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On 28 June 1914, Archduke Franz Ferdinand and his wife Sophie, Duchess of Hohenberg, were assassinated in Sarajevo, setting off a six week diplomatic battle that resulted in the start of the First World War. The horrors of that war, from chemical weapons to civilian casualties, led to the first forays into modern international law. The League of Nations was established to prevent future international crises and a Permanent Court of International Justice created to settle disputes between nations. While these measures did not prevent the Second World War, this vision of a common law for all humanity was essential for international law today. To mark the centenary of the start of the Great War, and to better understand how international law arose from it, we’ve compiled a brief reading list.

The Oxford Handbook of the History of International Law, Edited by Bardo Fassbender, Anne Peters, and Simone Peter

How did international law develop from the 15th century until the end of World War II? This 2014 ASIL Certificate of Merit winnor looks at the history of international law in relation to themes such as peace and war, the sovereignty of states, hegemony, and the protection of the individual person. It includes Milos Vec’s ‘From the Congress of Vienna to the Paris Peace Treaties of 1919′ and Peter Krüger’s ‘From the Paris Peace Treaties to the End of the Second World War’.

Formalizing Displacement: International Law and Population Transfers by Umut Özsu

A detailed study into the 1922-34 exchange of minorities between Greece and Turkey, supported by the League of Nations, in which two million people were forcibly relocated. Check out the specific chapters on: Wilson and international law; US jurisprudence and international law in the wake of WWI; and the failed marriage of the US and the League of Nations and America’s reaction of isolationism through WWII.

The Birth of the New Justice: The Internationalization of Crime and Punishment, 1919-1950 by Mark Lewis

How could the world repress aggressive war, war crimes, terrorism, and genocide in the wake of the First World War? Mark Lewis examines attempts to create specific criminal justice courts to address these crimes, and the competing ideologies behind them.

A History of Public Law in Germany 1914-1945 by Michael Stolleis, Translated by Thomas Dunlap

How did the upheaval of the first half of the 20th century impact the creation of public law within and across states? Germany offers an interesting case given its central role in many of the events.

“Neutrality and Multilateralism after the First World War” by Aoife O’ Donoghue in the Journal of Conflict and Security Law

What exactly did ‘neutrality’ mean before, during, and after the First World War? The newly independent Ireland exemplified many of the debates surrounding neutrality and multilateralism.

“What is Aggression? : Comparing the Jus ad Bellum and the ICC Statute” by Mary Ellen O’Connell and Mirakmal Niyazmatov in the Journal of International Criminal Justice

The Treaty of Versailles marked the first significant attempt to hold an individual — Kaiser Wilhelm — accountable for unlawful resort to major military force. Mary Ellen O’Connell and Mirakmal Niyazmatov discuss the prohibition on aggression, the Jus ad Bellum, the ICC Statute, successful prosecution, Kampala compromise, and protecting the right to life of millions of people.

“Delegitimizing Aggression: First Steps and False Starts after the First World War” by Kirsten Sellars in the Journal of International Criminal Justice

Following the First World war, there was a general movement in international law towards the prohibition of aggressive war. So why is there an absence of legal milestones marking the advance towards the criminalization of aggression?

“The International Criminal Tribunal for the Former Yugoslavia: The Third Wang Tieya Lecture” by Mohamed Shahabuddeen in the Chinese Journal of International Law

What is the bridge between the International Military Tribunal, formed following the Treaty of Versailles, and the International Criminal Tribunal for the former Yugoslavia? Mohamed Shahabuddeen examines the first traces of the development of international criminal justice before the First World War and today’s ideas of the responsibility of the State and the criminal liability of the individual.

“Collective Security, Demilitarization and ‘Pariah’ States” by David J. Bederman in the European Journal of International Law

When are sanctions doomed to failure? David J. Bederman analyzes the historical context of the demilitarization sanctions imposed against Iraq in the aftermath of the Gulf War of 1991 from the 1919 Treaty of Versailles through to the present day.

“Peace Treaties after World War I” by Randall Lesaffer, Mieke van der Linde in the Max Planck Encyclopedia of Public International Law

How did legal terminology and provisions concerning hostilities, prisoners of war, and other wartime-related concerns change following the introduction of modern warfare during the First World War?

“League of Nations” by Christian J Tams in the Max Planck Encyclopedia of Public International Law

What lessons does the first body of international law hold for the United Nations and individual nations today?

“Alliances” by Louise Fawcett in the Max Planck Encyclopedia of Public International Law

Peace was once ensured through a complex web of diplomatic alliances. However, those same alliances proved fatal as they ensured that various European nations and their empires were dragged into war. How did the nature of alliances between nations change following the Great War?

“International Congress of Women (1915)” by Freya Baetens in the Max Planck Encyclopedia of Public International Law

In the midst of tremendous suffering and loss, suffragists continued to march and protest for the rights of women. How did the First World War hinder the women’s suffrage movement, and how did it change many of the demands and priorities of the suffragists?

“History of International Law, World War I to World War II” by Martti Koskenniemi in the Max Planck Encyclopedia of Public International Law

A brief overview of the development of international law during the interwar period: where there was promise, and where there was failure.
 
Headline image credit: Stanley Bruce chairing the League of Nations Council in 1936. Joachim von Ribbentrop is addressing the council. Bruce Collection, National Archives of Australia. Public domain via Wikimedia Commons.

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By John Louth and Merel Alstein

What is a state? We think we know but when we compare things that are (e.g. Monaco, Andorra, Liechtenstein) to things that are not (e.g. Scotland, Kosovo, Palestine) our understanding unravels. This is a core question of international law and the troubling thing is that the best experts in the subject wouldn’t give a consistent explanation for the differences between these examples.

The UN is the closest thing we have to a world government. It is founded on a legal document (The UN Charter), it has a Court to resolve disputes between members, it has a Parliament of states (the General Assembly), and crucially, unlike its predecessor the League of Nations, it can authorize collective enforcement of its will (via the Security Council). There are dozens of other international organizations getting on with regulating different aspects of the world’s behaviour, so how come in spite of this appearance of a legal order, international law seems incapable of addressing urgent problems of poverty, violence, and climate change? How come the powerful get away with breaking the law? Why does justice so often get trumped by expediency?

Maybe that’s not fair — our national governments suffer from these same failings too. They do some basic things well (international law does a great job co-ordinating postage and telecoms) but can’t seem to manage the big breakthroughs. Surely there is a difference though: we created the international system to improve on what our governments can achieve on their own. If it can’t do better, then what is the point?

Today more people than ever before are engaged with international law. Many are, as one would expect, learning and applying it, but an increasingly vocal proportion question its role, its effectiveness and even its very existence. If it is to fulfil its promise, international law needs to rise to the following challenges.

(1) Is it law or is it just about power?

International lawyers are tired of hearing this question but it isn’t addressed to them. It is addressed to the leaders who take part in a legal order yet subvert it at the same time. Every state sends and receives diplomats yet simultaneously carries out espionage. States choose to use law to enforce some obligations whilst insisting not to be bound by others. The late great Sir Ian Brownlie used to say “if you doubt the reality of international law, have a look at my bank balance”, i.e. his clients (states) were paying him so they must believe it in. But that is just the problem — the very actors that Brownlie cited as proof of the reality of the law are the ones who can also make it seem like an optional extra, not a source of obligation.

(2) Who does it apply to?

Nowadays many of the entities regulated by so-called international law are not nations: corporations, international organizations, indigenous peoples, individuals, armed resistance groups. Cases at the International Criminal Court pit its Prosecutor (an individual acting on behalf of an international organization) against an individual criminal defendant. Then a group comes along who certainly seem to merit the protection of international law, such as the Guantanamo detainees, and we find that they don’t fit into any accepted legal category. If states can insist that only those laws they consent to can bind them, what about all of these other entities? Do they get more of a say in the content and application of the law? Should there be gaps in protection from human rights abuses?

(3) Where does it reach?

This follows from the last question. International law claims to reach directly into domestic legal systems; treaties apply to situations and places that nobody ever expected when they were first agreed. Then we have the increased use of outer space and the virtual arena of cyber space to contend with. Will these develop as adaptations of international law and if so would that not begin to stretch “international law” to the point where it is so diverse as to be meaningless?

(4) Are we expecting too much from a legal system?

International law can only move forward when there is a political consensus that it should. In the absence of political will, it is impossible to subject new areas to international law or to increase its reach. It is hard to square this compromising approach with international law’s progressive and at times utopian spirit. The planned recognition of Palestine as a state is a good illustration of the pragmatic dilemma: the legal order is advanced (by recognizing a new state) whilst also undermined (by restricting what statehood means).

(5) How can we know the content of international law?

The two primary sources of international law are custom and treaties. Whilst nothing involving lawyers is ever clear cut, treaties are vastly easier to engage with than custom, the exact nature of which remains shrouded in mystery. How customary law is formed and who is bound by it are matters that are crying out for authoritative resolution. For international law to be taken more seriously it is vital that the processes and content of custom are clarified and made available to all those who might use it or be affected by it.

Scholarly legal publishing has its part to play. We cannot of course makes statesmen and women take their obligations more seriously nor put in place the economic prosperity in which ideas of justice and fairness have a better chance of taking root. We can however nurture scholarship which looks to clarify the nature, content, and scope of international law.

John Louth is editor-in-chief of academic law books, journals and online, and head of Oxford University Press’ US law office. Merel Alstein is commissioning editor for books in the area of international law.

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