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It is said in the domestic practice of law that the facts are sometimes more important than the law. Advocates often win and lose cases on their facts, despite the perception that the law’s formalism and abstraction are to blame for its failures with regards to delivering justice.
What role does international law play in addressing global problems? How can international lawyers innovate to provide solutions? How can they learn new approaches from different legal systems? Which fields require greater research and expertise?
Everyone knows that the increasing threat of cyber attacks will place immense pressure on the operational capacities for various intelligence and defense agencies. Speak with anyone in military operations (from several countries), and their lists of security concerns are remarkably similar: Russia, ISIS, and cyber (in no particular order).
The fifth annual ASIL Research Forum is taking place 23-24 October 2015 in Washington, DC. Attendees will present and discuss works-in-progress that explore many topics in international law including energy, financial regulation, international criminal courts, trade, and treaty practice.
How do large-scale societies achieve cooperation? Since Thomas Hobbes’ famous work, Leviathan (1651), social scientific treatments of the problem of cooperation have assumed that living together without killing one another requires an act of depersonalization in the form of a transfer of individual powers to an all-powerful central government.
After venturing to the far East of Japan last year, 2015 sees the return of the International Bar Association’s annual meeting to Europe. Vienna will host the conference this year, a city which holds an interesting pedigree as a legal centre. The Annual Meeting itself promises to be a must-attend event for all international lawyers, with sessions ranging from climate change justice to human trafficking.
Since its inception, the Islamic State (IS) has engaged in continuous behavior that violates the law of armed conflict (LOAC). These acts include the torture and killing of civilians; inhumane treatment of detainees generally, and in particular, women; forced compliance with religious and cultural practices; and, most recently, the systematic destruction and/or illegal sale of important cultural property.
Where and when did the history of international law begin? Many scholars have argued about the definitive date and periodisation of certain dynamic developments, let alone which treaties, institutions, and figures have shaped the field's core doctrines.
Should investment disputes be solved by a permanent court or by arbitral tribunals? This is one of the key questions that might kill the efforts for what would be the largest regional free-trade agreement in history, covering 46% of world GDP: the Transatlantic Trade and Investment Partnership (TTIP).
On his recent visit to Kenya, President Obama addressed the subject of sexual liberty. At a press conference with the Kenyan President Uhuru Kenyatta, he spoke affectingly about the cause of gay rights, likening the plight of homosexuals to the anti-slavery and anti-segregation struggles in the United States.
August 19th is World Humanitarian Day, declared by the UN General Assembly in 2008, out of a growing concern for the safety and security of humanitarian workers who are increasingly killed and wounded direct military attacks or infected by disease when helping to combat global health pandemics.
Which Nordic state had sovereignty over Iceland until 1918? Which state was allowed to discriminate against a transgender woman by annulling her marriage? Who disputed ownership of Eastern Greenland before the Permanent Court of International Justice? In preparation for the European Society of International Law's 11th annual conference, this year held in Oslo, test your knowledge of Nordic countries in international law with our quiz.
The widespread practice of uploading photographs onto internet social networking and commercial sites has converged with advances in face recognition technologies to create a situation where an individual can no longer be just a face in the crowd. Despite the intrusive potential of face recognition technologies (FRT), the unauthorised application of such technologies to online digital images so as to obtain identity information is neither specifically prohibited nor a critical part of the international law reform discourse.
Customary international law arises from the practices of nations followed out of a sense of legal obligation. Although long an important source of international law, there continues to be debate and uncertainty about customary international law’s status in the US legal system.
Taiwan easily satisfies the traditional requirements for statehood: a permanent population, effective control over a territory, a government, and the capacity to interact with other states. Yet the realities of global power politics have kept Taiwan from being recognized as such.
The 109th ASIL Annual Meeting is taking place from 8-11 April 2015, at the Hyatt Regency Capitol Hill, in Washington, DC. The ASIL Annual meeting is one of the most important events on the international law community calendar, and 2015 proves to be no exception.
The American Society of International Law’s annual meeting (8 – 11 April 2015) will focus on the theme ‘Adapting to a Rapidly Changing World’. In preparation for this meeting, we have asked some key authors to share their thoughts on the ways in which their specific areas of international law have adapted to our rapidly changing world.
We are pleased to introduce the marketing team for International Law at Oxford University Press. Cailin, Jo, Erin, Jeni, Kathleen, and Ciara work with journals, online reference, and books which are key resources for students, scholars, and practitioners worldwide. The OUP portfolio in international law covers international criminal law, international human rights law, international economic […]
The European Union’s legal system was created, so the story goes, by two astonishing decisions of the European Court of Justice (the ‘ECJ’) in the early 1960s. In the Van Gend en Loos decision of 1963, the European Court declared the ‘direct effect’ of European law [...]
Russia’s annexation of Crimea in 2014 was a watershed in international relations because with this act, Moscow challenged the post-Cold War international order. Yet what has been fascinating is that over the last years, Russia’s President and Foreign Minister have repeatedly referred to ‘international law’ as one of Russia’s guiding foreign policy principles.
Global Summitry is a new journal published by Oxford University Press in association with University of Toronto’s Munk School of Global Affairs and Rotman School of Management. The journal features articles on the organization and execution of global politics and policy. The first issue is slated to publish in summer 2015. We sat down with editors Alan Alexandroff and Don Brean to discuss the changing global summitry field and their plans for the journal’s digital scope, including audio podcasts, and videos.
* * * * *
What new approaches will Global Summitry bring to its field?
Global Summitry is concerned with examining today’s international governance in all of its dimensions. The Journal, it is hoped, will describe, analyse, and evaluate the evolution, the contemporary setting, and the future of collaboration of the global order. Global Summitry has emerged to capture contemporary global policy-making in all its complexity.
Global Summitry is dedicated to raising public knowledge of the global order and its policy outcomes. The Journal seeks informed commentary and analysis to the process and more particularly, the outcomes of global summitry. Global Summitry will feature articles on the organization and execution of global politics and policy from a variety of perspectives — political, historical, economic, and legal — from academics, policy experts, and media personnel, as well as from distinguished officials and professionals in the field.
How has the field changed in the last 25 years?
There has been dramatic change in the global order and its actors. The ending of the Cold War and the demise of the Soviet Union left the United States as the last superpower. The end of the Cold War saw the rise of global governance and the primary leadership of the United States. Increasingly, the problems of the international system focused on growing economic and political interdependence questions. Alongside the formal institutions of international organization — the UN and Bretton Woods systems — new informal institutions — the G7/8, APEC, EAS, NSS, and the G20 — emerged to meet the growing challenges — climate change, development, human rights and justice, nuclear material security, global poverty and development, and global security. And, with the traditional great powers, we saw the emergence of the new large emerging market states, like Brazil and India, but most spectacularly, China.
Palais des Nations by Eferrante. CC BY-SA 3.0 via Wikimedia Commons.
Today global governance involves a variety of actors — international organizations, both formal, and informal, states, transgovernmental networks, and select non-state entities. All of these actors are involved in the organization and execution of global politics and policy today. Global summitry today is concerned with the architecture, the institutions and, most critically, the political behavior and outcomes in coordinated global initiatives. We will reach out to scholars from all across the globe from the traditional academic centers, to the new centers in the BRICS and the New Frontier states for commentary and insights into the global order.
What do you hope to see in the coming years from both the field and the journal?
The global summitry field will chronicle, we hope, how international governance meets the challenges of economic and political interdependence. But attention will also be directed to understanding how we meet the growing geopolitical tensions that have appeared — conflict with Russia in Europe, the new tensions in East Asia, the growing disorder in the Middle East that have created consequences well beyond that region. Global Summitry will bring expert description, analysis, and evaluation to a field that until now has not been a stand-alone focus of inquiry by researchers, policy analysts, media and officials from across the globe.
What are your plans to innovate and engage with your audience?
We see a multi-platform world evolving for all academic publishing. As a result, from the commencement of Global Summitry, we intend to present information through all contemporary digital means. The Journal intends to provide a steady stream of academic and policy articles of course but we are determined to offer video interviews with our experts, policy makers, and media guests. We also intend to provide podcast presentations and discussions. As various digital platforms evolve, we anticipate evolving as well.
The centenary of the Great War in 2014 has generated impressive public as well as scholarly attention. It has all but overshadowed some other major anniversaries in the history of international relations and law, such as the quarter-centenary of the fall of the Berlin Wall (1989) or the bicentenary of the Vienna Congress (1814–1815). As with the turn of the year the interest in the Great War seems to be somewhat subsiding, and the anniversary of the most epic and dramatic event of the Vienna period (the Battle of Waterloo of 18 June 1815) is approaching, the commemoration of the Vienna Congress gains a bit of the spotlight.
The Congress of Vienna marked the establishment of a new political and legal order for Europe after more than two decades of turmoil and war following the French Revolution. The defeat of Napoleon (1769–1821) in 1813–1814 by a huge coalition of powers under the leadership of Britain, Russia, Austria, and Prussia gave the victorious powers an opportunity to stabilise Europe. This they intended to do by containing the power of France and recreating the balance between the great powers.
At Vienna, between November 1814 and June 1815, the representatives of more than 200 European polities – many from the now-defunct Holy Roman Empire – met to debate a new European order. The Congress of Vienna stands in the tradition of great European peace conferences, beginning with Westphalia (1648) and continuing with Nijmegen (1678–1679), Rijswijk (1697), Utrecht (1713), Vienna (1738), Aachen (1748), and Paris (1763) to the Paris peace conference that ended the American War of Independence (1783). Yet, in several ways, it was also a departure from it.
At the prior peace conferences, the major order of business had been to agree on the conditions to end war and restore peace. Whereas this implied discussions on the future order of Europe, the major interest was to settle the claims that lay at the origins of the war and the focus was thus largely backwards-looking. In the case of Vienna, peace had already been made between France and the major allies before the conference met. Peace had been formally achieved through the First Peace of Paris of 30 May 1814. This peace had taken the traditional form of a set of bilateral peace treaties between the different belligerents. In this case it concerned six peace treaties between France on the one hand and Britain, Russia, Austria, Prussia, Sweden, and Portugal on the other hand. These treaties were identical but for some additional and secret articles. Professor Parry published the treaty between France and Britain as well as these separate articles (63 CTS 171). On 20 July 1814, France concluded a seventh peace treaty with Spain (63 CTS 297). Article 32 of the identical treaties provided for a general congress at Vienna to ‘complete the provisions of the present Treaty’. The peace treaties contained the major conditions of peace, including the new borders of France. It was left to the Congress to lay out the conditions of the general political and legal order of Europe for the future.
Not even the return of Napoleon from Elba and the eruption of new war diverted the Congress from its forward-looking agenda. The congress was not suspended nor was a new peace treaty made at Vienna. After Napoleon’s defeat at Waterloo and the second restoration of the Bourbons to the French throne, a new set of peace treaties was made under the Second Peace of Paris of 20 November 1815 (65 CTS 251), between France and each of the four great powers of the coalition. Numerous other powers later acceded to the peace.
As prior conferences had done, the Vienna Congress produced a whole set of – mostly bilateral – treaties. But the conference also chose an innovative form for its closing as its main conclusions were formally laid down in a general instrument, the Final Act of Vienna of 9 June 1815 (64 CTS 453). This act was signed and ratified by the seven powers which had concluded peace at Paris on 30 May 1814, with Spain and some other powers later acceding. Article 118 of the Final Act incorporated 17 treaties which had been concluded at Vienna and annexed them to the instrument, thus committing all signatories of the Final Act to them. In turn, Article 11 of the Second Peace of Paris would later confirm the Vienna Final Act, as well as the First Peace of Paris.
As it is generally established in the scholarly literature, the new order of Europe which came out of the Vienna Congress was based on two main pillars. Firstly, the Vienna powers aspired to restore and safeguard the balance of powers and made this into a leading maxim in drafting the new territorial map of Europe. This was done by reducing France to its borders of 1792 – allowing it to keep some of its conquests from the Revolutionary Period – and strengthening its neighbours. The greatest riddle to the balance of power was the future of Germany. The solution was found somewhere between the extremes of a return of the division of the Holy Roman Empire, which would have made it defenceless against new French expansionism, and its unification, which would have disrupted the balance of Europe. The new German Confederation would contain only 39 states instead of the over 300 of the old Empire. Within the Confederation, a balance was created between the two leading powers, Austria and Prussia, both of which made considerable territorial gains to ensure their capability to contain France, and each other.
Secondly, the Vienna order was built on the principle that the great powers – a group into which France retook its traditional place – would take common responsibility for the general peace and stability of Europe. The four victorious great powers had already agreed on this principle in different instruments prior to the Vienna Congress, the main one of these being the Treaty of Chaumont of 1 March 1814 (63 CTS 83). This ‘great power principle’ also determined the organisation and working of the congress itself. Although over 200 delegations were present, the major negotiations and decisions took place in the Committees of Five (Britain, Russia, Austria, Prussia, and France) and of Eight (also including Spain, Sweden, and Portugal), relegating the other powers to roles as lobbyists for their own interests. As the chief French negotiator, Charles Maurice de Talleyrand-Périgord (1754–1838) had it, ‘Vienna was the Congress that was not a Congress’. The Final Act did, however, lack a provision for the future implementation of the great power principle apart from the fact that the eight great powers were bound to all its provisions and thus were all guarantors of the territorial and legal order of Europe as laid down in the act. This was remedied by the Second Peace of Paris of 20 November 1815. Article 6 of the bilateral treaty of alliance signed between Britain and Austria provided for the convening of conferences between the great powers to discuss matters of common interest and the maintenance of peace in Europe. Through its incorporation in the identical peace treaty, this committed all its signatories.
The basic features of the reorganisation of Europe from Vienna would survive for more than five decades, until the German unification. Whereas Europe was plagued by numerous armed conflicts and wars, the Vienna order proved at the same time sufficiently grounded and flexible to allow the great powers the leeway necessary to prevent these wars from escalating into a new general war. Even the disruption of the balance of power through the defeat of France in the Franco-German War and the ensuing unification of Germany in 1870 did not lead to an end to the endeavours by the great powers to manage the system and to sustain peace. The breakdown of the peace and the total conflagration of 1914–1918 destroyed the credit of one of the pillars of the Viennese settlement, the balance of power. But the other survived. Even more so, the idea that the best guarantee for order and peace was their joint management by the great powers became the backbone of the institutional organisation of collective security in the League of Nations in 1919 and the United Nations Organisation in 1945.
To speak of sovereign equality today is to invite disdain, even outright dismissal. In an age that has become accustomed to compiling “indicators“ of “state failure,” revalorizing nineteenth-century rhetoric about “great powers,” and circumventing established models of statehood with a nebulous “responsibility to protect,” sovereign equality seems little more than a throwback to a simpler, less complicated era.
To be sure, as a general principle, sovereign equality remains foundational to both customary and conventional international law. Article 2(1) of the UN Charter retains its nominally sacrosanct status, a foundational point of reference for a modern international law that promised to do away with the “standard of civilization”. Similarly, all the other classic articulations of independence and non-interference, especially the 1970 Friendly Relations Declaration, continue to be invoked, often with much the same spirit of solemnity.
Yet a great deal has also changed in recent decades. We have grown familiar to hearing that borders are no longer what they once were (or what, at any rate, they were once imagined to be). Traversed by goods, services, people, and capital, not to mention information, territorial frontiers have been characterized by wave upon wave of globalization theory as “fluid” and “porous”. Likewise, conventional legal models of recognition and jurisdiction have come under intense criticism. Among other things, the colonization of large chunks of international law scholarship by political science has generated a large literature on “rogue states”.
Not surprisingly, such developments have put the very idea of sovereign equality under pressure. And this, in turn, has had significant systemic consequences for international law as a whole.
Of course, sovereign equality is not without its problems. The principle has legitimated the very injustice it is purportedly designed to combat, enshrouding real inequality in a purely notional equality. After all, in itself, a bare assertion that states are equal and endowed with the same legal personality does remarkably little to rectify actually existing inequalities. Worse still, “rights of sovereignty” have been invoked to justify all manner of abuses, typically by national elites determined to augment and consolidate their class power.
Part of the difficulty here is that far from being inherently “progressive”, sovereign equality is a concept with a rather murky pedigree. While its roots reach back centuries, the principle assumed strong doctrinal form during the nineteenth century by way of the Concert of Europe’s commitment to the European balance of power. This commitment was typically premised upon the impermissibility of intervention in “civilized” states and the permissibility of intervention in “uncivilized” and “semi-civilized” regions. That is hardly an ideal foundation for an emancipatory principle.
All of this is true. But it is also worth keeping in mind that sovereign equality has frequently furnished politically and economically weaker states with a measure of protection against aggression and intervention. As a response to de facto inequality, international lawyers instinctively prioritize de jure equality. Absent such insistence on formally equal rights and obligations, it is often assumed, the will and interests of some states would be subordinated to the will and interests of other states, with predictably dire implications for international legal order.
To underscore the significance of sovereign equality today is not to cling to an outdated mode of conceiving international relations. Nor is it to deny that sovereign power has its “dark sides”. It is simply to stress the need for greater appreciation of the fact that sovereignty may under certain circumstances provide a buffer against some of the most direct and explicit forms of inter-state violence. It is worth recalling that the history of international law is to no small degree the history of attempts to secure recognition for (one or another account of) sovereign equality. This is anything but a puerile pursuit.
Headline image credit: Map of the world. CC0 via Pixabay.
International law has faced profound challenges in 2014 and the coming year promises further complex changes. For better or worse, it’s an exciting time to be working in international law at Oxford University Press. Before 2014 comes to a close, we thought we’d take a moment to reflect on the highlights of another year gone by.
We published a new comprehensive study into the development, proliferation, and work of international adjudicative bodies: The Oxford Handbook of International Adjudication edited by Cesare Romano, Karen Alter, and Yuval Shany.
In early April, we were finalizing preparations for ASIL-ILA 2014, as were many of our authors and readers. By combining the American Society of International Law and the International Law Association, the schedule was full of interesting discussions and tough choices.
David Caron, co-author of the UNCITRAL Arbitration Rules 2nd edition with OUP’s very own Merel AlsteinAntonios Tzanakopoulos, author of Disobeying the Security Council: Countermeasures against Wrongful Sanctions, and OUP’s very own John Louth
We worked with the authors of The Locus Effect: Why the End of Poverty Requires the end of Violence, Gary A. Haugen and Victor Boutros, to develop an infographic and learn how solutions like media coverage and business intervention have begun to positively change countries like the Congo, Cambodia, Peru, and Brazil.
EJIL: Live!, the official podcast of the European Journal of International Law (EJIL), launched. Podcasts are released in both video and audio formats to coincide with the publication of each issue of EJIL. View all episodes.
The World Cup highlighted the global issue of exploitation of low and unskilled temporary migrant workers, particularly the rights of migrant workers in Qatar in advance of the 2022 World Cup and the abuses of those rights.
In advance of September’s 10th anniversary European Society of International Law meeting, we asked our experts what they thought the future of international law might look like.
On 30 August we put together a content map of international law articles in recognition of the International Day of the Victims of Enforced Disappearances. Click the pins below to be taken to the full text articles.
August saw the publication of the third edition of one of our best-regarded works on international criminal law — Principles of International Criminal Law by Gerhard Werle and Florian Jeßberge — as well as our latest addition to the Oxford Commentaries on International Law series — The Chemical Weapons Convention: A Commentary edited by Walter Krutzsch, Eric Myjer, and Ralf Trapp.
In September, Scotland voted in a referendum. Anthony Carty and Mairianna Clyde addressed what might it have meant for Scottish statehood had Scotland voted for independence? And Stephen Tierney addressed the question, what would an independent Scotland look like?
In celebration of ESIL’s 10th anniversary conference in September, we put together a quiz featuring the eleven cities that have had the honour of hosting an ESIL conference or research symposium since the first in 2004. Each place is the answer to one of these questions – see if you can match the international law event to the right city.
Ingo Venzke at the European Society of International Law meeting in Vienna
September saw the release of Human Rights: Between Idealism and Realism by Christian Tomuschat, an unique and fully updated study on a fundamental topic of international law.
Amal Alamuddin, Barrister at Doughty Street Chambers, co-editor of The Special Tribunal for Lebanon: Law and Practice, and contributor to Principles of Evidence in International Criminal Justice, married the actor George Clooney. Congratulations, Amal!
On 21 September we celebrated Peace Day. We put together an interactive map showing a selection of significant peace treaties that were signed from 1648 to 1919. All of the treaties mapped here include citations to their respective entries in the Consolidated Treaty Series, edited and annotated by Clive Parry (1917-1982).
On 24 September Oxford Historical Treaties launched on Oxford Public International Law. Oxford Historical Treaties is a comprehensive online resource of nearly 16,000 global treaties concluded between 1648 and 1919 (between the Peace of Westphalia and the establishment of the League of Nations).
October
On 10 October, the Nobel Peace Prize was awarded to Malala Yousafzai and Kailash Satyarthi. In recognition of their tremendous work, we made a selection of articles on children’s rights free to read online for the month of October.
On 16 October, Ruti Teitel gave a talk on her new book Globalizing Transitional Justice, which published in May 2014, at Book Culture in New York. The event included a panel discussion with Luis Moreno-Ocampo, the first Prosecutor (June 2003-June 2012) of the new and permanent International Criminal Court, and Jack Snyder, the Robert and Renee Belfer Professor of International Relations in the Department of Political Science and the Saltzman Institute of War and Peace Studies at Columbia.
Ruti Teitel at Book Culture in New York
In October, we were preparing for the 2014 International Law Weekend Annual Meeting at Fordham Law School, in New York City (24-25 October 2014). We were also busy preparing for the FDI Moot, which gathers academics and practitioners from around the world to discuss developments and gain a greater understanding of growing international investment, the creation of international investment treaties, domestic legislation, and international investment contracts. Read more here.
In recognition of UN Day this year on 26 October, we created a free article collection featuring content from international law journals, the Max Planck Encyclopedia of Public International Law, and The Charter of the United Nations.
In October we published the first in a major three-volume manual bringing together the law of the sea, shipping law, maritime environmental law, and maritime security law. Prepared in collaboration with the International Maritime Law Institute, the International Maritime Organization’s research and training institute, The IMLI Manual on International Maritime Law: Volume I: The Law of the Sea is edited by Malgosia Fitzmaurice, and Norman Martinez with David Attard as the General Editor.
November
In November we published our annual report on armed conflict around the world. The War Report: Armed Conflict in 2013, edited by Stuart Casey-Maslen, provides detailed information on every armed conflict which took place during 2013, offering an unprecedented overview of the nature, range, and impact of these conflicts and the legal issues they created.
In mid-November we published the second edition of Environmental Diplomacy: Negotiating More Effective Global Agreements, by Lawrence E. Susskind and Saleem H. Ali, which discusses the geopolitics of negotiating international environmental agreements. The new edition provides an additional perspective from the Global South and a broader analysis of the role of science in environmental treaty-making.
Judicial Review of National Security expanded our Terrorism and Global Justice Series in late November. Author David Scharia gave a book talk at NYU School of Law’s Center on Law and Security soon after the book published. The talk began with an introduction from President (ret.) Dorit Beinisch of the Supreme Court of Israel.
December
In celebration of Human Rights Day 2014, we asked some key thinkers in human rights law to share stories about their experiences of working in this field, and the ways in which they determined their specific focuses. These reflective pieces were collated into an article for the OUPblog. Additionally, we made a collection of over thirty articles from law and human rights journals free for six months, and promoted a number of books titles alongside the journal collection, on a central page. Finally, 50 landmark human rights cases were mapped across the globe.
For almost a hundred years, international law has been on the receiving end of relentless criticism from the policy and academic worlds. That law, sometimes called the law of nations, consists of the web of rules developed by states around the world over many centuries through treaties and customary practices, some bilateral, some regional, and some global. Its rules regulate issues from the very technical (how our computers communicate internationally or the lengths of airport runways) to areas of common global concern (rules for ships on the seas or ozone pollution) to the most political for individual states (like when they can go to war or the minimum standards for human rights).
The first challenge to international law comes from those politicians, pundits, and political scientists who see it as fundamentally ineffective, a point they see as proved ever since the League of Nations failed to enforce the Versailles Treaty regime against the Axis in the 1930s. But those who really know how states relate to each other, whether diplomats or academics, have long found this criticism an unrealistic caricature. While some rules have little dissuasive power over some states, many if not most important rules, are generally followed, with serious consequences for violators, like ostracism, reciprocal responses, or even sanctions. The list of routinely respected rules is enormous, from those on global trade to the law of the sea to the treatment of diplomats to the technical areas mentioned above. Most international cooperation is grounded in some legal rules.
The second challenge to international law has come from domestic lawyers and some legal scholars who asserted that international law is not really “law” because it lacks the structure of domestic law, in particular an executive or police force that can enforce the rules. But this too is a canard. As the British legal scholar H.L.A. Hart pointed out more than a half-century ago, one does not need to have perfect enforcement for a rule to be “law,” as long as the parties treat the rules as law. With international law, states certainly interact in a way that shows they treat those rules as law. They expect them to be followed and reserve special opprobrium and responses for law violators. Certainly, powerful states can get away with some law violations more easily than weak states, but that has nothing to do with whether international law is law.
Third, international law has faced a challenge from some philosophers and global leaders that it is fundamentally immoral. They claim that its rules reflect self-interested bargains among governments, but lack moral content. It is intriguing that this moral criticism actually comes from two opposite directions. On the one hand, so-called cosmopolitan philosophers, who think people’s moral duties to one another should not turn on nationality or national borders (which they view as morally arbitrary), condemn many rules for sacrificing concern for the individual, wherever he or she may live, for the mere interests of states. On the other hand, leaders of many developing world nations claim that many of international law’s rules are immoral for not privileging states enough, in particular because they see the rules as part of a move by Northern states to undermine poor nations’ national sovereignty.
One example shows the criticism. Consider the rule on secession, a rule that helps us evaluate, for instance, whether Crimea’s separation from Ukraine, and Russia’s engineering of that move, is illegal. International law has a “black-letter” rule that strictly limits the possibility for a group of people disaffected with their government to secede unilaterally from their state, only endorsing it if the government is severely denying them representation in the state. The point of the rule is to avoid the violence that comes from secessions – as we have seen from the break-up of Yugoslavia, the war between Sudan and the recently formed South Sudan, and the Ukraine-Russia conflict today. Cosmopolitan philosophers condemn the rule for not allowing individuals enough choice, by forcing people to remain tied to a state when they would prefer to have their own state, just for the sake of the stability of existing and arbitrary inter-state borders. Developing world leaders, often intolerant of minority groups in their state, criticize the rule for the opposite – for harming states by opening the door, however slightly, for some groups to secede and form their own states.
I think both of these criticisms miss the mark. In my view, many core rules of international law are indeed just because they do what all rules of international law must do – they promote peace, interstate or domestic, while respecting basic human rights. We need international rules to promote peace because the global arena is still characterized by a great deal of interstate and internal violence. At the same time, we cannot tolerate rules that trample on basic human rights, which are a sort of moral minimum for how we treat individuals.
This standard for a just system of international law is different from the more robust form of justice we might expect for a domestic society. The great theory of contemporary justice, that of John Rawls, demands both an equal right to basic liberty for all individuals within a state and significant redistribution of material wealth to eliminate the worst economic inequality. But we can’t really expect international law to do this right (particularly the second) now. Why? Because we cannot assume the domestic tranquility on which to build that more robust justice, and because the international arena does not have the same kind of strong institutions to force those sorts of rules on everyone (even though it can force some rules on recalcitrant states).
To return to my example about secessions, I think the rule we have strikes the right balance between peace and human rights. It promotes interstate and internal peace by disallowing merely unhappy groups to separate unilaterally; but it keeps the door open to that possibility if they are facing severe discrimination from the central government. So the Scots, Quebecers, or ethnic Russians in Ukraine do not have a right to secede, but Estonians did, and maybe Kurds still do. Other rules of international law will also meet this test, though I think some of them do risk undermining human rights.
Why should we care whether international rules are just? Because, as I stated earlier, those norms actually do guide much governmental action today. If a norm of international law is just, we have given global leaders and the public good reasons to respect it – as well as good reasons to be wary of changing it without careful reflection. And for those that are not, we can use an ethical appraisal to map out a course of action to improve the rules. That way, we can develop an international law that can promote global justice.
