Scribd
Upload
45 views4 pages

Critical Perspectives on International Law

This document contains 3 discussion questions from the textbook "International Law" by Gleider Hernández regarding the nature and history of international law. The first question analyzes the claim by legal theorists like Hart and Kelsen that international law is not true law due to its lack of distinct legislative, adjudicative, and enforcement institutions. The second question discusses whether international law is and always will be based on state consent. The third question outlines various contemporary theories that are critical of international law, such as Third World Approaches and feminist legal theory.

Uploaded by

lexyjay1980
Copyright
© All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd
45 views4 pages

Critical Perspectives on International Law

This document contains 3 discussion questions from the textbook "International Law" by Gleider Hernández regarding the nature and history of international law. The first question analyzes the claim by legal theorists like Hart and Kelsen that international law is not true law due to its lack of distinct legislative, adjudicative, and enforcement institutions. The second question discusses whether international law is and always will be based on state consent. The third question outlines various contemporary theories that are critical of international law, such as Third World Approaches and feminist legal theory.

Uploaded by

lexyjay1980
Copyright
© All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd

International Law

Discussion Questions
Gleider Hernández, International Law (2nd edition, Oxford University Press, 2022)

Chapter 1, The History and Nature of International Law

Question 1. Many legal theorists, Hart and Kelsen amongst them, have maintained that
international law is not law properly so-called, but something else; a primitive order of
rights and obligations, perhaps, but not a full-fledged legal system. Analyse this claim
critically.

This is a classic question for international law students, requiring knowledge as to


why international law has been regarded as somehow ‘lesser than’ or inferior to
domestic legal orders. It would be useful to trace the evolution of thinking from
naturalism towards positivism, and beyond, and how that debate centred on the
relationship between law and morality. Much positivist theory sought to situate
international law as a distinct empirical discipline, not tainted by contested morals
and ethics, during the Enlightenment. An even more well-reasoned answer might
also link this to the rise of the international legal profession as an autonomous
discipline within law faculties, distinct from but related to municipal legal orders.
Kelsen maintained above all that international law as a ‘primitive’ legal order,
lacking distinct legislative, adjudicative, and enforcement organs. Hart suggested
that his distinction between ‘primary rules’ (of conduct) and ‘secondary rules’ (of
change, enforcement, and adjudication), which to him were the essence of a legal
system, were lacking.

It is true that there are some features of international law that are often criticized as
problematic. Chief amongst these remain the absence of a centralised legislature or
law-making authority, as well as the absence of compulsory enforcement
mechanisms at the system-wide level. These are not unimportant, of course.
1

© Oxford University Press 2022.


Nevertheless, one can note the rather high degree of compliance with norms of
international law as they are, and the degree to which international law was
invoked by and used by newly-independent States in order to justify their
statehood and rights under international law. Finally, it also bears noting the extent
to which the critical theories surveyed in Chapter 1—e.g. feminist, Marxist, Third
World approaches—challenge and engage with the power of international law in
embedding political preferences and the very real normative force that law has in
entrenching such political preferences. Despite criticisms, international law is
arguably a coherent system capable of maintaining certain fundamental values, in
particular, the sovereignty and independence of States.

Question 2. Whatever developments have taken place in recent years, international law
was, is, and always will be a system rooted in the consent of States. Discuss.

The classical view of international law is that it is a system rooted exclusively in the
consent of States. Consent entails that only those obligations to which a State has
agreed—has consented—can be binding upon it. In this regard, it is useful to
highlight the principle of reciprocity on which the consent theory is based: States
consent to limit their freedom of action in order to induce other States also to limit
their own. Accordingly, a State, several States, or all States may create new legal
norms to govern their relations between them, provided that they express their
consent to be bound by such rules. Such consent is generally explicit, but at times
may be tacit. Of course, 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.

But does this tell the whole story? To give but one example, Simma and Verdross
suggested that an overarching consensus could supersede the individual consent of
a State in certain cases; that despite the fact they are equal and sovereign, they
remain bound to an international legal order that admits of certain ‘original norms’
required to create further law. From this they would derive imperative law (or
what are now regarded as peremptory norms of international law, or jus cogens).

© Oxford University Press 2022.


Others such as Anne Peters suggest that international law has undergone a process
of ‘humanisation’ in which the individual is now paramount.

What’s more, the processes of law-formation often do not require consent, but
merely acquiescence or tacit acceptance. Silence can be enough to have new
customary norms that bind a State that has not given its express consent. Jus cogens
and peremptory norms even go further: there is no argument that a persistent
objector to a peremptory norm is exempt from it.

Question 3. Several contemporary theories are highly critical of international law and its
aspirations. Identify these, describe their main tenets, and offer your own analysis.

Broad questions of this nature do not in any way suggest that there is a ‘right’ or
‘wrong’ answer; they are questions for reflection. In Chapter 1, a number of
contemporary theories that seek to explain international law were explored. First
are the regional traditions that challenge the Eurocentric (or at least, European)
conception of international law, such as Chinese, Islamic or Latin American
approaches to international law. One can then identify and engage with a number
of schools. First, there are ‘Third World Approaches to International Law’, which
call attention to the colonial legacy in contemporary international law and the
strategic priority of Third World peoples (and emphatically not of Third World
States). Feminist approaches challenge the oppressive history of international law
as being rooted (at least in part) in a gendered hierarchy, and being a historically
specific rather than inevitable historical development. There are also broadly
Marxist perspectives, that argue that international law is a structure designed to
perpetuate the capitalist economic model around the world. You also have various
international relations theories (examples such as realism, ‘network theories’ and
constructivism are given in Chapter 1) that see law more as an emanation of
politics than a separate phenomenon.

What unites these various traditions is that they all challenge the purported
universality or neutrality of international law. All suggest that contemporary

© Oxford University Press 2022.


international law is not politically neutral, that it embeds certain biases or
preferences into its very structures. A student may well disagree; after all, there is
at least an aspiration towards neutrality embodied in international law’s global
reach. Rather than focus on getting a ‘right’ answer, this sort of question is best
addressed through reflection as to your understanding as to the nature of
international law.

© Oxford University Press 2022.

Common questions

Powered by AI

Newly-independent states have invoked international norms to assert their sovereignty and legal rights, leveraging international law to justify statehood and protect their positions in global dynamics. Despite criticisms, international law offers these states a framework to engage with other nations, affirming its practical utility even if structurally imperfect .

The transition from naturalism to positivism in international law reflects a shift towards viewing it as an empirical discipline distinct from moral influences, boosting its legitimacy by appealing to Enlightenment ideals of rationality and objectivity . Despite this, criticisms regarding its efficacy persist, mainly due to structural limitations like lack of centralized authority .

Jus cogens and peremptory norms impose limitations on state sovereignty by dictating essential legal standards that bind states regardless of consent, underscoring principles like prohibitions against genocide and torture . These norms challenge traditional state autonomy, reflecting an international legal order where certain values override individual state preferences .

The principle of good faith underpins the performance of international obligations by ensuring that states adhere to commitments honestly . However, its interpretative flexibility can limit legal certainty, as what constitutes 'good faith' can be subjective, leading to disputes over compliance and enforcement .

The 'humanisation' of international law marks a shift from a strictly state-centric model to one where individuals' rights and interests gain prominence . This evolution reflects changes in how international legal norms are created and implemented, often focusing on human rights and global standards, which transcend traditional consent prerequisites .

Hart and Kelsen criticize international law's status as a "primitive" legal system due to its lack of distinct legislative, adjudicative, and enforcement organs. Hart highlights the absence of 'secondary rules'—rules of change, enforcement, and adjudication—as essential elements of a legal system, which he argues are insufficient in international law . This critique points to structural weaknesses such as the absence of a centralized legislature and compulsory enforcement mechanisms .

Critics argue that the absence of a centralized enforcement mechanism undermines international law's compliance and legitimacy, as it lacks the coercive means to ensure adherence uniformly across states . This structural limitation causes some to view it as a lesser system compared to domestic legal orders, where enforcement is typically more robust .

The principle of state consent in international law implies that only those obligations to which a state has expressly or tacitly agreed can be binding upon it, often based on reciprocity . Exceptions include overarching consensus norms like jus cogens, which are binding regardless of individual state consent, and customary norms formed through acquiescence rather than explicit consent .

Network theories and constructivism perceive international law as interwoven with political phenomena rather than as a standalone legal force. They contend that international law's creation and application are heavily influenced by political networks and social constructs, emphasizing the fluidity and adaptability of legal norms within global power dynamics .

Critical theories challenge international law's claimed neutrality and universality by highlighting its embedded political and cultural biases. Feminist approaches critique its gendered hierarchies; Marxist perspectives view it as perpetuating capitalist systems; Third World Approaches focus on colonial legacies and power imbalances . These theories suggest international law is not inherently neutral but reflects dominant societal preferences .

You might also like