World and the Global South

The term ‘Third World’ originates from the time of the bipolar Cold War opposition between the First World, comprised of the member states of the North Atlantic Treaty Organization (NATO), and the Second World, organized in the Warsaw Pact, in the second half of the 20^th century. The Third World rallied not only around the idea of non-alignment but also around a shared history of being subjected to European colonialism. As a politically institutionalised project, the Third World took shape in several conferences, of which the Afro-Asian meetings in Bandung in 1955 and in Cairo in 1961, the inaugural conference of the Non-Aligned Movement in Belgrade in 1961, and the Tricontinental Conference in Havana in 1966 stand out. Today, the term ‘Third World’ has been partially replaced by the term ‘Global South’. This latter term bears less direct links to the Cold War bloc opposition and points instead at a critique of the kind of neoliberal globalization that gained traction in the 1990s after the collapse of the Soviet Union.

II. Engaging with the Colonial Legacies of International Law

The main aspect that unites TWAIL scholarship despite the heterogeneity of the movement is the shared endeavour of grappling with international law's colonial legacies. Several influential TWAIL authors, including Antony Anghie, Sundhya Pahuja, and, most recently, Ntina Tzouvala have examined the structure of international legal arguments through history to show how colonial and racist thought animates international law. Anghie argues that it is the 'dynamic of difference' which generates the concepts and dichotomies that are fundamental to the formation of international law. With the term 'dynamic of difference', Anghie refers to the conceptual tools positivist international lawyers deployed to, first, postulate a gap between the civilised European and the uncivilised non-European world and, second, to construct and employ techniques to bridge this gap, i.e. to civilise the uncivilised, to engage in the civilising mission. The civilising mission, the idea that non-European peoples are savages, barbaric, backward, violent and that European peoples thus must educate, convert, redeem, develop, pacify – in short, cilivise – them has been used to justify continues intervention by European countries and other countries of the Global North – the West – in Third World countries.

Pahuja emphasises that international law constructs its own subjects and objects. It does not merely rely on a number of foundational notions, such as the state, the international, or the law. Nor does it merely apply to objects external to it, like the economy. Rather, through definitions that make categorial cuts between what is inside and outside certain categories, international law produces these categories even though it is deemed to be founded on them. As the production of international law's foundational concepts has occurred through the colonial encounter and through the particular contexts of several imperial and post-imperial projects, the shape these concepts gained is determined by these very particular contexts. Simultaneously, however, international law posits the legal categories it produces as universally true. It is the interplay between international law's self-formation in (post)colonial contexts and international law's universalising gestures that produce what Pahuja calls international law's 'critical instability'. 'The instability is ‘critical’ in both senses of the word, for it is simultaneously a threat to the reach and existence of international legality and an essential, generative dimension of it'. Pahuja's work has focused on how the potential offered by this critical instability, a potential of pointing out international law's shortcomings in terms of its own aspirations towards universal justice and thus using international law in emancipatory ways, has been repeatedly contained by a ruling rationality.

A key dimension of that rationality is the position of development and economic growth vis-à-vis international law. The combination of the promise offered by international law’s critical instability and the subsumption by the ruling rationality of efforts to take up that promise explains international law’s dual quality, or its puzzling tendency to exhibit both imperial and counter-imperial dimensions.

Ntina Tzouvala focuses on the standard of civilisation as a set of argumentative patterns, which oscillate between two modes of distinguishing between 'the West and the rest'. The first is what she calls the 'logic of biology'. It is based on biological racism and the isurmountable barriers it erects against colonised and formerly colonised peoples gaining equal rights and obligations under international law. The second, the 'logic of improvement' in Tzouvala's terminology, replaces definitive exclusion with conditional inclusion, offering peoples of the 'Third World' a prospect for gaining equal rights and obligations. The condition for gaining such equal recognition, as Tzouvala argues, has been capitalist transformation.

III. History of TWAIL as a Movement

TWAIL as a rubric for an academic movement emerged in Harvard in 1996. To acknowledge the intellectual tradition within which scholars who started calling themselves TWAIL scholars in the 1990s were working, Antony Anghie and B.S. Chimni coined the term ‘TWAIL I’ and ‘TWAIL II’. With the term TWAIL I, Anghie and Chimni referred to scholars like Georges Abi-Saab, F. Garcia-Amador, R.P. Anand, Mohammed Bedjaoui, and Taslim O. Elias, the first generation of international law scholars from newly independent states, who grappled with the exclusions that a Eurocentric and colonial international law had produced. TWAIL II scholars started building on the legacy of the aforementioned scholars while further developing the analytical tools necessary to engage with international law from a Third World perspective. This meant taking a critical stance towards some of the main tenets of TWAIL I thought. TWAIL II scholars shifted their attention and normative commitment from the post-colonial state to the people living in the Third World, which allowed for analyses that could take into account the violence within post-colonial states as well as conflicts generated by class, race, and gender. Additionally, the shift from TWAIL I to TWAIL II meant a shift in general attitudes regarding the role of colonialism in international law. While TWAIL I scholars had treated colonialism as an aberration, which could be broken with and remedied by using and slightly modifying the techniques of the existing international legal order, TWAIL II scholars turned to the history and theory of international law to show how colonialism has been a central and defining feature of the formation of international law.

D. TWAIL Methodologies

I. TWAIL and the Turn to History

Methodologically, one of the main characteristics of TWAIL scholarship is its focus on history. 'History matters', as Luis Eslava reaffirms as the first of five TWAIL coordinates, which characterise the movement. The particular appreciation of history stems from TWAIL's aim of transforming international law. Understanding the past is a necessary prerequisite for transforming the present and the future. TWAIL histories have pointed out the Eurocentric nature of existing histories of international law. They have focused on the co-constitution of international law and imperialism as well as on histories of Third World resistance, of alternative projects and movements.

III. TWAIL and Critical Scholarship on Race and Racism

Critical scholarship on race and racism, which includes but is not limited to Critical Race Theory (CRT), is mainly concerned with the social construction of races and racial hierarchies and with how these hierarchies have been used to justify exclusion, exploitation, and domination.

Further Readings

• Source I
• Source II

Conclusion

• Summary I
• Summary II

Footnotes

Author: Verena Kahl/Tamsin Paige

Required knowledge: Approaches to International Law History of International Law Beneficial: Women in International Law

Learning objectives: Understanding feminist and queer approaches and their particular relevance for public international law.

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A. Introduction

This chapter serves as an introduction to feminist and queer theory and its particular relevance for capturing the underpinnings of public international law. One of the main goals of this contribution is therefore to point out the added value that feminist and queer approaches to international law as forms of de- and reconstruction contribute to existing schools of thought. To this end, the chapter departs from the male and heterosexual standard and a gender-biased international legal order as the common baseline for queer and feminist deconstruction. By pointing out the commonalities of both feminist and queer theory, the contribution underscores the utility and necessity of a consolidated approach. Common terms and concepts of feminist and queer theory are then connected to some of the manifestations and specific examples of feminist and queer theory in the realm of international law. Nonetheless, this chapter should not be understood as an exhaustive overview of research and practice of queer and feminist approaches to international law. Rather it provides first insights into a school of thought, which serves as a tool of deconstruction that can be applied to each area of public international law.

I. Feminist and Queer Theory as Forms of Deconstruction

Feminist and queer approaches form part of a diverse field of schools of thought, which observe, analyze and criticize public international law from a particular perspective and, coming from this specific theoretical foundation, seek to deconstruct its object of analysis. Deconstruction in this sense can be understood as a never ending process of questioning existing and accepted structures of dominance, which are perceived as objective, neutral or natural. As a result, it reveals the existence of other competing forms of interpretation, alternative views, which have been ignored, overshadowed or suppressed, thereby opening the door to new possibilities and structures. The concept of deconstruction therefore rejects the idea of an absolute truth or natural referent, but rather searches for 'the tensions, the contradictions, the heterogeneity.' In its ability to show pluralities and different options, deconstruction creates space for (ongoing) transformation and reconstruction. With this in mind, '[it] is only through this element of endless analysis, criticism and deconstruction that we can prevent existing structures of dominance from reasserting themselves.' In this regard, feminist and queer theory aims at the deconstruction of a perceived neutral or natural international legal order that rests on a dominating masculine and heterosexual standard.

II. The Male and Heterosexual Standard

Although neither one nor 'the one' feminist and queer approach to international law exists, all of these different approaches in the realm of feminist and queer theory share a common baseline: International law has been predominantly developed and shaped by (white, cis, heterosexual) men and has been built on the assumption that men and masculinity are the (societal) norm. While this norm and, as a consequence, public international law, have largely been perceived as neutral, they neglect all those categories that deviate from this standard. In this sense, it is not just women and femaleness that are excluded as 'the other'. Rather, all deviations relating to sex, gender or sexuality, which are considered as different from or opposed to the norm, eke out a shadowy existence as their perspectives and interests are constantly ignored and bypassed.This includes, but is not reduced to, persons identifying as women, lesbian, homosexual, bisexual, transgender or intersexual, thereby expanding categories of sex, gender and sexuality far beyond a mere binary understanding.

Advanced: Cisgender and transgender

The notion of 'cisgender' refers to persons who feel that their assigned sex at birth conforms with the gender they feel themselves to be. Cisgender is often used as an opposite to the term 'transgender' and is regularly tied to the binary system of biologically anchored categories of women/men and female/male. 'Transgender' in turn refers to persons whose sense of gender identity does not correspond with the sex assigned at birth. Building on this, the term 'cis/het', which is common in queer theory literature, refers to someone who is cisgender and heterosexual.

In essence, public international law, just like domestic law, suffers from a clear gender bias, some of whose manifestations are described further below. This gender bias of international law, elevating the masculine to the norm, functions like a 'veiled representation and projection of a masculine which takes itself as the unquestioned norm, the ideal representative without any idea of the violence that this representational positioning does to its others.'

III. Commonalities of Feminist and Queer Theory

Since international law builds on a masculine and heterosexual standard that is confronted with a great diversity of systematically overlooked deviations, a joint presentation and consideration of feminist and queer approaches to international law is not only a legitimate and useful unification of perspectives in the de- and reconstruction of public international law. Instead, this holistic approach virtually imposes itself in view of common structural experiences of discrimination and injustice. Otherwise, the picture drawn by an analysis of public international law from either a feminist or a queer perspective would remain incomplete. Using a holistic approach does also justice to the principle of intersectionality and may, at least to a certain extent, counteract an oversimplification of categories and distinguishing features, such as male/female or hetero-/homosexual, even if avoiding them completely may not always succeed. In this sense, combining feminist and queer theory also means not to remain 'within the closed fields of these oppositions' and thereby perpetuate the inherent hierarchy, but rather move beyond binary structures.

B. Common Terms and Concepts

I. Sex and Gender

Two main concepts, which are deeply interrelated and essential to feminist and queer theory are 'sex' and 'gender'. The term 'sex', on the one hand, is regularly used to describe biological differences between men and women construed as binary categories related to bodies.

Advanced: Gender binary

The 'gender binary' can be described as a foundational ordering principle used to classify 'human beings into two socially and biologically distinct categories: male assigned persons who are expected to identify as boys and men and perform masculinity; and female assigned persons who are expected to identify as girls and women and perform femininity.'

'Gender', on the other hand, is often used as an opposite term in the way that it describes cultural and social imprinting of distinctions made on the basis of sex.

Advanced: Sex and Gender defined by the Human Rights Commission

Building on the aformentioned distinctions between sex and gender, the Human Rights Commission has contrasted both terms as follows: 'The term "gender" refers to the ways in which roles, attitudes, values and relationships regarding women and men are constructed by all societies all over the world. Therefore, while the sex of a person is determined by nature, the gender of that person is socially constructed.'

With this in mind, the notion of 'gender' has been described as a fluid and unstable concept and is often understood as a rejection of the biological determinism embodied in the concept of 'sex'. It is also used to relativize and break down the dichotomy and binary associated with the (biological) sex and thus to open it up to categories that go beyond woman and man. Gender identity is therefore much more complex due to the 'dynamic relationship between the body and identity which gives rise to multiple possible alignments, which can change over time, or even from moment to moment.' However, the same complexity applies to the oversimplified category of 'sex', as biology itself unveils the existence of a variety of sexes that go far beyond the socially constructed dualism. In addition, the idea that 'sex' is a natural and immutable characteristic has been increasingly challenged, for having constructed, contingent and political dimensions. As a result, the distinction between sex and gender itself has been questioned.

Example for a definiton of gender identity in the field of international human rights law: According to the Inter-American Court of Human Rights gender identity is defined as 'the internal and individual experience of gender as each person feels it, which may or may not correspond to the sex assigned at birth. [...] Thus, [...] recognition of gender identity is necessarily linked to the idea that sex and gender should be perceived as being a part of the constructed identity that is the result of the free and autonomous decision of each person, and without this having to be subject to their genitalia.'

gender identity is “the internal and individual experience of gender as each person feels it, which may or may not correspond to the sex assigned at birth,”so that “recognition of gender identityis necessarily linked to the idea that sex and gender should be perceived as being part of the constructed identity that is the result of the free and autonomous decision of each and without this having to be subject to their genitalia.”

In this spirit, attempts have been made within queer and feminist approaches to denaturalize both sex and gender, assuming that categories of sex and gender do not exist prior to normative discourse and regulation, which is why they 'should both be understood as the effects of performative and reiterative gender norms [...] which materialise, naturalise, regulate, and discipline sexed bodies and identifications.' It follows that the wording itself creates identity. Put in the words of Judith Butler, ‘[t]here is no gender identity behind the expressions of gender; that identity is performatively constituted by the very “expressions” that are said to be its result.’

Example for moving beyond the binary in international law: An example for moving beyond the binary in international law is the Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism from 2009. In his report, Martin Scheinin emphasized that '[g]ender is not synonymous with women but rather encompasses the social constructions that underlie how women’s and men’s roles, functions and responsibilities, including in relation to sexual orientation and gender identity, are defined and understood.'

Despite this intention to show a more inclusive and diverse picture beyond traditional understandings of masculinity and femininity, 'gender' has often been and still is frequently used as a synonym for 'women', also whithin the realm of public international law. A prominent example is the Convention on the Elimination of all forms of Discrimination Against Women, which in its Art. 1 and 5 in particular shows, to begin with, no real distinction between 'sex' and 'gender' at all and furthermore reveals a commitment to the traditional dualism of men/women. As a consequence, the male standard becomes once more the 'normal' standard for every individual, sticking to a gender binary and hierarchy in the realm of an international project whose intention was to endorse the full humanity of women. Such international protection mechanisms where women's experience is only measured against the male standard are much to the detriment of women worldwide, but particularly those of the Global South, reinfocring gender and cultural essentialism through their definition of the female subject as 'victim subject'.

Example for sticking to the sex and gender dualism in the context of CEDAW: Art. 1 CEDAW reads: 'For the purposes of the present Convention, the term "discrimination against women" shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.'

Art. 5 CEDAW stipulates, inter alia, that 'States Parties shall take all appropriate measures: (a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.'

Gender-based analyses have therefore to a large extent focused primarily on women as a seemingly stable (biological) category, thereby neglecting gender discrimination suffered by the many other individuals of very diverse forms of gender identity.

Advanced: Women as a presumed coherent subject

Feminist scholarship has long revolved around women as their coherent subject, which presumes a common, collective and universal identity and thus neglected in large parts 'how the category of "women", the subject of feminism, is produced and restrained by the very structures of power through which emancipation is sought'. This one-dimensional picture of identity that suggests a universal experience of discrimination and oppression has further led to ignoring the intersection of gender with other modalities of socially and culturally constructed identities, linked to notions such as 'class', 'race', 'sexuality' or 'ethnicity'.

In defiance of attempts in international law to deconstruct the category of 'women' in order to 'better reflect the racial, cultural, religious and other forms of diversity, troubling the category of women, and concomitantly, the concept of gender from within', according to Brenda Cossman 'the troubling of sex and gender, and crisis of categories [...] has not yet permeated feminist international law scholarship, let alone international law. [...] Indeed, as gender comes to be instantiated at the international level, its meaning has become rather more rigid and fixed.' International Law's predominant and persisting recognition of and holding on to dominant binary and oversimplified categories therefore ignores the many signs of gender and bodily diversity that have been present across centuries, continents, and cultures.

Advanced: The Sex and Gender (Identity) of the State

A deconstruction of international law from a feminist and queer perspective also requires a closer look at those actors that are still considered the primary subjects of international law: States. These are - despite all differences e.g. in size, wealth, geography and power - generally viewed as monolithic sovereign, independent and equal entities without a sexed identity in international law. In contrast, feminist and queer scholarship has revealed how the image of the autonomous, sovereign, protecting, power-seeking and -exerting State with clear geographical boundaries is associated with heterosexual men and maleness, while weak, invaded, colonized or failed States in need of protection are rather connected to women and femaleness, thereby creating not only shifting sexual identities of States but also corresponding power imbalances and invisibility of deviations of the 'normal' State.

II. Feminist and Queer Theory

1. Feminism and Feminist Theory

Although the feminist discourse is shaped by multiple controversies and disagreement, the common aim is to describe, analyze, explain, challenge and change gendered power relations in all spheres of life to achieve human liberty for all genders. In this sense, 'feminism is a mode of analysis, a method of approaching life and politics, a way of asking questions and searching for answers, rather than a set of political conclusions about the oppression of women.' Through the study of gender, gaining 'critical distance on existing gender arrangements' becomes possible and creates space for reassessment and alteration. While visible feminism and feminist theory have for a long time ignored the diversity and intersectionality of discrimination experiences suffered by women worldwide, it is particularly the merit of black, revolutionary feminists, such as bell hooks, Barbara Smith, Patricia Hill Collins and Kimberlé Crenshaw, who have contributed to a holistic and more inclusive (re)definition of feminism and feminist theory. Further importance should also be assigned to indigenous feminism, putting a spotlight on decolonization, indigenous souvereignty and indigenous women's rights within traditional indigenous life and culture.

Advanced: Revolutioanry definitions of feminism

An important contribution to the revolutionary (re)definition of feminism was delivered by bell hooks. She defined feminism as 'the movement to end sexism, sexist exploitation, and oppression.' Black feminist Barbara Smith had even earlier on referred to a more inclusive concept of feminism in contrast to restricted and exclusive approaches to feminism. According to her, 'feminism is the political theory and practice to free all women: women of color, working class women, poor women, physically challenged women, lesbians, old women. Anything less that this is not feminism, but merely female self-aggrandizement.' From these definitions follows a holistic feminist approach that 'is not simply about women’s issues but is a broad-based political movement that seeks freedom for all those who are oppressed.'

Advanced: Definition of Sexism

In the appendix to its Recommendation CM/Rec(2019)1 of the Committee of Ministers to member States on preventing and combating sexism the Council of Europe, the first international legal instrument to terminologically specify and combat sexism, defined sexism as '[a]ny act, gesture, visual representation, spoken or written words, practice or behaviour based upon the idea that a person or a group of persons is inferior because of their sex, which occurs in the public or private sphere, whether online or offline, with the purpose or effect of:

i. violating the inherent dignity or rights of a person or a group of persons; or

ii. resulting in physical, sexual, psychological or socio-economic harm or suffering to a person or a group of persons; or

iii. creating an intimidating, hostile, degrading, humiliating or offensive environment; or

iv. constituting a barrier to the autonomy and full realisation of human rights by a person or a group of persons; or

v. maintaining and reinforcing gender stereotypes.'

Building on these redefinitions, nowadays many if not most feminists seek to embrace the diversity of voices in the feminist discourse. As a consequence, Sandra Harding asks feminists to give up 'the goal of telling "one true story"', but instead embrace 'the permanent partiality of feminist inquiry', thereby seeking 'a political and epistemological solidarity in our oppositions to the fiction of the naturalized, essentialized, uniquely "human" and to the distortions, perversions, exploitations, and subjugations perpetrated on behalf of this fiction.'

2. Feminist Approaches to International Law

With regard to international law, feminist approaches use feminist theory as a tool for critical analysis in order 'to show how the structures, processes, and methodologies of international law marginalize women by failing to take account of their lives or experiences.' In this sense, feminist approaches to international law seek to lift the veil of an international legal order perceived as neutral and objective and reveal its underlying and omnipresent male standard constructed as the 'norm' and the 'normal' which results in a power imbalance and hierarchy between men and women and materializes in the silence of international law regarding women's experiences and interests. They therefore continue to demonstrate that international law is a 'thoroughly gendered system'. According to Charlesworth and Chinkin, feminist analyses of international law fulfill two main tasks: On the one hand, feminist approaches aim at the deconstruction of the values upon which the international legal system is constructed and thereby challenge their claim to rationality and objectivity. On the other hand, feminist approaches seek to reconstruct international law in a sense that it rebuilds 'the basic concepts of international law in a way that they do not support or reinforce the domination of women by men.' Importantly, voices in feminist approaches to international law have diversified, with many leading icons stemming from the Global South.

3. Queerness and Queer Theory

Queerness, as a term, has a complex history that centres around positioning as outsiders those who do not conform to norms and expectations of society. This led to it being a pejorative term to describe people who did not appropriately perform heterosexuality. Consequently, the term queer has been reclaimed by the QUILTBAG+ community (Queer, Unsure, Intersex, Lesbian, Trans*, Bisexual, Asexual/Aromantic/Agender, Gay, plus others outside these categories and heteronormative classification) as both a generalised shorthand for the community at large and an individualised identity for those within the community who do not feel comfortable with the constraints of more specific identity descriptors. In this way, queer acts as a generalised or collective (descriptive) noun, but also an individualised (identity) noun. This becomes more complex linguistically when considering that queer also operates as a verb, in that ‘queering’ is an action that can be taken that is underpinned by a questioning and interrogation of underlying (heteronormative) assumptions that underpin the subject of enquiry and the normative approach to the thing that is being queered. Technically, queer can also be used as an adjective; however, as the adjective use of queer is irreversibly tied to the use of queer as a pejorative this use of the word has rightly fallen out of common vernacular. While queer theory often has a focus upon queer subjects (then noun form of queer), queer theory itself is predominantly focused at a form or method level with the verb approach to queer.

4. Queer Approaches to International Law

In general, queer approaches to international law seek to include experiences and identities into the international legal discourse and the normative framework that are distinct from the 'cis/het' standard, particularly illustrated in the granting of equal rights and prohibition of discrimination on the basis of sexuality and sexual identity. In addition, Dianne Otto understands 'queering of international law' more broadly than traditional approaches of norm inclusion. In this sense, queer theory fundamentally challenges and criticizes the regime of what is considered as 'normal' with regard to human sexuality, thereby moving beyond the dominant dualism of heterosexuality and homosex. In the words of Otto, queer theory to international law is '"taking a break" from the politics of hetero-normative injury, and imagines human sexuality as much more diverse and shifting.' Quite similarly to the deconstrutionist approach of feminism, queer theory makes 'visible the [hetero] sexual ordering that is taken for granted as an underpinning of the "normal" system of international law' and discloses heterosexuality as the 'basic model for all dominant systems of societal relations.' Queering international law therefore also means to uncover the different layers of presumed 'normality' in international law and beyond: When heterosexuality is seen as the preferred, natural, normal form of sexuality, it not only shapes how society considers '"normal" interpersonal and familial relationships', but it also forms the (presumed) basis for our perception of community in general and thereby dictates our understanding of 'all forms of "normal" community, including that encompassed by the "normal" nation-state, international law's primary subject.' In essence, queer approaches to international law unveil how international law 'provides a conduit for the micromanagement and "disciplining'' of everyday lives, including sexual pleasure, despite its many rules purporting to leave these matters in the domestic realm of jurisdiction.'

Example for Queering International Law: The International Bill of Gender Rights as an expression of human and civil rights from a gender perspective is an important early momentum of queering international law. The Bill was first adopted in 1993 by the International Conference on Transgender Law and Employment Policy and subsequently reviewed and amended. It contains ten rights, which are framed as universal rights to be 'claimed and exercised by every human being regardless of their sex or gender', but which still reflect the denial and continuous infringement of human rights of those persons that define themselves or are perceived as transgender.

The rights included in the International Bill of Gender Rights are:

• The Right To Define Gender Identity
• The Right to Free Expression of Gender Identity
• The Right of Access to Gendered Space and Participation in Gendered Activity
• The Right to Control and Change One's Own Body
• The Right to Competent Medical and Professional Care
• The Right to Freedom From Involuntary Psychiatric Diagnosis and Treatment
• The Right to Sexual Expression
• The Right to Form Committed, Loving Relationships and Enter Into Marital Contracts
• The Right to Conceive, Bear, or Adopt Children
• The Right to Nurture and Have Custody of Children and to Exercise Parental Capacity

Example for Queering International Law: An important outcome of queering international law are the Yogyakarta Principles on the application of international human rights law in relation to sexual orientation and gender identity, which were developed and adopted in 2006 and supplemented in 2017 (Yogyakarta Principles plus 10) by leading human rights experts reacting to and putting a spotlight on a continuous global pattern of human rights violations that target persons based on their actual or perceived sexual orientation or gender identity. It is important to note, however, that these principles have also been criticized for ignoring social context and relying on biology and heteronormative understandings of family.

5. Frictions and Intersections of Feminist and Queer Theory to International Law

As outlined above, there is much to be said for a joint presentation of feminist and queer approaches to international law. Especially in light of the open, fluid concept of gender and the need to break down and overcome the heteronormative binary of both sex and gender, a critical analysis of international law from a one-sided feminist or queer perspective would remain patchy and incomplete. However, this is less about adding up different perspectives, but about choosing an integrative approach that attempts to map the complexity of situations and experiences of discrimination and to develop adequate methods that go beyond describing a specific issue, but respond to it by exploring possible solutions. Still, constructive dialogues between feminist and queer theory have rather been the exception than the rule, which is – according to Gina Heathcote – also due to the fact that 'mainstream feminist approaches to international law are yet to incorporate queer and trans scholarship into feminist accounts' and have mostly ignored the dialogue commenced by queer approaches to international law. Instead, feminist approaches have – intentionally or unintentionally, for pragmatic or other reasons – largely built on the heteronormativity and cisgenderism inherent in the structures they seek to criticize, resulting in the 'invisibility of individuals who do not neatly fit into the normalized gender binary' and reproducing the 'fear of undermining heteronormative social structures.' In contrast, moving beyond dualism and asymmetry would allow 'to tell a story of marginality that has not yet been told’, drawing an inclusive picture of discriminatory experiences without 'losing the precarious spaces that have been carved out for addressing women’s human rights abuses.'

III. Structural Discrimination

During the last two decades, international human rights institutions have increasingly made reference to the phenomenon of structural injustices through the lens of the concept of structural discrimination. Structural discrimination is distinct from individual discrimination which refers to the behavior of an individual belonging to a specific group that is intended to have differential and/or harmful effects on the members of another group. Typically, the differential and/or harmful behavior stems from individuals belonging to the dominant group that represents (or perceives itself as) the majority and is directed against individuals that due to specific characteristics are considered as minority or distinct which has also been described above as 'the other'.

In contrast to individual discrimination, structural discrimination refers to discrimination rooted in grown and therefore pre-existing structures and inequalities of society. It occurs when the rules, norms and policies of a society's major(ity) institutions impose and produce disproportionately disadvantageous and unjust outcomes for the members of certain salient social groups. Discrimination is thereby introduced into often unconscious societal routines and patterns of attitudes and behavior that create and maintain discriminatory practice. The applied rules, norms and policies as well as societal routines and patterns are largely perceived as neutral, because their negative outcome – the differential and/or harmful effect on certain groups – is usually not intended. As Pincus highlights the 'key element in structural discrimination is not the intent but the effect of keeping minority groups in a subordinate position.' In this sense, members of a certain group that due to the application of these rules and policies are denied equal opportunities and suffer from unjust disadvantages are put in a vulnerable position exposing them to exploitation and domination. In the context of gender inequality, MacKinnon has described structural discrimination as 'the systematic relegation of an entire group of people to a condition of inferiority.'

There are multiple forms of structural discrimination present in the realm of international law that often, but not only, mirror corresponding patterns at the domestic level. The invisibility and underrepresentation of persons belonging to or identifying as a different than the cis male gender in international adjudicating, monitoring and law-developing institutions, structural gender-based violence or persisting racism in international law (education) are some of the multiple expressions of structural discrimination in the international legal sphere, which are closely linked but not always analized in their connection to intersectionality and complex forms of discrimination. As a consequence, there is a need for more investigation and quantative as well as qualitative data on structural discrimination in international law that also goes beyond monolithic categories of their subjects, however, without ignoring the significant hurdles intersectional research faces.

Advanced: Distinction between structural and institutional discrimination

Although structural and institutional discrimination may sometimes be used synonymously, Pincus described their differences as follows: Both forms of discrimination share the effect of certain groups being kept subordinate, 'but only institutional discrimination is intended to keep minority groups subordinate.' While structural discrimination as a phenomenon can therefore generally be described as indirect and unintended, it may still be built upon or accompanied by forms of direct and intentional discrimination. It is also important to point out that women are much affected by structural and institutional discrimination even though they do not fit into the category of minority.

IV. Intersectionality

While bell hooks had already described interlocking webs of oppression beforehand, it was Kimberlé Crenshaw who coined and finally introduced the concept of intersectionality into feminist theory. Her work 'Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics' can be read as a critique of both feminist and anti-racist movements for their one-sided focus on the most privileged members of the respective group. According to Crenshaw, the 'single-axis analysis' results in anti-racist strategies that tend to focus on gender privileged persons – men – and a women's movement which puts a spotlight on class-privileged women associated with a certain race, namely white, Western, heterosexual, middle- and upper-class women. This blindness towards other groups that suffer from structural discrimination, particularly at the intersection of different categories upon which subordination and discrimination is based, leads to the marginalization of 'those who are multiply burdened and obscures claims that cannot be understood as resulting from discrete sources of discrimination.' Building upon this, intersectionality has been commonly defined as 'the complex, cumulative way in which the effects of multiple forms of discrimination [...] combine, overlap, or intersect especially in the experiences of marginalized individuals or groups.' As a result, intersectional approaches of feminist and queer theory seek to include perspectives and experiences of individuals and groups where several forms of discrimination based on different categories, such as gender, race, sexual orientation, class, age, disability or belonging to an indigenous community, just to name a few, overlap.

Advanced: Sexual orientation and heteronormativity

‘Sexual orientation’ is different from the terms ‘sex’ and 'gender' in that it makes reference to the type of person to whom one is attracted. The Yogyakarta Principles define sexual orientation as referring 'to each person’s capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender or the same gender or more than one gender.'

While sexual orientation may be perceived as an open term encompassing a plurality of sexual attraction and experiences, heteronormativity, in turn, as a social hegemonial norm assumes that heterosexuality is the normal, natural and preferred mode of sexual orientation to the exclusion of its many other forms. Building on this assumption, heteronormativity further presupposes that an individual's biological sex, sexuality, gender identity, and gender roles are aligned.

The Bejing Declaration as an outcome of the Fourth World Conference of Women in 1995 can be seen as an early beginning of intersectionality feeding into international law. Both concept and terminology of intersectionality found their way into international documents particularly at the intersection of gender and race, examples of which are the adoption of the Durban Declaration and Action Programme of the World Conference Against Racism, Racial Discrimination, Xenophobia Related Intolerance in 2001 and General Recommendation No. 25 of the Committee on the Elimination of Racial Discrimination. Also Committee on the Elimination of All Forms of Discrimination Against Women (CEDAW) has endorsed intersectionality in several of its General Recommendations. In the following, intersectionality as a feminist approach has therefore also come to play a vital role in the adjudication of international human rights law, particularly with regard to violations of anti-discrimination norms, and has consequently found its way into the jurisprudence of regional human rights monitoring bodies.

Example for Intersectionality in Regional Human Rights Systems: Intersectionality has been regularly used in the jurisprudence of the Inter-American Court of Human Rights to assess and unveil complex situations of vulnerability and discrimination. In Gonzalez Lluy v. Ecuador, the Court held that 'numerous factors of [Thalías] vulnerability and risk of discrimination intersected that were associated with condition as a minor, a female, a person living in poverty, and a person living with HIV. The discrimination [...] also arose from a specific form of discrimination that resulted from the intersection of those factors; in other words, if one of those factors had not existed, the discrimination would have been different.' In this sense, the Court also emphasized that intersecionality is to be distinguishied from additive, cumulative or multiple discrimination.

In the African Human Rights System, the Principles and Guidelines on the Implementation of Economic, Social and Cultural Rights in the African Charter on Human and Peoples' Rights deserve special mentioning when it comes to the concept of intersectionality. Therein, the African Commission on Human and Peoples' Rights (ACHPR) underscored that 'States should recognise and take steps to combat intersectional discrimination based on a combination of (but not limited to) the following grounds: sex/gender, race, ethnicity, language, religion, political and other opinion, sexuality, national or social origin, property, birth, age, disability, marital, refugee, migrant and/or other status.'

C. Problems that Feminist and Queer Theory Seeks to Address

Broadly speaking, feminism and queer theory seek to address the same problem: equality within society. This goal is one that is shared with most marginalised-peoples-focused theories within law, social sciences, and the humanities. The key differences here (and elsewhere) are which marginalised group is the focus in its quest for equality, and how this quest for equality is positioned strategically and tactically.

Example for Key People in Feminist and Queer Theory in International Law: Hilary Charlesworth, Christine Chinkin, Shelley Wright, Ratna Kapur, Rahul Rao, Aeyal Gross, Dianne Otto, Gina Heathcote,Nan Seuffert, Doris Buss, Ralph Wilde, Vanja Hamzić, Anne Orford, Nienke Grossman, Josephine Jarpa Dawuni, Senthorun Raj, Sylvia Tamale, Vasuki Nesiah, Usha Natarajan, Vidya Kumar,Aileen Moreton-Robinson, Rosalva Aída Hernández Castillo, Johanna Bond

I. Feminist Engagement with International Law

There is a valid argument to suggest that the drafting and entry into force of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in 1979 and 1981 respectively is the starting point of feminist approaches to international law; however, academic scholarship from the feminist tradition did not gain traction until a decade later. The consideration of international law as an area of concern for feminism began in earnest in 1991 with the foundational article ‘Feminist Approaches to International Law’ by Charlesworth, Chinkin, and Wright. While this began at the same time as what is seen as third wave feminism (most distinctively characterised by the work of Butler and incorporating intersectionality following Kimberlé Crenshaw’s work), the approach taken was shaped by the education in second wave feminism of the academics championing this important moment in International Law. This approach to seeking equality being grounded in the framework of second wave feminism can be seen in how CEDAW has been constructed and in how Charlesworth et al. construct the goal of feminism as being “to capture the reality of women’s experience or gender inequality.”

This tendency of the feminist tradition in international law to follow second wave feminism, which is much more grounded in biological determinism than third wave feminism, is most evident in the way we see the UN’s gender mainstreaming programs (which seek to normalise considerations of the perspectives and impacts of women in UN activities). It is also evident in fantastic programs such as the Gender Legislative Index, which seeks to assess how well states domestic laws are complying with CEDAW obligations. In this construction, the object of feminist interventions and international law is grounded in cisgender women being the subject of arguments for equality, rather than on the cultural social structures, such as the heteropatriarchy, that cause inequality.

The outcome of this focus on women as subjects rather than social structures when conducting feminist interventions in international law lends results in broadly to two separate approaches. The first, and arguably more common approach (and definitely more theoretically sound approach), is one that embraces Crenshaw’s call for intersectionality in its analysis. This is a feminism that acknowledges, and embraces, the fact that women’s lived experiences of the impacts of law is not universal and is also shaped by other defining characteristics of marginalisation (such as inter alia race, class, sexuality, and disability). While this feminism is still predominantly focused upon equality for women, it acknowledges that women’s equality is contingent upon equality for all marginalised groups and the need for feminism to engage in dialogue with these groups. The other approach, often criticised as ‘White Woman Feminism’, embraces the call spearheaded by Catherine MacKinnon that women need to be considered a single unified and universal political category that disregards questions of race, class, et cetera when advocating for equality. Proponents of this approach believe that it creates a stronger argument for women’s equality, but ignore that the focus of the approach is often the interests of white, straight, western women. This second approach has also been plagued by notion of zero-sum games around the question of equality and has pushed back against a broad and inclusive feminism that seeks to advocate for equality for all out of fear that it will come at the expense of equality gains made for women.

Some of the notable achievements of feminist interventions into international law were how advocacy was able to get International Criminal Law and international humanitarian law to treat armed conflict sexual violence as a crime against the personhood of the victim, rather than as a crime against military discipline (as it had historically been treated). Building upon this success in the 90s we have seen the development of the UN Security Council’s Women, Peace, and Security agenda and the growth in the work of UN Women as a sub agency of the UN to specifically consider the impact of international law on the lives of women. Some of the impacts around how women have been characterised, and often essentialised, through the work of engaging in direct consideration of the impact of international law on women has been strongly criticised; however, even those criticising this work acknowledge that it’s an improvement for women than when they were being utterly ignored.

II. How Queer Theory in International Law Differs from Feminism

Queer theory grew out of third wave feminism, in particular the work of Butler and Sedgwick, with a much less cohesive equality agenda than feminism. When looking at questions of equality queer theory is inherently broad (and is mostly inclusive but not without its problems) but has a tendency to focus upon QUILTBAG+ subjects. There is also a strong tendency to explore advocating for equality through an intersectional lens by examining the normative assumptions that are being brought to law and situations that generate inequality. Queer theory, at its core, is an embrace of curiosity and questioning – generally from a framework of understanding that the law and normative assumptions that are brought to law and social practice are culturally dependent social constructions rather than natural and inevitable.The easiest space to see this distinction between feminist approaches to international law and queer theory approaches to international law is in examination of the project of gender mainstreaming within UN projects. Feminist approaches to international law, while often critical of the details taken through gender mainstreaming, have treated this introduction of idea and process into every UN body (and numerous state foreign affairs and defence departments) as a net good. Queer theory approaches to international law, while acknowledging the improvements that adding gender mainstreaming has produced, have heavily critiqued how the process of gender mainstreaming has led to the use of gender being an euphemism for women, how it has normalised and reinforced the (white) cis/het masculine subject as the un-gendered normal to which all other expressions of humanity must be compared, and how the process has reproduced bio essentialist views of sex and gender along regressive heteronormative lines within international legal discourse.

There is a tension created within feminist and queer theory approaches to international law where the perfect can be the enemy of the good. This tension is often referred to as the ‘double-bind’. This idea of the ‘double-bind’ broadly posits that advocates for change and equality suffer pressures from those outside governmental institution to not compromise in questions of equality, while also suffering pressures from within the institution that require accepting an improvement that is less than ideal in the alternative to no improvement. It is because of these competing pressures that feminism and queer theory requires advocates inside governmental institutions to push for change and accept compromise, and advocates outside of governmental institutions to hold those inside the institutions to account and drive them to continue advocating for better equality.

Overall feminism and queer theory seek the same thing: equality. This is achieved better by marginalised groups working together for the betterment of all, and that is something that is known and acknowledged by the majority of feminist and queer theory advocates in international law.

Further Readings

• Hilary Charlesworth and Christine Chinkin, The boundaries of international law - A feminist analysis (Manchester University Press 2000).
• Kimberlé Crenshaw, 'Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics' (1989) University of Chicago Legal Forum 139-167.
• Margaret Davies, 'Taking the Inside Out: Sex and Gender in the Legal Subject' in Ngaire Naffine and Rosemary J. Owens (eds), Sexing the Subject of Law (LBC Information Service 1997).
• Rosalva Aída Hernández Castillo, 'The Emergence of Indigenous Feminism in Latin America' (2010) 35 (3) Signs 539-545.
• Loveday Hodson and Troy Lavers, Feminist Judgments in International Law (Bloomsbury Academic 2019).
• bell hooks, Feminist theory: from margin to center (South End Press 1984).
• Emily Jones, Feminist Theory and International Law: Posthuman Perspectives (Routledge 2023).
• Ratna Kapur, Gender, Alterity and Human Rights: Freedom in a Fishbowl (Edward Elgar Publishing 2018).
• Dianne Otto, Queering International Law: Possibilities, Alliances, Complicities, Risks (Routledge 2018).
• Susan Harris Rimmer and Kate Ogg Research Handbook on Feminist Engagement with International Law (Edward Elgar Publishing 2019).

Further Resources

• ASIL, International Law Behind the Headlines, Episode 39: Feminist Theories of International Law, 30 Years On, available at: https://www.asil.org/resources/podcast/ep39.
• Borderline Jurisprudence, Episode 18: Tamsin Paige on Sociology of International Law, Queerness, and Pastry, available at: https://open.spotify.com/show/7rlKzpmKoFmmOoXmL9GIkq.
• Feminist and Queer Movie Collection with and without relation to international law: https://commonslibrary.org/5-films-about-fighting-for-gender-justice-and-fundamental-human-rights/ and https://www.bowiecreators.com/film.
• Podcast 'Law and Queer Challenges', available at: https://open.spotify.com/show/4XiUF44wttvTRVwiC5qJio.
• TED Talk by Kimberlé Crenshaw on 'The Urgency of Intersectionality', 14 November 2016, available at: https://www.ted.com/talks/kimberle_crenshaw_the_urgency_of_intersectionality/transcript.
• The East is a Podcast, Ratna Kapur on 'Gender and human rights: Success, failure or new imperialism?' (2016), 16 February 2021, available at: https://eastisapodcast.libsyn.com/ratna-kapur-gender-and-human-rights-success-failure-or-new-imperialism-2016
• The Frontline, Trans Inclusion in the Women's Movement, 31 March 2023, available at: https://www.ilga-europe.org/podcast/the-frontline-trans-inclusion-in-the-womens-movement/.

Conclusion

• Public international law suffers from a clear gender bias and was built on and therefore permeated by a male and heterosexual standard that serves as a basis for structural discrimination of all deviations from this standard.
• The de- and reconstruction of public international law therefore requires a holistic approach that unites feminist and queer approaches despite persisting differences and frictions.
• Sex and gender are core concepts to feminist and queer theory, which due to cultural baggage, oversimplification and modes of application have also led to exclusionary approaches, particularly within the feminist discourse, that perpetuate the very discriminatory structures feminist and queer theory seeks to disclose and abolish. Both terms therefore require careful consideration in their use, taking into account both their social and normative imprint as well as the fluidity, complexity and multiplicity of (gender) identities.
• The analysis of structural discrimination that queer and feminist theory seeks to address requires an intersectional perspective to disclose complex experiences of discrimination and to put a spotlight on the perspectives of marginalized individuals and groups where several forms of discrimination overlap.
• International Law itself is permeated by structural discrimination, which requires more (feminist and queer) quantitative and qualitative (intersectional) research.

Footnotes

Author: Kanad Bagchi

A. Introduction

Marxism is a broad church. Its traditions are as old as they are contested. “…Splits, disagreements, and denunciations…” within it are routinely common. No wonder that many of its tenets have been hopelessly misinterpreted by both Marxists as well as non-Marxist scholars, associating Marxist thought with abject reductionism, crude economic determinism and a certain complicity in authoritarian and dictatorial rule. Ironically enough, Marx himself had vehemently decried being called a ‘Marxist’. To write about a Marxist legal approach is equally difficult, given that Marx and Engels did not have much to say about the law, let alone international law.  

Yet, Marxism is not simply about the words and writings of Marx or Engels alone. Generations of Marxist scholars have drawn from Marx’s larger insights into society and history to explain a number of propositions about law and, more recently, about international law. Resisting, alongside a number of other critical movements, including TWAIL, Feminist and Queer theory, critical legal studies and post-colonial approaches, Marxists have challenged international law’s fundamental claims about promoting peace, prosperity, equality or progress. Even while maintaining this critique, Marxist legal theory has pointed to ways in which law can and should be instrumentalized towards progressive ends mindful of both the reifying structures of the system and its limits for emancipation. Having said that, Marxist legal theory still has much ground to cover, several blinkers to shed and the continuing need to open its discursive space to other critical voices. In what follows, I reflect upon five distinct perspectives that Marxist scholars have brought to the disciplinary understandings of the history and present of international law. Additionally, I also highlight some of the blindspots within Marxist legal theory and how recent scholarship has made important strides to fill those voids. My account is necessarily going to be partial and incomplete. Yet, I hope it is readable, accessible, but most crucially, provides a starting point for further debate and revision.

B. Marxism as 'Perspective' and 'Critique'

The use of ‘perspective’ rather than ‘method’ is a conscious choice. Marxist theory rarely conforms to the idea of a singular method of approaching law. For the most part, Marx and the larger Marxist tradition is a theory about the totality of social forms and relationships among individuals, rather than a specific set of propositions about the law. To invoke a Marxist lens is to view the world and society as an endless set of inter-relationships, where one phenomenon is always connected to the other. This means that ideas, institutions and human agency needs to be understood as part of an “integrated whole” that is both dynamic and also beholden to history and past structures. As Marx had insightfully claimed “[m]en make their own history, but they do not make it as they please; they do not make it under self-selected circumstances, but under circumstances existing already, given and transmitted from the past.” How we think about the law then, will depend on how we think about the determining elements of social relationships more broadly. This is where one’s intellectual framework, i.e, theory about the world, collapses into the narrow question of method. Moreover, Marxism continues to evolve, even as it registers critique, new ways of thinking and a continuing push against its own traditions. Confining Marxist theory to a pre-determined set of propositions or institutional boundaries is not only misguided but also deeply depoliticizing. ‘Perspectives’ in this sense keeps that space open to be constantly revisited and challenged.

Broadly stated, a Marxist critique is a structural critique, not aimed at individual instances of exploitation or subjugation alone, but at a reflection on the material structures of society at a systemic level, which make such exploitation part of the ordinary and mundane. It is also an ‘internal’ critique of the system, which exposes the inner contradictions of its operating logic. Law then is to be viewed as a social practice with its own internal formal logic containing a set of argumentative structures that give stability to dominant interests and power. It probes us to think about law and international law not as a fragmented, insular and detached body of rules, but as part of a larger social and economic infrastructure, within which it is embedded and takes its form. Finally, Marxism is not simply a set of theoretical escapades, but a call for radical political action to change existing structures of political economy. It is inherently an emancipatory ‘praxis’ the aim of which is to “create space for interpretive rules and strategies that contribute to the welfare of the subaltern classes”. Marxism therefore, does not draw an overtly strict boundary between ‘theory’ and ‘practice’, acknowledging that one is necessarily dependent on the other.

C. ‘Five’ Marxist Perspectives on International Law

Despite having a rather long and influential pedigree, Marxist approaches to law and international law in particular, largely remained in the margins of the discipline, even within critical circles. Yet, in the last decades, Marxist scholarship in international law has witnessed somewhat of a ‘revival’. This is not least due to the fact that many of our contemporary crises, whether that be the ‘War on Terror’, rising inequality, financial crisis, climate change, racial injustice, violence against women and indigenous communities, and the rise of authoritarian populism, has brought to the fore capitalism’s worse consequences. Alongside that, many of the contemporary social movements, whether that be the farmer’s protests in India, the Black Lives Matter movement or the Palestinian struggle against imperialist violence, have been mobilized using Marxist language, even if not explicitly. Increasingly, the visible inter-connectedness of ‘local’ events with the global structures of political economy have called into question the role of international law in the (re)production of worldwide dispossession and alienation. Marxist concepts such as ‘class’ ‘ideology’ ‘economic base’ ‘commodification’ carry tremendous explanatory potential in laying bare the systemic forces at work, which naturalizes the historical legacies of this unequal and violent order of things.

I. International law as a Material Phenomenon 

Marxist theory often begins with the fundamental claim that all social relations need to be understood in its ‘historical-material’ context. This means that law, like any other social form of regulation cannot be studied in isolation, but as having its roots in “the material conditions of life”, which then are the “real foundation, on which arises a legal and political superstructure.” Legal relations correspond to and are a reflection of the larger economic processes within society. It is important to remember, however, that the relationship between law and the economic structure is neither static nor unidirectional. To the contrary, the relationship of the ‘base/superstructure’ is highly contingent, co-constitutive and even contradictory – a point that is routinely forgotten. The task of Marxist legal scholarship, then, is to ask how this relationship plays out in concrete situations.

Unlike liberal accounts of the discipline, a ‘historical-material’ perspective locates the rise of international law to the consolidation of global capitalism. In this, the story of capital, although it begins in Europe, travels to the rest of the world through colonial expansion and imperial violence. Primitive accumulation - the resolutely violent and coercive enterprise of “divorcing the producer from the means of production” becomes the chief means of encounter between capitalist Europe and the non-capitalist world. For Marx, colonial expansion and the “extirpation, enslavement and entombment” of the native population was not only indispensable for capitalist accumulation, but was a natural consequence of it. International law including its rules concerning trade and commerce, the doctrine of sovereignty and the legal standard of ‘civilization’ become central to this project of worldwide domination and subjugation.

Thus, from a Marxist perspective, imperialism and colonial expansion is a material phenomenon at the heart of which lies the need for capital to constantly expand “over the whole surface of the globe”. This not only requires forcibly robbing native populations of their subsistence, but also wholesale transformation of non-capitalist societies into the image of capitalist modernity. As Rosa Luxemburg had argued, “Capitalism must always and everywhere fight a battle of annihilation against every non-capitalist form that it encounters.” Imperialism in a Marxist sense, then, is “the political expression of the accumulation of capital" which works to efface all traditional forms of economic and cultural organization and turn them into social spaces that would be safe and productive for capital. Similarly, the distinction between ‘civilized’ and ‘uncivilized’ and corresponding denial of ‘sovereignty’ to the latter from the realm of 19^th century European international law was not only about racial supremacy or domination, but was centrally rooted in the logic of capitalism. Equal sovereignty for the colonies could only come through Western capital, the creation of a centralized bureaucracy and through ‘modern’ forms of political organization. Realization of ‘statehood’ under international law became synonymous with violent capitalist transformation.

Viewing international law through a materialist lens points to the several ways in which the civilizing mandate continues to the present day, even when the language of racial difference has witnessed a relative decline. It allows us to witness modern international law as a continuation of past practices of “exclusion and conditional inclusion” of the non-Western world. The post-WWII international legal order which was purportedly based on international rule of law and self-determination did not fundamentally alter the imperial nature of international law, but marked the beginning of “imperialism without colonies”. Imperialism gave way to "the grip of neo-colonialism", tying the third world to the economic dependence of former colonial powers and the institutions that they controlled. The disciplining effect of international law and international institutions manifest itself in the large scale remodeling of the Global South through instruments of structural adjustment and conditionality, market liberalization, promotion of rule of law and protection of foreign investment. The IMF and the World Bank, among others, promote monetary stability, free capital mobility, disciplined finance, and a shrinking of the public sector, under the pretext of the seemingly innate and neutral concept of ‘good governance’. David Harvey calls this “accumulation by dispossession” to refer to the accelerated ways in which capital inhabits every non-capitalist space, leaving in its wake mass poverty, social stratification, forced migration, and land dispossession. Accumulation by dispossession is primitive accumulation in the neo-liberal age aided by the privatization and commodification of natural resources. Modern international investment law, especially BITs, entrench the power of foreign capital, while the WTO prescribes harmonized rules, subjects state autonomy to international adjudication, and legalizes the international protection of property rights.

The logic of Marx’s ‘primitive accumulation’ as a gateway to both imperial expansion and capitalist transformation is also writ large in the continuing forms of settler-colonial practices across the world, where dispossession and expropriation of indigenous land and territory is legally and constitutionally sanctioned. It allows us to conceptualize the relationship between international law, capitalism and imperialism as a permanent process and not one that ought to be confined simply to the ‘pre-history’ of the discipline. International law as a material phenomenon contests many of the ‘idealistic’ portrayals of the discipline, which trace its contours to mythical accounts of benign trade between private individuals, ideas about denouncing ‘war’, ‘human rights’ or ‘peace’. Instead, Marxist accounts of the field have spent considerable efforts in grounding these ‘ideas’ about international law within a historically specific and materially influenced conception of evolution, where it is indistinguishable from violence and expropriation. Here, as Antony Anghie had argued, international law is imperialism all the way down and much like the birth of capital in Marx’s analysis, international law also comes into the world dripped in “blood and dirt”.

II. International Law as a Class Project

‘Class’ is the organizing principle of society in the Marxist tradition. Marx had famously remarked that “[t]he history of all hitherto existing society is the history of class struggles,” between those who own the means of production and those whose only means of subsistence is their labour power. What he meant was that all aspects of social relationships, including those that make up the economic base, are never a constant, but continuously evolve through the struggle between different groups within society. These struggles are often expressed through the law: “[e]very struggling class must therefore formulate its demands as legalistic demands…”. The law becomes crucial here as the means through which class conflict is not only mediated, but, more fundamentally, it is in the process of engaging with the law that class consciousness takes its concrete form. So even while law and legal structures reflect, reify and consolidate the interests of the dominant classes, it also simultaneously shapes the form and content of the struggle itself. The outcomes are therefore never pre-determined. 

‘Classes’ however, are not simply confined to the domestic borders of a given political community. With the consolidation of the neo-colonial project in the 1970s and the accelerating trend towards hyper-globalization, class formations too acquired a different dimension. The monolith identity of the ‘state’ as an actor in international law was superseded by rise and prominence of international institutions and loose coalitions of networks. Almost all aspects of state sovereignty were transferred, even as domestic policy space became ever more constrained. More fundamentally, the state found itself enmeshed within the capitalist global economy, aided by the rise of a new social formation – an emerging transnational class fraction – which pushed against national borders and territorial delimitations. Capital accumulation now relied on a “globalized regime of exploitation and waged labour".

Marxist scholars, especially Rasulov and Chimni, argued for a class approach that visibilizes the role and significance of different social groups and classes, which materially influence and shape the formation of international law. They pointed to the emergence and consolidation of a transnational capitalist class (TCC) - a dispersed, yet influential fraction of capitalist classes from advanced capitalist countries and the Third World. Even while situated in different geographic spaces, the TCC was global and had as its primary objective the facilitation of capital accumulation. TCC works closely with international institutions to advance their interests and to create a “functional unified global economic space” where restrictions to capital movement could be flattened. On the flipside, an emerging transnational oppressed class (TOC) comprised of social groups who are disenfranchised from the means of production came to be gradually consolidated. Newer forms of exploitation, corporate abuse, in-formalization and displacement greased the wheels of capital. Much like their counterpart, the TOC operate transnationally, building coalitions with different oppressed groups and use both legal and political means to push against the TCC.

In this constellation, international law becomes a site of class struggle between the TCC and TOC and thus promotes both class consciousness and provides its constitutive structure. This is most visible in the struggle for environment, bio-diversity, development related displacement and the like, where interests of capital compete with rights of labour, indigenous communities, and agricultural workers. These antagonisms play out through overtly capitalist institutions such as the WTO, World Bank and the IMF, but also through institutions such as the International Labour Organization, which one might otherwise think works to correct the imbalance of power between capital and labour. What we have then is an “emerging bourgeois imperial international law”, which speaks in the language and uses the rhetoric of universal human rights and ‘rule of law’, even while entrenching material and ideational primacy of capitalist classes.

A class approach to international law helps navigate through the black box of the state and international institutions by identifying the dominant groups, which benefit from the system of international law. It also helps foreground a more granular story of resistance by TOC to capitalist accumulation and directs our focus to new actors in the global arena. From social movements to civil society organizations espousing the cause of TOC, international law is made and re-made in a number of different terrains.

III. International Law, Ideology and the Critique of Universality

A sensitivity towards class structures demystifies liberal claims concerning the ‘universality’ of international law in the sense that many of its proclaimed values such as human rights are susceptible to selective interests and open to co-option by dominant groups and classes. Law then becomes a means to sustain and stabilize particular interests as universal ones. In the Marxist tradition, this is law acting as an “ideological form”, which domesticates resistance and class conflict, by depoliticizing legal relationships and rationalizing conceptual categories. Ideology in the words of Susan Marks, plays a “key role in legitimating exploitation” precisely by representing capitalist social relations as natural and permanent. Relationships of domination and exploitation are delineated as pertaining to the individual sphere rather than as systemic outcomes. In other words, a focus on ideology exposes the abstracting character of the law, which flattens differences of power, even while projecting exchange as transpiring between ‘free and equal’ participants.

It is not difficult to see how ideology critique provides a useful lens to the work of international law, especially in the context of deeply political conflicts. From humanitarian intervention to economic conditionalities as well as the ‘war on terror’, capitalist states and international institutions have routinely invoked international law to justify a particular idea of ‘liberation’ and ‘freedom’. Sundhya Pahuja for instance, has shown that notions of ‘development’, when prescribed in universalistic terms, carry with it the prescription for particular kinds of economic and political arrangements, which mirrors the Western bureaucratic-state apparatus essential for capital accumulation. International law, by focusing on domestic roots of ‘poverty’ and ‘conflict’ in the ‘third world’, detracts attention from the systemic patterns of capitalist exploitation and violence at the heart of ‘core-periphery’ relationships. Similarly, the growing infrastructure of international adjudication and the increase in specialized forums of dispute resolution add another layer of depoliticization to social conflicts concerning land, environment, and property. Even the concept of ‘democracy’ promoted by international law sidesteps crucial questions of entrenched social hierarchy and inter-group domination, while privileging a narrow set of indicators and benchmarks to assess participation.

To point to the ideological character of international law is to make apparent what is made invisible and lay claim to the ‘false necessity’ of existing structures. It probes us to think about the contingency of social arrangements and about the fact that they need not be the way they are. Yet, if existing social relations seem inevitable or natural, it is but the result of repeated “ideas and rhetorical processes” that legitimizes and orders such structures. But one should also be mindful of the fact that even though historical relations are contingent, they are not always open to change. Quoting Susan Marks once again, “just as things do not have to be as they are, so too history is not simply a matter of chance and will”, meaning that human agency, while paramount for resistance and change, always operate within the “logics of a system". In other words, as much as one ought to be skeptical of historical necessity, meaningful transformation can only transpire through a clear-headed understanding of the ‘false contingency’ and limits of individual action.

IV. International Law as Commodity Form

For Marx, capital makes ‘commodities’ out of everything, but, most crucially, capital expands by commodifying labour power. The process entails both abstracting the individual from the product of its own labour for surplus value and also alienating labour from the very means of production. With the spread of capitalism, commodification extends to every aspect of life mediated, of course, though legal relationships. Capitalist relations, then, are marked by an endless collection of commodities connected through an endless set of legal relations. Capital and law exhibit a structural relationship in the Marxist tradition.

Commodification and the abstracting/individualizing character of the law was central to the work of soviet jurist Evgeny Pashukanis, one of the most influential Marxist theorists of law. Drawing from Marx’s insight that ‘commodities’ are but the elementary form of wealth, Pashukanis argued that, in a capitalist society, relations between individuals based on property rights are homologous to abstract commodities, which are traded. Just like for commodities to be exchanged, each party much recognize the other as an equal owner of property in an abstract sense, so too does the law treat those parties as equal bearer of rights. In other words, the “legal subject is thus the abstract commodity owner elevated into the heavens" and the legal form mirrors this commodity form. One of the fundamental insights of the commodity form theory is that law treats individuals as abstract, neutral entities, detached from the material conditions in which they exist. This makes it seem like exchange is between two equals, even while the law invisibilizes and “permits real inequality” among individuals. Much in the same way, Pashukanis illustrated that sovereign entities in their relationship to one another precisely operate as owners of property (read territory) with each possessing equal rights and obligations. This formal equality in status eludes however, the reality “that they are unequal in their significance and their power”. It is in this context that Pashukanis characterized international law as “the legal form of the struggle of the capitalist states among themselves for domination over the rest of the world”.

The crucial question that arises is how are disputes then resolved between two formally equal sovereigns? What is the nature of the legal form that makes certain claims trump over others? This is where China Miéville in his highly provocative book, Between Equal Rights extended Pashukani’s commodity theory to argue that the legal form inherent in international law is that of coercion. Exchange implies ownership and ownership is primarily about the right, mostly exercised through the law, to exclude others. Since international law does not have a centralized system of enforcement, sovereign entities themselves resolve disputes to the interpretation of rules. In a deeply unequal world, what this means is that powerful states are able shape the order and content of legal norms through economic and military force. Because “coercion is at the heart of the commodity form" and international law mediates commodity exchange, violence is central to it – ‘Between Equal Rights, force decides’.

The commodity form theory as explained by Miéville illustrates precisely how international law not only bore a structural relationship to capitalist accumulation through the commodification of social relationships, but also sustained imperial relations of domination. The very legal form of international law based on “juridical equality” makes violence and coercion in the hands of the ruling classes the chief means of law-making and resolution of legal disputes. To suggest, then, that international law furthers a rules-based order and is counterpoised to power and brute force is misleading. Instead, as Miéville poignantly put it, “[t]he chaotic and bloody world around us is the rule of law".

The commodity form theory of Pashukanis has found tremendous purchase in Marxist international legal scholarship, even beyond Miéville’s path-breaking reconstruction. The biggest reason for this is that it provides a singularly persuasive historical account of why and how ‘law’ developed the way it did and what makes legal relations the perfect infrastructure for capitalism’s expansion. Claire Cutler has applied the commodity form theory to illustrate the nature of the WTO and GATS in the commodification of public commons, while Grietje Baars reflects on the nature of law as a ‘congealing’ devise for capitalist relations. Their work also centers the role of ‘corporation’ as a tool for imperialist expansion.

V. International Law as Emancipation

And yet, China Miéville’s conclusion that there can be no international law without imperialism and that only through “eradicate[ing] the forms of law” altogether can one even think of emancipation left an enduring mark on Marxist international legal scholarship. Hegemonic quarters within the discipline started to associate the general project of Marxism in international law with legal nihilism, ignoring how Marxist legal scholars themselves have mounted the loudest critique to Miéville. This was accompanied with a certain strand of Marxist scholarship, which saw a fundamental incompatibility between Marxism and the support for human rights. Law and international law in this constellation was essentially part of the problem and not the solution to human freedom.

Crucially, these interventions ignored the centrality of capitalism as an inherently conflictual and contradictory system. For Marx, legal struggles and the pursuit of human rights although conditioned by capitalist relations did not mean that they ought to be repudiated. Indeed, Marx expended considerable attention to the law as a means of working class struggle in his elaborate description on the length of the working day, which was won on a legal terrain. Law was important in providing the oppressed classes with the means to push back against capitalist expansion. Similarly, in his work ‘On the Jewish Question’, which is often cited to bring home the point that Marx was disillusioned with the potential of equal rights, Marx had only advanced a limited critique of formal legal quality. For him, political emancipation through law and legal rights was deeply ‘individualizing’ and ‘alienating’ and thus cannot be an end in itself, but only a means towards engendering larger social changes beyond what the law could provide.

Law and the legal form, therefore, in the Marxist tradition exhibit a dual character, which, even while constraining the possibility of deep structural transformation, provides an important, albeit limited, form of social emancipation through concrete legal struggles. These legal struggles, then, must go hand in hand with more demanding political interventions. It is not a choice between ‘Reform’ or ‘Revolution’ but about how these two paths can have always co-existed. Understanding the role of law in the reproduction of capitalist relations and also as a means to resist some of its worst excesses alludes to its ‘relative autonomy’. Both Chimni and Susan Marks thus hold on to the possibility of international law acting as a ‘shield’ against powerful states. Chimni argues for a ‘radicalism with rules’ where international law should be viewed as a site of contestation rather a mere reflection or consolidation of the interests of dominant classes. Bill Bowring goes one step further in situating human rights and international law’s relationship to past revolutions as evidence of the emancipatory role that law can play.

Robert Knox provides a useful lens to navigate through this duality of rejection and embrace of international law. Given that the use of legal means comes with the danger of legitimizing the existing order of social relations, law should only be used for short-term tactical purposes, as a “mere tool to be discarded when not useful." Knox terms this engagement with the law as “principled opportunism” to put forth the point that international law should be pursued for progressive purposes not because it is ‘law’ but because it aids a larger political commitment to fundamentally transform existing society. This would eventually provide the path for what Marina Veličković calls the “planned obsolescence of international law” i.e, the law’s gradual disappearance altogether. But before that happens, the task of radical critique and practise through international law must continue, even when we realize that any utopian hopes of wholesale transformation are ultimately constrained by the legal form.

D. Blindspots, Exclusions and Absences in Marxist Legal Scholarship

Despite the growing cohort of scholars who are writing within the Marxist tradition in international law and sharpening its conceptual tools, the general project of Marxism has been unable to fully shed its blinkers and unwilling sometimes to reorient its own constitutive categories in the light of other modes of struggles that cut across various axis of social divisions. The project of building solidarity across different resistance movements has not always been forthcoming.

This is perhaps most visible in the way Marxist legal scholars have privileged the category of ‘class’ as the most important marker of social division, ignoring how race, gender, sexuality and caste play an equally important role in the chain of production, distribution and thus also exploitation. Marxism has maintained a distance with other critical tradition such as TWAIL, CLS, critical race theory and also feminist approaches to international law in its singular focus that material conditions are unrelated to how cultural or gender stratifications co-constitute the capitalist mode of production. Despite its emphasis on the totality of social relations, Marxist scholars have themselves advanced an understanding of individuals abstracted from deep structural and social markers of community. As Knox points out, within the Marxist discourse, race and racism “tend to be understood as counterposed to processes of capitalist accumulation". No wonder that these exclusions are reflected in some of the ‘mainstream’ iterations of Marxist legal scholarship (including this one) which are produced by men, with a relative absence of women, trans or even black writings on the subject.

Equally, this dissonance is sustained by critical scholars in other traditions who mechanically associate the writings of Marx and the Marxist project with that of structural determinism and Eurocentrism. In some influential quarters of TWAIL, for instance, Marx is portrayed to be “irrelevant” to Third World decolonial struggles. These musings, of course, overlook not just the fact that Marx himself was alive to the conditions of colonialism and expropriation of native peoples as central to Western capitalist expansion, but also generations of Third World Marxist scholars and anti-colonial movements which applied, modified and even ‘stretched’ Marxist theory to local conditions and experiences of domination and imperialist expansion. For the latter, reading Marx has always been about how under conditions of capitalist accumulation, racialization, gender and caste based stratifications are crucial determinants of what constitutes the material conditions of life.

In contemporary times however, many Marxists and equal number of TWAILers, feminist theorists and critical race scholars have moved beyond traditional class variants of historical materialism to underscore the multifaceted nature of capitalist oppression, which straddles through race, patriarchy, and culture. For instance, Knox’s recent scholarship has highlighted that the concepts of ‘value’ and ‘race’ are but two side of the same coin and that any materialist mode of analysis needs to consider them together. Similarly, Chimni’s “integrated” Marxist analysis supplements issues of class with that of social feminist and post-colonial theory has been received approvingly both within the TWAIL and Marxist community. Tzouvala, in her materialist history of the concept of ‘civilization’, addresses how particular conceptions of race, gender, and sexuality operated as tropes for European international lawyers to infantilize, racialize, and feminize non-Western communities while laying the groundwork for capitalist expansion. Her work is also instrumental in bringing together insights from ‘indeterminacy’ in the CLS tradition with a Marxist framework of capitalism and its contradictions. Ruth Fletcher’s work is equally inspiring in thinking through Pashukanis’s commodity form theory from a feminist perspective to foreground the role of social reproduction within notions of value in commodity exchange. These and many other voices have in some sense made Marxist analysis of law and international law respond to and reflect on the many dimensions of social relationships that continue to change, evolve and transform under the conditions of global capitalist accumulation. Here the emphasis is not that 'class' analysis ought to be displaced, but that "class realizes itself and becomes embodied through gender, race, sexuality...". This is the direction that future Marxist international legal scholarship must embrace.

Summary

• Summary I
• Summary II

Further Readings

• Source I
• Source II

Footnotes

Author: Jane Doe

Required knowledge: Link

Learning objectives: Understanding XY.

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Further Readings

• Source I
• Source II

Conclusion

• Summary I
• Summary II

Footnotes

Author: Jane Doe

Required knowledge: Link

Learning objectives: Understanding XY.

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Further Readings

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• Source II

Conclusion

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• Summary II

Footnotes

Author: Adamantia Rachovitsa

Required knowledge: Link

Learning objectives: Understanding XY.

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A. Introduction

I. The Expanding Scope of International Law and the Multiplication of (semi-)Judicial Bodies

Scope of the international law of judicial bodies and the multiplication the Scope of Expanding Multiplication and International law of Judicial bodies

Further Readings

• Source I
• Source II

Conclusion

• Summary I
• Summary II

Footnotes

Author: Raffaela Kunz

Required knowledge: Link

Learning objectives: Understanding XY.

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A. Introduction

The relationship between international and domestic law (or the synonyms national or municipal law) is an evergreen topic featuring in every textbook on public international law. What is the background? Since International law in the majority view is considered to be an autonomous legal system independent of domestic legal systems, the question arises how the two systems relate to and interact with one another. Even though the relationship between international and domestic law is thus a classic question, having been discussed and theorized extensively, it has not lost any of its currency. In recent years, with some high-profile cases of domestic courts contradicting or "resisting" international law and international courts (see in more detail below C.II.), the question has even gained renewed significance.

There is no simple answer to the question how international law and domestic law relate to one another. The starting point is that, while international law asserts its primacy over domestic law and requires to be followed and implemented, it is usually left to the states to decide about the concrete modalities to do so. Sometimes the term "obligations of result" is used to describe this circumstance. In other words, international obligations stop "short at the outer boundaries of the State machinery". In this sense, international law may „(...) insert its demands in the box, requiring certain results to come out of it; however, it cannot determine how these results are reached within the box.“ States thus retain a certain degree of freedom in the choice of means to implement their international obligations in the domestic legal sphere. This "freedom of implementation" is limited by the fact that states cannot invoke their domestic law to justify the non-fulfillment of their obligations. Article 3 of the Articles on the Responsibility of States for Internationally Wrongful Acts makes clear that the "characterization of an act as internationally wrongful "is not affected by the characterization of the same act as lawful by internal law." Article 27 of the Vienna Convention of the Law of Treaties furthermore states that a state "may not invoke the provisions of its internal law as justification for its failure to perform a treaty." The non-achievement of the required result thus leads to the responsibility of the state on the international plane (see also chapter on state responsibility).

What makes the situation even more complex is that in the decentralized international legal order, to large extents lacking centralized enforcement mechanisms, it is up to domestic actors to implement and enforce international law, with a primordial role in this regard played by domestic courts. Over the last decades, with international regulation more and more overlapping with subjects also regulated under domestic law, from human rights to the environment and health, conflicts between the two bodies of law have become more frequent.

B. Conceptualizing the Relationship

I. The Classic Theories and Their Limits

1. Preliminary Remarks

There are two theories that give different answers as to how international and domestic law relate to each other: monism and dualism. Following the above-described freedom in the means to implement international law, it is up to states to decide whether they follow a monist or dualist model. One may argue that this prerogative of states supports the view that the legal reality rather corresponds to a dualist model. It is, however, important to clearly state from the outset that today neither of the two theories is ever fully realized in practice. Even dualist states often foresee exceptions for certain monist "exceptions"; and in monist states courts often reserve the right not to apply international law in certain cases (see in more detail below, C.II.).

The main question the theories seek to answer is how international law becomes valid within the domestic legal system, i.e. how it becomes law that is legally binding within the domestic sphere. Monism and dualism foresee different answers to this question, the main difference being the level of involvement of parliament in the approval of international law. This question of validity is distinct from the question of the position of international law in the norm hierarchy or the question whether or not international law is directly applicable or self-executing by domestic courts and authorities (see on these questions below C.I). Given that, in practice, these latter questions are more relevant than the formal validity of international law, the monism/dualism controversy has already in the 1950s been criticized as "unreal, artificial and strictly beside the point". Nonetheless, the theories continue to play a role in international legal practice and discourse. Today, a major point of discussion concerns the democratic legitimization of international law (see below II.).

2. Dualism

Dualism starts from the idea that international law and domestic law are two distinct legal orders and highlights the autonomy of both legal orders. As Heinrich Triepel, one of the main dualist theorists, has put it, international and domestic law are like "two circles that at most touch, but never intersect". According to this dualist view, for an international legal norm to become valid in the domestic system, it needs to be "translated" to the domestic sphere through an act of "transformation". Prominent states following a dualist model are Germany, the United Kingdom, India and Israel.

Among the dualist states, a further distinction is necessary. In the first group of states, including Germany, for international law to be transformed a formal parliamentary approval though a legislative act is sufficient. In Germany this act takes the form of a "Zustimmungsgesetz" in line with Art. 59(2) of the Basic Law. After the approval, the treaty can be applied as such, i.e. as international law. In the second group, a treaty can only be applied after having been implemented through substantive legislation. An example is the Human Rights Act in the United Kingdom implementing the European Convention of Human Rights (currently again subject to reform discussions). In this case, the law that will be applied domestically is not anymore the treaty, but the domestic implementing legislation.

3. Monism

Contrary to dualism, monism considers international and domestic law to be one single legal order. According to Hans Kelsen, the most prominent theorist of monism, both international and domestic law derive their validity from one basic norm ("Grundnorm"). The main difference between monism and dualism in practice is that in the monist states, international law does not need to be transformed into domestic law in order to acquire validity. In other words, international norms become automatically valid upon ratification. But Kelsen went even further, considering that any domestic rule contradicting international law is void. While Dualism can therefore be described with Triepel as two separate circles, monism according to Kelsen can be described with the form of a pyramid with international law on top.

Examples of monist states include the Netherlands, Switzerland, China and many Latin American Countries.

II. Current Debates: Is Dualism more Democratic than Monism?

The main actor in the conclusion of treaties is the executive, a major difference to the domestic realm, where for democratic reasons parliament is the central law-making body. The involvement of parliament before a treaty becomes domestically binding law is thus to some extent a compromise to involve the democratically elected parliament before the law becomes binding domestically. However, many consider that in light of the important structural changes international law underwent, this is not sufficient anymore. While classic international law was very state-centered and regulated mainly inter-state issues, this has significantly changed, with today virtually no area not touched upon by international regulation. This process has famously been described by Wolfgang Friedman as a transformation from a "law of coexistence" to a "law of cooperation". This development has increased concerns about the democratic or "political deficit" of big parts of the law governing today's societies.

Dualism, which entails a stronger involvement of parliament, is thus sometimes considered to be more democratic than monism. In light of the increased relevance of international law, in some countries with a strong monist tradition a shift to dualism has been discussed in recent years. By way of example, in Switzerland, a country with a strong direct democratic tradition, a (not successful) parliamentary motion in 2014 requested to consider a shift from monism to dualism. It argued that this would strengthen the Swiss legal order and its democratic legitimacy. In the United Kingdom, in earlier discussions about the legal modalities of the UK's exit from the European Union, it was argued that dualism "may save the United Kingdom from Brexit". The core of the argument was that exiting the Union would alter the UK's domestic law, making parliamentary involvement indispensable. Also some domestic courts have manifested a certain "dualist reflex" in recent years (see in more detail below C.II.).

However, dualism's democratic potential is overrated. Legislation transforming treaties of course needs to mirror the corresponding international obligations, in line with the basic principle that states are not allowed to invoke their domestic norms to deviate form international law (see above A.). The leeway parliament has is thus necessarily and inherently limited. And also in monist states such as Switzerland, the question wether parliament needs to be involved in the withdrawal from treaties, at least in the case of important treaties, is being discussed. Neither dualims nor monism thus seem to offer answers to the challenges and tensions arising in times of global governance and increased concerns for the legitimacy of the law. Some voices have thus argued that in the face of these challenges, especially domestic courts should be granted a certain flexibility when applying international law and facing unsolvable conflicts with domestic law. This will be addressed in more detail below (C.II and E.).

C. International Law in Domestic Courts

I. Questions Determining the Role of International Law

Because of the decentralized nature of the international legal system, in practice it is often domestic actors and, among those, chiefly domestic courts that apply and implement international law. Until not so long ago, domestic courts were considered to be quite reluctant when it came to the application of international law. The reason was that the international arena was considered to be the exclusive realm of the executive branch. This prompted the Institut de Droit International in 1993 to state that it was necessary "to strengthen the independence of national courts in relation to the Executive and to promote better knowledge of international law by such courts". This situation has changed - due to the massive increase of international regulation leading to substantial overlaps with issues previously solely regulated under domestic law, domestic courts now regularly decide on cases involving international law. Today, domestic courts are considered to play an important role in filling gaps in the existing international legal order by applying international law. Since the international order lacks centralized law enforcement bodies, domestic courts play an important role in this regard and to some extent fill this gap. The idea is that by applying international law in domestic cases, courts "bring to life" international law and in this sense contribute to enforcing it. In line with George Scelle’s theory of dédoublement fonctionnel, domestic judges thus not only fulfill a judicial function at the domestic level; they also have an international judicial function. In light of this, it has been argued that courts contribute to strengthen the international rule of law. In recent years, due to the increased activety of international courts and tribunal and the regulatory activities of international organisations, domestic courts not only deal with international treaties and custom, but increasingly also have to decide cases in which international judicial decisions or secondary rules play a role (see on this chapter XY). As will be discussed below (II.), recently, cases make headlines in which domestic courts contradict their international counterparts or refuse to apply international law.

In the practice of domestic courts applying international law, the monism/dualism controversy hardly plays any role. More relevant are the questions whether international law in a given case is directly applicable or self-executing (synonym) and, in cases of a norm conflict, whether it prevails over conflicting domestic law. Put differently, the validity of international law is the necessary precondition for domestic actors to apply international law, but in practice the problems lie elsewhere. Another question that still plays some role is the political questions doctrine. These three issues shall be briefly discussed in the following.

II. Recent Developments: "Backlash" Against International Law?

Often, in the decentralized international legal system, great hope is being placed in domestic courts. Domestic judges are considered to play an important role in applying and enforcing international law in the absence of more centralized law enforcement mechanisms. While in the 1990s it was still believed that domestic courts were reluctant to apply international law and even more so to take a stance that might contradict their domestic governments, it has been shown that over time, the application of international law by domestic courts has become quite normal (see above C.I.). Today, we might be witnessing yet another shift. Over the last years, there seems to be an increasing number of cases in which domestic courts explicitly refuse to apply international law and/or follow judgments of international courts. These cases have sometimes been called cases of "principled resistance". To be sure, it is not a new phenomenon that domestic courts make clear that while they are open to international law and willing to contribute to its enforcement, there are certain limits. In Europe, many high courts have reserved the right to "defend" a certain constitutional core against the "intrusion" of European and international law, with the German Federal Constitutional Court being a well-known example.

Yet, the number and diversity of these cases seems to be growing. Today, they seem to span most jurisdictions and issue areas of international law. Much-discussed examples include the Italian Constitutional Court which in 2014 decided that the implementation of the judgment of the International Court of Justice in the jurisdictional immunities case (Germany v. Italy) would violate the Italian constitution. It declared the law implementing the judgment to be unconstitutional, and, as a consequence, the ICJ judgment has not been implemented to this date . In human rights law, examples include the Argentinian Supreme Court, which in 2017 refused to follow the Inter-American Court of Human Rights in the case of Fontevecchia and D'Amico, and the Russian Constitutional Court, which even developed a certain "control of constitutionality" of judgments of the European Court of Human Rights (later translated into legislation).

Interestingly, domestic courts often rely on constitutional values, including fundamental rights, when refusing to follow international law. Rather than violating the rule of law, they thus seem to believe that they act in the interest of the rule of law. While these cases are often perceived as a setback or "backlash" against international law, this suggests that the reality is more complicated. To be sure, in some cases the invocation of constitutional values and principles might be more of a pretext not to follow an undesired international norm. Overall, however, it is undeniable that with the massive growth of international regulation in quantitative terms and the proliferation of international courts, clashes between legal orders have simply become more likely. Domestic courts can thus find themselves in a dilemma: on the one hand, they are "servants" to international law within the domestic realm and act as pivotal safeguards for its effectiveness. On the other hand, they remain "answerable to the dictates of applicable domestic law" and, therefore, can be – and, in times of global governance and much increased activity of international courts, probably will be – increasingly torn between the sometimes conflicting commands of domestic and international law. Of course there are no clear and simple answers to this dilemma. The question how these conflicts can be solved and how courts should accommodate to today's complex legal reality will be taken up again in the last section.

D. Domestic Law in International Courts

If domestic courts are regularly applying international law, what does the reverse case look like - how do international courts deal with domestic law? Here, the starting point is of course different. Even though domestic courts are not automatically bound by international law (whether they are depends on whether the state in question follows a monist/dualist system, whether the norm in question is directly applicable, etc.), it is clear that ultimately the obligations are binding on the state and need to be implemented (even though the concrete modalities are left to the states). In other words, domestic courts applying international law contribute to fulfill the international legal duties of their states. International courts, on the other hand, are not bound by domestic law and cannot be said to contribute to fulfilling a broader duty. Against this background, it is not surprising that international courts have been reluctant when it comes to the application of domestic law. The Permanent Court of International Justice had expressed a very narrow view by stating that "[f]rom the standpoint of International Law and of the Court which is its organ, municipal laws are merely facts which express the will and constitute the activities of States".

Today, it is, however, well recognized that domestic law also plays a role on the international plane. This is obvious when it comes to the formation of international law: domestic legislation plays a role in the formation of general principles of international law, and the decisions of domestic courts are seen as reflecting state practice, thus contributing to the formation of customary international law. It has furthermore been argued that "(...) domestic law is sometimes a necessary component in the functioning of an international rule itself: the determination of nationality for the purposes of diplomatic protection or the definition of the rights of a shareholder are prime examples."

But the relevance of domestic law on the international plane does not end there. It has been shown that the structural changes of international law, moving away from purely inter-state issues towards more and more areas previously only regulated by domestic law, has not only led to a more frequent application of international law by domestic actors, but more generally has had the consequence that "(...) the line between domestic and international law is increasingly blurred, with legal concepts, rules and principles crossing freely between the two spheres." Today, just as international law plays a role when domestic courts apply and interpret the law, the same is true the other way around. While inter-state courts, such as the ICJ, are still cautious in relying on domestic law in their judgments, in other areas of law, domestic law is an inherent part of the legal system, such as in the "margin of appreciation"/consensus doctrine of the European Court of Human Rights. The European Court of Human Rights has furthermore made clear in its jurisprudence that the interpretation and development of the Convention standards is a joint endeavor, a "shared responsibility" between domestic courts and the European Court of Human Rights. In some cases, it has even been criticized that the European Court of Human Rights in the face of political pressure coming from some state and political actors, has "given in" and overadjusted to domestic actors, risking its credibility.

E. Conclusion: Accommodating Orders in a Complex Legal Reality

The previous sections have shown that today, domestic and international law are not neatly separated legal orders, but rather strongly intertwined and mutually influential. With the body of international law growing quantitatively and expanding into more and more issue areas previously regulated solely by domestic law, it is clear that the legal reality has become more complex. It is thus not so surprising that clashes between norms have become more frequent. The question how the relationship between domestic law and international law should be theorized, and how concrete cases of conflict between the two bodies of law should be solved, in a way has become more timely than ever. Confronted with this complex legal reality, some domestic courts have started to develop criteria on how to solve legal conflicts. A pattern we can observe over the last years is that a seemingly growing number of domestic courts has started to make explicit that the domestic constitution, or at least a certain core of the domestic constitution, in case of conflict with international law, would prevail (see above C.II.). While it seems to be too far-reaching to see these cases as cases of "backlash", undermining the relevance of international law, it might well be questionable whether in times of global governance and strong overlap between legal orders, such at first sight simple and clear conflict solutions are the right way to go. A more flexible approach, allowing to balance the different rights and interests at stake in a given case, even though less clear than strict conflict rules and hierarchies, might better fit today's complex legal reality.

Further Readings

• Source I
• Source II

Conclusion

• Summary I
• Summary II

Footnotes

Author: Craig Eggett

Required knowledge:

Learning objectives: to understand the nature of sources in international law; to understand the relationship between the sources.

Introduction

The topic of the ‘sources’ of international law is essentially concerned with one central, and rather basic, question: how are international rules made? Despite, or perhaps because of, the foundational nature of this question, there are few areas of international legal scholarship that have generated such long-running and vociferous debate. Questions about the sources of international law have always been central to international legal discourse and understanding the language of the sources remains critical for all actors wishing to engage with the international legal system. The chapters that follow explore the different ways in which international legal rules are created and, in doing so, they reflect on the theory and practice of the sources of international law. This chapter introduces some broader questions about the sources of international law, with the aim of setting the scene for the examination of the individual sources that follows. To this end, this chapter proceeds in four main parts. First, it considers in greater detail the concept of a ‘source’ in international law. Second, it examines the content of article 38 ICJ Statute. Third, it considers the reality of the operation of the sources in practice. Fourth, it explores questions of hierarchy in the sources and norms of the international legal system.

The Concept of a ‘Source’ of International Law

As a preliminary point, it is useful to consider the precise meaning of ‘source’, as some authors have used the term to describe a range of foundational aspects and processes of the international legal system. Some scholars have understood this term to cover the origins and rationale of international law as such. The use of the term ‘source’ to include the background and objectives of a rules-based international order is broader and rather unconventional. More commonly, when international lawyers consider the sources of international law, they are concerned with the processes through which international legal rules are created. The focus is on the procedures and practices that lead to the formation of international law, thereby allowing them to identify the binding law that regulates the behaviour of actors in the international legal system.

Sources and the International Legal System

The international legal system, like all legal systems, is composed of primary and secondary rules. Primary rules are those that create obligations, grant rights, or change a legal situation. Examples include the prohibition of the use of force, rules on human rights, and provisions that set conditions for membership to international organisations. Conversely, secondary rules are those that regulate the creation, modification, and application of other rules. Examples include rules on the interpretation of treaties and the law of state responsibility. The rules on the sources of international law are a category of secondary rules; they set out the criteria for the creation of other international rules. The presence and operation of secondary rules is indispensable for the existence and functioning of the international legal system. As such, when searching for answers to questions about the sources, it is necessary to confront difficult questions about the foundations of international law as a normative order. In turn, the theory and practice of the sources plays a role in shaping international law as a legal system. In other words, there is a co-constitutive and mutually influential relationship between the sources of international law and the international legal system. As will be demonstrated in the sections that follow, sources questions touch on issues such as the functions of different international actors, including the continued dominance of states as participants in the legal system, and the relationship between international legal norms.

Categories of Sources?

There is a tendency to attempt to delineate between different categories of sources of international law. Most commonly, authors have distinguished between formal and material sources of law. Formal sources are the methods or process of law-making that result in binding legal rules. The formal sources of international law provide criteria against which the validity of a prospective rule is to be judged. If these criteria are fulfilled, there is a valid and legally binding rule of the system. If not, not such rule is to be found. Examples include the procedures for the formation of a treaty as reflected in the VCLT 1969. Conversely, material sources do not in and of themselves create binding legal rules, but may provide evidence for the existence of such rules and their content. Material sources include a broad range of instruments that shed light on whether the criteria set out in the formal sources have been fulfilled. Examples include some resolutions of international organisations, the output of the ILC and judicial decisions.

Other categories that have been suggested include a division between primary and secondary (or subsidiary) sources. These terms may be used to describe the same distinction – between criteria for the creation of binding rules and the evidence for the fulfilment of such criteria – reflected in the formal/material dichotomy. It should be noted with caution that the use of the terms ‘primary’ and ‘secondary’ in this way is distinct from the description of primary and secondary rules referred to above. It is also important to note that this use of primary and secondary should not be taken to imply a formal and strict hierarchy between the sources as may be implied from such use in other legal systems. The question of hierarchy between sources and norms is dealt considered below.

Article 38 ICJ Statute

Article 38 of the ICJ Statute is the traditional, and perhaps inevitable, starting point for an examination of the sources of international law. As such, it is worth reproducing the text of this provision in full:

1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

1. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

2. international custom, as evidence of a general practice accepted as law;

3. the general principles of law recognized by civilized nations;

4. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.

As evidenced by the opening sentence, this provision is, strictly speaking, merely the lex arbitri (Latin: ‘applicable law’) provision of the ICJ. That being said, article 38 has traditionally been viewed as an authoritative statement of the sources of international law. The continued accuracy of this position can be challenged and is considered both in this chapter and the ones that follow, yet it is evident that any discussion of the sources should include an examination of article 38 ICJ Statute. This provision is, at a basic level, composed of three main parts. First, article 38(1)(a)-(c) sets out the (formal or primary) sources of international law: treaties, customary international law, and general principles of law. Second, article 38(1)(d) sets out the ‘subsidiary means’ for the determination of international rules. Third, article 38(2) allows for the Court to resolve a dispute before it on the basis of (a form of) equity, should the parties agree.

The specificities of each of these sources is considered elsewhere, so it suffices to make a handful of general observations here. On the traditional understanding of international law, it is states who play the exclusive, or at least dominant, role in the formation of international rules and an initial reading of article 38 seems to confirm this. Indeed, the mainstream view has traditionally been that states are not bound by international rules unless they have consented to them. While it is clear that states remain prominent actors in international law-making, it can be now be legitimately questioned whether the creation of rules remains the sole prerogative of states. This question is taken up below and features in the chapters on the individual sources.

Article 38(1)(d)’s reference to ‘subsidiary means’ reflects the aforementioned distinction between formal and material sources. That is, the means referred to in this provision – judicial decisions and the teachings of the most highly qualified publicists – are sources of evidence for the determination of rules of law on the basis of the formal sources listed in article 38(1)(a)-(c). These means are not sources of binding rules in and of themselves, but can provide evidence that the conditions set out in (one of the) formal sources have been fulfilled. This is confirmed by the reference to Article 59 ICJ statute, which states that the decisions of the Court have ‘no binding force except between the parties and in respect of that particular case”’ As will be explained below, that judicial decisions are not binding as such does not mean that the jurisprudence of international courts and tribunals does not play an important role in shaping the international legal system.

The reference to ex aequo et bono (Latin: ‘according to the right and the good’) in article 38(2) identifies the possibility that a dispute before the Court may be settled on the basis of equitable considerations, should the parties agree. This is a reference to a specific form of equity free from interaction with legal norms. To date, this provision has never been invoked before the ICJ.

The Reality of International Law-Making

There is extensive scope for rich theoretical discussion on the sources of international law. As with all areas of the discipline, such discussion is critical if the international legal system is to be able to achieve its objectives. Regardless of the position taken on the exhaustiveness of the article 38 or the role of state consent, this provision alone cannot paint an accurate picture of the practice of international law-making. International law is a decentralised legal system comprised of a plurality of actors and legal regimes. As a result, the sources of international law function in a dynamic manner, relying on a complex web of interactions between different bodies – such as states, international organisations, and judicial bodies – and reliance on a range of instruments, such as treaties, various decisions, and other ‘soft law’ instruments. This is only partly captured by the reference to judicial decisions and teachin of publicists in article 38(1)(d) ICJ Statute.

Example: The ILC and the Development of International Law

The work of the ILC has been instrumental in many areas of international law. The Commissions work has serves as the basis for treaties, including the VCLT, and its conclusions are frequently cited with authority. For example, the product of the ILC’s work on state responsibility (ARSIWA) – itself a comprehensive review of state practice, judicial decisions, and an array of other instruments, was confirmed to be part of customary international law but the ICJ in the Bosnian Genocide case.

Hierarchy in the Sources of International Law

At first sight, it may appear that the sources listed in article 38(1)(a)-(c) ICJ Statute are listed in a specific order, denoting a hierarchy between them. This is not the case. There is no hierarchy between the sources of international law. There can be multiple rules that have similar or identical content, but emanate from different sources of international law. For example, in the Nicaragua case, the Court confirmed the parallel existence of customary and treaty rules regarding the use of force. This question of a hierarchy between the sources is separate from that of hierarchical relationships between international norms. While there are clear examples of normative hierarchies, a rule will not prevail over another because of its source. The question of a hierarchy between the sources is also separate from the question of the role and importance of the different sources of international law more generally. For example, much of international law-making is done by states through concluding treaties. There are now thousands of bilateral and multilateral treaties covering a broad range of topics. As such, much of international law will be treaty law. Conversely, it may be possible to argue that many of the fundamental rules of general application are custom or general principles. Once again, these realities do not denote a hierarchy between the sources, but different roles played by the rules emanating from the different sources in different areas of international law. Broadly speaking, there are three aspects of international law that are referred to as evidence of hierarchical relationships between norms: article 103 UN Charter, jus cogens (Latin: ‘peremptory norms’) and obligations erga omnes (Latin ‘towards all’).

Article 103 UN Charter reads: ‘In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail’. It may be argued that this provision functions as a ‘supremacy clause’, elevating the UN Charter to a hierarchically superior position in the international legal system. While at first sight this seems to be the case, it should be noted that the practical effect of this provision is largely limited to the obligation to comply with UN Security Council resolutions contained in article 25, as there are few other specific and concrete obligations in the Charter. It should also be borne in mind that this provision functions more as a rule of precedence, very different to the consequences of a norm’s jus cogens status, for example.

Jus cogens norms are clear example of hierarchy in international law. These peremptory rules of international law are defined as rules ‘from which no derogation is permitted’. In the event of a conflict between a rule of jus cogens and another international rule, the jus cogens rule prevails and the other rule is void. Further, articles 40 and 41 of ARSIWA impose additional obligations on states in the event of serious violations of jus cogens norms, including a requirement to cooperate to bring about the end of the jus cogens violation and an obligation not to recognise as lawful any situation created as a result of such a violation. Established jus cogens norms include the prohibitions on genocide, slavery, torture, and racial discrimination.

Obligations erga omnes are defined as those owed “towards the international community as a whole”, with the result that “all [s]tates can be held to have a legal interest in their protection”. This seems to confirm the importance of such obligations, yet this concept does not imply a hierarchy between these and other norms. The label erga omnes serves to denote only an expansion in potential scope of actors who can invoke violation of the rule. This is a purely procedural device, which facilitates the enforcement of international rules which may not necessarily involve an injured state or to increase the likelihood of enforcement of rules deemed to be substantively important. Obligations erga omnes do not prevail over other rules of international law in the same way as jus cogens rules.

Advanced: The Relationship between Jus Cogens and Obligations Erga Omnes

The concepts of jus cogens and erga omnes are frequently taken together. Traditionally, it has been accepted that all jus cogens rules also have erga omnes status, but that the reverse was not necessarily true. Indeed, it is clear that both concepts serve to enhance the operation and level of protection for certain fundamental norms of international law. In the ILC’s recent work on jus cogens, there is further evidence of the close relationship between these two concepts. Here, the ILC suggested that the right to self-determination has also attained jus cogens status yet, in doing so, referred to ICJ decisions where only the erga omnes nature of self-determination was confirmed.

Conclusions

This chapter has explored the foundations of the doctrine of the sources in international law. In doing so, it has explained that the primary objective of this doctrine is to distinguish between rules that are part of the corpus of international law and those that are not. It has been explained that article 38 ICJ Statute constitutes an essential starting point for an account on the sources of international law, yet it does not paint a full picture. The relationships between international norms and their sources is complex and will be taken up further in subsequent chapters.

Summary

• Sources of international law help to identify what the law actually is.
• Article 38 ICJ Statute provides a starting point for the sources of international law, listing treaties, custom, general principles, and subsidiary means.
• The development of international law is a dynamic practice, involving a range of actors, yet states remain at the centre of this practice.
• There is no hierarchy between the sources of international law. Yet, there are some examples, particularly jus cogens, of hierarchical relationships between international norms.

Further Reading

• S Besson and J d’Aspremont, The Oxford Handbook on the Sources of International Law (Oxford: OUP, 2017).
• H Thirlway, The Sources of International Law (Oxford: OUP, 2014)

Footnotes

Author: Taxiarchis Fiskatoris and Marko Svicevic

Required knowledge:

§ 1 History of International Law

§ 2 Nature and Purpose of International Law

• § 2.2 Consent

Learning objectives:

Understand and define the term 'treaties' as international agreements in international law.

Explain key characteristics of treaties.

Understand how treaties are negotiated, drafted, and enter into force.

Understand how treaties are terminated or invalidated.

Examine how treaties are interpreted under the Vienna Convention on the Law of Treaties.

Explain what reservations entail and what their effect on treaties are.

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A. Introduction

Article 38(1) of the ICJ Statute names 'conventions, whether general or particular, establishing rules expressly recognized by… states' as the first source of public international law. More commonly known as 'treaties', they represent the most trusted and least controvertible avenue for States to express their consent to international legal rules. The United Nations Treaty Collection, which registers and publishes lists of treaties in accordance with Article 102 of the UN Charter, has over 250 000 treaties in its collection.

The basic international instrument of treaty law is the 1969 Vienna Convention on the Law of Treaties (VCLT), which is the main focus of this chapter. This chapter will therefore define and explain what treaties are and what role they play in international law, how treaties are negotiated and drafted, how they may be invalided or terminated, and how treaties are to be interpreted. As of June 2023, the VCLT has been ratified by 116 States. Most of its provisions have codified pre-existing customary international law, while other provisions have generated new custom. The VCLT only 'applies to treaties between States'. The rules regulating treaties between States and international organisations, and between international organisations have also been imprinted in a Convention, which has not yet entered into force. A third international convention with direct relevance to treaty law is the Vienna Convention on Succession of States in Respect of Treaties, which is in force but poorly ratified. All three have been drafted by the United Nations´ International Law Commission (ILC). The ILC is also responsible for several non-binding instruments which contribute to the overall study and scope of the law of treaties, such as the 2011 'Draft Articles on the Effects of Armed Conflicts on Treaties', the 2018 'Draft Conclusions on Subsequent Agreements and Subsequent Practice in Relation to the Interpretation of Treaties', and the 2021 'Draft Guide to Provisional Application of Treaties'.

B. The Nature and Character of Treaty Law

1. Treaty law in context and of the times

Before going into more specific details on the rules of treaty law found in the VCLT, it is worth noting that the law of treaties is a complex and often delicate intervention in international law, given its very nature. Treaty law forms part and parcel of the 'nuts and bolts' of international law. As such, it is interwoven in almost every other discipline of international law. For example, while treaties are traditionally concluded between states, the role of non-state actors, broadly speaking has increasingly brought about questions. Non-governmental organisations, although without legal capacity to conclude treaties, have and continue to play a growing role in the drafting and negotiating of treaties. Likewise, as entities capable of legal personality, questions too arise as to what influence and obligations non-governmental organisations derive from general treaty law, such as those found in universal and regional human rights treaties. In turn this questions the broader role that non-state actors play in regard to the creation, development and clarification of the law of treaties.

It is also worth noting that treaty law, although its progressive development and codification enhances clarity, is not without controversy nor ambiguity. Worthy of recollection is the fact that at the time the VCLT was negotiated and eventually adopted, not all states we see today were independent, and not all people's free from oppression of European and Western colonisation. Any consideration of the VCLT as a treaty regulating other treaties must therefore bear in mind its historical context. It has been well pointed out that, for example, applying a purely positivist approach to the VCLT would effectively if not entirely marginalise its role in international law.

These difficult issues more often than not transcend the VCLT itself, plaguing by extent the entirety of the law of treaties. Consider for example the effect of treaty law making long before the era of human rights and the adoption of the VCLT. The partitioning of Africa was in many ways effected through treaty law. These international agreements at the time were carefully negotiated with people's across regions. Despite what were in fact treaties which ultimately laid claim to territory and to the detriment of peoples of that territory, they were not necessarily directed at the various people's they were negotiated with, but rather as 'legal' symbols against rival European powers. While it is oftentimes easy to dismiss these practices and the corresponding effects of treaty law as relegated to the pages of history (once described as regulating 'common interests in international quasi-legislation, imposed on Africa from above'), the potential for these effects remains today. Indeed, while a fundamental principle of treaty law is that treaties are to be negotiated and implemented in good faith, there remain numerous cases even today where the law of treaties has fallen short of this expectation.

2. Defining treaties

Article 2(1)(a) of the VCLT defines a treaty as 'an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation'.

i. An international agreement concluded between States

'Every State possesses capacity to conclude treaties'. Although reference is made in the VCLT exclusively to States, the definition of treaties beyond the limited scope of the VCLT extends to international organisations, which have an autonomous international legal personality. Whether an international organisation has the capacity to conclude treaties depends on the rules of that organisation, and especially its constituent instrument. Until such a time as the 1986 Vienna Convention on the Law of Treaties between States and International Organisations or between International Organisations enters into force, which is admittedly very similar to the VCLT, such treaties are based on other sources of international law, in particular customary international law.

Advanced: Federal provinces and overseas territories

Federal provinces and overseas territories may be authorised under domestic law to conclude treaties. However, from the perspective of public international law, the ultimate bearer of obligations and/or rights established by such treaties is the respective federal or 'parent' State at the national level.

Advanced: Full Powers

Of course, it is not States as such, but their representatives that conclude treaties. In order to be able to legally and validly conclude such a treaty, the State must have provided them with a document bestowing 'full powers' (Art. 2(1)(c) and 7(1)(a) VCLT). Such a document is unnecessary for Heads of State, Heads of Government, Ministers for Foreign Affairs, and on specific occasions for other high ranking State representatives, such as heads of diplomatic missions (Art 7(2) VCLT). A State may exceptionally endorse and validate the acts of an unauthorized representative ex post facto (Art 8 VCLT).

ii. In written form

For an international agreement to be called a treaty, it must be in written form, but not necessarily on paper. This is exactly the feature that renders treaties the most predictable and hence reliable source of public international law. Oral international agreements, as well as 'international agreements concluded between States and other subjects of international law or between such other subjects of international law' are not treaties per se, but they may still have legal effects. Such agreements are governed by other sources of public international law and not necessarily the provisions of the VCLT.

iii. Whether embodied in a single instrument or in two or more related instruments

Treaties are usually contained in a single document, but they do not always need to be. Exchange of letters (diplomatic notes), and even records of meetings between State representatives may constitute treaties if the intention of the parties was to create through them binding effects under international law.

iv. Governed by International Law

The intention to establish obligations and/or rights under international law is a key requirement for the characterisation of an international agreement as a treaty. States (and international organisations) are free to sign contractual agreements governed by national law (e.g. for leasing an embassy’s premises), which cannot be considered treaties. They are also free to enter international agreements not giving rise to obligations and/or rights under international law. Such agreements are often called “Memoranda of Understanding” (MoU). However, one should not pay too much attention to the headline of an agreement, as MoUs may in reality be proper treaties if the intention of the parties to give them binding effect under international law can be discerned. The intention to establish binding legal relations must be manifest within the text and context of the treaty.

v. Whatever its particular designation

As long as an international agreement fulfils the above four characteristics, it is from a legal point of view a treaty, whatever its name. Some of the most common names attached to a treaty are the following:

• Article 38 of the ICJ Statute uses the term “Convention”. This is usually the name given to treaties prepared within an international organisation (e.g. UN Convention on the Law of the Sea; European Convention on Human Rights)
• A “Protocol” is in most cases a treaty that supplements a pre-existing treaty with additional rights or obligations (e.g. Additional Protocols to the 1949 Geneva Conventions on International Humanitarian Law; Kyoto Protocol to the United Nations Framework Convention on Climate Change)
• “Charter” is the label preferred for the constitutive treaties of international organisations (e.g. UN Charter, OAS Charter, OAU Charter, ASEAN Charter). The term may also designate a document that sets out a grant of rights or privileges (e.g. EU Charter of Fundamental Rights, African Charter on Humans and Peoples’ Rights).
• The treaty establishing an international court or tribunal is often called a “Statute” (e.g. ICJ Statute; ICC Statute)
• The word “Covenant” originates in religious scripts and traditionally refers to a solemn promise to engage in or refrain from a specified action. In international law it is used in the title of two major human rights conventions: International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), both adopted in 1966. It was also used in the case of the instrument establishing the League of Nations.
• The label “Pact”, more common during the inter-war period, seems to connote a deal, that is not only legally but also morally binding (e.g. 1928 Kellogg-Briand Pact for Renunciation of War as an Instrument of National Policy)
• The term 'Agreement' is used as an umbrella term covering both treaties and other instruments not meeting the VCLT criteria. In a narrow sense, the label 'agreement' is usually employed for treaties of a technical or administrative character between two States, or between a State and an international organisation.

3. Classification of treaties

Treaties establishing mutual rights and obligations between two parties are classified as bilateral. The great bulk of international treaties are bilateral in nature. A multilateral treaty is, on the other hand, a binding international agreement between many parties. A treaty between more than two but still not many parties can also be classified as plurilateral.

Most bilateral and plurilateral treaties merely create mutual rights and/or obligations for their parties, similarly to typical contracts of domestic law (contractual treaties). Although multilateral treaties also establish binding rights and/or obligations, most of them may eventually make, modify, elucidate and stabilize, or progressively develop international law more generally (law-making treaties). To be sure, several multilateral treaties purport to do so. In reality, the distinction between 'contractual treaties' and 'law-making treaties' is not always obvious.

4. Observance and application of treaties

The whole branch of international treaty law is premised on the fundamental legal principle 'pacta sunt servanda' (agreements must be respected). Article 26 of the VCLT enunciates that '[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith'. A change of government does not release the State from its treaty obligations, unless the new government can raise a valid ground for the termination of the treaty. Besides, '[a] party may not invoke the provisions of its internal law as justification for its failure to perform a treaty'.

The flipside to the principle 'pacta sunt servanda' is the principle 'pacta tertiis nec nocent nec prosunt' (agreements neither injure nor benefit third parties). This is enshrined in Article 34 of the VCLT, according to which a 'treaty does not create either obligations or rights for a third State without its consent'. For third parties, an agreement to which they have not consented constitutes 'res inter alios acta' (things done among others). When parties to a treaty intend to impose an obligation on third parties, the latter must accept the obligation in writing. However, when parties to a treaty intend to afford a right to third parties, the consent of the latter is presumed as long as they do not raise an objection. If a treaty provision acquires the status of a customary rule of international law, it then becomes binding on third parties, even without their expressed consent.

The question of whether treaties are directly binding on individuals or other non-State actors is of marked importance in the context of international human rights law and international criminal law, but has yet to be doctrinally settled. Finally, unless otherwise agreed by its parties, treaties do not apply retroactively.

C. Treaty-making

1. Drafting and Negotiation

Before adopting a bilateral treaty, States normally hold a series of meetings of diplomats and legal experts who negotiate and draft the terms of the treaty. Multilateral treaties, especially 'law-making treaties', are negotiated at international conferences, usually summoned by international organisations. At international conferences, where negotiations are more difficult due to the number of participants, States often debate on the basis of optional draft texts prepared by permanent or special committees of experts, such as the UN International Law Commission. The drafting process of a treaty may take many years. States are free to decide the place, time frames, set up, and rules of procedure of a conference. The VCLT only regulates that, unless participants decide otherwise, the minimum requirement for the adoption of the text of a treaty at an international conference is a two-thirds majority of the 'States present and voting'. In practice, States resort to voting only if consensus appears impossible.

2. Signature

Successful negotiations conclude with the adoption of the text of the treaty, and its recognition as authentic and definitive. The most common way for authenticating the finalised text of a treaty is its signature. Signing a treaty is an expression of a government’s intention to render the treaty binding for its State in due course. Nonetheless, the signature alone seldom establishes the consent of States to be bound by the treaty. Ordinarily, it is evident from the text of the treaty when no further steps are required.

Advanced: Treaties in simplified form

Binding agreements from the point of signature are called 'treaties in simplified form' or 'executive agreements'. They mostly concern bilateral matters of technical nature or of minor importance. It is still debated whether such treaties are legally or politically binding.

In any case, the signature entails the legal obligation of the signatory 'to refrain from acts which would defeat the object and purpose of a treaty' until the ratification of the treaty, or until the signatory 'shall have made its intention clear not to become a party to the treaty'. To be sure, such interim obligation is vague and open to contradictory interpretations.

3. Consent to be bound

As a matter of rule, States establish on the international plane their consent to be bound by a treaty through the acts of 'ratification', 'acceptance', 'approval' or 'accession', although 'any other [agreed] means' are an option.

A second step after signature offers to States the required time to reconsider the treaty as a whole, eventually to submit it to parliamentary scrutiny and approval, or to enact respective legislation. It may take many years between signature and ratification, as there are no general time limits, unless the treaty specifies them. After all, States are under no obligation to ratify a treaty that they have signed.

Ratification of bilateral treaties occurs through the exchange of documents called 'instruments of ratification', which are issued for that scope by the competent authorities of the contracting States. A mere mutual notification of completion of all domestic procedures that give effect to the treaty may in routine cases replace the ceremonial exchange of instruments.

Treaties remain commonly open for signature until an arranged date. States that did not exist or sign the treaty before that date can still adhere to the treaty if the treaty or its parties allow it. The international act with which a State avails itself of the opportunity to become a party to a treaty previously adopted by other is called 'accession'. 'Accession' is an expression of consent to be bound by a treaty and hence it has the same legal effect as ratification. It usually happens after the treaty has entered into force, but, depending on the treaty, it can also take place before.

Advanced: Acceptance, Approval

The acts of “acceptance” and “approval” equally establish at the inter-State level the consent of States to assume treaty obligations and rights. In other words, they do not differ from “ratification” from a legal perspective. Their difference is basically one of preferred terminology, the terms “acceptance” and “approval” being mostly used by States without a constitutional duty of treaty ratification. Besides, some constitutions provide for the possibility to accept a treaty by a mere executive action, before all domestic procedures for a formal ratification have been completed.

Advanced: Act of formal confirmation

When international organisations express their consent to be bound by a treaty, the term “act of formal confirmation” replaces the word “ratification”.

Ratification, acceptance, approval or accession of multilateral treaties is accomplished with the deposit of the respective instruments with the depositary. The depositary is one or more States, an international organisation, or the secretary-general of an international organisation, especially the United Nations. The depositary is normally designated by the treaty, among others to keep custody of the original text of the treaty, to collect all documents or communications relating to it, and inform respectively all parties concerned.

4. Entry into force

Ratification signals a State’s consent to be bound by a treaty. However, it does not signify an immediate assumption of the obligations and/or rights emanating from the treaty, which only begins when the treaty enters into force. After the ratification and before the entry of the treaty into force, the States must still 'refrain from acts which would defeat the object and purpose of a treaty, 'provided that such entry into force is not unduly delayed. Although it is very infrequent, States that have ratified a treaty may freely withdraw their consent to be bound before the treaty becomes operative. There may also be transitional clauses, dealing for instance with the permissibility of reservations, that take effect as from the adoption of the treaty. Most treaties contain a clause specifying when and how they will come into force.

Advanced: Entry into force clauses

Although there are several variations, such clauses typically stipulate a minimum number of ratifications (and sometimes accessions) necessary to trigger the entry into force. Some of them contain additional conditions, such as a list of specific States that must figure on the ratifications table, or an additional short period of time to elapse after the last required ratification. In absence of such a clause and of a related agreement by the signatories, the treaty cannot take effect before all of them have ratified it. This is to guarantee a certain degree of reciprocity.

Bilateral treaties often enter into force at the time the two parties exchange the ratification instruments, while treaties in simplified form can readily come into force immediately after signature. In case of an accession, the treaty enters into force for the acceding party on the date of the deposit of the accession instrument, or after a short period of time, if there was a corresponding provision with respect to the initial entry into force of the treaty.

5. Registration and Publication

Article 102 of the Charter of the United Nations requires that 'every treaty and every international agreement entered into by any Member of the United Nations… shall as soon as possible be registered with the Secretariat and published by it'. The provision pertains to both treaties that fulfil the aforementioned criteria, and other kinds of international agreements. Registration and publication with the United Nations Treaty Series is meant to eradicate the conflictual dynamic of secret diplomacy, and to enable public access. The UN Charter warns that unregistered international agreements cannot be invoked before any organ of the United Nations, including obviously the International Court of Justice. The practice of UN organs is less strict than the rule.

Registration should not be confused with a deposit of a ratification instrument with the Secretary-General of the United Nations. Treaties and international agreements can only be registered with the UN after their entry into force. The registration and publication duty extends to cases of treaty amendments. The registration by just one party to the treaty is adequate, while multilateral treaties are registered by their depositary. The UN does not impose any time constraints for registration. More importantly, 'non-registration or late registration… does not have any consequence for the actual validity of the agreement, which remains no less binding upon the parties'. Vice versa, the act of registration cannot turn a non-binding international agreement into a binding treaty.

6. Alterations

i. Amendment

An “amendment” is a change of one or more treaty provisions, usually with the aim of updating or enhancing the treaty regime. Given that amendments affect all parties to the treaty, they must obtain the consent of parties to be bound by the amended provision. Thus, amendments are negotiated, signed, ratified, brought into force, registered and published. Some treaties require unanimity for an amendment to pass. If amendments can pass with a majority, parties that do not express their consent to be bound by the amendment remain bound by the previous provision, in conformity with the principles pacta tertiis nec nocent nec prosunt, and pacta sunt servanda. However, new parties acceding to the treaty accept the treaty as amended. Between the parties that have ratified the amendments or acceded to the amended treaty, and those that have not ratified them, it is the old provision that remains effective. The more parties to a treaty, the more difficult its amendment. This is why many multilateral treaties lay down specific amendment procedures and requirements, which may deviate from the above canon.

ii. Review, Revision

Some treaties provide an alternative 'review' or 'revision' procedure, which refers to updating the whole or part of the treaty at a new diplomatic conference with the participation of all parties to the treaty. Review or revision takes place after a provided number of years, or following a majority vote.

iii. Modification

Furthermore, 'two or more of the parties to a multilateral treaty may conclude an agreement to modify the treaty as between themselves alone if: (a) the possibility of such a modification is provided for by the treaty; or (b) … not prohibited by the treaty'. The original treaty provisions remain applicable between those few parties and all other parties. The modification must not affect the rights and/or rights of other parties under the treaty, and must not be incompatible with the object and purpose of the treaty as a whole.

D. Termination and Invalidity of Treaties

1.Termination and Suspension

A treaty may be terminated or suspended in several ways described below. The termination permanently releases the parties from any obligation to perform the treaty. The suspension releases them from their treaty obligations temporarily. However, the termination 'does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination'. It is also immaterial when there exists a parallel customary rule of international law, which continues being biding on States. Besides, '[d]uring the period of the suspension the parties shall refrain from acts tending to obstruct the resumption of the operation of the treaty'.

i. Consent-based

A treaty may be terminated or suspended with the consent of all its parties. Likewise, if all parties to a treaty adopt a new substitute treaty, the earlier treaty impliedly loses its effect. However, the old treaty remains effective if not all of its parties adhere to the new one.

Should only some of the parties no longer feel like being bound by a treaty, they may denounce it or withdraw from it, but only if such a possibility is expressly allowed, implied by the nature of the treaty, or predicated on the established consensual intention of the parties. In any event, a party wishing to exit a treaty must give notice of its intention at least one year in advance. The term 'denunciation' is mostly used with reference to bilateral treaties, which are thus terminated. The term 'withdrawal' better describes the retreat from a multilateral treaty, which continues being in force among the rest of its parties.  

There is also the possibility that the treaty itself contains an expiration date, or a clear goal, the achievement of which terminates the agreement. Nonetheless, a treaty does not terminate merely because it has not reached the required ratifications number for its entry into force.

ii. After a material breach of the treaty

The operation of a treaty can also be terminated or suspended as a consequence of its material breach. The VCLT defines a material breach as '(a) a repudiation of the treaty not sanctioned by the present Convention; or (b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty'.

It should be noted though, that a material breach, regardless of its gravity, does not in itself terminate or suspend the treaty. It only entitles innocent parties to pursue the termination or suspension of the treaty in whole or in part, in accordance with a predetermined procedure. The consequences of a material breach depend on the bilateral or multilateral nature of the treaty. A breach of a multilateral treaty is more probable to temporarily render the treaty ineffective between the injured and the defaulting State, rather than leading to a comprehensive termination of the treaty.

Of course, the party that breached the treaty cannot invoke its own wrongdoing to terminate or suspend the treaty. Neither can a party pursue the termination or suspension of a treaty invoking the material breach of another treaty. Besides, 'treaties of a humanitarian character', including human rights treaties, cannot be terminated or suspected on such grounds. If a material breach of a treaty causes harm to a State, secondary rules of State responsibility apply, irrespectively of whether the harmed State pursues the termination or suspension of the breached treaty.

iii. Due to a fundamental change of circumstances

On demand of several drafting States, the VCLT did not exclude the termination of or withdrawal from a treaty due to a fundamental change of circumstances which has rendered the execution of treaty obligations unexpectedly onerous or unfair. However, in order to keep it in line with the primordial principle of the sanctity of treaties (pacta sunt servanda), the VCLT sets a high threshold for the application of the so-called rebus sic standibus (so long as things stand) clause. The ICJ has also consistently upheld a very restrictive approach.

Thus such a pleading can only be made if cumulatively

a) the change is fundamental;

b) could not have been foreseen;

c) has 'radically' transformed the extent of obligations still to be performed under the treaty into something different from what originally agreed; and

d) the specific circumstances at the time of the conclusion of the treaty constituted an essential basis of the consent of the parties to be bound by the treaty.

Additionally, this ground of termination is inapplicable to treaties establishing a boundary, as well as unavailable to any party that induced the fundamental change by not performing its duties towards the other treaty parties. 'A boundary established by treaty thus achieves a permanence which the treaty itself does not necessarily enjoy'.

iv. Due to supervening impossibility of performance

A less controversial ground for termination/withdrawal is 'the permanent disappearance or destruction of an object indispensable for the execution of the treaty', which unexpectedly renders its performance not simply onerous or unfair, but impossible. If the supervening impossibility of performance is temporary, it can only lead to the suspension of the treaty. Once again, if a party contributed to the occurrence of such a situation, it cannot itself pursue the termination/suspension of the treaty on this ground. The submergence of an island under the sea level, or the natural desiccation of a river as an effect of climate change may be scenarios giving rise to such a termination/suspension ground.

v. Because of an armed conflict

The VCLT sets forth that '[t]he severance of diplomatic or consular relations between parties to a treaty does not affect the legal relations established between them by the treaty except insofar as the existence of diplomatic or consular relations is indispensable for the application of the treaty'. However, the effects of armed conflicts on treaties fall outside the scope of the Convention. The ILC has attempted though to prepare a set of non-binding Draft Articles on the matter. The general principle is that the outbreak of an international armed conflict, or a non-international armed conflict in which governmental authorities take part, may terminate or suspend a treaty as between States parties to the conflict or as between a State party to the conflict and a State that is not; but not necessarily.

When the treaty itself is silent on the matter, the answer can primarily, but not exclusively, be sought in

'a) the nature of the treaty, in particular its subject matter, its object and purpose, its content and the number of parties to the treaty; and

b) the characteristics of the armed conflict, such as its territorial extent, its scale and intensity, its duration and, in the case of non-international armed conflict, also the degree of outside involvement'.

However, there is a number of treaties, 'the subject matter of which involves an implication that they continue in operation, in whole or in part, during armed conflict'. Such are, by way of illustration, multilateral 'law-making treaties', treaties creating permanent regimes, especially treaties establishing boundaries, treaties for the international protection of human rights, treaties on international criminal justice, treaties relating to the international protection of the environment or to international watercourses and aquifers, treaties creating international organisations, treaties relating to diplomatic and consular relations, treaties relating to the international settlement of disputes, and of course treaties regulating the conduct of hostilities.

vi. Other grounds

Art 64 of the VCLT postulates an additional termination ground, namely the emergence of a new peremptory norm of general international law (jus cogens). In such an event, 'any existing treaty which is in conflict with that norm becomes void and terminates'. A jus cogens norm is defined by the VCLT as 'a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character'. To be sure, the exact content of such norms remains unclear. If the supervening jus cogens norm is not in contrast but with a treaty clause that may stand independently from its context, the norm only severs the said clause without implications for the rest of the treaty.

Art 42 of the VCLT suggests that the enumerated termination/suspension grounds are exclusive. It is debatable though whether by means of customary international law, or as forms of implied consent, desuetude or obsolescence constitute additional grounds. The former refers to a consistent practice of the parties to a treaty, that runs counter to their treaty obligations. The latter refers to the expiration of the treaty through disuse.

Another debatable termination ground is the full performance of a treaty, when the treaty itself does not explicitly provide for such eventuality.

Last but not least, it is only logical that a bilateral treaty comes to an end when one of the two State-parties loses its international legal personality, unless of course there is a successor State.

2. Invalidity

Under specific circumstances, treaties may lose their validity, although this occurs very rarely. Invalidity has different legal consequences compared to termination. While the latter releases the parties from their treaty obligations from the point of the termination on, invalidity exonerates the injured parties from the legal effects from the point of conclusion of the treaty. Practically, acts having been performed in execution of a void treaty before its invalidation may need to be reversed. However, claims of reversal cannot be made by a party that has generated the grounds for the invalidity.

i. Absolute grounds for invalidity

The VCLT enumerates three absolute grounds for invalidity, which automatically render the treaty null and void:

a) when the consent of a State to be bound by the treaty has been a product of coercion of a representative of a State through acts or threats directed against him or her;

b) when the consent is a product of coercion of the State itself by the illegal threat or use of force 'in violation of the principles of international law embodied in the Charter of the United Nations'. The last words exclude any legal threat or use of force after an authorisation of the UN Security Council or in self-defence. Besides, only the military use of force gives rise to invalidity. A treaty cannot be invalidated if a State has been compelled to ratify it, say, under the pressure of economic sanctions, or the political pressure from a former coloniser. Such forms of pressure have merely been condemned by the drafters of the VCLT in a non-binding declaration annexed to the Final Act of the Vienna Conference;

c) Thirdly, a treaty is void if, at the time of its conclusion, it conflicted with an existing jus cogens rule.

Even if the act of coercion pertained to a single treaty clause, or even if only a single treaty clause is against a pre-existing peremptory norm, it is still the whole treaty that automatically becomes null and void.

ii. Relative grounds for invalidity

The VCLT also lists five relative grounds for invalidity, which do not render the treaty void ab initio, but voidable. Put differently, relative grounds do not immediately nullify the treaty, but rather give to an affected State the right to retrospectively annul its consent to be bound by that treaty. This would practically mean the nullification of a bilateral treaty, or a withdrawal of the victim State from a multilateral treaty with retrospective effect. In the latter scenario, though, the rights and obligations of other treaty parties would remain unaffected. Contrary to the consequences of absolute grounds, there is the possibility for severing the clauses to which the relative grounds are related, instead for nullifying the whole treaty.

Relative grounds, potentially invalidating the consent of an affected State, are the following:

a) A 'manifest' violation of 'fundamental' internal law provisions regarding competence to conclude treaties. The VCLT goes on to clarify that '[a] violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith'. The term 'fundamental' points to constitutional or equivalent rules.

b) Omission by a State representative to observe specific restrictions on authority to express the consent of his/her State, on the precondition that the other negotiating parties had been duly notified.

c) An error that 'relates to a fact or situation which was assumed by [the affected] State to exist at the time when the treaty was concluded and formed an essential basis of its consent to be bound by the treaty. Had the error been foreseeable or caused by the affected State itself, it cannot be invoked as a ground for invalidity. Likewise if the error relates only to the wording of treaty text.

d) Fraudulent conduct of another negotiating State.

e) Corruption of a representative of the affected State, directly or indirectly by another negotiating State.

E. Reservations to treaties

1. Reservations

Article 2(1)(d) of the VCLT defines a reservation as 'a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State'. Reservations to treaties are one way in which States express their disagreement with certain provisions and exclude their legal effect to such States. In this way, a State that wishes to be party to a specific treaty may nonetheless adopt and ratify the treaty without compromising the entirety of the instrument because of one or several provisions it disagrees with. For such reasons, reservations provide a compromise whereby, especially for multilateral treaties, they can achieve widespread adoption and acceptance by numerous States.

While reservations are a useful tool for States in excluding or modifying a treaty's legal effects, there are certain cases where reservations are prohibited. In principle, three situations prohibit reservations:

• if the reservation is incompatible with the object and purpose of a treaty
• if the reservation is prohibited by the treaty
• if the treaty provides only for specified reservations and the reservation is question fall beyond the scope of such specified reservation.

These limitations to reservations which States may make are for the most part reasonable. For example, reservations which are incompatible with the object and purpose of a treaty are prohibited in that, if made, could render the entirety or very logic behind the treaty void.

Treaties focusing on issues of climate change and the environment are one example where reservations are often explicitly prohibited. For example, Article 25 of the Kyoto Protocol provides that '[n]o reservations may be made to this Protocol'. Another example of a treaty which prohibits reservations is Article 120 of the Rome Statute of the International Criminal Court.

Where a treaty expressly provides for reservations, there is no need for other States party to the treaty to accept the reservation made by one of the State parties. In some cases however, State parties to a treaty may need to accept or even object to reservations made to such treaty. If, for example, there is a limited number of negotiating States and the object and purpose of the treaty requires its application to all the parties as an essential condition of their consent, then reservations made to such treaty need to be accepted by all parties. Another example where reservations needs to be accepted is where the treaty in question is a constituent instrument of an international organisation, in which case, a competent organ of that organisation needs to accept the reservation.

Reservations and objections to reservations may be withdrawn at any time and do not require the consent of any State which had previously accepted such reservation.

2. Interpretative declarations

Another unilateral statement which a State can make when joining a treaty is an interpretative declaration. Interpretative declarations are statements in which a State indicates or clarifies what it understands to be the scope or nature of specific treaty provisions. Interpretative declarations do not modify the provisions of a treaty but may later be followed by other States in how they too interpret certain provisions of that treaty.

Beyond the standard interpretative declaration, a State may also make a conditional interpretative declaration. Such a declaration has the effect that a State does not wish to be bound by certain provisions unless a specific interpretation is accorded to those provisions. Conditional interpretative declarations are therefore subject to the same rules as reservations.

Although the distinction between reservations, interpretative declarations and conditional interpretative declarations may seem simple, in practice their distinction is not as easy. States sometimes use ambiguous language when entering these unilateral statements, ultimately making it difficult to determine their intention.

F. Interpretation of treaties

1. Interpretative authorities

One of the starting points in discussing treaty interpretation is precisely who has the authority to interpret treaties. Given they are legal texts distinct from the domestic laws of States, it is necessary to understand both who may interpret them and precisely how they are to be interpreted. In principle, the application of a treaty implies interpretation; since it would not be possible to apply the provisions of a treaty without first reading and interpreting its provisions. On this basis therefore, all entities concerned with the treaty in question engage in its interpretation. Subjects of international law who therefore have the competence to interpret treaties and their provisions include:

• States
• International organisations and their organs
• International courts, tribunals and forums
• Domestic courts, tribunals and forums

2. General rule of Interpretation

Article 31 of the VCLT provides the general rule of interpretation of treaties and reflects customary international law. The rules embodied in Article 31 of the VCLT adopt a multifaceted approach to interpreting treaties. Treaties are first and foremost to be interpreted in good faith and the ordinary meaning of terms are to be used, in context and in light of a treaty's object and purpose. The interpretation of a treaty includes its context, which in addition to the main text, preamble and annexes also includes other agreements which relate to the treaty made between the parties in connection with the treaty, or, an instrument made between one or more parties in connection with the treaty accepted by other parties as an instrument to the treaty.

In addition, further context taken into account when interpreting the provisions of a treaty are the subsequent agreement and subsequent practice of State parties regarding the interpretation of a treaty. In other words, subsequent agreement and subsequent practice in the application of the provisions of a treaty, may clarify how they interpret it and may even indicate they consider such an interpretation effective for purposes of apply its provisions. It also makes perfect sense that given the wording of Article 31(1), special meanings are given to terms only if the parties so intended. In practice, most treaties usually start off with a section defining terms used with the treaty, in this way clarifying how such terms are not only understood in the context of the treaty, but how they are applied throughout its provisions.

One of the reasons behind the interpretation of treaties suggested by Article 31 is that, naturally by examining the very text and context of a treaty, it is presumed that a treaty constitutes an authentic expression of the intentions of its parties. Only by examining the treaty itself can one ascertain the intention of its drafters.

3. Other theories of treaty interpretation

In addition to those rules of interpretation mentioned above, there exist a number of theories of treaty interpretation.

• Teleological interpretation: requires that the meaning of words and terms be interpreted in light of the object and purpose of a treaty. In such cases, a teleological interpretation aims to give effect to the overall aims and objectives of a treaty.
• Systematic interpretation: requires a treaty to be interpreted with the ordinary meaning of words and that all parts of a treaty as well as corresponding documents produced between the parties be taken into account. Such documents would include the negotiation and drafting history of a treaty.
• Textual interpretation: requires that the ordinary meaning of words be used to interpret treaties, that such meaning be clear, and that upon interpretation, does not lead to unreasonable or absurd outcomes.
• It is worth mentioning that other theories of interpretation may differ to those found in the VCLT. Briefly, there is no concrete position as to which theory one should adopt when interpreting treaties. Some authors take the VCLT as a point of departure, whereas others consider either the complimentary or exclusive position of other theories of interpretation.

4. Supplementary means of interpretation

Beyond the general rule of interpretation in Article 31 of the VCLT, Article 32 provides supplementary means of interpretation. According to Article 32, certain elements may be used in furthering the precise meaning of provisions if upon application of the rules of interpretation in Article 31 prove unsatisfactory (to the extent that ambiguities remain or the application of Article 31 leads to manifest absurdity or unreasonableness).

Supplementary means of interpretation under Article 32 most commonly include the preparatory work of a treaty, including documents related to negotiation history between the State parties and drafting history of the treaty. Preparatory works are usually available to the negotiating parties, thereby excluding unilateral sources and confidential sources, that may not necessarily have been introduced or made available to other negotiating States parties.

Supplementary means of interpretation carry less weight as they are in effect meant to complement and clarify the application of Article 31.

• 
  

Further Readings

• Anthony Aust, Modern Treaty Law and Practice (3rd ed, 2013 CUP)
• Enzo Cannizzaro (ed), The Law of Treaties: Beyond the Vienna Convention (2011 OUP)
• Christine Chinkin, Third Parties in International Law (1993 Clarendon Press; OUP)
• Olivier Corten and Pierre Klein (eds), The Vienna Conventions on the Law of Treaties: A Commentary (2011 OUP)
• Oliver Dörr and Kirsten Schmalenbach (eds), Vienna Convention on the Law of Treaties: A Commentary (2nd ed, 2018 Springer)
• Richard Gardiner, Treaty Interpretation (2nd ed, 2017 OUP)
• Paul Gragl and Malgosia Fitzmautice, `The Legal Character of Article 18 of the Vienna Convention on the Law of Treaties´, (2019) 68(3) ICLQ 699
• Duncan B. Hollis (ed), The Oxford Guide to Treaties (2nd ed, 2020 OUP)
• Alina Kaczorowska, Public International Law (Routledge, 2012), 3rd ed.)
• Jan Klabbers, The Concept of Treaty in International Law (1996 Martinus Nijhoff)
• Robert Kolb, The Law of Treaties: An Introduction (2016 Edward Elgar)
• Ulf Linderfalk, On the Interpretation of Treaties: The Modern International Law as Expressed in the 1969 Vienna Convention on the Law of Treaties (2007 Springer)
• UN Treaty Section of the Office of Legal Affairs, Treaty Handbook, (Rev ed, 2012 UN Publications)
• Benjamin Mulamba Mbuyi, Droits des Traités Internationaux: Notes de Cours à l'Usage des étudiants en Droit (2009 L'Harmattan)

Conclusion

• Summary I
• The law of treaties is a fundamental aspect of international law regulating the entry into, conclusion, validity application, and interpretation of treaties. The VCLT codifies much of customary international law on the law of treaties.
• A treaty is, under Article 2(1)(a) of the VCLT 'an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation'.
• Ordinarily, treaties are negotiated, drafted and signed by their parties. Following adoption, a treaty then goes through the ratification process before it comes into force.
• Treaties can be amended, modified and reviewed. Treaties can also be terminated. Grounds for suspension or termination include, by consent of the parties, following a material breach of the treaty, based on a fundamental change in circumstances, due to supervening impossibility of performance or because of an armed conflict.
• Treaties can be invalidated on two broad grounds: Absolute grounds for invalidity and relative grounds for invalidity. Absolute grounds for invalidity include: the conclusion of a treaty is a product of coercion of a representative of a State through acts or threats directed against him or her; when the consent is a product of coercion of the State itself by the illegal threat or use of force 'in violation of the principles of international law embodied in the Charter of the United Nations'; if, at the time of its conclusion, it conflicted with an existing jus cogens rule. Relative grounds for invalidity include: a “manifest” violation of “fundamental” internal law provisions regarding competence to conclude treaties; omission by a State representative to observe specific restrictions on authority to express the consent of his/her State, on the precondition that the other negotiating parties had been duly notified; an error that “relates to a fact or situation which was assumed by [the affected] State to exist at the time when the treaty was concluded and formed an essential basis of its consent to be bound by the treaty”; had the error been foreseeable or caused by the affected State itself, it cannot be invoked as a ground for invalidity. Likewise if the error relates only to the wording of treaty text; fraudulent conduct of another negotiating State; corruption of a representative of the affected State, directly or indirectly by another negotiating State.
• In so far as reservations concern, they are unilateral statements made during the negotiation, signing, adoption or accession of State party to a treaty modifying or excluding legal effect of certain provisions of that treaty.
• Regarding the interpretation of treaties, Articles 31 and 32, considered to reflect customary international law, provide the rules of interpretation. Article 31 provides the general rule of interpretation, and includes that terms be assigned their ordinary meaning and that treaty provisions be interpreted in good faith.

Footnotes

Author: Victor Stoica

Required knowledge: Public International Law/History of International Law ; Public International Law/Nature and Purpose of International Law; Consent; Enforcement

Learning objectives: After studying this Chapter, students will be able to understand what customary international law as a source of international law is, and who directly and indirectly contributes towards its formation and identification.

A. Introduction

Customary international law is unwritten; it is tacit agreement. Prior to World War II, customary international law represented the main mechanism through which international law was created and, during those days, the repeated behaviors of states (or practice) were sufficiently capable of creating legal norms, which, once emerged, contained rights and obligations. In this context, certain opinions exist in the sense that 'a careful examination of history suggests that to a large degree publicists and powerful nations ignored inconvenient state practice and generated customary international law norms based on prior assumed values or perceived self-interests irrespective of the general acceptance of a norm'. It could, therefore, be argued that what the current framework of customary international law is, to a certain degree, the result of a rather regionalized state practice which, in time and in part, became general. In this regard, from a historical perspective, modern customary international law emerged in the 19th century in Europe as a direct result of European philosophy and the traditions of civil Roman law. This practice 'became general' by colonial domination and by the way in which European states resisted the efforts of newly independent states in the 1950s and 1960s to participate in the custom-making and codification process on their own terms.

Today, customary international law is no longer the primary source of international law, but remains one of the most important sources, along with treaties, its importance renewed in recent times of classic treaty-making. In this regard, customary international law offers binding rules of public international law irrespective of hyperpolitical treaty negotiations. Article 38 (1) of the Statute of the International Court of Justice ('the ICJ'), is essential for understanding the meaning and content of customary international law. This provision is not necessarily clear, and has been subject to the interpretation of the ICJ and of the International Law Commission of the United Nations ('the ILC'). Even so, what is currently clear is that the binding force of international customary law rests on the implied consent of states.

The generally accepted interpretation of customary international law confirms that a two-pronged test must be performed in order to determine the existence and content of a rule. First, practice among states must exist and, second, this practice must be accepted as law. In other words, for customary international law to exist, practice must be performed out of a sense of an existing legal obligation. In this sense, a norm of customary international law may bloom if a sufficient number of states perform actions or knowingly abstain from performing an act. States must perform these actions or abstentions in a generally consistent manner, which is sufficiently widespread and representative. They must also do so with the sense that they have an international legal obligation to act in such a way. Framing customary international law in these terms has been labeled as the orthodox perspective on the formation of customary international law. This view is not without controversy, especially because the interaction between practice (referred to as the objective or material element) and its acceptance as law (referred to as the subjective element or opinio iuris) is not easily distilled.

The question regarding who creates customary international law is also rather controversial. The traditional limitations regarding the exclusion of other entities from the formation of customary international law (for example, international organizations or international courts and tribunals) may place customary international law, as a source, on its fringes. For this reason, the legitimacy of customary international law is sometimes considered to be under threat. The practice of international courts and tribunals, including the ICJ, or the manner in which international organizations act, do not necessarily provide profound clarifications regarding a coherent interpretation of this source of international law.

One of the main reasons for this rather seemingly convoluted understanding of customary international law is that, as opposed to treaties, the formation of customary international law does not follow a predictable path, or an exact and regulated procedure. It may seem that customary international law blooms slowly and appears abruptly, at a particular point in time, while it is created behind the curtains of international relations, with no precise indication regarding its appearance. While the traditional view is that the creation of custom essentially entails a substantial amount of time to pass for its creation, recent doctrine has also acknowledge the possibility for the creation of an 'instant custom', in certain emerging domains such as space law. The United Nations General Assembly, through is Resolutions, is also regarded as a main contributor to the creation of instant customs.

International scholarship, addressing the understanding of customary international law, is yet to reach common ground. A notable mentioned must be given to the efforts on the codification of customary international law. The codification of international law, in general, involves identifying and systematising the rules of public international law. This represents an effort on the part of the relevant institutions to provide a greater degree of transparency and certainty to the international law system. International institutions involved in the codification and progressive development of international law, such as the ILC or the International Law Association ('the ILA') have included the identification of customary international law and, respectively, the Formation of Customary (General) International Law, on their agenda. The ILC issued, in 2018, the Draft conclusions on Identification of Customary International Law ('the Draft Conclusions') and the ILA has issued, in 2000, the Statement of Principles Applicable to the Formation of General Customary International Law.

The strict identification of practice and the distinctions between actions and declarations of states contribute to the difficulties in identifying the subjective element, which can be assimilated to beliefs of states, is noticeable when looking towards the direction of the ICJ or the ILC. It has been argued, in this sense, that 'it would be a mistake to believe that power is the only relevant factor in the emergence of CIL. The role of ideas and beliefs is significant'. Further, the ICJ also referred to the beliefs and feelings of states, which crystallize opinio juris as a constituent element of customary international law, throughout its jurisprudence, in cases such as the North Sea Continental Shelf Cases or in the Asylum Case, respectively. Illustratively, in the North Sea Continental Shelf, the Court concluded that belief is needed for the existence of opinio iuris to be demonstrated. Even so, the ICJ has failed to clearly indicate what constitutes opinio iuris and how it interacts with the practice of states in order to determine the content of customary international law. This contributes to the lack of clarity and consensus that revolves around the formation and identification of customary international law. It is still not clear, as 'different meaning and weights are often assigned to the two elements of states practice and opinio iuris'.

This chapter does not endeavor to suggest a new conceptual framework regarding the identification and formation of customary international law. Nor does it intend to resolve the apparent controversies regarding the subject. It rather intends to describe the contemporary manner in which customary international law is formed and identified, by referring, mainly to what is generally accepted.

B. Constitutive Elements of Customary Law

For customary international law to be formed, two elements must exist: I. A general practice, usually regarded as the objective element and II. Opinio iuris, known as the subjective element. The following sections shall address the content of the two elements.

I. General Practice

Article 38 of the Statute of the ICJ prescribes that, when deciding the disputes that are submitted to it, the ICJ will apply 'international custom, as evidence of a general practice accepted as law.' The first issue that should be determined when addressing the existence of customary international law is, thus, the indispensable element of general practice.

General practice is considered as the material (or objective) element of customary international law, because its existence does not depend on the intention of states, international organizations or other entities that exist in today's international society. In other words, when practice is performed, it may, usually, be observed. For example, when a state repeatedly transits with its naval ships a certain maritime zone, that is practice.

1. What may count as 'practice'?

It is generally accepted that state practice is primarily relevant for the creation of customary international law, not the practice of international organizations, transnational corporations, not even the practice of international courts and tribunals. Draft Conclusion 4 of ILC's Draft Conclusions confirms this view when concluding that 'the requirement of a general practice, as a constituent element of customary international law, refers primarily to the practice of States that contributes to the formation, or expression, of rules of customary international law.' The ICJ, in the judgment it issued in the Military and Paramilitary Activities in and against Nicaragua concluded in the same terms, that 'to consider what are the rules of customary international law applicable to the present dispute … it has to direct its attention to the practice and opinio iuris of States'.

This finding has led commentators, and certain states, to conclude that only and exclusively states may create practice relevant for the formation of customary international law. However, some entities (such as international courts and tribunals) are relevant for the creation of customary international law while others (such as international organizations) are directly involved in the creation process.

States are abstract entities, with no material form through which they could manifest their activities. States behave through various mechanisms, created and disseminated by multiple stakeholders. Generally speaking, the executive branch of a State is regarded as the primary and most relevant actor in the international law scene.High officials, such as Heads of State or Ministers, municipal courts and tribunals or legislative bodies may be viewed as the limbs, through which states act and through which they have the possibility of developing practice. Not all actions performed by states are capable of creating the material element of customary international law. Scholars have concluded, in this sense, that a distinction should be made between actions and statements/declarations. It is often the case that actions involve a predominantly legal perspective, while statements and declarations involve a predominant political perspective, the latter being less capable of creating practice. This should not lead to the conclusion that statements never contribute to practice, or that they are always political, as unilateral acts have the potential to create international obligations.

a) Actions or doing

State practice is generally understood by looking at the acts or actions performed by the executive branch and other executive and legislative bodies. It is also generally accepted that certain high officials have the vocation to represent the state in the international arena. Usually, Heads of States, Prime Ministers or Ministers of Foreign Affairs (usually referred to as 'the Big Three') ( have the power, without the need of full powers, to act on behalf of the state. But not only the actions performed by these official may represent practice. If a national court maintains its jurisprudence regarding a particular aspect, that has international implications, that body of judgments may contribute to the crystallization of state practice on a certain topic.

The ILC confirms, in Draft Conclusion 5, that practice may manifest in situations in which states exercise multiple activities, including through their 'executive, legislative, judicial or other functions.' This list, provided by the ILC, is open ended and implies that any act or action of states, through their organs, may constitute state practice. This is to say that practice is usually analyzed holistically, on a case by case basis, by looking in the direction of the state as a whole, with all its relevant institutions and officials. Illustratively, diplomatic correspondence on a certain issue, along with political declarations of a high official or the positions maintained throughout the negotiation of a treaty on the same subject matter, may also constitute practice.

It is worth mentioning, at this juncture, that states and their organs are abstract concepts which exercise their functions through people, mandated in this respect by the state (for example, through the Constitution), which is, in turn, structured and mandated by its citizens, through the voting process. Consequently, it is the individual/s which represent the organs of states or states themselves, which is/are capable of creating customary international law. Who qualifies as an individual which may represent the State in its external affairs depends on the national legislation of each State. What is essential is that these individuals, who may represent the state and, consequently, who may generate practice, act in their official capacity.

Several acts or actions may illustrate the formation of practice as an element of customary international law. The classic example regarding the formation of customary international law is maritime law, which, when it first emerged, was 'almost entirely customary international law'. Other examples include 'actively seizing foreign vessels, actually expropriating foreign property or sending satellites into orbit', as elements of practice. The North Sea Continental Shelf Cases, in which the exercise of certain fishing rights in economic zones of the coastal states was addressed by the Court, is relevant from this perspective. Not only physical acts (exercising fishing by states or seizing foreign vessels) may constitute practice as an element of customary international law, but legal acts may have serve the same purpose. Illustratively, if states enact legislation through which fish are protected within 200 miles off their coasts, there is potential for the creation of a rule of customary international law in this respect.

However, the distinction between the actions of the State as forming state practice and the actions that prove opinio juris are not always clear and, as a result, there is no universally accepted and applicable theory to rely upon when determining which actions should be regarded as state practice and which should be considered proof of opinio juris.

To summarize, action as an element of customary international law encompasses a multitude of possibilities. This open-ended character should not be regarded as negative, especially since the manner in which states act has diversified and continues to diversify.

b) Inactions or not doing

Sometimes, omissions may also represent state practice. In other words, it may happen that silence produces legal effects and, among these, the creation of legal norms. Draft Conclusion 6 issued by the International Law Commission regarding the identification of customary international law confirms that practice may, 'under certain circumstances, include inaction'. Not every inaction constitutes practice for the purposes of creating customary international law and certain distinctions should be made in this sense. The question that would need an answer is therefore: "which omissions may constitute practice"?

It is first relevant to point out that the ICJ has dealt with this question throughout its jurisprudence. One of the more relevant findings in this respect is to be found in the Temple of Preah Vihear Case, in which the Court concluded in the following terms:

It has been contended on behalf of Thailand that this communication of the maps by the French authorities [note: the sovereignty of Cambodia was under French protectorate at the relevant time] was, so to speak, ex parte, and that no formal acknowledgment of it was either requested of, or given by, Thailand. In fact, as will be seen presently, an acknowledgment by conduct was undoubtedly made in a very definite way; but even if it were otherwise, it is clear that the circumstances were such as called for some reaction, within a reasonable period, on the part of the Siamese authorities, if they wished to disagree with the map or had any serious question to raise in regard to it. They did not do so, either then or for many years, and thereby must be held to have acquiesced. Qui tacet consentire videtur si loqui debuisset ac potuisset.

The ICJ confirmed its finding from the Temple of Preah Vihear Case in other judgments, such as the one in the Case Concerning Sovereignty over Pedra Branca/Pulau Batu Puteh, Middle Rocks and South Ledge (Malaysia/Singapore), in which it held that 'silence may also speak, but only if the conduct of the other State calls for a response.' The Commentary of the Draft Conclusions further provides examples in this sense: 'abstaining from instituting criminal proceedings against foreign State officials; refraining from exercising protection in favor of certain naturalized persons; and abstaining from the use of force', may lead to the creation of customary international law through inaction. The answer that seems to be confirmed by the doctrine is that only the omissions which are clear in their scope may fulfil the role of practice as an element of customary international law. In this sense, omissions must be carefully interpreted so as to determine what was the true intention of the State that did not perform a particular action. The caution needed for addressing omissions as practice used for the creation of customary international law is demonstrated by the practice of international courts and tribunals. In this respect, the Permanent Court of International Justice, in the Lotus Case, did not address the formation of customary international law because the abstention in question was ambiguous. The International Court of Justice was braver in its analysis of inaction as evidence of practice. In the Temple of Preah Vihear Case, the Court concluded that inaction may generate rights and obligations only if that state must and can act, but it does not. The Court decided that 'it is clear that the circumstances were such as called for some reaction, within a reasonable period, on the part of the Siamese authorities, if they wished to disagree with the map or had any serious question to raise in regard to it. They did not do so, either then or for many years, and thereby must be held to have acquiesced.'

To summarize, as opposed to actions, all of which may constitute practice for the purposes of creating customary international law, not all inactions may contribute to this process. Only clear inactions, which call for a response, may represent practice.

c) Statements

As initially concluded by Anthony D'Amato and further confirmed by Anthea Roberts statements are rather included under the subjective element of international law, opinio iuris. Draft Conclusion 10 issues by the ILC confirms that 'public statements made on behalf of States' represent one of the multiple forms of evidence as acceptance as law. As such, the relevance of public statements for the creation of customary international law will be treated below, under the section entitled 'Accepted as Law (opinio iuris)'.

Different opinions also exist. Illustratively, Mendelson concludes that statements may constitute either state practice or opinio iuris and that 'whether we classify a particular verbal act as an instance of the subjective or of the objective element may depend on circumstances'. For example, a statement of a Head of State of that of a Foreign Minister, should constitute practice rather than opinio iuris while the one of a junior diplomat should not. What is important, he argues, is that the same statement is not treated as both practice and opinio iuris, in order to avoid double counting and to place an unjustified weight on such statements.

As such, the traditional perspective regarding statements is that they may not constitute state practice and that they should rather be treated under the expression on opinio iuris, or the belief of states that a conduct is mandatory under international law. However, a more progressive view, which is justified, is that statements (especially those of high officials) may constitute state practice. In support of this, certain scholars point out that there are 'important acts of state behaviour, such as recognition of another state, do not need a physical act'.

2. What does 'general' mean?

Part of the international scholarship accepts that generality of practice means that 'all or almost all of the nations of the world engage in it'. Even if this conclusion has certain merit, the same authors conclude that it is impossible to determine if more than 190 states have engaged in a certain practice, which, as seen above, is complex and can be manifested through a wide range of activities or abstentions. Further, practice is rarely virtually homogenous.

This is the reason for which Draft Conclusion 8 provides that for practice to be general is must be 'sufficiently widespread and representative as well as consistent'. This three pronged standard provided by the ILC is, thus, lower than the one related to the unanimity or majority of practice. As such, generality implies three different tests that should be met cumulatively. The Commentary of the Draft Conclusions does not further qualify what these three concepts mean but mentions that 'no absolute standard can be given for either requirement', argument that leads to the conclusion that their content is addressed on a case by case basis, leaving international courts and tribunals with a wide degree of appreciation for the consideration of the existence of a rule of customary international law.

a) Sufficiently widespread

Widespread practice is generally understood as 'existing or happening in many places and/or among many people'. The ICJ confirmed the relevance of the concept in the Case Concerning Maritime Delimitation and Territorial Questions between Qatar and Bahrain, in which it concluded that it was not aware of the existence of uniform and widespread practice that could lead it to conclude that a customary rule regarding the appropriation of low-tide elevations exists. In Questions relating to the Obligation to Prosecute or Extradite the ICJ concluded, with respect to the imperative norm regarding the prohibition of the use of torture, that it is 'grounded in a widespread international practice and on the opinio iuris of States'.

Even so, the ICJ has not endeavored to define the concept, nor does the Commentary of the Draft Conclusions. It just quotes the North Sea Continental Shelf cases, in which the ICJ concluded that the practice in question must be 'both extensive and virtually uniform', or 'settled practice'. These standards are not universal, nor were they relevant in all cases in which the application of customary international law was at stake. The Commentary goes even further and mentions that 'no absolute standard can be given for either requirement' . The only clarification provided is that practice is sufficiently widespread when it is not 'contradictory or inconsistent'.

It would seem that the first standard is defined through what it is not. In other words, practice may be widespread as long as it is not limited. This manner of determining the content of a concept is usually designed by international courts and tribunals in order to allow a certain degree of appreciation.

b) Sufficiently representative

Representative practice is generally understood as 'typical of, or the same as, others in a larger group of people or things'. At first glance, it might seem that the concept of 'representative' has common features with the concept of 'widespread', especially because the number of entities participating in the creation of customary international law is relevant in both cases. However, certain distinctions should be drawn between the two. Representative practice is rather qualitative in nature, as opposed to widespread practice, which is rather quantitative in nature.

The ICJ has not necessarily addressed what 'representative' means. In North Sea Continental Shelf, the ICJ concluded that 'a very widespread and representative participation' would be sufficient to demonstrate the existence of customary international law resulting from a convention. The Commentary of the Draft Conclusions provides that for the practice to be representative it must take into consideration the 'various interests at stake and/or the various geographical regions.' This approach confirms the quantitative/qualitative distinction mentioned above. Therefore, for practice to be representative, the approach of certain states has more weight while the approach of other less so.

c) Consistency

Consistency is generally understood as 'the quality of always behaving or performing in a similar way, or of always happening in a similar way'. This standard implies that practice should manifest stability over time. As such, if the behaviors of states fluctuate over time, it would be difficult, if not impossible, to identify a general practice. The question, here, is whether there is a need for uniformity of practice (complete consistency) for the formation of customary international law or whether a lower standard should be applied.

The ICJ has not provided any clarification regarding the content of this concept, but rather discussed the level of consistency necessary for the formation of customary international law. In Military and Paramilitary Activities the ICJ concluded in the following terms:

It is not to be expected that in the practice of States the application of the rules in question should have been perfect in the sense that States should have refrained, with complete consistency [...]. The Court does not consider that, for a rule to be established as customary, the corresponding practice must be in absolutely rigorous conformity with the rule. In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should, in general, be consistent with such rules

This finding was confirmed in the North Sea Continental Shelf Cases, in which the court did not refer to 'consistency' but to 'uniformity', as a similar concept. The Court concluded that:

Although the passage of only a short period of time is not necessarily, or of itself, a bar to the formation of a new rule of customary international law on the basis of what bras originally a purely conventional rule, an indispensable requirement would be that within the period in question, short though it might be, State practice, including that of States whose interests are specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked.

So, consistency means virtual uniformity, in accordance with the practice of the ICJ, in the sense that there is no need for global practice for the formation of customary international law.

II. Accepted as Law (Opinio Iuris)

For customary international law to exist, first, general practice must be present, as provided above, under Section I. But practice should also be performed out of a sense of a legal obligation. This perception, that states have a legal obligation, is qualified as the subjective element of customary international law, or opinio iuris, which has been labeled as belief.

The Commentary of the ILC mentions that customary international law cannot exist in the absence of opinio juris, by arguing that 'the presence of only one constituent element does not suffice for the identification of a rule of customary international law.'

The ICJ referred to the perceptions that states have, in order to determine how opinio iuris forms, as a constituent element of customary international law, throughout its jurisprudence, in cases such as the North Sea Continental Shelf Cases or in the Asylum Case, and it confirmed that opinio iuris must exist in order to determine that customary international law exists. Illustratively, the Court concluded that:

Not only must the acts concerned amount to a settled practice but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule requiring it. The need for such a belief, i.e., the existence of a subjective element, is implicit in the very notion of opinio iuris sive necessitatis. The States concerned must therefore feel that they are conforming to what amounts to a legal obligation.

The ILC refers to the above mentioned conclusion, but does not shed much light into what exactly may serve as a tool in order to determine what are the perceptions, beliefs or feelings of states. As such, Draft Conclusion 10 firstly provides that opinion iuris 'may take a wide range of forms' and that 'public statements made on behalf of states; official publications; diplomatic correspondence; decisions of national courts; treaty provisions; and conduct in connection with resolutions adopted by an international organisation or intergovernmental conference' can be used as elements through which opinio iuris may be identified. The ILC also provides that lack of action in circumstances in which states "were in a position to react" may also indicate the presence of opinio iuris.

How does one determine what a state believes, or considers, to be mandatory and what not? Scholars conclude that this element of custom is controversial, and that 'no one dares question that its verification is necessary for a customary rule to exist'. The distinction between acts (such as the ones enumerated above) that confirm the perception of states of binding international legal obligations and the perception of states according to which they are acting out of courtesy is also not clear. In other words, the list of acts that may crystalize opinio iuris is uncertain, to the degree that the same act may or may not lead to its formation. The International Court of Justice, in the North Sea Continental Shelf Cases, confirmed that 'there are many international acts, e.g. in the field of ceremonial and protocol, which are performed almost invariably, but which are motivated only by considerations of courtesy, convenience or tradition, and not by any sense of legal duty". As such, "it is difficult to determine what states believe as opposed to what they say.'

These uncertainties regarding a precise manner in which opinio iuris should be determined have led certain authors to conclude that the subjective element should be less relevant, and that practice should be at the forefront of identifying customary international law. Nevertheless, it is rather generally accepted that 'while opinio juris confers the legal bindingness of custom, practice, it is argued, can be understood as what provides custom with normative content.' In other words, while practice provides what the norm contains, opinio iuris is what confers to that norm its binding character. In this context, opinio iuris is essential for the creation of customary international law.

C. Who is bound by custom?

The clarification on the issue of the creation of international custom isn't the only aspect of international customary law which entails complexity. In particular, the problem of the binding character of such rules in relation to certain category of States is also one which needs further analysing, in particular, the issue of the silence of a State in relation to a custom (also known as aquiesence), the persistent objector and the special case of States particularly affected by a certain rule of customary international law, issues which will be discussed below.

I. Aquiesence

Silence in relation to the formation of customary international law is often labelled as acquiescence. In addition to all the elements of practice, including the one related to the capacity of the individual which partakes in its formation, representing the state, commentators have concluded that acquiescence exists in situations in which several conditions are met: if the facts were known or should have been known, if these facts were in the interest of the state and if these facts were consistent. Other standards have been described by commentators concluding that inaction may generate customary international law if there exist 'intention and deliberateness'.

II. The persistent objector

Inconsistent practice sometimes manifests itself through the persistent objector doctrine. Conclusion 15 of the ILC Draft Conclusions on Identification of Customary International Law provides that if a State expressly objects to a rule of customary international law when that rule is in the process of formation, the said rule will not be applicable to that state.

The distinction is relevant, because potential objections of states which are performed after customary international law was formed are no longer relevant. In other words, states that did not object during the formation of customary law do no longer have the right to object when they must comply with the created rules. The role of the consistent objector doctrine is that it respects States’ sovereignty and protects them from having new law imposed on them against their will by a majority; but at the same time, if the support for the new rule is sufficiently widespread, the convoy of the law’s progressive development can move forward without having to wait for the slowest vessel.'

III. The case of specially affected States

The Commentary of the ILC Draft Conclusions sheds light into the relevance of this concept, in the following terms:

In assessing generality, an important factor to be taken into account is the extent to which those States that are particularly involved in the relevant activity or most likely to be concerned with the alleged rule have participated in the practice. It would clearly be impractical to determine, for example, the existence and content of a rule of customary international law relating to navigation in maritime zones without taking into account the practice of coastal states and major shipping states.

For example, the rise of the level of seas and oceans imply significant threads to small island developing States for multiple reasons, including geographical, related to the concentration of people and infrastructure present in coastal areas. These States may be considered as specially affected for the creation and identification of customary international law related to sea level rise. The current work of the International Law Commission on Sea Level Rise in Relation to International Law confirms that the Pacific Island States are specially affected and that their practice is relevant. This is not to argue that the specially affected states are the only ones that contribute to the creation of international law in a particular field but that their practice should carry more weight than the practice of states that do not have this status. In other words, states that are affected indirectly, states that are not at the forefront of danger, should observe the practice of specially affected states.

D. Who creates custom?

Article 38 (1) b. of the Statute of the ICJ prescribes that the Court will decide in accordance with international law by applying „international custom, as evidence of a general practice accepted as law”. The mentioned provision does not explicitly mention that states, or international governmental organizations, or both, are the only entities that can participate in or influence the formation of customary international law. Nevertheless, what is traditionally accepted is that states and international governmental organizations are the main subjects of international law. Certain authors confirm that the two entities are the only subjects of international law, strictly speaking and, as such, the only ones that can contribute to the formation of customary international law.

I. States

The practice of the ICJ confirms that states are the entities that contribute to the formation of customary international law. In the Asylum Case, the ICJ found that customary international law did not exits because the practice of states was not uniform and constant. In the North Sea Continental Shelf, the ICJ concluded that 'State practice, including that of States whose interests are specially affected' is relevant for the formation of customary international law. Further, in Military Activities in and Against Nicaragua, the Court referred to the practice of States and to opinio iuris of States while in Jurisdictional Immunities it also determined that 'State practice of particular significance is to be found in the judgments of national courts faced with the question whether a foreign State is immune, the legislation of those States which have enacted statutes dealing with immunity, the claims to immunity advanced by States before foreign courts and the statements made by States'.

Thus, the jurisprudence of the International Court of Justice confirms that states are involved in the formation of customary international law. The former President of the Court, Judge Yusuf concluded in his Statement before the Sixth Committee that customary international law, at least in accordance with the 'old approach' was primarily based on the consent of states, while other entities, such as the United Nations provide states with a forum through which they engage on different issues, including the formation of customary international law.

The ILC, within its Draft Conclusions regarding the identification of customary international law confirms that states contribute to its formation. In this respect, Draft Conclusion 4 paragraph 1 provides that practice primarily refers to States while the Commentary of the Draft Conclusion further clarifies that States have a pre-eminent function for the formation of customary international law. The wording does not exclude other enteritis that might contribute to the formation of international law. Thus, international organizations may also influence the formation process.

II. International Organizations

Not only States may contribute to the formation of customary international law. As secondary subjects of international law, international organizations may also influence the manner in which customary international law is generated. Out of all the subjects of international law, the international organization is the only one that manifests a double role: direct and indirect. As such, first, international organizations may influence how state contribute to the formation of international law (indirect influence) or, in situations in which international organizations behave like states they directly contribute to the formation of customary international law.

1. Indirect influence

International organization may influence the formation of customary international law by impacting the conduct of their member states. As such, international organizations may be considered as 'catalysts of state practice'. In other words, it has been argued that international organizations shape what states do and think. Illustratively, the European Union regularly participates in international legal forums, such as the Sixth Committee of the United Nations or the International Law Commission, bodies of the UN which address and discuss the norms of international law.

The ILC Articles on State Responsibility confirms this possibility through the Commentary of the Draft Conclusions which provides that 'resolutions adopted by international organization or at intergovernmental conferences, even when devoid of legal force of their own, may sometimes play an important role in the development of customary international law'. The issue of indirect influence is not necessarily controversial and is recognized by the international community. This is not the case with direct influence.

2. Direct influence

The International Law Commission, through Draft Conclusion 4 para. 2 confirms that international organization may directly influence the formation of customary international law. As such, the mentioned Conclusion provides that international organisations, through their practice, contribute to the expression of customary international law. Further, the Commentary of the Draft Conclusions clearly delineates direct influence from indirect influence, as it mentions that the above mentioned paragraph concerns 'practice that is attributed to international organizations themselves, not practice of States acting within or in relation to them'. The European Union is often considered as being such an organization which, in certain circumstances, or for certain competences, acts in the international arena like a State.

The direct influence of international organizations regarding the formation of customary international law is not as clear cut as the indirect influence. Illustratively, the United States of America have criticized the approach of the International Law Commission and mentioned that 'it is axiomatic that customary international law results from the general and consistent practice of States followed by them out of a sense of legal obligation'.

Even so, the doctrine rather supports the view that international organizations have the possibility to directly influence the formation of customary international law. Further, the majority of states endorsed the approach of the ILC and 'affirmed that at least some international organizations can sometimes contribute directly to the formation of customary international law'.

III. International Courts and Tribunals

International Courts and Tribunals do not contribute, directly, to the formation of customary international law. Draft Conclusion 13 of the ILC confirms that 'Decisions of international courts and tribunals, in particular of the International Court of Justice, concerning the existence and content of rules of customary international law are a subsidiary means for the determination of such rules'. This means that the jurisprudence of international courts and tribunals are not part of the objective element (practice) or of the subjective element (opinio iuris).

Nevertheless, they have a role in the identification of the rules of customary international law. In other words, it may be said that international court and tribunals may serve as a magnifying glass through which custom is seen. But, this should not lead to the conclusion that 'his is customary international law because the ICJ said so'. Consent is one of the fundamental pillars of the formation of customary international law. In this context, if the International Court of Justice concludes that there exists a norm of customary international law and states (including the parties to the dispute) accept this norm, either implicitly or explicitly, it may evolve into customary international law.

E. Special Customary International Law

I. Jus Cogens Norms

One of the limits is represented by jus cogens norms which are globally widespread, and are part of the concept of general customary international law. Jus cogens norms or the peremptory norms of public international law are rules 'accepted and recognized by the international community as a whole (...) from which no derogation is permitted'. The reside at the top of the hierarchy of international law norms. These customary norms 'are considered so vital that they cannot be contracted out of by individual states'; they have the highest degree of generality.

II. Regional Customary International Law

At the opposing end of the spectrum rests regional (or particular) customary international law. In this regard, the ICJ recognized the possibility of a custom to exist on a regional or even a bilateral basis, practice which may be based upon a need for 'respect for regional legal traditions'. In 1950, in the Judgment issued in the Asylum Case the Court did not exclude the general possibility of regional customs to exist, even if it concluded that the Colombian Government did not prove the existence of such a custom. In 1960, in the Right of Passage over the Indian Territory case, the ICJ held that 'where therefore the Court finds a practice clearly established between two States which was accepted by the Parties as governing the relations between them, the Court must attribute decisive effect to that practice for the purpose of determining their specific rights and obligations'. In 1984, in the judgment issued in the Case concerning Military and Paramilitary Activities in and against Nicaragua, the Court appeared to agree that regional customary international law, 'particular to the inter-American legal system', exists. Conclusion 16 of the Draft Conclusions on Identification of Customary International Law qualified regional customary international law as part of the particular customary international law that applies only to certain States.

F. Conclusion

There are no clear, universally applicable, strictly rigorous and fixed rules for the creation of customary international law. However, the lack of such parameters is not in itself a disadvantage given the ever-evolving nature of public international law. Customary international law is characterised by agility, and has the potential to address multiple legal frameworks: it may be regional or global, it may be confirmed through treaties or detached from them, it may be general or special. Consequently, flexibility in the identification of customary law may appear suitable, as it reflects the ever changing developments of international law and policy. This is the reason for which historical approaches are useful for addressing the content of customary international law. As the ICJ held, 'It is, thus, not important for the Court to develop a coherent methodology of identifying customary international law. Instead, identification strategies may differ depending on the circumstances of each individual case and the preferences of the affected parties'.

Moreover, the role of the Court in identifying customary law is essential: 'Customary law, being vague and containing gaps compared with written law, requires precision and completion about its content. This task, in its nature being interpretative, would be incumbent upon the Court. The method of logical and teleological interpretation can be applied in the case of customary law as in the case of written law'. Even if customary international law is created by states and international governmental organisations and influenced by other entities acting on the stage of international law, this source is fragile and should be carefully addressed by international courts and tribunals.

Summary

• Customary international law may form and may be identified if two elements are observed: practice and opinio iuris. Practice is generally understood as practice of states, but the practice of international organisations is also relevant for the creation of customary international law. Further, even if to the same degree, and not as directly, other entities that play in the field of international relations, lato sensu, such as individuals or non-governmental organisations, contribute to the creation and interpretation of customary international law through their actions and inactions.
• Practice may take a variety of forms. Currently, there is no clear and exact determination of what counts as practice. However, actions or inactions performed or omitted by states through their legislative or executive bodies are generally accepted as generators of practice. The Big Three (President, Prime-minister, Minister of Foreign Affairs) represent states internationally and consequently, their actions/inactions are especially relevant.
• Practice must be general, in order to contribute to the formation of customary international law. Generality implies that practice is sufficiently widespread, sufficiently representative and consistent. However, this should not lead to the conclusion that only global customary international law exists but that these elements should also be regionally calibrated and, further, that specially affected states (or states that have a direct and serious interest) should be deferred to in certain circumstances.
• Opinio iuris is represented by the perception of states regarding the nature of a certain practice; if states perform practice out of a sense of an existing international legal obligation customary international law may bloom.
• Customary international law is agile, flexible and sometimes vague. This may lead to the conclusion that custom is not a 'serious' source of international law. However, this argument has several fallacies. Customary international law was, is and will be at the core of international law. Several existing treaties, such as the Vienna Convention on the Law of Treaties, the United Nations Convention of the Law of the Sea or the Vienna Convention on Diplomatic Relations, confirm that customary international law is the headspring of what may become, in time, and with the fulfilment of certain conditions, a river.

Further Readings

• James Crawford, Chance, Order, Change: The Course of International Law, General Course on Public International Law, Brill, 2014
• Jean D'Aspremont, International Law as a Belief System, Cambridge University Press, 2017
• Anthea Roberts, Is International Law International, Oxford University Press, 2017
• Hersch Lauterpacht, The Function of Law in the International Community, Oxford Public International Law, 2011

Footnotes

Author: Craig Eggett

Required knowledge: Sources of International Law; others?

Learning objectives: To understand the background to article 38(1)(c) ICJ Statute; how general principles can be identified; what general principles (can) do in international law.

A. Introduction

Article 38(1) ICJ Statute’s list of generally-accepted sources of international law concludes with sub-paragraph (c)’s ‘general principles of law’. This source of law has received considerably less attention than treaties and customary law. For example, article 38 (1)(c) has never been explicitly relied on by the Court as a basis of a decision, being referenced in only a handful of proceedings. Further, academic discussion on this source of law had, until rather recently, been rather sparse. The discourse on general principles received a significant boost when, in 2017, the ILC decided to include the topic on its programme of work. Since then, the Commission has produced three reports and a set of draft conclusions on general principles and there has been a notable increase in scholarly attention on the topic. This chapter aims to provide an overview of the core aspects of the ongoing discussion on general principles in international law. To that end, it is structured around three main questions: (1) what kind of norms are general principles? (2) how are they ascertained? and (3) what functions do they perform? These questions overlap to an extent, yet they provide a basic logical structure to examine general principles and their place in the international legal system.

B. The Nature of General Principles

There has been considerable theoretical disagreement as to what exactly is meant by ‘general principles of law’. In other words, what exactly is it that we are talking about when we refer to the norms in article 38(1)(c) ICJ Statute? This question has implications for the identification and functioning of general principles, in addition to touching upon some fundamental aspects of the international legal system as such. To add further complexity to this question, it is also the case that the term ‘general principles’ is used in a more rhetorical sense to underline the importance or general scope of application of these norms. So, as an initial point, it is important to clarify that this chapter is concerned with general principles in the technical sense of article 38(1)(c) ICJ Statute.

That being said, the range of positions and perceived importance of general principles vary greatly. These norms could be seen as fundamental building blocks of the international legal system, as technical procedural norms, or merely as a tool for the interpretation of treaties and customary law. The ILC’s first draft conclusion provides a starting point for this question. It reads: ‘The present draft conclusions concern general principles of law as a source of international law.’ As indicated in the previous sub-chapter, authors may disagree as to what exactly it means to refer to a ‘source’ of law. Yet, this draft conclusion, as the ILC explains, confirms the legal nature of general principles of law. The following sections examine this legal nature by considering, first, the historical background of general principles in the international legal system and, second, the conceptual aspects of the normative classification of general principles and their relationship with other norms and concepts.

C. History and Origins of General Principles in International Law

Indeed, both the wording and history of the ICJ Statute confirm that general principles, whatever they may be, have a role as applicable law in the settlement of disputes. The drafting of article 38 ICJ Statute is based on the corresponding provision of the PCIJ Statute, which contains identical wording in relation to general principles, noting that ‘[t]he Court shall apply general principles of law recognized by civilized nations’. This wording – shall apply – confirms the role of general principles as an applicable source of law. The notion that general principles of law are a source available to judges in adjudicating a dispute has a history extending further back than the drafting of even the PCIJ Statue. For example, references to ‘principles’ as a source of applicable law were included in the Arbitral Procedure Regulations 1875, the First Hague Convention establishing the PCA, and the Convention Relative to the Creation of an International Prize Court 1907. While differing in their precise construction, the references to ‘principles’ illustrates that early practice recognised a role for a source of international law beyond treaties and custom.

Further, early arbitral practice suggests a role for general principles in international law. For example, in the Walfish Bay Boundary case, the arbitrator was required to determine the applicable law in the proceedings due to the absence of such a provision in the compromis. In doing so, the arbitrator explained the approach taken and noted that the issues at hand ‘must be solved in conformity with the principles and positive rules of public international law, and, where they fail, in conformity with the general principles of law’. As an example of the consideration of a specific general principle, in the Pious Fund case, the Tribunal was required to consider a previous decision rendered by the Mexico-United States Mixed Claims Commission. In doing so, the Tribunal found that the principle of res judicata (Latin: ‘a matter judged’), which has its origins in domestic systems and Roman law, was applicable in international law and so governed the decision in question.

In the drafting of the PCIJ Statute, the Advisory Committee of Jurists discussed the draft of article 38, including the phrasing of what would eventually become article 38(1)(c) ICJ Statute. The original draft of article 38 proposed by the Chair of the Advisory Committee, Baron Descamps, referred to ‘the rules of international law as recognised by the legal conscience of civilized nations’. This formulation suggests a more concrete category of norms – rules – derived from domestic systems, representing a departure from some earlier references to ‘principles of justice and equity’. In their discussion of Descamps’ draft, the members of the Advisory Committee debated the role that this third source of law would play and the powers that it would grant to the Court. Positions on the nature and operation of this source differed greatly, with a primary concern being the degree of discretion that would be given to the Court to develop international law. There was opposition to the idea that the Court could take an active role in the development of new international law rules in the absence of state consent, despite Descamps himself viewing the provision as a limit on such discretion. The formulation was changed into to its final form following a proposal by Root and Phillimore at the 15th Meeting of the Advisory Committee. Throughout the discussions of the Advisory Committee, there was broad agreement that the purpose of this provision was to make available to the Court a source of applicable law that could be relied upon in the absence of any applicable treaty or customary rules. The legal nature of general principles as a source of applicable law was apparent from the outset.

D. General Principles, Rules, and other Norms

The debates of the Advisory Committee on the formulation of the general principles provision point towards a more conceptual issue: that of the normative classification of general principles. From the initial starting point that general principles are a source of applicable law, questions arise as to how exactly these norms may be used. A central issue is whether general principles, in and of themselves, can be a source of obligations in international law. Further, following from the notion that general principles typically apply in the absence of treaties and custom, there is frequently a conflation between general principles and other categories of norms or concepts in international law.

On the question of whether general principles can be a direct source of obligation, the decision by the Advisory Committee to use the term ‘principle’ in place of the original ‘rule’ could suggest that general principles are different kind of norm, distinct from concrete rules of law. Indeed, there are authors who argue that general principles are broader and vaguer norms that do not impose direct obligations by provide a more general framework for the interpretation and application of rules and discretion to judges. In a similar vein, some would argue that general principles have natural law overtones and links to broader values or moral considerations. Conversely, some authors would argue that general principles, like the other sources of law, are capable of granting rights and imposing obligations. There are others, still, that view general principles as some sort of in-between; as a type of transitory norms between values and concrete rules or as a form of ‘inchoate custom’. Despite these contrasting positions, it seems clear that international courts and tribunals view themselves as being capable of recognising rights and obligations beyond treaties and customary law. A prominent example of this is the development of many procedural rules of international law, which courts and tribunals have frequently recognised as general principles owing to their presence in domestic law and foundation in certain established ‘legal maxims’.

Advanced: Rules and Principles in International Law

International lawyers will frequently debate whether something is actually part of international law; that is, whether it is a legal norm that regulates a given situation or dispute. In doing so, they deploy a range of terms to help delineate the different kinds of norms at play. ‘Rules’ and ‘principle’ are two of the most common such terms. While these terms may mean slightly different things to different people, and indeed the Court saw no relevance to the terminology at all in Gulf of Maine, these terms can be used to draw a distinction between concrete norms that impose rights and obligations (rules) and those that underlie the system and influence the interpretation of rules (principles). If such a distinction is accepted, it may be more accurate to describe general principles in the sense of article 38(1)(c) as a category of rules of international law.

As a category of norms of general international law, it can be a challenge to demarcate general principles from custom, as well as from jus cogens (Latin: 'peremptory norms') and other notions, such as values, equity, and justice. The distinction between general principles and custom can be particularly difficult to draw. Both are unwritten sources of (typically) general application. Further, it seems perfectly possible that there could exist customary rules and general principles that have similar or identical content, as has been recognised in the case of treaty and customary rules. Indeed, the ILC confirms this in its draft conclusion 11 on general principles, which reads:

1. General principles of law, as a source of international law, are not in a hierarchical relationship with treaties and customary international law.

2. A general principle of law may exist in parallel with a rule of the same or similar content in a treaty or customary international law.

3. Any conflict between a general principle of law and a rule in a treaty or customary international law is to be resolved by applying the generally accepted techniques of interpretation and conflict resolution in international law.

It has been suggested that general principles could have a supportive relationship to customary rules, aiding in their formation and interpretation. Yet, there are key differences in both the ascertainment and functions of custom and general principles. While custom is anchored in the practice and views of states, the formation of general principles involves a more pronounced role for courts and tribunals in the examination of domestic systems and notions of legal logic.

As for jus cogens, it was acknowledged by the Special Rapporteur on the topic that the reference to ‘general international law’ in article 53 VCLT includes general principles in the sense of article 38(1)(c) ICJ Statute. Indeed, the ILC expressed support for the idea that general principles of law could attain jus cogens status. Given the nature of established jus cogens norms as clear prohibitions on certain conduct, this could be seen as further evidence that general principles are a source of concrete rights and obligations. While there may be a relationship between general principles and the notion of jus cogens, it should be noted that the label ‘jus cogens’ denotes a certain elevated status that can be assigned to a norm, regardless of its source, and not a source of law in and of itself.

Finally, it seems that there is a close relationship between general principles and notions such as equity, justice, and the values of the international community. It is commonly recognised that there exist certain basic values upon which the international legal system is built, such peace and security, respect for human rights and humanity, and sustainable development. These broad values, it has been argued, may lead to the creation of general principles of law. There appears to be a significant degree of interaction between general principles and the broader values of the international legal system. Indeed, it seems logical that support for a general principle may be evidenced by its consonance with the basic objectives of the system as a whole and with fundamental ideas of legal logic.

E. Identifying General Principles

Turning now to the more practical question of how to identify a general principle. The text of the ICJ Statute itself provides little guidance on this matter. It is broadly agreed that the term ‘civilized nations’ should be discarded. Indeed, the ILC has confirmed that the phrasing ‘is anachronistic and should no longer be employed. In today’s world, all nations must be considered to be civilized.’ Going further, in a Separate Opinion in North Sea Continental Shelf, Judge Ammoun asserted that the term “is incompatible with […] the United Nations Charter”. Once the term ‘civilised nations’ is discarded, we are left with the requirement that a prospective general principle must be ‘recognised’. From this rather unhelpful starting point, two issues arise: (1) whose recognition is relevant? and (2) how can it be determined that there is sufficient recognition of a general principle?

I. Recognition by ‘the community of nations’

The issue of whose recognition is relevant for the identification of a general principles touches upon a fundamental question in international law, namely: is the creation of international law solely the prerogative of states? Indeed, traditionally, international law concerned solely states. It was states that were seen as the only participants in international law, becoming bound by an international rule only when they had given their consent to it. The ILC seemed to stay broadly in line with this position with its second draft conclusion, which reads: ‘For a general principle of law to exist, it must be recognized by the community of nations’. Before settling on the formulation “community of nations”, the ILC considered a number of terms, including “international community” and “international community of States”. The Commission explained that it adopted this phrase because of its use in article 15(2) of the ICCPR, which, because of the widespread membership of this treaty, signifies broad acceptance of this terminology. How this term will be interpreted and what significance will be attached to it is yet to be seen, but it is clear that this formulation seeks to maintain the position of states as central actors in the creation of international law.

Advanced: A Prominent Role for Courts and Tribunals?

Many accounts of general principles put courts and tribunals at the centre of their identification. As will be seen in the work of the ILC, the assessment of a prospective general principle involved the consideration of a broad range of potential pieces of evidence, from domestic law, to international instruments, to basic notions of legal logic and the foundations of the international legal system. In practice, it would seem that it would be for courts and trentals to make conduct this analysis. While it may be that many of these pieces of evidence can be traced back to states, it could be legitimately questioned whether it is not international courts and tribunals that (will) do much of the heavy lifting when it comes to the ascertainment of general principles of law.

II. Methodology for the Recognition of General Principles

Many of the ILC draft conclusions on general principles are concerned with the approach to be taken when identifying these norms. The approach set out by the Commission is predicated on an initial distinction between two categories of norms. According to draft conclusion 3, ‘General principles of law comprise those: (a) that are derived from national legal systems; (b) that may be formed within the international legal system’. This distinction between general principles derived from domestic law and those that develop on the international level is consonant with previous accounts of general principles of law, and the ILC differentiates between the approaches to the ascertainment of each of these categories.

1. General Principles Derived From National Systems

Similar to previous attempts, the ILC sets out a two-stage approach to this category of general principles. Draft conclusion 4 reads:

To determine the existence and content of a general principle of law derived from national legal systems, it is necessary to ascertain:

(a) the existence of a principle common to the various legal systems of the world; and

(b) its transposition to the international legal system.

The first of these steps is anchored in the idea that comparative law serves as a foundation for the ascertainment of general principles in international law. With such a requirement, issues arise as to the scope and content of such an analysis. The ILC seeks to provide some guidance on this in the next draft conclusion, which explains that:

1. To determine the existence of a principle common to the various legal systems of the world, a comparative analysis of national legal systems is required.

2. The comparative analysis must be wide and representative, including the different regions of the world.

3. The comparative analysis includes an assessment of national laws and decisions of national courts, and other relevant materials.

In its explanation of this draft conclusion, the Commission explains that the comparative assessment need not involve the examination of every legal system of the world. Instead, the ILC proposed a more ‘pragmatic’ approach involving consideration of a representative sample of both the ‘different legal families and the regions’ of the world. Indeed, such an approach would be a welcome departure from the practice of courts and tribunals when engaging in comparative law, as there has typically been reliance on just a handful of predominantly European legal systems. It is of course crucial that a norm of general application find broad support in a range of legal traditions and different parts of the world.

Following the ILC’s approach, it is not sufficient to merely identify a norm common to domestic legal systems. Indeed, as was noted in the South West Africa Advisory Opinion, rules of domestic law are not transposed ‘lock, stock and barrel, ready-made and fully equipped’ into international law. Therefore, there is an additional step of transposition into international law. According to the ILC, ‘[a] principle common to the various legal systems of the world may be transposed to the international legal system in so far as it is compatible with that system’. In order to determine this compatibility, the Commission sets out that a prospective general principle must be compatible with the fundamental principles of international law, such as sovereignty or basic principles in certain fields like law of the sea. Further, the ILC explained that it is necessary that ‘the conditions exist to allow the adequate application of the principle in the international legal system. This serves to ensure that the principle can properly serve its purpose in international law, avoiding distortions or possible abuse’. This requirement seems logical given the fundamental differences in the nature and structure of international law – as a decentralised and horizontal legal system – when compared with national systems.

2. General Principles Formed Within the International Legal System

When it comes to the identification of general principles with origins in the international legal system, the ILC states that ‘it is necessary to ascertain that the community of nations has recognised the principle as intrinsic to the international legal system’. In its Second Report, the Commission explained that a general principles may be seen as intrinsic to the international legal system if (1) it is widely recognised in treaties and other international instruments, (2) it underlies a general treaty or customary rule, or (3) it is inherent in the basic features and fundamental requirements of the international legal system. The first two of these indicate a close relationship between general principles and the other sources listed in article 38 ICJ Statute, suggesting that the repeated reference to a norm in treaty law or custom can in turn create a general principle. As for the final alternative, the ILC provided examples such as uti possidetis juris (Latin: ‘as you possess under law’) or the requirement that states consent to jurisdiction.

As can be seen from the work of the ILC, evidence for the existence of a general principle can be found in a range of different instruments and other sources. Further, in its draft conclusions, the ILC specifically reiterated the role of the subsidiary means – judicial decisions and academic teachings – in the determination of general principles of both categories.

F. The Functions of General Principles

Already at the drafting stage of article 38, it was suggested that general principles would have primarily a role to play where there was no applicable treaty or customary rule. This ‘gap-filling’ function is also a prevalent feature of scholarly accounts on general principles. Indeed, in its first draft conclusion on the matter the ILC explains that ‘[g]eneral principles of law are mainly resorted to when other rules of international law do not resolve a particular issue in whole or in part’. The Commission confirmed that this ‘essential function’ of general principles was to avoid situations of non liquet (Latin: ‘it is not clear’).

In addition to this, the ILC emphasised that general principles contribute to the coherence of the international legal system, a function that has also been advanced in literature. The Commission elaborated that general principles, ‘may serve, inter alia: (a) to interpret and complement other rules of international law; (b) as a basis for primary rights and obligations, as well as a basis for secondary and procedural rules’. The first of these functions seems to follow logically from the references to the links between general principles and the other sources of law in the context of ascertainment. In this regard, the ILC makes explicit reference to the rules of systemic interpretation referred to in article 31(3)(c) VCLT, confirming that this provision’s reference to ‘rules of international law’ includes general principles. Finally, the ILC’s confirmation that general principles can form a basis for both primary and secondary rules is consonant with the aforementioned legal nature of general principles as source of international law. It should be noted that it is in the development of secondary procedural rules that general principles have been identified as the most relevant. Scholarly accounts of general principles couple them with ‘international due process’ and ‘procedural’ norms, and international practice confirms that courts and tribunals most frequently make reference to general principles when attempting to answer a procedural question not covered by treaty or customary rule.

Example for Pushing the Boundaries of International Law – Judge Cançado Trindade: The recognition that general principles can serve as a basis of primary rules indicates significant potential for general principles as a means to expand and modernise the international legal system. If courts and tribunals, particularly the ICJ, embrace this function, it could be that general principles of law serve as a basis of rights and obligations where treaty law and custom do not. The late Judge Antonio Augusto Cançado Trindade was a prominent advocate for such a rule of general principles, explaining that these norms could serve as a basis for the progressive development of international law to meet contemporary global challenges such as climate change and the protection of human rights.

G. Conclusion

This chapter has provided an overview of the basic conceptual aspects of general principles as a source of international law, in light of ongoing debates about their place in the international legal system. It is clear that general principles are a recognised source of international law and that there are many potential instruments and concepts that can be consulting during their ascertainment. It remains to be seen what exactly the full potential of these norms will be, but there is scope for greater reliance on general principles to enhance the functioning of the international legal system as a whole.

Summary

• General principles of law are recognised, alongside treaties and customary law, as a source in article 38(1)(c) ICJ Statute.
• The debate on general principles has intensified since being included on the ILC’s programme of work in 2017. The ILC has produced three reports and a set of draft conclusions on general principles.
• It is commonly argued that there is a distinction between general principles that arise from domestic law and those that emerge in the international legal system. The ILC proposes a different approach to ascertainment for these two categories.
• The principal and established function of general principles is to fill gaps in the law left by treaties and custom. Other functions, include fostering coherence in international law and developing (primarily) procedural rules of law.

Further Reading

• M Andenas, M Fitzmaurice, A Tanzi and J Wouters (eds), General Principles and the Coherence of International Law (Leiden: Brill/Nijhoff, 2019).
• B Cheng, General Principles of Law as Applied by International Courts and Tribunals (Cambridge: CUP, 1953).
• C Eggett, “The Role of Principles and General Principles in the ‘Constitutional Processes’ of International Law” (2019) 66(2) Netherlands International Law Review 197.
• I Saunders, General Principles as a Source of International Law: Article 38(1)(c) of the Statute of the International Court of Justice (Oxford: Hart, 2021).

Footnotes

Author: Lucas Carlos Lima, Raffaela Kunz, Bernardo Mageste Castelar Campos

Required knowledge:

§2.2. Consent §2.3 Enforcement § 6 Sources § 6.1.Treaty Law § 6.2. Customary International Law § 5 Interactions

Learning objectives: Understanding the secondary sources of international law as listed in Art. 38 of the ICJ Statute; understanding the sources beyond Art. 38 of the ICJ Statute and their function; understanding the role the normative production of non-state subjects - such as international organizations - as sources of international law; understanding the role of soft law and scholarly production on the development of international law.

A. Introduction

Besides treaty law, customary international law and general principles of law, Art. 38 of the ICJ Statute in a further sub-paragraph lists "subsidiary means of international law", namely judicial decisions and "the teachings of the most highly qualified publicists of the various nations". The word "subsidiary" has been interpreted by most authors as meaning that judicial decisions and teachings are not formal sources themselves, but rather serve as evidence of the existence of the three formal sources. In light of this, it has been argued that the term "auxiliaire" used in the French version more adequately describes the function of jurisprudence and doctrine. Rather than providing guidance in a subordinate way if the formal sources give no clear answer, these two means serve as tools to elucidate the existence of norms of international law.

However, it is recognized today that the distinction between formal sources and subsidiary means is not as clear-cut as it might seem. For example, while judicial decisions are only listed as "subsidiary means", it is becoming increasingly recognized that in light of the indeterminacy of the law, international norms only come to life once interpreted by courts. Indeterminacy not only refers to the fact that international legal obligations are often phrased in vague terms, leaving room for divergent interpretations. More fundamentally, language as such is indeterminate, and meaning is only established through interpretation. In this sense, judicial decisions undoubtedly play a considerable role in the clarification and thus also the making of formal international law.

It is well-established today that the "list" contained in Art. 38 of the ICJ statute is not conclusive and that further sources of law beyond Art. 38 exist. This is especially the case for soft law, which plays an ever greater role in today's globalized and multi-polar world order. Also acts of international organizations, so-called "secondary law", are increasingly relevant. Besides these sources, unilateral declarations have come to be recognized as further sources beyond Art. 38 ICJ Statute.

B. Subsidiary Statutory Sources (Art. 38(1)(d) ICJ Statute)

I. Judicial Decisions

1. Judicial Decisions as sources of law

When an international court or tribunal renders a judicial decision, it becomes binding upon the parties to the dispute. While the bindingness of a specific judicial decision can be traced to the consent given by the parties to the adjudicative body, the general obligation to respect judicial decisions stems from the pacta sunt servanda principle. In this sense, an international judicial decision creates lex inter partes (law between the parties). The extent to which that decision is capable of creating law for the community as a whole is open to discussion. Since international judicial decisions are currently an unavoidable part of the judicial legal system and might perform distinct functions within different legal regimes (e.g. trade law, human rights law, international criminal law), it is not possible to generalize the role of decisions as sources of international law. As a member of the International Law Commission aptly put it “[t]he weight of judicial decisions and scholarly works vary, depending on the tribunal and relevant field of international law.”

To understand the role international judicial decisions play in the international legal order, this section shall investigate the role relegated to them in the Statute of the International Court of Justice and other normative international instruments (2.); how international courts employ judicial decisions in their reasoning (3.); the way in which the International Law Commission employs international judicial decisions in its recent projects to identify sources of international law (4.) and; finally discuss the existence of the rule of precedents in international law (5.).

2. The normative approach of Art. 38, 1., d) of the ICJ Statute: subsidiarity in relation to other sources.

The Advisory Committee of Jurists responsible for drafting the Statute of the Permanent Court of International Justice had to face the question of which position judicial decisions should occupy. Baron Descamps’ proposal to include “international jurisprudence as a means for the application and development of law” as applicable law was ruled out and, instead, judicial decisions were put together with the teaching of publicists in a secondary position.

Article 38(1)(d) of the Statute of the International Court of Justice prescribes that the Court, whose function is to decide in accordance with international law, shall apply judicial decisions as subsidiary means for the determination of rules of law. Additionally, the subsidiary application of judicial decisions in relation to the other three main sources envisaged in Article 38 (treaties, custom and principles) is subject to the provisions of Article 59, which sets forth that the decision of the Court “has no binding force except between the parties and in respect of that particular case".

In a legal order predominantly characterized by decentralized methods of normative production, it is not surprising that judicial decisions occupy a prominent place of importance, despite its subsidiary place in Article’s 38 order. While it is true that “the Court, as a court of law, cannot render judgment sub specie legis ferendae, or anticipate the law before the legislator has laid it down”, on several occasions judicial decisions might be influential in shaping the law in a certain field.

The expression “judicial decision” present in Article 38 has been broadly interpreted. While, in the past, the predominance of the International Court of Justice has prompted a debate on the weight of its decisions, the multiplication of international courts and tribunals has added layers to the debate. Moreover, it seems to be an agreed interpretation of that rule that it also comprises decisions rendered by municipal courts to the extent that they are “subsidiary means for the determination of rules of law”. As we shall examine later, decisions of municipal courts are particularly relevant as an element of state practice, one of the two elements of customary rules.

Much has been written on the importance of Article 38(1)(d) of the Statute of the International Court of Justice to frame the debate on the importance of judicial decisions as sources of international law. Other normative indications can be hardly found in the rules of other international courts and tribunals. A rare exception is Article 21(2) of the Rome Statute of the International Criminal Court, which establishes that “the Court may apply principles and rules of law as interpreted in its previous decisions”. While a more flexible rule in comparison with Article 38(1)(d) of the ICJ Statute, Article 21(2), which is a much more recent rule, also puts emphasis on the fact that the previous decisions are interpreters of rules and principles and not sources per se. Nonetheless, this normative indication reveals a trend within international courts and tribunals: the importance that previous judicial decisions possess in relation to the own case-law of a court and tribunal.

While this lacking normative guidance on the role of decisions reinforces the subsidiary character of judicial decisions as mere tools in the identification of the more classic rules of international closely associated to the consent of States (treaties, customary law, principles), this perception might be wrong. The multiplication of judicial instances and their different functions in international society might suggest otherwise. As put by an author, “there has long been no room for doubt that international law has become very much a case law.”

There has even been some scholarly discussion concerning whether judicial decisions are formal sources of international law. The answer varies according to one’s own conception of the legal field. While to some a negative answ<!er is easily defensible, more nuanced approaches such as “quasi-formal” sources might appear, with different degrees of normativity being attributed to judicial decisions, depending on the field in which they appear. Less discussable is the fact that judicial decisions might be highly authoritative within the international legal discourse. Treaties, custom and general principles, when interpreted or applied by international courts, can create obligations to States and other subjects of international law. Unless action is taken to the contrary, the application or interpretation of a rule made by an international court tends to assume the more recent understanding of such a rule. While States, International Organizations and other subjects might disagree with a judicial decision, it is binding upon the parties and serves as a guide to the other members of the community as the most appropriate way to perceive the rule. 

3. Judicial decisions in the practice of international courts and tribunals

3.1. Do international tribunals use judicial decisions authoritatively?

An important field of observation to understand the authority of judicial decisions is international litigation. In other words, a good means for identifying the legal value of judicial decisions is to observe the importance attributed to them when a court or tribunal settles a dispute between subjects of international law. Other indications may be equally important. For instance, evaluating the influence or impact of a certain judicial decision in the work of codification performed by the International Law Commission, the practice of States, or eventually how certain decisions were transformed into treaty law. An illustrative example in this regard can be found in the field of the Law of the Sea, in which the International Court of Justice was considerably influential in some areas such as maritime delimitation. Be that as it may, it is not always possible to identify areas which clearly developed an account of judicial decisions. Given that international courts and tribunals are often called upon to apply international law, the use of international decisions by international courts can be a relevant indication of the value of their authority. There could even be instances where judicial decisions exert more subtle, informal influence on the legal field, irrigating debates or forming a repository of arguments that become unavoidable to understand the develoment of a certain field of international law.

A perusal on the jurisprudence of international courts will reveal the tendency of judicial bodies to refer authoritatively to their previous decisions. They do so either to reinforce the interpretation of a given rule or as a shortcut to the legal reasoning previously espoused. In both cases, the court or tribunal contributes to the consolidation of such a rule, apart from the possibility of developing the content of the law.

The high reference to its own jurisprudence by international courts, and in particular to the International Court of Justice, raised the question of the existence of the rule of mandatory precedent, the rule of stare decisis, as one of the rules of the international legal order. However, in the current state of international law, there do not seem to be any elements that confirm the existence of this rule. International courts and tribunals are not bound to follow their own decisions. Despite this, the International Court of Justice has adamantly recognized in 2015 that

“To the extent that the decisions contain findings of law, the Court will treat them as it treats all previous decisions: that is to say that, while those decisions are in no way binding on the Court, it will not depart from its settled jurisprudence unless it finds very particular reasons to do so”.

This passage is revealing for at least three reasons. First, it seems to confirm that is not the decision per se that constitutes a source, but the “findings of law” that it renders. Second, the Court confirms the non-existence of the stare decisis rules since the decisions are “in no way binding”. At the same time, the Court seems to establish a presumption that its previous decisions will be followed if there are no compelling reasons that lead it to diverge from its past decisions. This presumption can be justified on different grounds. On the one hand, there is the assurance to future litigants that similar situations will be treated similarly. Such approach reaffirms important legal values ​​such as predictability, clarity and, to a certain extent, uniformity and consistency of international law. Overall, the protection of these values ​​reinforces the legitimacy of an international court and the perception that the equality of the parties is fully preserved. This might be a good explanation why different international courts follow a similar path of self-reference and reverence to their previous decisions or even decisions of other international courts.

3.2. Is there a distinction in legal value between decisions of international courts?

Although the presumption that decisions of international courts will be relied upon in the future, unless particular reasons prompt the court or tribunal to go a different direction, some questions emerge from this practice of self-reference regarding previous decisions. A first question is whether all judicial decisions have the same impact on the international legal order. A second question regards the contribution of decisions of international courts to shaping the specific field where they are situated.

Since every international court and tribunal was designed with a unique purpose and according to specific contextual and social needs, the decisions they render do not carry the same weight. In this regard, there appears to exist a presumption that a certain tribunal's first duty is to pay tribute to its own case-law before looking beyond its premises. Nonetheless, recent times have witnessed a greater use of external precedents by international courts, a phenomenon frequently called as cross-fertilization. The reference to the case law of other courts seems to obey a logic of speciality, meaning that the specific function of a judicial body places it in a privileged position for the identification, application and interpretation of certain rules. In this regard, the International Court of Justice has observed that

"[w]hen the court is called upon […] to apply a regional instrument for the protection of human rights, it must take due account of the interpretation of that instrument adopted by the independent bodies which have been specifically created, if such has been the case, to monitor the sound application of the treaty in question."

The speciality criteria can illustrate why certain courts refer to others. It offers a presumption of unity in the international legal system. Even though each international court and tribunal remains the master of its own case-law' interpretation, other judicial bodies are free to resort to "external" jurisprudence in order to decide the disputes they are called to. It is no overstretch to affirm that the phenomenon of cross-fertilization has acted as a counterforce to the tendencies of fragmentation in international law, since it is highly capable of promoting harmony between international courts on very specific and often contentious issues. Earlier jurisprudence of a given tribunal may inform future judges of other courts when deciding disputes involving similar factual backgrounds or the ascertainment and interpretation of the same norms. A clear example is the use of regional human rights courts' case law by the International Court of Justice when it is called on resolve disputes relating to human rights. In these situations, the findings of the "external" case-law are applied directly as a secondary source of international law, i.e. as authoritative statements of what the law is.

Finally, not only substantive issues are liable to be the object of cross fertilization between courts and tribunals, but also procedural ones. Procedural practices or principles regarding the delimitation of jurisdiction, the conduction of ancillary proceedings or the behavior of the parties are often developed by international courts and tribunals through case-law, to the extent the whole of the procedural rules guiding their activities cannot be found in their constitutive statutes. This situation reveals not precisely the import of legal "findings" of an external case-law, but a recognition of certain judicial practices as legal rules binding the court given their compatibility with statutory norms and other sources of procedural law (rules of procedure, for instance).

It continues.

4. Decisions of Municipal Courts

Paragraph 1 (d) of Article 38 of the Statute of the ICJ does not differentiate between decisions of international courts and municipal courts as subsidiary means for determining the rules of international law. As mentioned in Section B, judicial decisions in general may be considered as a subsidiary source of law and as means for the identification of other sources of law. Although those two characterizations may be recognized both concerning decisions of international courts or tribunals and decisions of municipal courts, there are some particularities of the latter which may be observed in considering them as sources of international law.

4.1. Decisions of Municipal Courts as Subsidiary Sources of International Law

As explained in Section 2, judicial decisions may act as a formal source of law creating international obligations for different actors depending on one’s conception of the legal field. Although there are debates regarding the possibility of recognition of decisions of international courts as formal sources of international law, this possibility increasingly reduces regarding decisions of municipal courts due to their national rather than international character. Contrary to decisions of international courts, those of municipal courts can rarely create obligations binding other States and international organizations, partly due to the rules of immunity (see immunity chapter).

On the other hand, decisions of municipal courts may act as formal sources in two situations. In the first situation, decisions of municipal courts may be binding regarding other actors of international law, such as individuals, non-State actors, movements of national liberation and transnational companies. In certain cases, national courts found that obligations under international law were attributable to such actors. Therefore, decisions of municipal courts may have different degrees of normativity or authority in international law. In the second situation, decisions of municipal courts may be considered both as forms of State practice and forms of evidence of acceptance as law (opinio juris) in the identification of a customary rule of international law. In this situation, the municipal decision would not be a formal source per se, but part of the elements of the formation of a customary rule of international law which may be considered together with other elements.

In the Jurisdictional Immunities of the State case of 2012, the International Court of Justice considered that judgments of national courts would have particular significance in order to determine the existence of an international custom conferring immunity on States and the scope and extent of such rule. Such decisions were not analysed alone but considered together with statements made by States in the International Law Commission and during the adoption of the Convention on Jurisdictional Immunities of States and Their Property as relevant State practice.

In addition, decisions of municipal courts might also be authoritative within the international legal discourse in several areas. For instance, cases such as the Schooner Exchange (1812) of the United States Supreme Court, Reference Re Secession of Quebec (1998) from the Supreme Court of Canada, and In Re Pinochet (1999) from the House of Lords of the United Kingdom are often mentioned in the legal literature to refer respectively to exceptions to the rule of sovereign immunity, the content of the right of self-determination, and the existence of universal jurisdiction.

4.2. Decisions of Municipal Courts as Means for the Identification of Other Sources of Law

Judicial decisions may also be considered as means for the identification of other sources of law, acting as material sources. This is the case of the identification of customary rules of international law. As recognized by the ILC in Draft Conclusion 13 on the identification of customary international law adopted in 2018, decisions of national courts might be useful as a subsidiary means for determining the extent and content of rules of customary international law. A similar role is found regarding the determination of the existence and content of general principles of law, as recognized by the draft conclusions adopted provisionally by the ILC on the matter in 2023. This is not the same thing as to affirm that decisions of municipal courts are able to "create" international law. Rather, they are vehicles to necessary elements for the recognition of customary law - state practice and opinion juris - and, as a consequence, they can contribute to the identification of an emergent rule of customary nature if their content resonates other samples of practice which, in toto, amount to sufficient consensus concerning its legal character. The role of decisions of municipal courts is even further enhanced when it comes to the identification of general principles of law, since their very conceptual framing encompasses the "recognition" by municipal legal orders. In other words, general principles of law are principles recognized in virtually all municipal legal systems - such as res judicata, estoppel or good faith - and, because of their general recognition by municipal courts , they are also recognizes as sources of international law.

The relevance of the role of decisions of domestic courts in the identification of rules of customary international law is inferior to those given to the decisions of international courts. According to the ILC, this occurs because:

National courts operate within a particular legal system, which may incorporate international law only in a particular way and to a limited extent. Their decisions may reflect a particular national perspective. Unlike most international courts, national courts may sometimes lack international law expertise and may have reached their decisions without the benefit of hearing argument advanced by States.

In this sense, priority is given to decisions of international courts over decisions of municipal courts in the determination of the existence of an international custom. In the Lotus case, for example, the Permanent Court of International Justice only considered decisions of domestic courts after recognizing that there were no international decisions to assist in the recognition of the existence of an international norm dealing with the criminal jurisdiction of States in cases of collisions in high seas.

A different weight is given in the determination of the existence and content of general principles of law common to the various legal systems of the world. The assessment of decisions of national courts is considered part of the comparative analysis of national legal systems necessary to determine the existence of a general principle of law. Nevertheless, as recognized by Draft Conclusion 5 on general principles of law adopted provisionally by the International Law Commission in 2023, this element should be considered together with the assessment of national laws and other materials.

There is also differences between different types of decisions of municipal courts. Decisions of higher courts which may be considered final may have greater weight than decisions of lower courts in the identification of other sources of law. In the Arrest Warrant case, for instance, the ICJ analysed specifically decisions of national higher courts, such as those of France and the United Kingdom, as State practice in order to consider the existence of exceptions to the immunity from criminal jurisdiction to Ministers of Foreign Affairs, together with national legislation.

II. Teachings of the Most Highly Qualified Publicists

Art. 38(1)(d) lists "the teachings of the most highly qualified publicists of the various nations" as second subsidiary means to identify the content of international law. Today rather than the word "publicists", the term "scholar" would be used. Often, the literature makes a clear-cut distinction between law-making and scholarly writing. In this view, the role of those writing about international law, as opposed to those making the law, is limited to systematizing and providing a better understanding of the law. As one scholar put it, "(i)t is obviously not a question of 'doctors' dictating the law, but of their influence on its better understanding."

Yet, in reality, the line between law-making and scholarly writing – and in general, between formal and informal sources of international law – is probably not as clear-cut. It is true that today scholars do not hold anymore the place they held historically. In times when the formal sources of international law were much less well documented, scholars played a central role in gathering legal materials, and by doing so arguably also in separating between the law and the non-law. With the increasing availability of state practice and legal materials in other ways, this role became much less relevant.

Nonetheless also today the influence of scholars on international law should not be underestimated. This might be particularly obvious in newer or evolving fields of international law, such as the law applicable to cyberspace, where many legal questions are unsolved and courts and other actors applying the law thus turn to the existing literature for guidance and clarification. Another example of the influence of scholars is when they act in collective bodies and expert groups, sometimes even with a mandate by states. A famous case in point is the International Law Commission (ILC), established by the UN General Assembly, whose task is "the progressive development of international law and its codification" (Art. 1 of the statutes of the ILC). According to Art. 2(1) of its statutes, the ILC shall consist of "persons of recognized competence in International law", which in practice has often included scholars. Some of the work done by the ILC has proven to be highly authoritative and influential, such as the famous Articles on the Responsibility of States for Internationally Wrongful Acts which today provide the starting point for most discussions on state responsibility. Examples of non-state sponsored expert groups who proved to be highly authoritative include the group who drafted the San Remo Manual on International Law applicable to Armed Conflicts at Sea or more recently the Tallinn Manual on the International Law Applicable to Cyber Warfare, and the so-called Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations, published in 2013 and 2017, respectively.

Time and again attempts were undertaken to "measure" the influence of scholars on international law. One method to do so is to look at citations by international courts. However, this method is not particularly reliable. For example, the International Court of Justice only rarely cites scholarly writings, but there is broad agreement that the influence of scholars on the "World Court" is greater than it appears. The same is certainly true for other courts and institutions. More important than the direct reception, citation and influence of scholarship are the manifold indirect ways in which scholars shape and contribute to international law. This begins in the classroom where scholars teach future practitioners, but scholars certainly also exert a certain influence by criticizing, systematizing and ordering the body of international law – a role that has been described as one of "grammarians" within the international legal system.

In light of the relevance of scholarly writings in the creation of International law, it is increasingly being seen as problematic that scholars situated in the West dominate the international legal discourse. While this is particularly obvious when looking at the history of international law, in which the dominant jurists were nearly exclusively European (see history chapter), this still holds true today. The most renowned publishers and journals undoubtedly are European or American. Anthena Roberts has empirically shown that Western (and in particular Anglo-American) institutions and publication outlets such as journals and textbooks dominate the international legal discourse. She not only concludes that Oscar Schachter's famous description of the professional community of international lawyers as "invisible college of international lawyers" is inaccurate, but even fundamentally puts into question whether international law is truly international, as the title of her book suggests. In this sense, the claim to decolonize the knowledge production is not only a historical endeavor with the goal to lay bare the colonial legacies of the accumulated knowledge, but also pointing to the asymmetries in the system of knowledge production continuing until today.

C. Sources Beyond the ICJ Statute

I. Soft Law

Introduction

The term "soft law" refers to those norms in the international legal order that lack legal bindingness. It thus not only falls outside of the category of Art. 38 of the ICJ statute; it seems to fall outside of the category of law as such. Yet, it is undeniable that soft law does have a function and role in today's international order - and arguably increasingly so. According to a narrow definition, soft law can only emanate from subjects of international law, whereas a wider definition also includes instruments such as codes of conducts from actors with not entirely clear status, such as corporations or NGOs (see subjects and actors chapter). Examples are numerous and include non-binding recommendations and resolutions of International Organizations, including the resolutions of the UN General Assembly, and codes of conduct adopted by states or International Organizations, such as the UN Guiding Principles on Business and Human Rights.

Legal effects

Despite lacking legal bindingness stricto sensu, it is well recognised that soft law has certain legal effects.

Legal effects. Certain legal effects - states can not invoke the principle of non-intervention; issue areas regulated by soft law do not fall anymore in the "domaine réservé" of states. Furthermore guideline for interpretation; evidence of opinio iuris?

Importance beyond legal effects

However, there is today broad agreement that norms can have normative value and effects without being binding in a strict sense. An important point of

Functions: somewhat a compromise between the need to regulate behavior and state sovereignty (MPEPIL par. &); less costly for states; first step on the way to "hard" law; adaptation of international law to new developments. More flexible than hard law and easier to achieve. However, see against the progress narrative: Alonso Gurmendi Dunkelberg, Soft Law in Jus in Bello and Jus ad Bellum: What Lessons for Business & Human Rights?, 114 ajil unbound 174 (2020).

categories: resolutions, inter-state agreements expressly excluding binding force

II. Acts of International Organizations

1. Acts of International Organizations as a Distinct Source of International Law

Acts or resolutions of international organizations are often listed among possible sources of international law besides the traditional categories of sources recognized by paragraph 1 of Article 38 of the Statute of the International Court of Justice. This consideration reflects the growing importance of the activities and acts emanated from international organizations (see section 'International Organizations'). New procedures of collective action within the framework of international organizations have been developed by the international community in an approach similar to the law-making process of domestic law. Such procedures usually involve a new regulatory approach which goes beyond the traditional law-making process recognized by international law.

For instance, the UN Security Council seems to have adopted a new form of procedure creating general obligations for all States in order to prevent the commission or the financing of terrorist acts, as observed in Resolution 1373 (28 September 2001). This procedure departs from the organ’s traditional powers by not being limited to a concrete situation and has its acceptance explained by the international context of the fight against acts of terrorism caused by non-State actors. The normative force and legitimacy of such kind of act must be understood considering elements such as the activity regulated, the actors involved and the power structures behind it, aspects analysed by the global administrative law.

It would be possible to consider, therefore, that a new way of creating international rules beyond the classic means could have emerged from the operation of international organizations, especially the United Nations. On the other hand, such characterization presents some problems.

1.1 Acts of International Organizations as Formal Source of International Law

Acts of international organizations may be considered as a formal source of rights and obligations depending on the actor concerned. Despite the plurality of the classification of legal instruments that international organizations are empowered by their constitutive instruments to adopt, it is possible to differentiate two general types of acts emanated from international organizations regarding their addressees. The first type of instrument consists of acts which are created by organs of the organization usually directed to States or other organizations, therefore having a subject external to the structure of the organization. Such acts may be recommendations, declarations or decisions with binding force or not. The second type of instrument is composed of measures adopted internally by organs of the organization in the fulfilment of their functions as established by the constitutive instrument, determining for instance the budget of the organization, the creation or composition of an organ and other procedural aspects. They are addressed mainly to organs or agents that are internal to the organization’s structure and do not concern inter-State relations. As this second type of act may establish rights and obligations in the internal law of organizations for different organs, individuals and entities, it may be considered a formal source of law for such actors. This is the case of the decisions of the United Nations Dispute Tribunal, which are binding upon the parties of disputes opposing individuals and the UN Secretary-General or a specialized agency.

Regarding the first type of instrument, it is possible to question whether resolutions of international organizations may be considered as a distinct formal source of international law creating legal obligations for the parties concerned (see section 'the Concept of a 'Source' of International Law', subsection 'Categories of Sources?'), since such acts usually have their legal force based on the provisions of the constitutive treaty of the international organization. Member States are obliged to comply with binding resolutions by virtue of an obligation assumed through the constitutive treaty of the international organization, not because such resolutions create direct obligations for them. This is the case of decisions of the UN Security Council based on Article 25 and Chapter VII of the UN  Charter and some acts emanating from the European Union based on Article 288 of the Treaty on the Functioning of the European Union. In this sense, it could be argued that the normative force of resolutions of international organizations is linked to conventional obligations created by treaties, a traditional source of international law.

It is claimed that the UN Security Council on some occasions had adopted a sort of 'law-making procedure' by imposing general obligations to all UN Member States regarding specific matters. In general, the organ adopts decisions binding on the UN Member States which are instrumental to deal with a situation characterized by it as a threat to the peace, a breach to the peace or an act of aggression, according to Article 39 of the UN Charter.

Example for Regular Resolution of the UN Security Council: The Security Council recognized in Resolution 1973 (17 March 2011) that the situation in Libya constituted a threat to international peace and security and decided to adopt binding measures such as the obligation of the Member States to freeze the assets of Libyan authorities and not to allow any aircraft owned or registered in Libya to overfly their territory.

Nevertheless, the Security Council seem to have imposed on the Member States obligations of abstract nature in some resolutions which are not limited to a particular situation or dispute.

Example for Resolutions of the Security Council establishing General Obligations for UN Member States: The above-mentioned Resolution 1373 (28 September 2001) sets out general obligations for States concerning international terrorism and contains obligations under specific international treaties, in particular the obligations to suppress terrorist acts and the financing of terrorist acts established by the Convention for the Suppression of Terrorist Bombings (1997) and by the Convention for the Suppression of the Financing of Terrorism (1999). Similarly, Resolution 1540 (28 April 2004) contains obligations which may also be found in the Treaty on the Non-Proliferation of Nuclear Weapons (1968), the Biological Weapons Convention (1972) and the Chemical Weapons Convention (1993). By Resolution 2396 (21 December 2017) the Security Council establishes the obligation of Member States to adopt measures according to the International Civil Aviation Organization (ICAO) standards and recommended practices on the treatment of passenger data.

In such cases, the Security Council appears to impose on Member States obligations that are found in conventions to which they have not necessarily expressed their consent. Since such obligations have general application and are not limited to a particular situation or dispute, they appear to have been the result of a law-making process by the Security Council. Yet in this case, the resolutions do not act as formal sources of obligations since their binding force is based on the action of the Security Council under Chapter VII of the UN Charter, although their legality in relation to the Charter and the powers of the Security Council may be questioned.

1.2 Acts of International Organizations as Material Source of International Law

It is also possible to consider resolutions of international organizations not as a formal source of obligations but as evidence of the existence of an international rule, since the consent by States parties to a resolution may indicate that a given provision is understood to be a norm of customary international law. In this case, resolutions of international organizations may function as a material source of international law (see section 'the Concept of a 'Source' of International Law', subsection 'Categories of Sources?').

Resolutions of the UN General Assembly are occasionally analysed by the International Court of Justice in order to determine the existence of a rule of customary international law. The Court considered that although not binding, UN General Assembly resolutions ‘may sometimes have normative value’ since they ‘can, in certain circumstances, provide evidence important for establishing the existence of a rule or the emergence of an opinio juris’.  Such an approach was adopted in the Nicaragua case of 1986, in which the consent of the United States and Nicaragua to UN General Assembly Resolution 2625 (24 October 1970, establishing the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the UN Charter) was understood by the Court as an acceptance of the validity of the rules declared by the document.

Although not formally binding on its Member States, resolutions adopted by the UN General Assembly are sometimes considered to reflect legal rules of international law due to the almost universal representation of the international community of States in the organ. This is the case of the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the UN Charter contained in Resolution 2625 (24 October 1970) and several ‘declarations’ adopted by the General Assembly recognizing certain principles applicable to a specific matter, such as those contained in Resolution 217A (10 December 1948, establishing the Universal Declaration of Human Rights), Resolution 1514 (14 December 1960, establishing the Declaration on the Granting of Independence to Colonial Countries and Peoples) and Resolution 1962 (13 December 1963, establishing the Declaration of Legal Principles Governing the Activities of States in the Exploration and Uses of Outer Space).

2. Acts of International Organizations and other Sources of International Law

Resolutions of international organizations may also relate to other sources of international law. Firstly, such acts can contribute to the development or consolidation of customary rules of international law. In the Advisory Opinion concerning the Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965 the ICJ understood that although formally a recommendation, UNGA Resolution 1514 (XV) establishing the Declaration on the Granting of Independence to Colonial Countries and Peoples ‘has a declaratory character with regard to the right to self-determination as a customary norm’ and clarified the content and scope of the right to self-determination, representing a ‘defining moment in the consolidation of State practice on decolonization’. Secondly, resolutions may also be relevant in the interpretation of international treaties and even constitute subsequent practice for the purpose of treaty interpretation. In the Whaling in the Antarctic case, for instance, the ICJ considered that resolutions from the International Whaling Commission may be relevant for the interpretation of the International Convention for the Regulation of Whaling when adopted by consensus or by a unanimous vote, even not having a binding effect.

3. Acts of International Organizations beyond the Concept of Legal Source of Rights and Obligations

The classic definition of sources of international law may be insufficient to apprehend the legal significance of acts of international organizations to international law as they can hardly be considered as an independent category of sources of international law for not being able to create autonomously rights and obligations for States. Traditionally, it is recognized that acts of international organizations usually are the result of a political compromise that does not intend to create legal obligations by itself. This understanding is shared by the practice of the ICJ, which often rejects the claim that resolutions create legal obligations for States that consent to them. For instance, in the Nicaragua case, the Court rejected the claim that a resolution of the Meeting of Consultation of Ministers for Foreign Affairs of the Organization of American States had established a legal undertaken for Nicaragua regarding its domestic policy. In the case concerning the Obligation to Negotiate Access to the Pacific Ocean of 2012, the Court rejected the claim that resolutions adopted by the General Assembly of the Organization of the American States had created a legal obligation for Chile to negotiate Bolivia’s access to the Pacific Ocean, even if adopted with its consent.

Nevertheless, the legal importance of resolutions of international organizations goes beyond the legal effects traditionally assigned to them. Often such acts affect the behaviour of States and other international actors even without the establishment of legally binding rules, which may be observed in the context of the role of international organizations in global governance. It is increasingly common for international organizations to adopt resolutions containing standards, practices and procedures which provide a normative framework for the exercise of public authority in several areas of international law regardless of their binding character. Such acts, which often are classified as ‘soft law’ (see section 'Soft Law' above), sometimes are preferred over traditional sources of international law for the facility in their creation and flexibility. This may be seen, for instance, in the regulatory function of the food standards issued by the Codex Alimentarius Commission, the Code of Conduct for Responsible Fisheries of the UN Food and Agriculture Organization (FAO) and the OECD Guidelines for Multinational Enterprises, all of which with significant regulatory form even without binding character. Another important example concerns the role of the World Health Organisation (WHO) in global health governance, especially regarding the COVID-19 pandemic. The coordination between public and private international actors for the fight against the virus was done by the WHO not only through binding rules provided for by the International Health Regulations (2005) but also by temporary and non-binding recommendations adopted on advice of an Emergency Committee composed by experts of different fields.

III. Unilateral Declarations

Besides soft law and acts of International Organisations, unilateral declarations are often discussed as a further candidate for a source beyond Art. 38 of the ICJ statute. The question is whether declarations states make towards other states or the international community, for example a promise to act in a certain way, may deploy legal effects. In other words, can states be legally bound by statements or announcements they made? In the Nuclear Tests case, the ICJ has answered this question in the positive under certain conditions, deducing the legal bindingness from the principle of good faith, a general principle under Art. 38(1)(c) ICJ Statute. In this case, the ICJ among other things had to determine whether France was bound by its announcements in various public statements to refrain from carrying out further atmospheric nuclear tests in the South Pacific region. In order not to deduce legal effects from merely political statements, the ICJ developed three criteria:

• The declaration must have been made by the competent authority in a framework that indicates seriousness;
• The declaration must be sufficiently specific, and
• it must indicate the intention to be legally bound.

A specific form is not required according to the Court; this means that also oral statements can deploy legal effects. Also further unilateral acts of states can have certain legal effects, as discussed in other chapters. By way of example the protesting state under the persistent objector doctrine can avoid being legally bound by emerging customary international law (see chapter on customary international law); also recognition by states has legal effects (see the chapter on States). Under the constitutive theory, recognition of states is constitutive for statehood; international organisations only possess partial international legal personality because of the designation by states (see chapter on International Organizations).

Further Readings

• Samantha Besson (2010). Theorizing the sources of international law. In The philosophy of international law (pp. 163-185). Oxford: Oxford University Press.
• Gilbert Guillaume (2011). The use of precedent by international judges and arbitrators. Journal of International Dispute Settlement, 2(1), 5-23.
• Christian Tams (2014). The World Court's Role in the International Law-Making Process. Available at SSRN 2406311.
• Antonio Tzanakopoulos (2016). Domestic judicial lawmaking. In Research Handbook on the Theory and Practice of International Lawmaking (pp. 222-241). Edward Elgar Publishing.
• Gleider Hernández (2016). International judicial lawmaking. In Research Handbook on the Theory and Practice of International Lawmaking (pp. 200-221). Edward Elgar Publishing.

Conclusion

• Sources beyond Art. 38 exist, and highly relevant. International law not suited to cope with rapidly changing circumstances; this is why other, more flexible sources are highly important. In times of global governance, the decisions of international courts, resolutions of IOs and soft law are highly relevant and regulate many aspects of our lives. Importance of secondary law. Putting into question the formal distinction between law and non-law. Is it international law or not, and does it even matter? https://oxford.universitypressscholarship.com/view/10.1093/acprof:oso/9780199658589.001.0001/acprof-9780199658589-chapter-7?rskey=alOaLg&result=1
• Debates about informal international law. Realists and New Haven school - relevance, influence of norms on behavior of states matters and not their form. However, as important as informal sources of international law might be, the distinction of law and non-law is certainly not entirely redundant. Even though international courts might take other sources into account, they rule on the basis of formal law; also countermeasures.
• Risk to further undermine democratic legitimacy of international law? See debates in Switzerland about parliamentary approval for soft law instruments.
• Summary I
• Summary II

Footnotes

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