PART I

The structure of
international law
 1
The history and nature
of international law

1.1 Introduction: international law as law

Ubi societas, ubi jus is an ancient Roman maxim, which proclaims that ‘where there is
society, there is law’ Law has indeed played an important role in human societies, and
perhaps one should be unsurprised at its pervasive character. Law lays out both the
rules according to which societies can fulfil their values and aspirations, and provides
the framework through which that society will be governed. Through law, rules are
established regarding what is permissible and what is prohibited; what rights, duties,
and obligations exist for participants in those systems; and the place of actors or offi­
cials such as legislatures, courts, and the police, with powers to change, interpret, or
enforce the rules of the system. Virtually all national legal systems, at least one of which
each reader of this book will probably be acquainted with, discharge these very basic
functions.
International law is somewhat different. Rather than regulating the behaviour of indi­
viduals in their relations with one another, it is usually portrayed as a legal framework
to govern the relations between ‘States’, the organized political entities which are the
primary subjects of international law. Strictly speaking, in focusing on ‘international
law’—a term first used by Jeremy Bentham to describe the law between nations1—this
book will be dedicated to the study of‘public international law’, the distinct legal order
regulating relations between States.
‘Public international law’ is to be distinguished from ‘private international law’, which
describes the principles that determine the applicability of a certain law or set of laws to
situations involving individuals with a foreign or transboundary element. These might
include international marriages, or business transactions such as the sale of goods, in
which there might be a choice between the laws of different countries. Private interna­
tional law regulates the conflicts between rules of different domestic legal orders, rather
than relations between States; these are reserved for public international law.
Today, public international law has exceeded its foundations as the law of inter­
state relations, and operates as an integral part of the daily lives of individuals. Yet, the
inner logic and substrate of international law remain based in an inter-State system.

1 J Bentham, Introduction to the Principles of Morals and Legislation (1780).

4 THE STRUCTURE OF INTERNATIONAL LAW

International law has always been purposive, structuring relations between States for
specific ends. Those purposes have shifted over time, in line with political and social
developments; accordingly, the underlying ideas and assumptions about the role of law
in international society have also evolved. There is thus some value summarily to trace
some international legal history, as that helps to provide the background to its contem­
porary structure.
For as long as organized human groups or societies have existed, rules have devel­
oped to regulate their relations with one another; they have exchanged tributes, signed
treaties of alliance or friendship, and even exchanged diplomats. In regions with an
abundance of independent communities, such as Mesopotamia (from at least 2100 bc),
northern ‘Vedic’ India (from about 1600 bc), and classical Greece (from 600 bc),
a historical record exists of these interactions.2 At the United Nations Library in Geneva,
testimonies exist of a treaty dating back to 2500 bc, signed between the Kingdom of
Elba, in what is now northern Syria, and the Kingdom of Abousal (in modern-day Iraq,
on the Euphrates). The ‘Eternal Treaty’ agreed between an Egyptian pharaoh and Hittite
king, is another such example; and Roman peace treaties systematically established a
framework for future cooperation.3 By the seventh century ad, the Islamic world had
developed a substantial body of law governing relations between Muslim States and
with the non-Muslim world.4
In mediaeval Western Europe after the fall of the Roman Empire, there existed a
patchwork of feudal entities and kingdoms ranging from the self-governing, independ­
ent cities of northern Italy to the heterogeneous, decentralized Holy Roman Empire.5
Over time, feudal arrangements were to fall away in favour of centralized structures,
especially in France, England, Portugal, and Spain, which began to take on the charac­
teristics of a ‘State’: a permanent political unit, supported by institutions and bureaucra­
cies, and independent courts with an authority to give final judgments.6
After the Protestant Reformation in central and northern Europe, in which John
Calvin and Martin Luther denounced the ecclesiastical structure of the Roman Catholic
Church and papal supremacy,7 a number of religious wars were to plague Europe,
culminating in the Thirty Years’ War (1618-48). These were to end with the Peace of
Westphalia, the name for several treaties signed at Munster and Osnabriick in 1648,
and which is very much part of the founding myth in the emergence of‘modern inter­
national law’.

2 These, and other ancient examples, are covered in A Nussbaum, A Concise History of the Law of Nations
(rev edn, Macmillan, 1954), 1-7; and DJ Bederman, International Law in Antiquity (CUP, 2001). See also refer­
ence to the ‘Eternal Treaty’ between the Hittite and Egyptian empires (c 1258 bc) in Chapter 7.
3 See R Lesaffer, ‘Peace Treaties and the Formation of International Law’ in B Fassbender and A Peters (eds),
Oxford Handbook on the History of International Law (OUP, 2012), 71.
4 See S Neff, Justice among Nations: A History of International Law (Harvard UP, 2014), 5; H Khadduri,
‘Islam and the Modern Law of Nations’ (1956) 50 A JI L 358. 5 Neff, ibid, 55-9.
6 See JR Strayer, On the Medieval Origins of the Modern State (Princeton UP, 1979), 9-10.
7 R Grote, ‘Westphalian System’ in MPEPIL, vol X, 865, para 4.
 THE HISTORY AND NATURE OF INTERNATIONAL LAW 5

HISTORICAL BACKGROUND The Pope and the Holy Roman Emperor

before Westphalia

Today, the Pope is the Head of the Roman Catholic Church and is the ruler of the Vatican
City, essentially confined to St Peter’s Basilica within Rome, Italy. Historically, however, the
‘Papal States’ ruled over substantial territories in central Italy, including the whole of Rome.
Moreover, during the Middle Ages the Pope maintained that, as the head of the Catholic
Church, ecclesiastical law would purportedly apply to all Catholic sovereigns: this included
the prevention or punishment of violations of natural law, or even the removal of disobedient
rulers from power. Thus the Pope claimed both to be a sovereign ruler and to extend authority
above other sovereigns.
Conversely, the ‘Holy Roman Empire’, famously mocked by Voltaire as ‘neither holy, nei­
ther Roman, neither an empire’, was an entirely different entity. The Empire had, since the
period of the Crusades, also laid claim to universal patronage over all Christianity, though in
practice its feudal jurisdiction was centred primarily on German-speaking lands. The Empire
was not a unitary State, but an elective monarchy with limited feudal powers over hundreds
of princely sub-units that formally owed allegiance to the Emperor, but effectively acted as
independent entities.
The historical interest in both the Papacy and the Holy Roman Empire is their claim to
supremacy: both advanced claims to lead a universal Christian polity, especially during the
period of the Crusades, when West Europeans invaded what is now Israel and Palestine.
However, the advent of the sovereign State system as we understand it today, coupled with
the Protestant Reformation, meant such claims became increasingly untenable and would be
definitively abandoned in 1648 with the Peace of Westphalia.

1.2 The founding myths of modern international law

1.2.1 The Peace of Westphalia (1648)

There are diverging views on the 1648 Peace of Westphalia, often taken as the concep­
tual starting point for modern international law in the European State system then
spread around the world through European colonialism, and its basic foundations
remain relevant today. It has been argued, for example, that the ‘Westphalia thesis’
focuses unduly on the conceptual basis for international law and not on the daily activi­
ties governed by international law—such as treaties, embassies, claims to jurisdiction or
immunity—which go back far beyond 1648 and have structured international relations
for millennia.8
For all this, it behoves us to dwell on the Peace of Westphalia and its definitive
rejection of the secular power of the Pope over the internal affairs of other States, pre­
cisely because of what its profound Eurocentrism reveals about the founding myths

8 V Lowe, International Law (Clarendon Press, 2007), 9; and S Beaulac, ‘The Westphalian Legal Orthodoxy—
Myth or Reality?’ (2000) 2 Journal of the History of International Law 148. An instant classic is M Koskenniemi,
To the Uttermost Parts of the Earth: Legal Imagination and International Power 1300-1870 (CUP, 2021).
6 THE STRUCTURE OF INTERNATIONAL LAW

surrounding international law.9 According to the Peace Treaties, Catholic and Protestant
States would henceforth be sovereign and equal, under no higher power. Intellectually,
this represented a decisive move away from the concept of the Christian universal law
of nations.10 Nevertheless, international law retained certain concepts with theological
origins. For example, the Spanish Scholastic Francisco de Vitoria argued that the indig­
enous peoples of the Americas, not being Christians, could not be sovereign because
one of the attributes of sovereignty was the capacity to engage in ‘just war’, and it was
impossible for non-Christians to engage in a just war.11 In doing so, Vitoria’s thoughts
on the ‘Indians’ would serve to facilitate the Spanish conquest, as they could paradoxi­
cally only exist as violators of the laws of war, and not subjects of the law.12
Under the Peace of Westphalia, each State, and in particular the thousands of small
entities which made up the Holy Roman Empire, would henceforth be free to choose
for themselves which religion to adopt: cuius regio eius religio (‘whose realm, their reli­
gion’). European States were now considered as equal and sovereign in their relations
with one another, without external interference unless consent was expressly given,
usually by treaty. The concept of sovereignty was not new: it was borrowed from Jean
Bodins theory of‘absolute sovereignty’ in the sixteenth century, according to which a
sovereign would not be bound by the laws they personally instituted, but only the laws
of God and of nature.13 The rule on non-interference had, moreover, been embodied
in the 1555 Peace of Augsburg.14 Nevertheless, the characterization of the State as an
organized territorial entity capable of guaranteeing its commitments was established
in Westphalia, which stands out as more than a peace treaty, but as one of the first
modern instances of conscious, multilateral ordering through law—in Europe at least.

1.2.2 The rise and decline of natural law (1648-1815)

Within Europe, the 1648 Peace of Westphalia marks an intellectual break with earlier
thinking about the law of nations. The most famous international lawyer of the period
is the Dutchman Hugo de Groot (or Hugo Grotius), who was instrumental in estab­
lishing the freedom of the seas, in that they could not be appropriated by one State (as
argued Spain and Portugal and, to an extent, England) but were open to all. This doc­
trine was particularly beneficial to Dutch commercial interests; in particular, those of

See N Tzouvala, ‘The Specter of Eurocentrism in International Legal History’ (2021) 31 Yale Jour­
nal of Law and the Humanities 413. But cf the attempt to suggest a move towards a more global history in
B Fassbender and A Peters, ‘Introduction: Towards a Global History of International Law’ in B Fassbender and
A Peters (eds), The Oxford Handbook of the History of International Law (OUP, 2012), 1.
Religions place in the law of nations during the Middle Ages was especially prominent in the law of war:
see Nussbaum (n 2) 17-23; Neff (n 4) 94 et seq.
” See A Anghie, Imperialism, Sovereignty, and the Making of International Law (CUP, 2005), 26; c/Nuss­
baum (n 2) 79-84 (Vitoria) and 84-91 (Suarez); and I de la Rasilla y del Moral, ‘Francisco de Vitoria’s Unex­
pected Transformations and Reinterpretations for International Law’ (2013) 15 ICLR 287.
On the ‘Spanish Scholastic’ tradition, see M Koskenniemi, ‘Empire and International Law: The Real Span­
ish Contribution’ (2011) 61 U of Toronto LJ 1.
13 Jean Bodin, Six Books of the Commonwealth (Tooley tr, Basil Blackwell, 1967); and A Gardot, ‘Jean
Bodin—Sa place parmi les fondateurs du droit international’ (1934) 50 Recueil des Cours 549.
w See DP O’Connell, ‘Territorial Claims in the Grotian Period’ in CH Alexandrowicz (ed), Studies in the
History of the Law of Nations (Springer, 1970), 1-5.
 THE HISTORY AND NATURE OF INTERNATIONAL LAW 7

the Dutch East India Company.15 Grotius would also contribute to the modern under­
standing of the laws of war, covered in Chapters 14 and 15 of this book. However, his
lasting contribution was in his depiction of the nature of international law. In his semi­
nal book On the Law of War and Peace, he portrayed international law as a combination
of two distinct bodies, jus gentium and jus naturale.'6
Grotius natural law scholarship based in reason, not religion, influenced several
writers in the eighteenth century. Samuel Pufendorf (1632-94) attempted to rebut his
claims, infusing jus naturale with reason and Christian morality, and claiming that it
prevailed over practices of jus gentium, such as custom or treaties.17 Christian Wolff
(1679-1754) struck a different path, seeking to describe jus gentium according to sci­
entific principles and promoting the establishment of an overarching supreme state
which would gather all nations in ‘following the leadership of nature’.18 Wolff would
inspire Immanuel Kants concept of a ‘world federation (civitas gentium), which would
embrace all the peoples of the earth and ensure, in his famous terms, a ‘perpetual peace’.19

THEORY AND DEBATES Distinguishingjus Gentium from Jus Naturale

Vitoria and Suarezs attempts to develop the concept of an international jus gentium (law of
nations) formed the foundations for Grotius’ work. For Vitoria, jus gentium did not describe the
law between nations, but would describe the laws that applied to a community of all world citi­
zens (F de Vitoria, ‘De Indis III’ 2 in JB Scott (ed), The Classics ofInternational Law; De Indis et de
Jure Belli Relectiones by Franciscus de Vitoria (1917)). Suarez would distinguish jus gentium inter
se (applicable to relations between nations) from jus gentium intra se (the laws applicable within
nations), suggesting that the former included the law of war and peace, diplomatic relations, and
trade agreements (F Suarez, ‘De Legibus ac Deo Legislatore II19’ in JB Scott (ed), The Classics of
International Law: Selectionsfrom Three Works of Francisco Suarez (1944), 19, para 8). Suarez’s
distinction would carve out the international jus gentium from national legal orders in which
matters such as religion, marriage, property, and contracts were regulated (ibid, 20, para 7).
Grotius’ greatest contribution was to create a distinction between the international jus gen­
tium and jus naturale. For Grotius,Jus naturale described the laws that existed within nature;
these were universal, eternal, and could be discovered through the full use of human reason­
ing. Jus gentium, conversely, was distinct, purely a human creation, subject to change from
time to time, and variable from place to place. Its source of validity was the consent of States:
amongst all or most States there might be, and in Fact there are, some Laws agreed on
by common Consent, which respect the Advantage not of one Body in particular, but of
all in general. And this is what is called the law of Nations [jus gentium], when used in
Distinction to the Law of Nature [jus naturale] (Grotius, De lure Belli ac Pads (1625, ed
Tuck 2005), I. Prelim. §§XVIII, XXVII).

15 See WSM Knight, The Life and Works of Hugo Grotius (Oceana, 1925).
16 Grotius, De lure Belli ac Pacis (1625, ed Tuck, 2005); Koskenniemi (n 8) 77.
17 See Nussbaum (n 2) 147-50.
18 C Wolff, Ius Gentium Methodo Scientifica Pertractatum (1749, tr Drake and Hemelt, 1934), §20.
19 I Kant, Perpetual Peace (1795) 105. See further, P Capps, ‘The Kantian Project in International Legal
Theory’ (2001) 12 EJIL 1003; A Perreau-Saussine, ‘Immanuel Kant in International Law’ in S Besson and
J Tasioulas (eds), The Philosophy of International Law (OUP, 2010), 53.
8 THE STRUCTURE OF INTERNATIONAL LAW

Emmerich de Vattel (1714-67) proved to be the most influential in the ‘Grotiari tradi­
tion. A self-proclaimed adherent of Grotian thought, he wrote Le droit des gens (The
Law of Nations) to prepare a practical and accessible handbook for practising lawyers
and statesmen;20 it has been called the ‘first international law textbook’.21 Rejecting
Wolff’s exhortation of the supreme State, Vattel’s work entrenched the doctrine of the
equality of States, irrespective of their relative power, within a collective European State
system bound by a common interest.22 Delineating clearly between ‘laws of conscience
(natural law) and ‘laws of action (positive law), Vattel asserted that only the latter were
relevant, a seminal argument in the gradual move to positivism within international
law (see Section 1.2.3).23
The seventeenth and eighteenth centuries were notable for the supplanting of religi­
osity with a reliance on human reason and the concept of ‘natural rights’ of individu­
als, culminating in the American and French Revolutions of 1776 and 1789. The USA
represented the first modern instance where a State, as a political entity, was founded
through the free choice of people to associate with one another under a common set
of laws and government.24 This idea fuelled the French Revolution of 1789; and though
Napoleon Bonaparte overthrew the revolutionaries in 1799, he launched a military
offensive to spread revolutionary ideals throughout Europe.25

HISTORICAL BACKGROUND The Legacy of the Haitian Revolution, 1791-1804

As with most international law books, regrettably, this textbook focuses on the institution­
al and structural features of international law from a Eurocentric or Western perspective,
from Westphalia to the Congress of Vienna to the League of Nations. Even doctrines such
as the concept of self-determination are often depicted as emerging from the American and
French Revolutions, and only gaining momentum in the post-World War II decolonization
movement.
Yet obviously, this does not capture the whole picture. For example, the 1791-1804 Haitian
Revolution was rooted in a long struggle to overthrow slavery on the island of Hispaniola (in
the indigenous Taino language, Ayti), where the native population had been decimated (and
dispossessed) by Spanish colonization; and where under the 1697 Treaty of Ryswick, the west
of the island became the French colony of Saint-Domingue. Throughout the 1700s, France

20 E de Vattel, Le droit des gens (1758). Some of the best work on de Vattel has been written by E Jouannet,
Emer de Vattel et lemergence doctrinale du droit international (Pedone, 1998). For an introductory summary
in English, see E Jouannet, ‘Emer de Vattel’ in B Fassbender and A Peters (eds), The Oxford Handbook of the
History of International Law (OUP, 2012), 1118-22.
21 See, e.g., J Crawford, Brownlies Principles of Public International Law (9th edn, OUP, 2019), 8.
22 De Vattel (n 20) [Link].§47.
23 See Nussbaum (n 2) 156-64; Neff (n 4) 194-8; W Grewe, The Epochs of International Law (M Byers tr, de
Gruyter, 2000), 549-60. See also N Onuf, 'Civitas Maxima: Wolff, Vattel and the Fate of Republicanism’ (1994)
88 AJIL 280.
24 See G Stourzh, Alexander Hamilton and the Idea of Republican Government (Stanford UP, 1970) 45;
C Rossiter, Seedtime of the Republic: The Origin of the American Tradition of Political Liberty (Harcourt Brace,
1953) 12 et seq.
25 See generally Grewe (n 23) 492 et seq; EJ Kolla, Sovereignty, International Law and the French Revolution
(CUP, 2017).
 THE HISTORY AND NATURE OF INTERNATIONAL LAW 9

would implement a racialized system of slavery in Saint-Domingue to promote a lucrative

trade in sugar and coffee, forcing 800,000 Africans into its colony.
In 1791, in parallel with the revolutionary uprisings against royalty, tyranny, and oppres­
sion in France itself, slave revolts began in Saint-Domingue (see C Fick, The Making of Haiti:
The Saint Domingue Revolution from Below (University of Tennessee Press, 1991), 154).
Although by 1794 the French National Convention abolished slavery across Frances colonies,
Napoleon would nevertheless seek to restore colonial rule by force. When, in 1804, French
forces were expelled from the island, Jean-Jacques Dessalines declared the independence of
a new State: Haiti.
Haiti was born of the desire for self-determination of its inhabitants, but it struggled for
recognition as an independent State. Its former colonial master, France, actively sought
to undermine the freed slaves, inter alia by rupturing trade networks, for fear that anti­
colonial slave rebellions might spread to other slaving colonies, such as Grenada or Martinique.
Though Great Britain and the nascent USA would trade with the Haitians, they refused fully
to acknowledge Haiti as a new State, in part due to slavery within their own borders. Belatedly,
in 1825 France recognized Haiti’s independence while extorting a payment of 150 million
francs from it to compensate for the loss of slave property—a tactic that would legitimate the
notion of racialized slave property and, as with future occupations by foreign powers such as
France and the USA, would undermine the fragile Haitian State and contribute to the trope
whereby Haitians were incapable of self-government.
Haiti’s history colours its present. Though formally independent for over two centuries and
a United Nations member, Haiti has been subject to repeated armed, violent interventions
and even occupation by foreign powers; special mention must be made of a lengthy occupa­
tion by the USA from 1915 to 1934. Haiti faces humanitarian catastrophe once again: on 21
October 2024, the head of Haiti’s Transitional Presidential Council formally requested that
a Multinational Security Support Mission already present be converted to a full-fledged UN
peacekeeping operation, just five years after their last departure.
For further reflections, see R Knox, ‘Valuing Race? Stretched Marxism and the Logic of
Imperialism’ (2016) 4 London Review of International Law 81; and L Obregon, ‘Haiti and
the Cosmopolitan Ambition’ in M Garcia-Salmones and P Slotte (eds), Cosmopolitans in
Enlightenment Europe and Beyond (Peter Lang, 2013), 59.

1.2.3 The nineteenth century and the rise of positivism (1815-1914)

[Link] The Congress of Vienna and the emergence of the 'Concert of Europe'
The 1815 Congress of Vienna marked a turning point in European international rela­
tions. For the first time, certain 'Great Powers’ (Austria, Great Britain, Prussia, Russia,
and a rehabilitated France) within the 'Concert of Europe’ could intervene collectively,
where they deemed it necessary to preserve peace. The notion that certain States car­
ried special responsibilities under international law, premised on a claimed or assumed
cultural, material, or legal superiority, has persisted well into the twenty-first century.
Though the Concert of Europe system lacked any formal institutional structure and
depended entirely on the goodwill of the Great Powers themselves, the system would
entrench the idea that certain values needed safeguarding through international law.
Between 1815 and 1870, the Concert of Europe convened more than twenty times
10 THE STRUCTURE OF INTERNATIONAL LAW

to deal with revolutionary uprisings and forestall inter-State conflicts, particularly in

the early years of the system: Austria intervened in Naples and Sardinia in the 1820s;
Britain, France, and Russia intervened to secure the independence of Greece in 1832;
and all the major powers intervened to secure the independence of Belgium in the
1830s. This resulted in the creation of a public law system in Europe through which
the balance of power, and thus peace, would be maintained; it would serve Europe and
facilitate its global expansion and conquest of much of the rest of the world.26
The Concert system would eventually unravel, with the last major interventions
being those of the Western powers to defeat Russia in the Crimean War (1856)27 and to
prevent Russia from unduly punishing Turkey at the Congress of Berlin (1878). That
said, its legacy that some States are more equal than others’ persists to some degree:
there are still five permanent members of the United Nations Security Council (see
later, Section 1.4.2) which alone hold the power of veto in the only international organ
capable of authorizing binding enforcement measures on all other States.

1.23.2 The dominance of positivism

Returning to doctrine, the nineteenth century was marked by key intellectual develop­
ments with respect to the law of nations. That movement coincided with the ideas of
the Enlightenment taking hold within academic disciplines, including a commitment
to scientific rationality and a preference for logical, empirical methods for uncover­
ing knowledge. Within international law, the emergence of positivism as a dominant
method of thinking would be a decisive blow against natural law reasoning, and laid
the foundations for the contested claim that, despite its roots in Europe, the language of
international law was in fact universal, rather than merely an instrument for expanding
the material power of Europe and its settler offshoots.28

HISTORICAL BACKGROUND Auguste Comte and the Concept of Positivism

It was the French philosopher Auguste Comte who first coined the term ‘positivism’ to
describe the move away from theological and metaphysical ways of thinking, looking instead
at what has been created by human beings (see A Comte, The Course in Positive Philosophy
(1830) and A Comte, A General View of Positivism (1848)).
Comte sought to apply the term across the natural and social sciences; but given the evolu­
tion of international law described earlier, positivism aptly describes the views about interna­
tional law which became mainstream in the nineteenth century. Foremost among these was
a decisive rejection of natural law as a valid source of international law. Positivists contended
that only laws which had been consented to by States were valid, as these were the only entities

26 G Simpson, Great Powers and Outlaw States (CUP, 2004), 93-115; and M Jarrett, The Congress of Vienna
and its Legacy: War and Great Power Diplomacy after Napoleon (IB Tauris, 2013).
The 1856 Paris Peace Treaty is also notable for how it belatedly ‘recognized’ the admission of Turkey to
the advantages of public law and the European Concert’: see Grewe (n 23) 462-3.
For a rich alternative conception of the place of Eurocentrism in the nineteenth century, see A Becker
Lorca, ‘Universal International Law: Nineteenth-Century Histories of Imposition and Appropriation’ (2010)
52 Harvard ILJ 475; and more generally, A Becker Lorca, Mestizo International Law: A Global Intellectual His­
tory 1842-1933 (CUP, 2014).
 THE HISTORY AND NATURE OF INTERNATIONAL LAW 11

empowered to create international law. Such rules could be consented to expressly, through
written treaties, or they could emerge from unwritten practice, taking the form of custom.
Moral or ethical considerations would henceforth be irrelevant in relation to whether a rule
was valid or binding. Thus, rather than reflecting some higher political purpose, law became
the instrument with which to achieve political goals and not their source.

The turn to positivism was to have far-reaching consequences for legal reasoning.
Within domestic legal orders, law became dependent on the will of the sovereign, and it
followed that, ‘ [s] ince the Law of Nations is based on the common consent of individual
States, and not of individual human beings, States solely and exclusively are the subjects
of International Law’.29 Within positivism, the centrality of the State would entrench a
number of canonical principles which are still vital today, including:

• sovereign equality and the requirement of consent of a State to be bound by an

obligation;
• freedom of a State from interference by another State in its internal affairs; and
• the entitlement of a State to ensure its survival or self-preservation, including by
acts that might breach international law.30

[Link] Further developments in the nineteenth century

The nineteenth century was marked by unprecedented cooperation between States. The
first permanent international organizations were founded, including the International
Telegraphic Union (1865) and the Universal Postal Union (1874). Special arrangements
were made to ensure freedom of navigation on the Rhine and Danube rivers, as well as
the construction of the Suez and Panama canals. States began to engage in multilateral
treaty-making on matters of common concern, such as the first Geneva Convention
(1864) protecting the wounded during wartime.31 These efforts would culminate in the
1899 and 1907 Hague Peace Conferences, the thirteen Hague Conventions on the con­
duct of war, and the Permanent Court of Arbitration, the first permanent institution to
offer permanent services in relation to inter-State dispute settlement.32
Positivism also wrought changes for the discipline of international law, which began
to be studied as a distinct subject within European universities. International law aca­
demics began to organize themselves professionally, with the foundation of both the

29 L Oppenheim, International Law (1st edn, Longman, Green, 1905), 18; see also R Ago, ‘Positive Law and
International Law’ (1957) 51 AJIL 691.
30 These are examined later, in Section 1.6; but of course theory moved forward. A key recent work on the
consolidation of international legal positivism from the late nineteenth century to the mid-twentieth, through
Oppenheim and Kelsen in particular, is the work of M Garcia-Salmones, The Project of Positivism in Interna­
tional Law (OUP, 2013).
31 Convention for the Amelioration of the Condition of the Wounded in Armies in the Field (22 August
1864).
32 See S Rosenne, The Hague Peace Conferences of 1899 and 1907 and International Arbitration—Reports and
Documents (TMC Asser Press, 2001).
12 THE STRUCTURE OF INTERNATIONAL LAW

Institute of International Law and the International Law Association in 1873. Textbooks
began to proliferate in several European languages in Europe and the Americas33 which
emphasized the cataloguing and systematizing of the raw materials of State practice to
appeal to both the scholar and practitioner of international law.
Moreover, international lawyers recast themselves as neutral observers of political
and diplomatic questions, and instead engaged in a technical, expert study of interna­
tional legal rules. The strategy of depoliticization and professionalization of internation­
al lawyers during the nineteenth century was crucial in serving to advance Europe’s self­
proclaimed civilizing mission during its unparalleled material and intellectual domi­
nance of the world.34 European States restricted participation in international rela­
tions primarily to Christian States; although the USA and the Latin American repub­
lics would soon enter the international State system, they were essentially offshoots of
Europe, dominated by white, European settlers and replicating their internal structures,
including adherence to the same capitalist economic model.

1.3 Colonialism and empire

Though colonialism was to reach its zenith in the nineteenth century, from the late fif­
teenth century onwards Europeans had engaged in the conquest of new territories in the
pursuit of commodities, new trade routes, and political power. The role of international
law in this phenomenon was twofold. On the one hand, in principle, international law
could be a tool to resist European claims to expansion. As described earlier, Vitoria
and Suarez had claimed to set limits on Spanish colonial expansion in the Americas, in
particular with respect to the treatment of native populations; and Grotius maintained
that certain resources, such as the high seas, could not be appropriated by a single State.
Much later in 1807, Great Britain (as it was then known) would legislate to abolish the
international slave trade and claim the right to board foreign ships to prevent that trade;
and during the 1884-85 Congress of Berlin, European powers were exhorted to adhere
to certain minimum standards of treatment of native populations as they proceeded to
carve up the continent according to their own strategic preferences.35
Yet that rose-tinted, optimistic vision pales before the reality that, in many respects,
international law was complicit, providing the legal vocabulary and concepts which

” See, e.g., H Wheaton, Elements of International Law (1st edn, 1836) (English, US); R Phillimore, Com­
mentaries upon International Law (T and JW Johnson, 1854-61) (English, UK); AW Heffter, Das Europaisches
Volkerrecht der Gegenwart (1st edn, Schroder, 1844) (German); C Calvo, Derecho internacional tedrico y prac­
tice de Europa y America (D’Amyot, 1868) (Spanish, Argentina); T Funck-Brentano and A Sorel, Precis du droit
des gens (E Pion, 1877) (French); P Fiore, Il Diriotto Internazionale Codificato et la Sua Sanzione Giuridica
(Unione Tipografica, 1890) (Italian).
34 This is a central argument in M Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of Interna­
tional Law 1870-1960 (CUP, 2005), 127-36; see also Anghie (nil) and Becker Lorca (n 28).
35 See WN Medlicott, The Congress of Berlin and After: A Diplomatic History of the Near East Settlement
1878-1880 (Methuen, 1938).
 THE HISTORY AND NATURE OF INTERNATIONAL LAW 13

facilitated the conquest of non-European lands by European powers.36 This can be illus­
trated by a number of doctrines which emerged during the colonial period, used even
during and after the independence of the Latin American republics in the first third of
the nineteenth century. Foremost is the uti possedetis principle, through which newly
independent States’ territorial claims would follow existing colonial boundaries—
which had often been drawn not out of respect for local populations, but to accom­
modate imperial interests.37 As late as the beginning of the twentieth century, indig­
enous populations were deemed to be perfectly capable of concluding lucrative trad­
ing contracts with Europeans conferring exclusive trading rights upon them, but were
systematically denied recognition as sovereign States for being insufficiently stable or
lacking a sufficient level of civilization to understand and to carry out the commands
of international law.38 Grotius’ acclaimed freedom of the high seas facilitated European
access to newly colonized lands and the protection of trade monopolies; and, of course,
the trafficking of slaves.39 Under international law, it was justifiable to enslave ‘pagan’
enemy-subjects at least since the time of Vitoria,40 and the slave trade was explicitly law­
ful until the Brussels Conference of 1890.41 Finally, the 1884 Congress of Berlin would
become notorious, not because of its humanitarianism with respect to African popula­
tions, but because the European powers used international legal rules to facilitate the
‘Scramble for Africa’, in which almost all of the continent was divided between them.42

HISTORICAL BACKGROUND The 1884 Congress of Berlin

The 1884 Berlin Conference was called by German Chancellor Otto von Bismarck at the
request of Portugal, and laid the legal foundation for the partitioning of Africa. There
were fourteen European States represented, but no African representatives whatsoever:
*[n]ever before, in the history of mankind, had a concert of one continent gathered together
to plan how to share out another continent without the knowledge of the latter’s leaders’ (GN
Uzoigwe, ‘The Results of the Berlin West Africa Conference: An Assessment’ in S Forster,
WJ Mommen, and R Robinson (eds), Bismarck, Europe and Africa: The Berlin Conference
1884-1885 and the Onset of Partition (OUP, 1988), 541).

36 Vital arguments on this point include the books by Anghie (n 11) and S Pahuja, Decolonizing Interna­
tional Law (CUP, 2013).
37 V Nesiah, ‘Placing International Law: White Spaces on a Map’ (2003) 16 Leiden JIL 1; C Storr, ‘Denatural­
ising the Concept of Territory in International Law’ in J Dehm and U Natarajan (eds), Locating Nature: Making
and Unmaking International Law (CUP, 2020).
38 Vitoria (nil) first articulated the doctrine in the wake of Spanish colonization of the Americas, but even
John Westlake and Lassa Oppenheim still invoked the concept of‘civilization’ to justify imperial practices: see
M Clark, ‘A Conceptual History of Recognition in British International Legal Thought’ (2016) 87 BYBIL 18.
See also N Tzouvala, Capitalism as Civilisation (CUP, 2020), esp ch 2, ‘The Standard of Civilisation in the Nine­
teenth Century’, in which racialized and civilizational tropes were invoked to withhold recognition.
39 See M Craven, ‘Colonialism and Domination’ in B Fassbender and A Peters (eds), Tie Oxford Handbook
of the History of International Law (OUP, 2012), 862 et seq. 40 Anghie (nil) 27.
41 See JS Martinez, The Slave Trade and the Origins of International Human Rights Law (OUP, 2012).
42 Anghie (n 11)91-6; also see T Packenham, The Scramble for Africa (Abacus, 1992).
14 THE STRUCTURE OF INTERNATIONAL LAW

The Berlin Act of 26 February 1885 purported to prohibit slavery and protect freedom of
trade and navigation. Instead, it provided the legal basis for European States to acquire terri­
tory the inhabitants of which were considered not to have attained ‘civilization and, conse­
quently, could not hold sovereignty. The ancient doctrine of terra nullius was resuscitated to
facilitate the conquest of vast and populated territories in Africa, with substantial indigenous
populations, on the basis that they were ownerless’. The various forms of political organiza­
tion of the African populations were deemed unable to ‘own’ territory as they were not suf­
ficiently organized politically to be regarded as States in international law (J Fisch, ‘Africa as
Terra Nullius: The Berlin Conference and International Law’ in S Forster, W Mommsen, and
R Robinson (eds), Bismarck, Europe and Africa: The Berlin Africa Conference 1884-1885 and
the Onset of Partition (OUP, 1988), 347, 354, et seq).
Another extraordinary outcome of the Berlin Conference was the recognition that King
Leopold II of the Belgians could exercise sovereignty, through a private association, over an
‘independent’ Congolese State. In practice, Leopold II would exploit the Congo and extract
its natural resources as though it were a personal possession.
For further information, see M Craven, ‘Between Law and History: the Berlin Conference
of 1884-1885 and the Logic of Free Trade’ (2015) 3 LRIL 31; and the multimedia source
database archived at ‘Africa and the New Imperialism: European Borders on the African
Continent, 1870-1914’ ([Link]).

The onslaught of European colonialism was virtually universal: only a few Asian and
African States were able to resist European expansion. China and Siam (now Thailand)
avoided that fate by signing a series of capitulations’ unequal treaties giving European
powers substantial trading rights and privileges in their territories.43 Japan embarked
on an audacious programme of modernization in the late nineteenth century, culmi­
nating in its own emergence as an imperial power.44 Of the non-European powers, only
the Ottoman Empire benefited from a position of formal equality, grudgingly bestowed
upon it due to its substantial territories in the Balkans.45 A few other countries—chiefly
Persia (now Iran), Afghanistan, Nepal, and Bhutan—escaped formally being placed
under European sovereignty or a protectorate, but were obliged to make far-reaching
concessions to European powers.46 Imperial expansion of Europe would continue well
into the twentieth century: Ethiopia, the last independent African State, was conquered
violently by Mussolini’s Italy in 1936.47

These included far-reaching exemptions from the application of domestic law in favour of the ‘extrater­
ritorial’ application of the law of the European State: see A Peters, ‘Unequal Treaties’ in MPEPIL (2007), and
the more critical approach of Tzouvala (n 38), ch 2.
44 Japan concluded its first treaties with the USA in 1854 and with Germany in 1896. It would sign an
alliance with Great Britain in 1902, and acceded to the Universal Postal Union in 1886. See further, G Le
Moli, Parity with all Nations”: the “Coolie” Trade and the Quest for Recognition by China and Japan’ (2021) 34
Leiden JIL 879.
In the modern era, the first treaty between a European State and the Ottoman Empire was the Instrument
for the Prolongation of the Peace between the Holy Roman Emperor and the Sultan (1 July 1649) 1 CTS 457.
46 Grewe (n 23) 443.
The Leagues inaction in the face of desperate entreaties by Ethiopia is recounted vividly in ibid, 601-2.
 THE HISTORY AND NATURE OF INTERNATIONAL LAW 15

1.4 The twentieth century

The twentieth century saw the consolidation of the international legal system which is
still in place today. The dominant intellectual approach remained rooted in legal posi­
tivism, though with an increased awareness of the social foundations of law and, in the
last decades of the twentieth century, increased reflection on its normative founda­
tions. The twentieth century was punctuated by the two world wars, unprecedented in
their violence and global reach, and the proliferation of international institutions which
marked the end of each war. Though we are warned that the story of international law
should not only be told through its crises and ruptures, as this serves to justify the sta­
tus quo,48 this approach is useful in mapping out how institutions were often created in
response to political crises.

1.4.1 World War I and the League of Nations (1919-45)

Much has been written about the root causes and effects of the Great War (or World
War I; 1914-18).49 World War I marks the shift from a European-dominated interna­
tional order to one in which other parts of the world, particularly the USA, were to gain
an enhanced role. World War I ended with the Paris Peace Conference of 1919, in which
the Allies (chief among them the UK, France, Italy, Japan, and the USA) were to impose
terms on the defeated powers, in particular Germany, in the Treaty of Versailles.50
By far the most important development, for international lawyers at least, was the
signing of the Covenant of the League of Nations, an ambitious endeavour that aimed
at nothing less than, as Article 1 stated, to organize the international life of the fam­
ily of nations’.51 Headquartered in Geneva, the League was the first inter-State organi­
zation that aspired to universal membership, open to any fully self-governing State,
Dominion or Colony’; it employed the first permanent international civil servants,
working independently of all States.52 Its broad mandate went beyond traditional tech­
nical matters, and included the establishment of the ‘Mandate system’ of governance
over former German and Ottoman territories. For the first time, and perhaps in a last
gasp of European colonialism, an international institution was tasked with creating
sovereignty out of the backwards peoples and territories’ under mandate.53

48 H Charlesworth, ‘International Law: A Discipline of Crisis’ (2002) 65 MLR 377, 391.

49 See, e.g., J Keegan, The First World War (Vintage, 2000); M Macmillan, The War that Ended Peace: How
Europe Abandoned Peace for the First World War (Profile Books, 2014).
50 A classic history of the League is EH Carr, The Twenty Years’ Crisis 1919-1939 (Perennial, 1939; Palgrave
Macmillan reissue, 2001).
51 See Art 1 of the Covenant of the League of Nations, in Part I of the Treaties of Peace between the Allies
and each of the Central Powers in Versailles (Germany), Saint-Germain (Austria), Neuilly (Bulgaria), and
Trianon (Hungary) (28 June 1919); for the Treaty of Versailles, see [1919] UKTS4,225 CTS 188. For a critical
history, see GF Sinclair, To Reform the World: International Organizations and the Making of Modern States
(OUP, 2017).
52 A good history of the League is that of G Scott, The Rise and Fall of the League of Nations (Macmillan,
1973); see also Nussbaum (n 2) 251-90.
53 See Anghie (nil) 133; and generally, S Pedersen, Guardians: The League of Nations and the Crisis of
Empire (OUP, 2015).
16 THE STRUCTURE OF INTERNATIONAL LAW

The League convened an Assembly in which all its members were represented.
However, it was utterly dominated by its Council, on which permanent seats were held
by the UK, France, Italy, and Japan, in a manner redolent of the earlier Concert of
Europe, and thus further embedded the idea that powerful States had a special guardi­
anship in the name of the ‘international community’. In this respect, the League repre­
sents a bridge from the informal system of the Congress of Vienna to the institutional
structures of the United Nations today.

HISTORICAL BACKGROUND The Permanent Court of International Justice

(PCIJ), 1922

The League era was marked by the establishment of the Permanent Court of International
Justice in The Hague. The very first international court, the PCIJ emerged after several earlier
efforts at international adjudication had failed to bear fruit, and was tasked with the man­
date of applying international law. The enumeration of the sources of international law to be
applied by it, in Article 38 of the PCIJ Statute, would be the cornerstone of international legal
sources (see Chapter 2).
The PCIJ bench would be dominated by European and American judges, which reflected
the fact that only a few African and Asian States were not under colonial rule. Nevertheless,
it would deliver thirty-two judgments between States and twenty-seven advisory opinions
to organs of the League, and made a number of pronouncements regarded by scholars and
practitioners as highly influential in the development of international law.
Regarded as modestly successful, the PCIJ was reborn within the UN system as the
International Court of Justice (ICJ), which cites the case law of the PCIJ and with which there
is much continuity: see Chapter 12 for further details on the structure of the ICJ.
On the relationship between the PCIJ and the ICJ, see G Hernandez, The International
Court ofJustice and the Judicial Function (OUP, 2014), ch II.

Pursuant to Articles 12,13, and 15 of the League Covenant, member States undertook
to avoid recourse to war until a cooling-off’ period of three months after a judicial or
arbitral decision, or a report of the Council of the League. If a League member were to
have resort to war in breach of the Covenant, all members were under a duty to sever
trade and financial relations, including with nationals of the offending State.54
Another important milestone of the interwar (1919-39) period would be the
signing of the 1928 ‘Kellogg-Briand Pact’, known after the names of the American
and French foreign secretaries who had led its adoption.55 In the Pact, parties for­
swore resort to war as a means of national policy. Though weakened by the lack of an
enforcement mechanism and a rather robust exception allowing recourse to war in

M Covenant of the League, Art 16.

55 General Treaty for Renunciation of War as an Instrument of National Policy (1928) 94 LNTS 57 (No
2137). For a fascinating history, see O Hathaway and S Shapiro, Tie Internationalists: How a Radical Plan to
Outlaw War Remade the World (Simon and Schuster, 2017).
 THE HISTORY AND NATURE OF INTERNATIONAL LAW 17

self-defence,56 the Kellogg-Briand Pact played a crucial role in laying down a prohibi­
tion on aggressive war which would later be embodied in the UN Charter.57
Although the League period would see several further innovations, including the
first multilateral human rights treaties,58 it was fatally crippled from the start by the non­
participation of several crucial powers, and its failure to prevent the start of World War II.
Despite the strong support of Woodrow Wilson, the US Senate did not ratify the
Covenant of the League, partly due to the strong opposition to ‘foreign entanglements’
led by Senator Henry Cabot Lodge.59 The Soviet Union, ostracized for its revolutionary
communist government, joined only belatedly in 1934, and would be expelled in 1939
following its invasion of Finland. Germany, a defeated power, would only be granted
admission in 1926 and would withdraw in 1933 under Hitler. Japan and Italy, despite
being permanent Council members, withdrew in order to pursue territorial ambitions
in Manchuria in 1932 and Ethiopia in 1936, respectively.60

1.4.2 The United Nations during the Cold War (1945-89)

World War II was fought across the world with unprecedented savagery, with more than
60 million killed by its end. It was in response to this that the Charter of the United
Nations was signed in San Francisco on 26 June 1945, signifying a new chapter in the
international order through the creation of this new organization.61 The Charter came
into force on 24 October 1945, in the shadow of the immense destruction wrought by the
dropping of atomic bombs on Hiroshima and Nagasaki in August 1945. The need to pre­
vent further war and strengthen international order had scarcely seemed more pressing.
Like the League of Nations, the United Nations aimed above all to preserve interna­
tional peace and security; however, as Article 1 of the Charter demonstrates, the UN’s
purposes went further. The Charter contained lofty aspirations for the UN, especially to
promote respect for equal rights and the self-determination of peoples and a ‘universal
peace’ between States. It also called for cooperation on economic, social, cultural, and
humanitarian questions, and promoted respect for human rights without discrimina­
tion. Article 1 charged the United Nations itself to be a centre for harmonizing the

56 This exception was interpreted expansively: the USA contended through the ‘Monroe Doctrine’ that it
could intervene in self-defence throughout the Americas, and the UK asserted a right to defend ‘certain re­
gions of the world, the welfare and integrity of which constitute a special and vital interest for our peace and
security’: see A Cassese, International Law (2nd edn, OUP, 2003), 37. 57 See later, Section 1.4.2.
M See, e.g., the Convention to Suppress the Slave Trade and Slavery (1926) 60 LNTS 254 (No 1414); and
the eight fundamental ILO Conventions which created international labour standards for the first time: see
<[Link]
recommendations/lang—en/[Link]>. Nicolas Politis, an influential Greek scholar, commended these tenta­
tive acknowledgements of individual human rights as a first ‘wobble’ in the ‘iron cage’ of State sovereignty: see
N Politis, Les nouvelles tendances du droit international (Hachette, 1927), 91-2.
w See further, M Macmillan, Paris 1919: Six Months that Changed the World (Random House, 2003).
60 Italy was the only State subjected to sanctions under the League system, but these were only imposed after
Ethiopia had been fully conquered.
61 Charter of the United Nations, 1 UNTS xvi; UKTS 67 (1946), Cmd 7015 (signed 26 June 1945, entry into
force 26 October 1945).
18 THE STRUCTURE OF INTERNATIONAL LAW

actions of States in the attainment of these common ends, and it has fostered a number
of specialized agencies and subsidiary organs to help it to attain these purposes.
The United Nations Organization is headquartered in New York, signifying a shift of
the centre of power away from Europe, and it has gone much further than the League in
creating multilateral institutions to maintain collective security and promote internation­
al cooperation. The UN’s institutional structure, with six principal organs (see Chapter 6,
Section 6.7.1) represented an iterative evolution from the basic structure of the League,
with a deliberative General Assembly composed of all States, a powerful Security Council
with responsibility (and considerable discretion) over collective security, and the ICJ,
the continuation of the PCIJ, as its principal judicial organ. The United Nations figures
prominently throughout this book; the following discussion will be limited to its origins
and the three pillars of peace and security, international cooperation, and development.
The UN Charters striking feature is the ambitious prohibition, in Article 2(4), on
recourse to war and the use of force in inter-State relations. Chapter VII of the Charter
endows the Security Council with the power to order sanctions which bind all States, or
even to take forcible measures against a State which is a threat to, or has breached, interna­
tional peace and security. Article 51 of the Charter recognizes an inherent right to take for­
cible measures in self-defence—the only exception in the Charter.62 The Security Councils
composition became crucial to the new system of collective security: with permanent seats
(and a veto on substantive matters under Article 27(3)) for China,63 France, the Soviet
Union, the UK, and the USA, it again reprises the Great Power-dominated approach
which had prevailed after the Congress of Vienna and throughout the League period.
A second pillar of the Charter system is the promotion of international coopera­
tion. The UN and its specialized agencies facilitate collaboration across sectors ranging
from human rights to civil aviation, food, agriculture and health standards, and atomic
energy. These are supported by the ‘Bretton Woods’ financial institutions, the World
Bank and the International Monetary Fund, which guarantee economic stability and
encourage economic development and trade liberalization along a free-market model.64
The third pillar, in relation to development, reflects the gaining of independence of
dozens of former European colonies across Africa and Asia. By 1960, newly independ­
ent States (then known as the ‘Third World’) had gained a numerical majority in the
General Assembly. They challenged the Eurocentric orientation of international law
through informal groupings such as the ‘Non-Aligned Movement’ and the ‘Group of
77’ (G77), and sought to use international law to address their relative disadvantage in
economic, social, and political development.65 Some of the chief objectives of the newly

These are addressed in Chapter 14. Article 43 of the Charter even envisages the creation of a standing UN
peacekeeping force, though this never materialized.
In 1945, it was the Nationalist’ Government of Chiang Kai-Shek which was represented on the Council;
the Communist Peoples Republic of China would only take up the Chinese seat after the passing of UNGA Res
2758 (25 October 1971). M See Chapter 20 for further discussion.
See RP Anand, ‘Attitude of the Afro-Asian States towards Certain Problems of International Law’ (1966)
15 ICLQ 35; TO Elias, New Horizons in International Law (Hague Academy Publications, 1980); Pahuja (n 36);
and J von Bernstorff and P Dann (eds), The Battle for International Law (I): South-North Perspectives on the
Decolonization Era (OUP, 2019).
 THE HISTORY AND NATURE OF INTERNATIONAL LAW 19

independent States were achieving recognition of the right of self-determination of col­

onized peoples,66 a commitment to racial equality,67 and a renewal of the scope of State
sovereignty to account for economic development and permanent sovereignty over
natural resources.68 Newly independent States also played a key role in what in the 1980s
was heralded as the ‘new law of the sea’, the balancing of interests that was achieved with
the adoption of the United Nations Convention on the Law of the Sea (UNCLOS).6970
The Charter era also saw a significant change with the subjects of international law
themselves: States. Nearly immediately after the inception of the UN, a significant rivalry
characterized the relations between the capitalist USA and its allies, on the one hand
(the so-called ‘First World’), and the communist Soviet Union and its allies, on the
other (the so-called ‘Second World’). Through the wielding of the veto, the Cold War/0
would paralyse the United Nations, and in particular the Security Council, for several
decades after 1945.71 Deadlock would ensue on a great number of significant geopoliti­
cal issues of the period, with important historical episodes including the Berlin Airlift
of 1961, the Cuban Missile Crisis of 1962, and the Vietnam War, which ended only
in 1975. The Cold War would persist until 1989, when the communist East European
States would transition to liberal, free-market economies, culminating with the dissolu­
tion of the Soviet Union in 1991.72

HISTORICAL BACKGROUND The Legacy of Communist (Soviet) Approaches

to International Law

It would seem today that to study communist’ approaches to international law is largely obso­
lete, given the collapse of the Soviet Union and the integration of China, Vietnam, and other
communist States into the globalized economy. Yet it is instructive to recall some of its lega­
cies, as the classic Marxist-Leninist theory of international law in fact envisaged a post-State
paradigm for global governance based on socialist values. It was claimed that as States would
undergo communist revolutions and adopt non-capitalist economic systems, they would
eventually wither away in favour of socialist internationalism’.

66 See the Declaration on the Granting of Independence to Colonial Countries and Peoples, UNGA Res
1514 (XV) (14 December 1960). The principle of self-determination of peoples would later be enshrined in Art
1 of the two human rights covenants: see further Chapter 16, Section 16.3.2.
67 See International Convention on the Elimination of All Forms of Racial Discrimination (adopted 21
December 1965, entry into force 4 January 1969), 660 UNTS 165.
68 See Chapter 20, Section 20.1, for the discussion on the declaration and plan of action for the ‘New Inter­
national Economic Order’.
69 On the drafting history of UNCLOS, see Chapter 18, Section 18.2; and O Schachter, International Law in
Theory and Practice (Martinus Nijhoff, 1991), ch XIII (‘The New Law of the Sea’).
70 The term ‘Cold War’, generally understood to reference the indirect and non-military confrontation
which had emerged after World War II between the Soviet Union and the Western Allies, was first used by
George Orwell in the UK Observer newspaper (10 March 1946).
71 Though there were eighteen peacekeeping missions during the Cold War, there were few military inter­
ventions authorized by the Security Council before 1990, the most prominent exception being the intervention
in the Korean peninsula: see Chapter 14, Section [Link].2.
72 A vivid history of the impact of that specific period is the edited book by M Craven, S Pahuja and
G Simpson (eds), International Law and the Cold War (CUP, 2019).
20 THE STRUCTURE OF INTERNATIONAL LAW

For the Soviet Union, being surrounded by capitalist States, a ‘transitional’ approach
became necessary, whereby other States could be engaged on the basis of international law,
but only as a temporary measure before attaining universal socialism. Ultimately, as Grigory
Tunkin would describe it in his Theory ofInternational Law (WE Butler tr, Harvard UP, 1974),
the communist approach to international law would develop three tenets (p 4):
(i) principles of socialist internationalism would govern relations between socialist States;
(ii) principles of equality and self-determination would be invoked in a battle against coloni­
alism; and
(iii) principles of peaceful coexistence would form an overarching framework for interna­
tional relations.
Because socialist internationalism presupposed justified interventions to preserve socialism,
the Soviet Union intervened forcibly in Hungary (1956) and Czechoslovakia (1968) on the basis
of the first principle (Tunkin, 431-43). Between socialist and capitalist States, however, ‘peace­
ful coexistence’ was interpreted as a strong protection against intervention, so that States with
different social systems could coexist (G Tunkin, ‘Co-existence and International Law’ (1958)
95 Recueil des Cours 1,51, etseq). The People’s Republic of China, the other major communist
State, would not fully embrace the Soviet vision of international law (see C Kim, ‘The People’s
Republic of China and the Charter-based International Legal Order’ (1978) 72 AJIL 317).
The obvious tension between how socialist States could relate to one another and how
they were to coexist with capitalist States was never fully resolved. As the onset of perestroika
(reform of the economic and political system) took hold in the Soviet Union, its foreign policy
also shifted. With the end of the Cold War and the 1991 disintegration of the Soviet Union,
Russia and its other successor States would abandon claims to a distinctive socialist approach.
Russia does not today advocate for a wholly different theory of international law, despite a
distinct tradition of scholarship that stands apart: see further L Malksoo, Russian Approaches
to International Law (OUP, 2015).

Though the sovereign State has remained the central subject of international law post-
1945, great strides were achieved in new sectors such as the oceans (see Chapter 18)
and outer space, or the laws of armed conflict (Chapter 15). The first treaties on dis­
armament, including the Treaty on the Non-Proliferation of Nuclear Weapons,73 were
signed. The 1972 Stockholm Declaration heralded new thinking on protection of the
global environment (Chapter 19). The recognition of individual human rights would
also advance greatly, beginning with the adoption of the 1948 Universal Declaration
of Human Rights, and culminating with the adoption of the two great human rights
covenants in 1966.74 These would be complemented by regional human rights treaty
frameworks and courts in the Americas, Europe, and Africa.75

73 729 UNTS 161 (signed 1 July 1968, entry into force 5 March 1970).
International Covenant on Civil and Political Rights (signed 19 December 1966, entry into force 23
March 1976), 999 UNTS 171; International Covenant on Economic, Social and Cultural Rights (signed 19
December 1966, entry into force 3 January 1976), 993 UNTS 3.
American Convention on Human Rights (signed 22 November 1969, entry into force 18 July 1978) 1144
UNTS 123; European Convention on Human Rights (signed 4 November 1950, entry into force 3 September
1953) 213 UNTS 221; and African Charter on Human and Peoples Rights (signed 27 June 1981, entry into
force 21 October 1986) 1520 UNTS 217.
 THE HISTORY AND NATURE OF INTERNATIONAL LAW 21

1.5 International law since 1989

1.5.1 The end of the Cold War

The Cold War came to an abrupt end in 1989, with the collapse of communist govern­
ments across Eastern Europe and, in 1991, the disintegration of the Soviet Union into
fifteen States. The Russian Federation (or ‘Russia) inherited the Soviet Unions perma­
nent seat on the Security Council, albeit with a vastly diminished territory and popula­
tion. States would no longer be divided into three ideologically divided ‘worlds; and
the promise of a revitalized international legal order seemed to beckon. Scholarship
relating to new developments, though still filtered through the lens of positivism, began
to take on a strongly normative character, guided by liberal ideals of democracy and
free-market economics.76

1.5.2 The 1990s and 2000s

At first glance, developments in the 1990s seemed to suggest that the international
order had been revitalized. The Security Council began to authorize new interventions
in Kuwait (1990), Somalia (1992), Bosnia-Herzegovina and other parts of the former
Yugoslavia (1992-5), and Haiti (1994).77 The World Trade Organization, the institu­
tional successor to the General Agreement on Tariffs and Trade (GATT), was estab­
lished in 1994.78 The docket of the ICJ sprang to life, with more cases decided in the
1990s and 2000s than in the entire lifespan of the Court and its predecessor.79 In 1994,
Protocol 11 of the European Convention on Human Rights (ECHR) allowed individu­
als to petition the European Court of Human Rights (ECtHR) directly and endowed
that Court with compulsory jurisdiction over all parties to the Convention. Finally,
after establishing temporary, ‘ad hoc’ Tribunals in relation to the international crimes
committed in conflicts in the former Yugoslavia and Rwanda, the Rome Statute for the
International Criminal Court (ICC) was adopted in 1998, establishing a permanent
international court to prosecute individuals having committed international crimes.80
The first decades of the 2000s have not kept pace with the rapid institutional changes
of the 1990s. There have been ambitious measures, such as the UN Sustainable
Development Goals,81 that have been characterized by renewed concern with issues
requiring global collective action, such as over terrorism, damage to the global environ­
ment, and inequality in economic development. However, these have usually proven
incremental in their scope.

76 This would arrogantly be called ‘the end of history’: F Fukuyama, Vie End of History and the Last Man
(Free Press, 1992); see also TM Franck, Vie Power of Legitimacy among Nations (OUP, 1990).
77 These are covered later, in Chapter 14. 78 The WTO is covered later, in Chapter 20.
79 The ICJ and its work are covered later, in Chapter 12.
80 The history leading up to the ICC is covered later, in Chapter 17.
81 UNGA Res 70/1 (21 October 2015).
22 THE STRUCTURE OF INTERNATIONAL LAW

1.6 The contemporary international legal system

The historical ovendew provided in this chapter was intended to provide the reader
with a sense that international law did not spring up in a vacuum, but has evolved over
time to address new challenges and the needs of States. There have been few revolutions,
whether conceptual or institutional; instead, international law has evolved incremen­
tally, with States devising new institutions or methods of lawmaking to suit their needs.
The metaphor of sedimentation comes to mind, with new features gradually deposited
over the systems foundations without disturbing them.
In what follows, we will survey the foundational concepts that underpin the current
international legal order.

1.6.1 Sovereign equality of States

The foundational premise upon which international law has always rested is that it pur­
ports to regulate relations between States. States, it is true, are not metaphysical entities
but political communities ultimately composed of individuals, and represented in their
activities by them. Yet, and partly as a consequence of the positivist legal theory that
still dominates mainstream thinking, the doctrine persists that States are autonomous
entities capable of expressing a will or an interest, characterized by a number of features
including an effective governmental apparatus, control over a distinct territory, and
authority over a population.82 International law also regulates the conduct of interna­
tional and regional organizations (chief among them the United Nations) that have
been created by States to fulfil specific functions; these will be addressed in Section
1.6.4 and in Chapter 6. It is also true that international law has grown in complexity
and also regulates, in an ancillary way, the conduct of other actors, such as individuals,
multinational corporations, and even non-governmental organizations, as will be seen
throughout this book. However, these remain secondary characters in a legal order
dominated by States and, to a degree international organizations.
A striking feature of States is their sovereign equality’, a linchpin of international law
embodied in Article 2(1) of the UN Charter, and which embraces two distinct notions.
‘Equality’ is formal: whatever the population, economic weight, or military power of
a State, it enjoys equal footing as an international legal subject. As Vattel famously
observed, a dwarf is as much a man as a giant; a small republic is no less a sovereign
State than the most powerful kingdom’.83 As the General Assembly proclaimed in its
Declaration on Friendly Relations in 1970, ‘[a] 11 States enjoy sovereign equality. They
have equal rights and duties and are equal members of the international community,
notwithstanding differences of an economic, social, political or other nature.’84

62 A Verdross and B Simma, Universelies Volkerrecht: Theorie und Praxis (3rd edn, Duncker & Humblot,
1984), para 380 argue that a State is a civitas perfecta, binding a nation’s people (Staatsvolk) permanently to­
gether through a ‘community of destiny’ (Schicksalsgemeinschaft).
w Vattel, Le droit des gens (n 20), i, 47 (‘Preliminaires’, §18).
84 UNGA Res 2625 (XXV), ‘Declaration on Principles of International Law concerning Friendly Relations
and Co-operation among States in accordance with the Charter of the United Nations’ (24 October 1970).
 THE HISTORY AND NATURE OF INTERNATIONAL LAW 23

Bodins theory of sovereignty, outlined earlier, has both outward-facing and inward­
facing dimensions, referring to both the freedom of a State from the commands of any
other State, and its original’, exclusive power to wield legal authority, by force if necessary,
over its subjects.85 Externally, sovereignty of a State requires that no other State seeks to
undermine its sovereignty, for example by overthrowing its government or seeking to
influence it through coercion.86 On the internal plane, sovereignty endows a State with
the exclusive power to exercise public functions over the individuals and territory under
its jurisdiction. It may pass laws, prescribe regulations, and establish institutions such as
courts, administrative bodies, and police to apply and enforce its legislation.87 Though
in a globalized world States are increasingly interconnected and interdependent, sover­
eignty remains a key concept through which to assess the place of States.

1.6.2 Decentralized authority

The decentralized nature of international law is its second characteristic feature. This is
unlike most national legal systems, usually called ‘domestic’ or ‘municipal’ legal orders
by international lawyers, where there is usually a single entity recognized as sovereign.
International law recognizes multiple and equal sovereign entities, States, and purports
to regulate relations between them. With no legislature that stands supreme over States,
it therefore remains a horizontal legal order with no superior authority. This means that
States must come together to create new legal obligations, such as through treaties or
through customary international law. In Chapter 2, the sources through which States
create new international law will be examined.

1.6.3 The basis of obligation of international law

The external dimension of sovereignty suggests that, subject to respect for the sover­
eignty of other States, States enjoy considerable freedom of action. They may design
their political or economic system as they wish, and pass legislation that reflects the
values they wish to enshrine. States’ freedom of action was historically quite broad,
including recourse to war (see earlier, Sections 1.2.1 and 1.4.1), a perfectly legitimate
instrument of a State’s foreign policy. Today, the UN Charter and several important mul­
tilateral instruments limit States’ freedom of action, especially prohibiting force against
other States, and enjoining them to respect certain fundamental human rights. What
is more, the emergence of peremptory norms (see Chapter 3) have further entrenched
non-derogable obligations that all States must respect

85 Bodin (n 13) 28. By original’ is meant that the power in question is inherent in statehood and does not
derive from a higher order: see B Fassbender, ‘Die Souveranitat des Staates also Autonomic Rahmen der volk-
errechtlichen Verfassing’ in H-P Mansel et al (eds), Festschriftfur Erik Jaynte (Sellier European Law Publishers,
2004), 1089, 1090.
86 H Kelsen, ‘The Principle of Sovereign Equality of States as a Basis for International Organization (1944)
53 Yale LJ 207, 208.
87 A classic work on a sovereigns power to enact legislation is John Austin, The Province of Jurisprudence
Determined (John Murray, 1832), 117.
24 THE STRUCTURE OF INTERNATIONAL LAW

Under the classical view of international law, the binding nature of such obligations
for States seems, above all, based on consent. Consent entails that only those obliga­
tions to which a State has committed itself will be considered binding.88 An important
consideration in this regard is the principle of reciprocity, which means simply that
States consent to limit their freedom of action for mutual benefit. Regulated conduct
is thus relational, with reciprocity a pragmatic policy to protect a States interests on
the basis of law.89 Accordingly, a State, several States, or all States may create new legal
norms to govern the relations between them, provided that they express their consent
to be bound by such rules.
Consent and reciprocity are accompanied by the requirement, now reflected in Article
2(2) of the UN Charter, that obligations assumed by States be performed in good faith.90
‘Good faith’ is an appeal to mutual consideration and cooperation between States, to act
without fraud or malice. Though legal disputes will inevitably arise, they will arise due
to genuine differences of opinion and not purely strategic interests. Another reflection
of the principle of good faith is found in Article 26 of the Vienna Convention on the
Law of Treaties, which enjoins States to comply with their agreements in good faith:
pacta sunt servanda.9'
A strictly positivist view on the nature of international law would entail that, as a sys­
tem, it is entirely based on consent, and that no objective law’ besides those which have
been consented to can exist.92 As Hersch Lauterpacht memorably put it in his 8th edi­
tion of Oppenheims International Law, if consent is crucial to international law,1 [t]he
sources of International Law are therefore twofold, namely: (1) express consent, which
is given when States conclude a treaty stipulating certain rules for the future interna­
tional conduct of the parties; (2) tacit consent, that is, implied consent or consent by
conduct, which is given through States having adopted the custom of submitting to
certain rules of international conduct’.93
The strictly consent-based vision has come under tentative challenge.94 To take a
notable example, Verdross and Simma, in their German-language textbook Universelies
Volkerrecht, argued that State consent was insufficient to ground international law as a
system. Instead, they contended that a presupposed, overarching notion bound States
and other subjects of international law, a formlosen Konsensus (‘shapeless consensus’)
through which States recognize one another as equal and sovereign, but also subject to
‘original norms’ necessary for the creation of further law. Their theory contends that
international law, or its fundamental precepts at least, has transcended the ‘mere’ will
of States and stands above their agreements.95 They argued strongly in favour of

H Lauterpacht, Oppenheims International Law (8th edn, Longman and Sons, 1955), 15.
69 See J Combacau and S Sur, Droit international public (12th edn, LGDJ, 2016), 28.
90 On good faith more generally, see R Kolb, ‘Article 2(2)’ in B Simma et al (eds), Commentary to the Charter
of the United Nations (3rd edn, OUP, 2012), 167-73.
91 On good faith and pacta sunt servanda, see later, Chapter 7, Section 7.4.1.
92 Combacau and Sur (n 89) 22-3. 93 Lauterpacht (n 88) 25.
94 See, e.g., Crawford, Brownlies Principles (n 21) 16.
95 A Verdross and B Simma, Universelies Volkerrecht. Theorie und Praxis (Duncker & Humblot, 1976), in
para 21, suggest that Kant’s Volkerbund, through which a State’s security is a matter both for it and to be protect­
ed through a global institution, has been transformed into positive law through the adoption of the UN Charter.
 THE HISTORY AND NATURE OF INTERNATIONAL LAW 25

imperative norms of law which are absolutely valid,96 a related concept to the idea of
peremptory norms of international law (jus cogens). Though in no way suggesting that
States are no longer sovereign and equal, their claim is that States are henceforth regu­
lated under and within the international legal system. In a recent work, Anne Peters has
taken these ideas even further, suggesting that a process of "humanization has taken
place such that international law has been restructured into a system where the interests
of individuals are paramount.97 Such a radical account may represent more of a cry for
reform than a reflection of existing law, and has not gone without vehement objection;9899
but it gives pause for reflection as to the current trajectory of international law.

1.6.4 Is international law a 'system'?

This brings us to the point that has plagued international legal scholars for centuries;
namely, whether international law constitutes a functioning system that deserves the
name of law. John Austin famously suggested in the nineteenth century that interna­
tional law was only "law improperly so-called’, as it lacked an overarching sovereign who
could issue commands that could be enforced through the application of coercive force
99
or sanction.

THEORY AND DEBATES Hart, Kelsen, and the Nature of the International
Legal System

The positivist tradition that thrived in the nineteenth century continues to underpin the
foundations of thinking about international law today. How is it, then, that two of the most
distinguished positivist scholars in domestic law theory, Hans Kelsen and Herbert Hart,
rejected the idea that international law could be viewed as a proper legal system?
Hans Kelsen sought, above all, to distil the essence of law from notions of morality, ethics,
and justice, which to him were matters of politics. Law was a system of rules which provided
normative guidance for human behaviour, and legal rules depended for their validity on a
prior norm. Each norm depended on a higher norm for its validity, with the highest norms
dependent on what is termed the basic norm (Grundnorm), a foundation for the entire legal
system (H Kelsen, ‘The Pure Theory of Law’ (translated into English in (1934) 50 LQR 474,
477-85)). Such a system could not be said to exist in international law, which he regarded as
a primitive legal order resembling a pre-State society, given its lack of legislative, adjudicative,
and enforcement organs (see H Kelsen, Principles of International Law (2nd edn, Princeton
UP, 1966), 563, etseq).

96 Ibid, paras 45-51.

97 A Peters, Beyond Human Rights: The Legal Status of the Individual in International Law (J Huston tr, CUP,
2016), 25, 408, 430, 553-4.
98 See Combacau and Sur (n 89) 75, who deny the objective character of the UN Charter and insist that
international law is nothing more than the legal acts of States, with no systematic structure linking these.
99 Austin, Province ofJurisprudence (n 87) 171.
26 THE STRUCTURE OF INTERNATIONAL LAW

Herbert Hart drew on the work of Kelsen but adopted a ‘descriptive sociological’ approach,
portraying a legal system as encompassing three separate categories of legal rules: (i) primary
rules, which set out standards of conduct and interaction; (ii) secondary rules (rules of adju­
dication, enforcement, and change), which underpinned the primary rules and confirmed
their validity; and (iii) a master ‘rule of recognition’ which enables an observer to identify the
components of the system and to treat them as legal. Harfs theory depended on the ‘internal
point of view’ of legal officials, systemic agents who are entrusted with the application of the
secondary rules, and their acceptance of the system that could generate primary rules through
the process of secondary rules. It was this combination that constituted the essence of law
(see HLA Hart, The Concept of Law (3rd edn, Clarendon Press, 2012), ch V). Hart regarded
international law as lacking in the ‘rule of recognition’, and also deficient with respect to sec­
ondary rules of adjudication, enforcement, and change (ch X).
For further reading, see J von Berstorff, The Public International Law Theory ofHans Kelsen
(CUP, 2010); the articles collected in ‘The European Tradition of International Law’ (1998)
9 EJIL 287 et seq; and for a more critical perspective, J Beckett, ‘The Hartian Tradition in
International Law’ (2008) 1 Journal of Jurisprudence 57.

It is perhaps too easy to dismiss these arguments by contending that international

laws existence as a legal system depends ultimately on ones theoretical conception of
a legal system. But if one looks at the daily operation of international law, compliance
with international legal obligations is regarded as being very high. Yet there exist few
enforcement mechanisms, aside from the limited institutional safeguards States might
have created through international organizations. Quoted to the point of cliche, Louis
Henkin famously opined that ‘[a]lmost all nations observe almost all principles of
international law and almost all of their obligations almost all of the time’.100
It is true that international law arises in the media most often because of its
perceived failings: from trade disputes to humanitarian catastrophes to violent armed
conflicts, the inability of international law to secure the common good is well known.
Less known, however, are the mundane functions that international law facilitates: the
delivery of international postage, the stability of the world’s telecommunications infra­
structure, and the delivery of goods and services across the globe each day demon­
strate that compliance with international law remains, in the main, surprisingly high.101
As James Crawford put it in the most recent edition of Brownlies Principles of Public
International Law, ‘[international law provides—in significant part—not merely
the vocabulary of inter-State relations but its underlying grammar’.102 The present
author agrees: it is too simplistic to adhere to the view that international law is not law
because it is institutionally deficient. International law contains many of the seeds of a

100 L Henkin, How Nations Behave (2nd edn, Columbia UP, 1979), 47.
In an important piece published in 1997, Harold Koh took Henkins point further: see HH Koh, ‘Why Do
Nations Obey International Law?’ (1997) 106 Yale LJ 2599.
102 Crawford, Brownlies Principles (n 21) 14-15.
 THE HISTORY AND NATURE OF INTERNATIONAL LAW 27

recognizable legal system, including recognized legal sources (Chapter 2), international
legal persons in the form of States and international organizations (Chapters 5 and 6),
rules of interpretation to be applied by impartial third parties (Chapter 7), precepts
of responsibility for breach (Chapter 10), and even a hierarchy of norms (Chapter 3).
What is more, there is a sophisticated and well-developed community of international
lawyers who share a common vocabulary and approach to international law, and are
highly influential within foreign ministries, universities, legal practice, and even non­
governmental activism: to adopt another cliche, they are the ‘invisible college of inter­
national lawyers.103 Though a system based on the consent of States, its primary legal
subjects, it is no less a legal system for it.

1.7 Contemporary debates in international law

Though the key principles of contemporary international law described previously are
vital to understanding the subject, it is important briefly to address some persuasive
criticisms of international law. The development of international law has been decid­
edly Eurocentric, not merely in its origins but because the regional law on inter-State
relations from Europe has somehow managed, through imperial expansion accompa­
nied by a repeated claim to being a universal language, to remain globally relevant even
today.104 Even within the dominant Western traditions, scholarship has outlined dif­
ferences between American and European approaches to international law.105 Cogent
concerns have been expressed about the purported universality of public international
law.106 Moreover, there is prominent scholarship on non-Western approaches, includ­
ing a Chinese approach to international law,107 an Islamic approach to international
law,108 and the international law tradition in Latin America.109

103 O Schachter, ‘The Invisible College of International Lawyers’ (1977) 72 Northwestern University LR 217.
See also G Hernandez, ‘The Responsibility of the International Legal Academic: Situating the Grammarian in
the “Invisible College’” in J d’Aspremont, T Gazzini, A Nollkaemper, and W Werner (eds), International Law
as a Profession (CUP, 2017), 160.
1<M Tzouvala (n 9) 430-2 suggests that it is this Eurocentrism that requires scrutiny, as it remains relevant
today in the development of the international State system.
,os E Jouannet, ‘French and American Perspectives on International Law: Legal Cultures and International
Law’ (2006) 58 Melbourne LR 292,299; A Bradford and EA Posner, ‘Universal Exceptionalism in International
Law’ (2011) 52 Harvard ILJ 1, 35; see also, generally, M Byers and G Nolte (eds), United States Hegemony and
the Foundations of International Law (CUP, 2013).
106 A Roberts, Is International Law Really International? (OUP, 2017), has undertaken a comparative empiri­
cal analysis of international legal education and the influence of national legal cultures.
107 Xue Hanqin, Chinese Contemporary Perspectives on International Law (Brill, 2012), 151-7; H Chiu,
‘Communist China’s Attitude Toward International Law’ (1966) 60 AJIL 245,260; C Kim, ‘The People’s Repub­
lic of China and the Charter-based International Legal Order’ (1978) 72 AJIL 317.
108 T Roeder, ‘Traditional Islamic Approaches to Public International Law—Historic Concepts, Modern
Implications’ (2012) 72 ZadRV 521, 522.
109 Becker Lorca (n 28). See also L Obreg6n, L Betancur and J Amaya-Castro (eds), The Oxford Handbook
on International Law in the Americas (OUP, 2023); JP Scarfi, The Hidden History of International Law in the
Americas: Empire and Legal Networks (OUP, 2017).
28 THE STRUCTURE OF INTERNATIONAL LAW

Beyond calling attention to various regional traditions, some innovative interna­

tional legal scholarship has increasingly drawn from a broadly critical tradition, calling
attention to the negative consequences of international law for those who have been
excluded from participating in its development.110 Most of these critical approaches are
not in themselves coherent projects, but rather umbrella terms used to capture a range
of challenges in the purported neutrality and universality of international law.
Three such traditions merit particular mention. Postcolonial scholars, in particu­
lar those adopting ‘Third World Approaches to International Law’ (TWAIL), have
called attention to Eurocentric colonial legacy in international law, demonstrating
how the early distinctions between the European and non-European world, notably
through the terms civilized’ and ‘uncivilized’, may persist in today’s contemporary
legal order.111 Recently, powerful critiques have emerged about the legacy of racism
on the international plane.112 TWAIL has its ambivalences, as it does not necessar­
ily reflect the strategic priorities of developing States that were formerly consid­
ered the ‘Third World’, but focuses rather on the interests of Third World peoples.113
A feminist critique has powerfully challenged the purported neutrality and objectiv­
ity of international law, suggesting that the hierarchies and oppression engendered by
international law exist not as a matter of necessity but as a culturally and historically
specific development.114 After the collapse of communism in the Soviet Union and
Eastern Europe, there has been a reconsideration of Marxist perspectives in interna­
tional law which has challenged the capitalist foundations of international law, calling
for an understanding and analysis of the material conditions and history that have
caused the emergence of the ideas that now structure international law.115 Together,
such challenges would serve to discredit the myth that international law is politically
neutral. They have, in turn, fed into scholarship that takes on the critical challenge but

1,0 See, e.g., A Orford (ed), International Law and its Others (CUP, 2006); F Johns, Non-Legality in Interna­
tional Law (CUP, 2013).
111 See, e.g., B Rajagopal, International Law from Below: Development, Social Movements, and Third World
Resistance (CUP, 2003); NK Modirzadeh, “‘Let Us All Agree to Die a Little”: TWAlEs Unfulfilled Promise’
(2023) 65 Harvard ILJ 79; cf G Abi-Saab, ’The Third World Intellectual in Praxis: Confrontation, Participation,
or Operating Behind Enemy Lines?’ (2016) 37 Third World Quarterly 1957.
112 ET Achiume and DW Carbado, ‘Critical Race Theory Meets Third World Approaches to International
Law’ (2021) 67 UCLA Law Review 1462; and C Gevers, ‘Unwhitening the World: Rethinking Race and Inter­
national Law’ (2021) 67 UCLA Law Review 1652; M Al Attar, ‘Must International Legal Pedagogy Remain
Eurocentric?’ (2021) 11 Asian JIL 176.
1,3 A Anghie, The Third World and International Order: Law, Politics and Globalization (Martinus Nijhoff,
2003); BS Chimni, ‘Third World Approaches to International Law: A Manifesto’ (2006) 8 International Com­
munity Law Review 3-27; U Baxi, ‘What May the “Third World” Expect from International Law?’ in R Falk,
B Rajagopal, and J Stevens (eds), International Law and the Third World (Routledge-Cavendish, 2008).
1,4 See H Charlesworth and C Chinkin, The Boundaries of International Law: A Feminist Analysis (Manches­
ter UP, 2000); G Heathcote, Feminist Dialogues on International Law: Successes, Tensions, Futures (OUP, 2019);
S Kouvo and Z Pearson (eds), Feminist Approaches to International Law: Between Resistance and Compliance
(Hart, 2011).
1,5 See, e.g., C Midville, Between Equal Rights: A Marxist Theory of International Law (Pluto Press, 2005); BS
Chimni, International Law and World Order (2nd edn, CUP, 2017); and the collection of essays in S Marks (ed),
International Law on the Left: Re-examining Marxist Legacies (CUP, 2008), esp 1-13.
 THE HISTORY AND NATURE OF INTERNATIONAL LAW 29

has sought to defend the positivist foundations of international law, even if through
different methodological lenses.116
Some scholars have tried to describe international law through the cognate disci­
pline of international relations scholarship, drawing from various schools. One of these
is ‘Realism*, which dismisses law as secondary and focuses on the struggle for power
between States.117 Another is ‘institutionalism ’, which would suggest that though law and
institutions are often instrumentalized, they offer distinct advantages which induce States
to respect law and join institutions they regard as legitimate.118 One might also consider
‘network theories’ of transnational communication, rooted in liberalism, which seek to
describe how individuals, acting within and between international institutions, are the
primary actors in international society.119 Finally, there is constructivism’, a theory that
regards all reasons for action as socially constructed, and that international law exists
primarily as a vocabulary to justify behaviour because it can potentially constrain certain
behaviour, but equally facilitate other forms of behaviour.120 These theories have sought
to describe international law not merely by enumerating its rules, but by capturing pat­
terns of behaviour that might apply to the individuals behind States and institutions.
In a banal, descriptive way, international law is universal simply because it encompasses
States from all continents which govern the vast majority of the world’s population. But
that misses the point: ‘universalism’ in its deeper sense requires one to transcend the
particular, and to adopt an international law that can be neutral and impartial in its regu­
lation of all humankind. Perhaps this is an unattainable aspiration in light of the diversity
of the world’s peoples and their experiences. As such, though this book will focus primar­
ily on the meaning and application of international legal rules and principles, the pre­
sent author takes seriously the challenges highlighted by these more critical responses to
international law, for these may enable understanding of today’s international law as the
outcome of a political and legal process, and not merely a decontextualized set of rules.

1.8 Conclusion: the place of international law today

The history of international law sketched out summarily here is but an introduction;
a core observation remains that, rather than through decisive ruptures, international
law has developed through a process of gradual iteration. At present, the global space
is undergoing an accelerated period of evolution, often referred to as globalization, ‘the
intensification of worldwide social relations which link distant localities in such a way

1,6 See, e.g., J Kammerhofer, Uncertainty in International Law: A Kelsenian Perspective (Routledge, 2012);
J d’Aspremont, Formalism and the Sources of International Law (OUP, 2011).
1,7 See A Guzman, How International Law Works: A Rational Choice Theory (OUP, 2008); JL Goldsmith and
EO Posner, The Limits of International Law (OUP, 2005). These draw on the emblematic H Morgenthau, Politics
among Nations: The Struggle for Power and Peace (5th edn, Alfred A Knopf, 1978).
1,8 See, e.g., RO Keohane, After Hegemony: Cooperation and Discord in the World Political Economy (Princ­
eton UP, 1984); SD Krasner (ed), International Regimes (Cornell UP, 1983); T Franck, The Power of Legitimacy
among Nations (n 76); and T Franck, Fairness in International Law and Institutions (OUP, 1995), ch 2.
1,9 See, e.g., A-M Slaughter, A New World Order (Princeton UP, 2004); and the earlier A-M Slaughter Burley,
‘International Law and International Relations Theory: A Dual Agenda (1993) 87 AJIL 205.
120 See, e.g., J Brunnde and S Toope, Legitimacy and Legality in International Law: An Interactional Perspec­
tive (CUP, 2010).
30 THE STRUCTURE OF INTERNATIONAL LAW

that local happenings are shaped by events occurring many miles away and vice versa’;121
and indeed there has been much change to global political and economic structures. Such
changes, in turn, have challenged long-standing social and legal structures to the point
where new schemes for global governance are constantly being proposed.122 A further
area of enquiry concerns the protection of the global environment. Air and water know
no boundaries, of course, and though the most effective regulation of environmental
standards is at the local or domestic level, it has become evident that global collective
action has become necessary in the face of transboundary and global environmental
concerns.123 Further examples of cross-border issues of global collective concern include
responses to terrorist acts, especially as these are generally committed by non-State
actors; issues of cyber-security which have emerged due to rapid technological innova­
tion; and of course pandemics such as Covid-19, with deadly global reach. Whether
international law can meet the challenges faced by humanity today remains to be seen.
This is not to say that international law is part of some inexorable march towards pro­
gress: more international law does not necessarily mean a more just world. International
law has been utilized to propagate highly problematic ideas in the past.124 Yet for all
this, because international law provides a framework and vocabulary for the conduct
of international relations, one which is used by States and other powerful actors, it
remains an indispensable part of international society, and a powerful tool in global
governance. International law is purposive, but not in its promotion of ethical values;
above all, it is designed to safeguard the stability and coherence of the international
State system.123 In this respect, stability and coherence are privileged over contested
notions of justice or political pressures for greater equality among and between States.
Rather than challenge the relevance of international law, the reader is advised to
maintain a healthy pragmatism about whether international law is a force for good’
or ‘justice, especially regarding the relevance of law in international society. Whatever
one’s political or ethical commitments, for the student of international law it is key to
understand the inner logic of international law: what arguments are legitimated and
considered to be legally valid, what practices are considered to be relevant, and what
processes are used. Whatever one’s political convictions or methodological preferences,
it is undeniable that international law has been profoundly shaped by historical cur­
rents and has, in turn, contributed tremendously to the shaping of events and develop­
ments around the world. It is in that spirit that this book will proceed to describe the
phenomenon that we call international law.

,‘l A Giddens, The Consequences of Modernity (Polity Press, 1991), 64. See also S Sassen, A Sociology of
Globalization (WW Norton, 2007).
122 See, e.g., DD Avant, M Finnemore, and SK Sell (eds), Who Governs the Globe? (CUP, 2010); E Benvenisti,
The Law of Global Governance (Hague Academy Publications, 2014); and J Klabbers and T Piiparen (eds),
Normative Pluralism and International Law: Exploring Global Governance (CUP, 2013).
123 See Chapter 19.
* For a provocative account of international law and historical methodology, see A Orford, International
Law and the Politics of History (OUP, 2021).
125 Though see further Tzouvala (n 38), who argues that international law’s structures and preference for
order are specific in their facilitation of global capitalism and accumulation, with force being used to maintain
that economic structure.
 THE HISTORY AND NATURE OF INTERNATIONAL LAW 31

Further reading
A Anghie, Imperialism, Sovereignty, and the Making of International Law (CUP, 2004).
An incisive postcolonial narrative which portrays international law as an outgrowth of imperi­
alism, and central to the colonization of the non-European world.
B Chimni, International Law and World Order: A Critique of Contemporary Approaches (2nd
edn, CUP, 2017).
An avowedly critical analysis that engages with international law's history and various con­
temporary theories to assess its relevance for global collective problems.
L Ehrlich, ‘The Development of International Law as a Science’ (1962) 105 Recueil des
Cours 173.
Traces an intellectual history of the field of international law through the conceptual move of
international lawyers towards a more scientific approach.
B Fassbender and A Peters (eds), The Oxford Handbook of the History of International Law
(OUP, 2012).
A comprehensive and broad-ranging collection of essays aiming to narrate a 'global history'
of international law.
W Grewe, The Epochs of International Law (M Byers tr, de Gruyter, 2000).
Originally published in German, this is a monumental tome on the history of international law,
told through the prism of'epochs' dominated by one State or idea.
P Guggenheim, ‘Contributions a 1’histoire des sources du droit des gens’ (1958) 94 Recueil des
Cours 1.
A concise French-language narration of the debates concerning the sources of international
law as they have evolved through history.
E Jouannet, The Liberal-Welfarist Law ofNations: A History of International Law (CUP, 2012).
A fluid, non-linear account of international law which describes its history as an oscillation
between liberal and welfarist conceptions of it.
M Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-
1960 (CUP, 2005).
A critique of the civilizing impulses in international legal history, which semi-biographically
studies key figures across various legal traditions.
S Neff, Justice among Nations: A History ofInternational Law (Harvard UP, 2014).
A practical, historical account of international law's development, and how it has been
contested.
A Nussbaum, A Concise History of the Law of Nations (rev edn, Macmillan, 1954).
Though somewhat dated, this detailed and comprehensive account of international law's his­
tory is a classic reference in the field.
S Pahuja, Decolonizing International Law (CUP, 2013).
Focused on the period of decolonization and contemporary discourses on development, this
ambitious study situates contemporary discourses through a history of ideas.
N Tzouvala, Capitalism as Civilisation: A History of International Law (CUP, 2020).
An innovative Marxian approach to international legal history that, through a close reading of
legal texts, argues for an understanding of the concept of 'civilization' as a driving force in the
imposition of global capitalist modernity.