INTERNATIONAL LAW FOR INTERNATIONAL RELATIONS

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1 SUB Hamburg B/ INTERNATIONAL LAW FOR INTERNATIONAL RELATIONS Edited by Ba ak OXFORD UNIVERSITY PRESS

2 Contents Summary Guided tour of Learning Features Guided tour of the Online Resource Centre Contributors List of boxes List of tables List of case studies Abbreviations xviii xx xxii xxv xxviii xxix xxx PART I STUDYING INTERNATIONAL LAW 1 International law for international relations: foundations for interdisciplinary study 3 Basak Cah 2 Perspectives on international law in international relations 25 Fiona B. Adamson and Chandra Lekha Sriram 3 Basic principles of international law: a historical perspective 46 Antony Anghie 4 Perspectives on international relations in international law 71 Basak Cah PART II IDENTIFYING INTERNATIONAL LAW 5 International treaties 99 Emmanuel Voyiakis 6 Customary international law 122 Jason Beckett 7 Non-governmental organizations and international law 141 Meghna Abraham 8 International courts and tribunals 165 Juan M. Amaya-Castro

3 viii Contents PART III TOPICS IN INTERNATIONAL LAW 9 States and international law: the problems of self-determination, secession, and recognition 191 Christopher J. Borgen 10 Use of force in international law 213 Nigel Rodley and Basak Call 11 International humanitarian law 234 Elizabeth Griffin and Ba ak Call 12 International criminal law 258 Paola Gaeta 13 International human rights law 281 Ba ak Cah 14 International law for environmental protection 306 David M. Ong 15 World trade and international law 330 Thomas Sebastian 16 Global social justice and international law 351 Saladin Meckled-Garcia CONCLUSION 17 International law in international relations: what are the prospects for the future? 379 Basak Cah Table of cases 395 Table of major multilateral international treaties and documents 397 Glossary 399 References 409 Index 421

4 Detailed contents Guided tour of Learning Features Guided tour of the Online Resource Centre Contributors List of boxes List of tables List of case studies Abbreviations xviii xx xxii xxv xxviii xxix xxx PART I STUDYING INTERNATIONAL LAW 1 International law for international relations: foundations for interdisciplinary study 3 Introduction 4 What is international law? 5 The relationship between international law and international relations 7 Are international relations and international law two separate disciplines? 7 How does the knowledge produced in international relations and international law overlap, conflict, and co-depend? 12 At what point and in what way does international law enter into international relations research? 16 Why study international law? 20 Conclusion 23 2 Perspectives on international law in international relations 25 Introduction 26 Realism 27 Theory 27 Actors 28 Processes 29 Liberalism 30 Theory 30 Actors 32 Processes 33

5 X Detailed contents Institutionalism 34 Theory 34 Actors 34 Processes 36 Constructivism 37 Theory 37 Actors 38 Processes 39 Marxism, Feminism, and Critical Theory 41 Theory 41 Actors 42 Processes 42 Conclusion 43 3 Basic principles of international law: a historical perspective 46 Introduction 47 The subject matter of a history of international law 47 The birth of modern international law: the sixteenth century 50 The beginnings of Empire 50 The Peace of Westphalia and Westphalian sovereignty: The Congress of Vienna: international law from The League of Nations: international law from The United Nations: 1945 to the present 60 The end of the Cold War: international law from Conclusion 68 4 Perspectives on international relations in international law 71 Introduction 71 What is international law? 73 Positivism about international law 74 Natural law descriptions of international law 77 International law as a process 79 Critical legal studies and international law 80 The purpose of international law 82 The relevance of theories of international law in international relations 86 The empirical relevance of international law 87

6 Detailed contents xi The relevance of international law in the contemporary world 88 Conclusion 89 PART II IDENTIFYING INTERNATIONAL LAW 5 International treaties 99 Introduction 100 Why do states make treaties? 101 The relationship between treaties, customary international law, and the concept of ius cogens 103 Is there a hierarchy of sources in international law? 103 The concept of ius cogens in the Vienna Convention on the Law of the Treaties 104 The making of treaties 105 Negotiation 106 Representation and 'full powers' 107 Adoption, authentication, and expression of consent to be bound 107 Entry into force 108 Universality or integrity? Reservations to treaties 108 What are reservations? 110 Application, interpretation, and the position of third states 112 Third states 113 Temporal and territorial application of treaties 113 The interpretation of treaties 114 Amending a treaty 114 Ending international treaties 115 Invalidity 116 Termination and suspension 117 Settling disputes 118 Conclusion Customary international law 122 Introduction 122 What rules govern the formation of CIL? The conduct-centred model 124 The CIL approach to state behaviour: states as agents with legal motivations 125 What are the material sources of CIL? 129

7 xii Detailed contents State actions 129 United Nations General Assembly Resolutions 130 Treaties and other texts 131 Identifying particular rules of CIL: the tipping point 132 CIL in the real world 134 The compatibility of CIL with ius cogens norms 135 (Why) do states comply with CIL? 136 Factors contributing to compliance with CIL: state identity and systemic benefits 136 Conclusion 138 Non-governmental organizations and international law 141 Introduction: non-governmental organizations in a terrain occupied by states 142 Motivations for NGO involvement in international law 143 Overcoming domestic politics or barriers 144 Economies of scale 145 Better forum for negotiations 145 Opportunities to gradually increase the scope or level of the commitment 145 Enhancing the legitimacy of NGOs 145 Mechanisms for international enforcement 146 NGOs and sources of international law 146 NGO participation in intergovernmental organizations and processes 149 The role of NGOs in the development of international law 151 Initiating new standards 151 NGO participation in negotiations, drafting, and entry into force of treaties 154 How can we explain NGOs' ability to influence the process? 156 The role of NGOs in the enforcement of international law 157 Publicize non-compliance 158 Clarification of what is non-compliance 158 Lobby for action in response to non-compliance 159 Evaluating NGO involvement in the development of international law 159 Redressing a democratic deficit? 159 How do we gauge how effective NGOs have been? 161 Conclusion 161

8 Detailed contents Xlll 8 International courts and tribunals 165 Introduction: international courts in contemporary life 166 What are international courts? 166 Types of international courts 167 How international courts are formed 171 Who can bring a case to an international court? 171 What is the effect of international judicial decisions? 176 What are the functions of international courts? 178 Dispute settlement 178 Enforcing international law 179 Identifying and developing international law 180 When are international courts successful? 182 The future of international courts and tribunals 183 Conclusion 184 PART III TOPICS IN INTERNATIONAL LAW 9 States and international law: the problems of self-determination, secession, and recognition 191 Introduction. 192 International law and statehood 193 Statehood and sovereignty 193 What is the recognition of statehood? 195 International law of self-determination 197 Self-determination: from political rhetoric to legal right 197 Applying self-determination to international relations: who or what has a right of self-determination? 199 Applying self-determination to international relations: the territorial integrity of states 200 The problem of secession in international law and international relations 200 The majority view: no right of secession 201 The reply: the 'extreme cases' argument 203 Secession and state practice 204 Recognition and secession 205 Conclusion 207

9 xiv Detailed contents 10 Use of force in international law 213 Introduction 213 The general framework on the use of force in international law 215 Self-defence 217 When can states resort to the right of self-defence? 218 What circumstances justify self-defence? 219 The conduct question 220 The use of force, self-defence, and non-state actors 221 Unilateral humanitarian intervention? 222 The collective security system under the United Nations Charter 224 The power of international law on the use of force: rhetoric or controlling? 228 Conclusion International humanitarian law 234 Introduction 234 What is international humanitarian law and how is it made? 236 IHL treaties 238 Customary IHL 239 The nature of international humanitarian law 240 IHL and actor-centricism 240 International and internal armed conflicts 241 IHL and the International Committee of the Red Cross (ICRC) 242 Purposes of international humanitarian law and its basic principles 242 Compliance with international humanitarian law 249 Motivations of states and IHL: why do states agree to rules that govern armed conflict? 249 Indicators of compliance 251 Non-compliance and accountability 252 Non-state actors and compliance with international humanitarian law 253 Conclusion International criminal law 258 Introduction 258 The birth and evolution of international criminal law 260 The first phase: the Nuremberg and Tokyo Tribunals 260 The second phase: the adoption of treaties for the repression of international crimes by states 262

10 Detailed contents XV The turning point: the establishment of international criminal courts 263 The core crimes and the rationale behind their international criminalization 265 War crimes 265 Crimes against humanity and genocide 267 The reasons for the different path of the international criminalization of war crimes with respect to crimes against humanity and genocide 270 The enforcement of international criminal law at the international level 271 The ad hoc criminal tribunals and the ICC: an overview 271 The United Nations Security Council and the International Criminal Court 272 The pros and cons of international criminal proceedings 274 The relationship between international criminal courts and national courts: primacy versus complementarity 275 Conclusion International human rights law 281 Introduction 282 What makes up international human rights law and where do we find it? 282 The origins of international human rights law 284 International human rights law institutions 287 The relevance of international human rights law in international relations 290 IHRL and intervention in the internal affairs of other states 291 IHRL and state sovereignty 293 Compliance with international human rights law 298 New international actors and international human rights law 300 Conclusion International law for environmental protection 306 Introduction 307 International treaties for environmental protection 308 International environmental principles and the sustainable development paradigm 310 The integration principle 311 The preventive and precautionary principles 312 The polluter pays principle 313 The principle of environmental impact assessment (EIA) 314

11 xvi Detailed contents The principles of access to environmental information, public participation in the environmental decision-making process, and access to environmental justice 315 Status of environmental principles in international law 317 Environmental treaty non-compliance mechanisms 319 Non-state actors and environmental protection 321 Self-regulation by TNCs in the field of environment: the Equator Principles 323 A mixed regime for international environmental law? 324 Conclusion World trade and international law 330 Introduction 331 The rationale for trade treaties 331 Types of trade treaties 334 The WTO: negotiating forum and monitoring institution 336 Facilitating bargains 337 Monitoring compliance 337 Basic disciplines: limiting protectionism 340 Limits on the forms of protection 340 Non-discrimination 341 Advanced disciplines: constraints on regulatory freedom 343 Loopholes and exceptions 345 Criticisms of the WTO: a biased forum? 347 Conclusion Global social justice and international law 351 Introduction 352 What kinds of problems does social justice address? 352 What is justice and where does it apply? 355 Does international law have the right profile for social justice to apply to it? 358 Can international law be used to advance the cause of social justice? 368 What standards of justice are applicable to international affairs? 372 Conclusion 373

12 Detailed contents xvii CONCLUSION 17 International law in international relations: what are the prospects for the future? 379 Introduction 380 The political (in)stability of international law 381 The international law respecting state: an idealist category? 383 Institution-building for international law 385 The creation of international organizations, courts, tribunals, and expert bodies 385 Domestic courts and international law 386 The breadth of international law 388 Complexity and differentiation in international law regimes 389 Non-state actors and international law 390 Non-state actors as potential law-makers? 390 Non-state actors as subjects of regulation 391 Non-state actors as threats to international law 392 Conclusion 393 Table of cases 395 Table of major multilateral international treaties and documents 397 Glossary 399 References 409 Index All

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