China is growing in power and economic weightIndia is stronger than at any time in recent historyAsia generally is becoming richer and strongerNorth Korea is still a wildcard and source of tensionASEAN is growing as a regional power

USA heavily engaged in the Middle East - especially Iraq

The Middle East has enormous problems.Israel: its neighbours and the ‘Palestinian

problem’. States have collapsed internally - Somalia

and Afghanistan.Africa continuing to struggle with itself, let

alone the effects of outside influences.

ROADMAP HUBUNGAN INTERNASIONAL

4

International law

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Introduction: the paradox of international law

• States have strong incentives to free themselves from the insecurities of international anarchy.

• States face common coordination and collaboration problems, yet cooperation remains difficult under anarchy.

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Introduction: the paradox of international law

• To facilitate cooperation, states create international institutions, of which three levels exist in modern international society:

– constitutional institutions,

– fundamental institutions,

– issue-specific institutions, or ‘regimes’.

• We are concerned with fundamental institutions, of which international law is one of the most important.

Peace of Westphalia

Peace of Westphalia• The Thirty Years War 1608-1648• Treaty of Westphalia Munster,

Osnabruck October 24, 1648.– Peace Treaty between the Holy Roman Emperor

and the King of France and their respective Allies.

– Peace Treaty between the Holy Roman Emperor and the King of Sweden.

• The legacy of the Peace of Westphalia.

Modern International Law• The international legal system which

defines the rights and obligations of States today began in the seventeenth century. The rise of sovereign nation States at that time marks the beginning of modern international relations and modern international law.

• As interactions between States expanded, so did international law.

The Founding Fathers of Modern International Law

• Francisco Vitoria (1480-1546)• Francisco Suarez (1548-1617)• Alberico Gentili (1552-1608)• Hugo Grotius (1583-1645)• Richard Zouche (1590-1660)• Cornelius van Bynkershoek (1673-

1743)• Emmerich de Vattel (1714-1767)

Francisco Vitoria (1480-1546)

• De Vitoria entered the Dominican Order in 1504 in Burgos. He was sent by his superiors to Paris, where he studied and taught for 18 years.

• In 1526 he became the First Chair of Theology at Salamanca.

• De Vitoria is the founder of the great school of sixteenth century Spanish Dominican theologians.

• Most of de Vitoria's published works are based on lectures and orations he gave at the University, which were recorded in manuscripts by secretaries and students.

• An important part of his influence was the justification of the imposition of Spanish imperial power in America.

Francisco Suarez (1548-1617)

• Suarez, a Jesuit priest and professor of theology at the University of Salamanca in Spain, believed that no monarch could posses attributes of the sacred.

• The major works of Francisco Suarez include Tractatus de legibus (on law) making an important distinction between natural law and international law, which he saw as based on custom,.and Defensor Fidei (Defender of the Faith), a defense of the church against King James I.

• Suárez was highly esteemed by Grotius and his followers.

Alberico Gentili (1552-1608)

• Italian jurist. He practised law in Italy but having adopted Protestantism was compelled to flee to England, where he lectured on Roman law in Oxford.

• His publications, such as De Jure Belli/On the Law of War (1598), made him the first true international law writer and scholar.

Hugo Grotius (1583-1645)

Hugo Grotius (1583-1645)• Grotius (Huig de Groot) a seventeenth century Dutch

lawyer, is considered the founder of modern international law.

• A diplomat, lawyer, magistrate, scholar, and teacher, Grotius was born in Delft, Holland, on April 10, 1583.

• In 1598 Grotius received his doctorate at the University of Orleans. Since 1599 he practiced law at the Hague. In 1619, after a Calvinist coup d’etat Grotius who was a humanist and Dutch patriot and struggled with Calvinism all his life, was arrested, accused of treason and sentenced to life imprisonment at the castle of Loevenstein. In 1621, Grotius, with the help of his wife, escaped from prison and went to Antwerp and later to Paris.

• In 1634 Grotius was appointed Ambassador of Sweden to France and in 1635 he begun his diplomatic duties in Paris. He helped to negotiate a treaty for ending the Thirty Years War. Grotius died on August 28, 1645 in Rostock, Germany.

Hugo Grotius (1583-1645)• Grotius was one of the natural law pioneering

theorists of the late 16th and early 17th centuries.• Grotius defined natural law as a perceptive

judgement in which things are good or bad by their own nature. However, he was famous not only for his theories of natural law but for his books on international law of war and issues of peace and justice.

• In 1609 Grotius published Mare Liberum (The Freedom of the Seas), a book in which he argued that the freedom of the seas was a key aspect in the communication between nations and peoples and that no one state should be permitted to monopolize control over the seas and oceans.

Hugo Grotius (1583-1645)• In 1625, the excesses of the Thirty

Years’ War compelled Grotius, to write his most famous book, De Jure Belli ac Pacis Libri Tres (Three Books about the Law of War and Peace).

• This book is an excellent example of the many treatises on natural law written by jurists and theologians in Western Europe in the sixteenth century.

• Grotius argues that law should be divided into what is divine and what is human. He discusses methods for peaceful settlement and war as a method of protecting rights and punishing wrongs.

• He was one of the first modern theorists to systematically propose the existence of norms in the conduct of relations between states.

Hugo Grotius (1583-1645)• De Jure Belli ac Pacis specifically addressed the

questions of jus ad bellum and jus in bellum. • Grotius considered war a "necessary evil," and

he discussed problems related to war in order for the conduct of war to be regulated.

• Due to the "unstableness of human nature," he did not think it likely that the society of man could achieve "perfect unity and harmony," but he did set up an ideal to aim for.

• H. Bull (1990) states that De Jure Belli ac Pacis is a work which is necessary for understanding international relations today, both in Europe and elsewhere, because it puts forth the concept of "international society: the notion that states and rulers of states are bound by rules and form a society or community with one another (see the list of supplementary reading).

Cornelius van Bynkershoek (1673-1743)

• Dutch writer on international law.

• His De Dominio Maris (on the Rule of the Seas) published in 1702 is a classic on maritime law, and he also wrote – in 1737 - on diplomatic rights and, in Quaestiones Juris Publici on public law.

• It was Bynkershoek who first proposed the "three-mile limit" rule, which states that a nation may claim sovereignty over territorial sea to a distance of 3 mi (4.8 km) from the coast.

Emmerich de Vattel (1714-1767)

• De Vattel was born on April 25, 1714, in the principality of Neufchatel, which was part of Switzerland.

• His most famous work, "The Law of Nations; or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns," was published in 1758.

• It was the most influential book on the law of nations for 125 years following its publication.

• The first English translation appeared in 1759. Numerous editions of {The Law of Nations} were printed in England during the Eighteenth century, which were widely read in the American Colonies.

• This book is of special importance to scholars of constitutional history and law, for it was read by many of the Founders of the United States of America, and informed their understanding of the principles of law which became established in the Constitution of 1787.

• It was reprinted at least fifty times in the years following its 1758 publication.

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The modern institution of international law

• Modern international law is an historical artefact, a product of the revolutions in thought and practice that transformed the governance of European states after the French Revolution (1789).

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The modern institution of international law

• Prior to the French Revolution, in the ‘Age of Absolutism’, law was understood principally as the command of a legitimate superior, and international law was seen a command of God, derived from natural law.

• In the modern period law has come to be seen as something contracted between legal subject, or their representatives, and international law has been seen as the expression of the mutual will of nations.

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The modern institution of international law

• Because of its historical roots, the modern institution of international law has a number of distinctive characteristics, informed largely by the values of political liberalism.

• The most distinctive characteristics of the modern institution of international law are its multilateral form of legislation, its consent based form of legal obligation, its language and practice of justification, and its discourse of institutional autonomy.

The Congress of Vienna• The Congress of Vienna (1814-1815) attempted to

reconstruct Europe upon permanent lines after the crash of the French Revolution and the downfall of Napoleon.

• The great powers agreed among themselves and legislated for the rest of Europe.

• The Congress was predominantly a war conference but it established peace and a sort of an institutional framework (“The Concert of Europe”) which lasted for many years.

• The Congress deliberations led to the adoption of rules concerning the rank of ambassadors (diplomatic precedence), navigation on rivers and slave trade.

The League of Nations

• The League of Nations was created in an effort to prevent conflicts on a mass scale such as the First World War (1914-1919).

The United Nations• Determination to set up a more efficient

international organization to safeguard global peace and security resulted in the establishment of the United Nations Organisation in 1945.

• The Charter of the United Nations was signed in San Francisco on June and the Charter entered into force on October 24, 1945.

• The primary function of the United Nations is maintenance of international peace and security.

• One of the functions of the United Nations is codification and progressive development of international law.

• In order to carry out this function the UN General Assembly established a subsidiary organ: The International Law Commission.

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From international to supranational law?

• international law was designed to facilitate international order

• states were the principle subjects and agents of international law;

• international law was concerned with the regulation of interstate relations;

• and the scope of international law was confined to questions of order.

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From international to supranational law?

• The quest for global governance is pushing international law into new areas, raising questions about whether international law is transforming into a form of supranational law.

• Individuals, and to some extent collectivities, are gradually acquiring rights and responsibilities under international law, establishing their status as both subjects and agents under international law.

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From international to supranational law?

• Non-governmental actors are becoming increasingly important in the development and codification of international legal norms.

• International law is increasingly affecting domestic legal regimes and practices, and the rules of the international legal system are no longer confined to issues of order.

• As international humanitarian law evolves, issues of global justice are permeating the international legal order.

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Theoretical perspectives

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Theoretical perspectives

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Theoretical perspectives

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Theoretical perspectives• Critical legal studies concentrates on the way

in which the inherent liberalism of international law seriously curtails its radical potential.

• The problem is, however, that critical legal scholars often fail to recognize the emancipatory effects of international law, particularly the way in which weak actors have been able to use international law to lever genuine reform in their states.

Just War and International Law

Normative Questions

• force: the ultima ratio? – the realist view that force is the ultima

ratio, the final arbiter, in world politics. When push comes to shove, whatever nice legalities exist would likely be brushed aside by the powerful actors.

• right exists only between equals?• “can” vs. “should” • universal moral values

Just War• why violence will probably never go

away as a regulator of human interaction?

• many accept that force could be legitimately used in some, but not all, circumstances.

• jus ad bellum are rules that cover justification of war — when it is permissible to wage war

• jus in bello are rules that cover the conduct of war

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Jus ad belluma) just cause

a) economic causes (Marxism)? b) communist cause (Leninism)? c) religious causes (Christianity, Islam)? d) self-defense (U.N. Charter, Article 51)

b) right intentionOne unresolved question is whether self-defense

includes the defense of one’s moral, ethical, or political values, that is, one’s way of life, or just physical territory and resources

c) declared publicly by legitimate authority d) reasonable chance of success e) war is last resort (U.N. Article 33)

Jus in bello a) discrimination

a) who is a civilian? b) is killing civilians never justifiable?

b) proportionality (asymmetric casualty rates?) c) humane treatment of combatants and non-

combatants a) prisoners of war (Hague/Geneva Conventions) b) laws of war (Red Cross/Crescent,

impersonation, hostages) c) law of neutrality (white flag) d) atrocities, genocide (war crimes) e) inhumane weapons (chemical/biological)

The Hague Peace Conferences

Hague Conference of 1899• Law and Customs of War on Land: July 29, 1899;• Adaptation to Marine Warfare of Principles of Geneva

Convention of 1864: July 29, 1899;• Prohibiting Launching of Projectiles and Explosives

from Balloons: July 29, 1899;• Declaration I – on the Launching of Projectiles and

Explosives from Balloons – July 29, 1899;• Declaration II – on the Use of Projectiles the Object of

Which is the Diffusion of Asphyxiating or Deleterious Gases – July 29, 1899;

• Declaration III – on the Use of Bullets Which Expand or Flatten Easily in the Human Body – July 29, 1899.

The Hague Peace Conferences

Hague Conference of 1907• Pacific Settlement of International Disputes: October 18, 1907;• Limitation of Employment of Force for recovery of Contract Debts:

October 18, 1907;• Opening of Hostilities: October 18, 1907;• Laws and Customs of War on Land: October 18, 1907;• Rights and Duties of Neutral Powers and Persons in Case of War on

Land: October 18, 1907;• Status of Enemy Merchant Ships at the Outbreak of Hostilities: October

18, 1907;• Conversion of Merchant Ships into War Ships: October 18, 1907;• Laying of Automatic Submarine Contact Mines: October 18, 1907;• Bombardment of Naval Forces in Time of War: October 18, 1907;• Adaptation to Marine War of the Principles of the Geneva Convention:

October 18, 1907;• Restrictions With Regards to the Exercise of the Right of capture in

Naval War: October 18, 1907;• Rights and Duties of Neutral Powers in naval War: October 18, 1907

Enforcement of international law

a) repeated interaction (self-enforcement under anarchy)

b) avoid setting precedent (diplomatic immunity)

c) costly reprisals (chemical weapons in WW2)

d) reputation (U.S. vs. Iraq in 1990 and 2003)