Suicide bombers storm traffic police HQ in Kabul:Suicide bombers storm traffic police HQ in Kabul KABUL (PAN) A group of suicide bombers stormed the Kabul Traffic Police Headquarters where heavy gunfire was heard early Monday morning , a police officer said. The militants sneaked into the compound in the Deh Mazang locality of Kabul at 5.30am, entering a gunbattle with security personnel, the deputy police chief, Daud Amini, told Pajhwok Afghan News. He said two of the attackers were killed by Afghan National Police (ANP) while the rest were trading fire security forces inside the compound, he added. As usual, The Taliban claimed responsibility for the attack. The group's spokesman, Zabihullah Mujahid, said the target was American training centresinside the compound. Many security personnel were killed, he added. Witness Rahmatullah said five heavy explosions and gunfire had been heard so far. A resident of the area, Mohammad Erfan, said he heard gunshots and a heavy explosion 30 minutes later of the firings. The area was cordoned off by security personnel and the quack reaction forces and Afghan Special Forces are fighting terrorists in the area. Kabul Crime Branch chief Brig. Gen. Abdul Zahir said a traffic policeman was among six people injured in the clash. The wounded were taken to hospitals. The building is located near the border police headquarters. .

International Law



Chapter 1. Introduction
International law has long been burdened with the charge that it is not really “law.” This misleading claim is premised on some undeniable but misunderstood facts about international law: that it lacks a centralized legislature, executive, or judiciary; that it frequently ratifies existing international behavior rather than compelling change; and that is sometimes, though by no means always or usually, violated with impunity. International law scholarship, dominated for decades by an improbable combination of sterile doctrinalism and hopeless idealism, has done little to correct this impression. Neither strand of international law scholarship has made much progress in explaining how a decentralized international law affects behavior among very differently endowed states. Nor has it helped us understand other elements of how international law works in practice – how international law originates and changes, whether international law has normative force, why international law’s content usually reflects the interests of powerful states, and why international plays such an important role in the rhetoric of international relations.
This book seeks to answer these and related questions. It seeks to understand how international law works by integrating the study of international law with the realities of international politics. Our theory gives pride of place to two elements of international politics usually neglected or discounted by international law scholars – state power, and state interest. And it uses a methodological tool infrequently used in international law scholarship, rational choice theory, to analyze these factors. Put briefly, our theory is that international law emerges from states acting rationally to maximize their interests, given their perceptions of the interests of other states and the relevant distribution of national power. Using this theory, we seek to explain how international law works in practice, and to draw normative lessons from the analysis.
This Introduction discusses the assumptions of our analysis, sketches our theory in very general terms, and locates our position among the various schools of international law and international relations.
ASSUMPTIONS
The assumption that states act rationally to further their interests is not a self-evident truth. All components of this assumption – that the state is the relevant agent, that a state has an identifiable interest, and that states act rationally to further these interests – are open to question. Nonetheless, we believe state-centered rational choice theory, used properly, is a valuable method for understanding international law. What follows is a brief discussion of our use of the concepts of state, state interest, and rationality. Further detail will be provided in subsequent chapters.
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1. State.
The existence of a state depends on the psychology of its inhabitants. If all U.S. citizens stopped believing that the United States were a state, and instead began to believe that they were citizens of Indiana or Texas, then the United States would cease to exist, and numerous new states would come into existence. (This is in effect what happened when the Soviet Union and Yugoslavia disintegrated in the early 1990s.) Moreover, the “state” is an abstraction. Although the identity of the State is intuitively clear, the distinction between the State and the influences on it sometimes blurs. Relatedly, the State itself does not act except in a metaphorical sense. Individual leaders and diplomats negotiate treaties and decide whether to comply with them or breach them. Because the existence of a state and state action ultimately depend on individuals’ beliefs and actions, one could reject the assumption that states have agency, and insist that any theory about the behavior of states must have microfoundations in a theory of individual choice.
Although we will often examine the motivations of actors within the state, we nonetheless give the state the starring role in our drama. The main reason for doing so is that international law is addressed to states and, for the most part, not to individuals or other entities such as governments. NAFTA did not confer international legal obligations on President Clinton or the Clinton administration, but on the United States. The United States remains bound by these obligations until a future government withdraws the United States from the treaty. Moreover, although states are collectivities, they arrange themselves to act like agents, just as corporations do. Corporations are, to be sure, easier to understand than states. Corporate interests – to make money for the shareholders, subject to agency costs resulting from the delegation of authority individuals who run the firm – are (usually) easier to identify. And it is easier to assume that corporate obligations remain in force despite the turnover of managers, directors, and shareholders, because the obligations are enforced by domestic courts regardless of who happens to be in control of the corporation. Still, State interests can be identified (as we explain below), and through various domestic institutions States can and do maintain their corporate identity. Both ordinary language and history validate the assumption that states have agency and thus can be said to make decisions, bear obligations, and act.
The placement of the state at the center of analysis necessarily limits its scope. We cannot discuss, except in passing, difficult and important topics at the margins of international law about how states form, devolve, and disintegrate. Many scholars view European Union integration as a possible model for a public international law that would be more ambitious than the one we currently have. Although the EU project is in some respects constituted by international law, we
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think it is more usefully viewed as an effort in multistate unification akin to pre-20th century unification efforts in the United States (which during its Articles of Confederation period was viewed as a federation governed by international law), Germany, and Italy. In any event, we offer no theory of State unification or integration. Nor do we have much to say about the opposite claim that the state is losing power downwards – to smaller state units (the disintegration of the Soviet Union and the former Yugoslavia), to sub-state units (the devolution movements throughout Europe), and to multinational corporations and transnational NGOs. We touch on devolution and disintegration in our discussion of sovereignty in Part I. And we briefly analyze NGOs in chapter 6’s discussion of human rights.
2. State Interest.
By “state interest,” we mean the state’s preferences about outcomes. These interests can be described in a general way as security, prosperity, and values. At this level of generality, the concept of “state interest” is nearly empty. A theory of international law can only be given content at a lower level of abstraction, and as we discuss various legal regimes, we will identify the preferences of states more concretely. We identify these preferences by looking to the preferences of the state’s political leadership. This assumption is far from perfect, but it is parsimonious, and it is appropriate because a state’s political leadership determines state actions related to international law.
Three points about this concept of “state interest” bear emphasis. First, the concept must not be confused with the policy that promotes national welfare. In every state certain individuals or groups – elites, corporations, the military, relatives of dictators – have disproportionate influence on state leaders’ conduct of national policy. Even in democratic states, the institutions that translate individual preferences into particular policies are always imperfect, vulnerable to cycling and related phenomena, potentially derailed by corruption, incompetence, or purposeful hurdles (like separation of powers), and sometimes captured by interest groups. The inevitable presence of these distorting mechanisms means that the “state interest” as we use the term is not necessarily, or even usually, the policy that would maximize the public good. Any descriptive theory of international law must account for the agency slack of domestic politics, and we do so primarily by focusing on what leaders maximize. One consequence of this approach is that our use of the term “state interest” is merely descriptive of leaders’ perceived preferences, and is morally neutral. To take an extreme example, when we analyze a leader’s interest in committing human rights abuses, we refer only to what the leader perceives as the best policy to maintain his authority, and do not suggest that human rights abuses are ever morally justifiable.
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Second, interests and preferences are not easy to determine. As a general matter we infer leaders’ interests with respect to some area of international relations from empirical data concerning the conduct of the state and the motivations of leaders and pertinent constituents. Sometimes, as when we conclude that a state has an interest in winning a war, the inference will be obvious. Other times, such as when trying to assess why a state ratifies a human rights treaty, the inference will be more controversial. We are aware that to the extent that our identification of state interests is controversial or tendentious, our theory is open to the charge of asserting whatever needs to be explained.
Third, although for the most part we assume a unitary state interest, in some contexts in the book – for example, in explaining the significance of the ratification process for treaties, or in analyzing the domestic interest groups that influence a state’s international trade policy – we will unpack the idea of a unitary state interest and consider the impact that various domestic groups and institutions have on political leadership’s preferences and decisions related to international law.
3. Rational Choice.
There are three basic reasons why we use the tools of rational choice in this book. First, it is uncontroversial that state action on the international plane has a large instrumental component; and that rational choice theory provides the best models for understanding instrumental behavior. Political scientists’ use of rational choice tools has brought considerable insight to many general trends in international relations, and has opened many fruitful research agendas. We believe rational choice can shed similar light on international law. Second, rational choice is simpler and more powerful (in the sense of explaining more with fewer assumptions) than its rivals. And third, the weight of our argument is empirical. We claim that rational choice theory explains the evidence of international behaviors related to international law better than dominant understandings of international law in international legal scholarship.
Our theory assumes that states act rationally to maximize their interests. This assumption incorporates standard premises of rational choice theory: The preferences about outcomes embedded in the state interest are consistent, complete, and transitive. But we do not claim that the axioms of rational choice accurately represent the decisionmaking process of a “state” in all its complexity, or that rational choice theory can provide the basis for fine-grained predictions about international behavior. Rather, we use rational choice theory as a tool to organize our ideas and intuitions, and to clarify assumptions. No theory predicts all phenomena with perfect accuracy, and we do not deny that states sometimes act irrationally – because their leaders make mistakes, because of collective
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choice problems, and so forth. Our claim is only that our assumptions provide better explanations of state behavior than other theories do.
There is a massive literature critical of rational choice, three components of which we address here. First, a word on collective rationality. As understood by economics, “rationality” is primarily an attribute of individuals, and even then only as an approximation. The term’s application to collectivities such as corporations, governments, and states must be performed with care. For some of the reasons mentioned above, social choice theory casts doubt on the claim that collectivities can have coherent preferences. But if this critique were taken seriously, any explanation of international law, or for that matter even domestic law, would be suspect. Cycling is probably most prevalent not in states but in pre- or non-states, that is, in aggregations of people who cannot develop stable institutions. As explained above, when states exist, people have adopted institutions that ensure that governments choose generally consistent policies over time, policies that at a broad level can be said to reflect the state’s “interest” as we understand the term.
Another challenge to rational choice comes from cognitive psychologists, who have shown that individuals make cognitive errors, sometimes systematically. We do not deny the empirical claims of this literature. History is full of examples of national leaders committing errors while acting on the international stage, and it is conceivable that these errors can be traced to the standard list of cognitive biases (McDermott 1998). The problem is that the cognitive psychology literature has not produced a comprehensive theory of human (or state) behavior that can guide research in international law and relations. (Levy 1997). Such a theory, if it existed, might well result in a more refined understanding of international law and relations. But it might not; individual cognitive errors may have few if any macro-effects on international relations. Economic theory has produced enormous insights based on its simplifying assumptions of rationality. Our theory must be judged not on the ontological accuracy of its methodological assumptions, but rather on the extent to which it sheds light on problems of international law.
Finally there is the “constructivist” challenge from international relations scholarship. (See Wendt, 2000). To the extent that constructivism shares similarities with traditional international law scholarship – for example, its commitment to noninstrumental explanations of State behavior – we address its claims throughout the book. Here we address its critique of State preferences. As is usual (but not necessary) in rational choice theory, we takes state interests at any particular time to be an unexplained given. Constructivists challenge this assumption, and seek to show that the preferences of individuals, and therefore state interests, can be influenced by international law and institutions. (See
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Wendt 1992). To the extent this is true, it would call question our theory’s ability to explain international law in terms of a State’s interest. We doubt it is true to any important degree, but we cannot prove the point. On the other hand, constructivists have not shown that international law transforms individual and state interests. Case studies that we examine in chapter 6 do not provide evidence of such an effect. The relevant question is whether the endogenization of the state’s interest, assuming it could be done in a coherent fashion, would lead to a more powerful understanding of how states behave with respect to international law. We provide our theory in the pages that follow, and we leave it to critics to decide whether constructivism provides a more powerful theory of international law.
There is a related point. We consistently exclude one preference from the State’s interest calculation: A preference for complying with international law. A rational choice theory could incorporate this preference into the State’s utility function, and indeed, such a preference would be akin to international law scholarship’s standard assumption, discussed below, that State’s are compelled to comply with international law by its “normative pull.” Although some individuals in a State may posses this preference, we reject it as a basis for State interests and State action on the international plane. It is unenlightening to explain international law compliance in terms of a disposition to comply with international law. Such an assumption would say nothing interesting about when and why states comply with international law, and would provide no basis for understanding variation in, and violation of, international law. We return to this point below.
THEORY
With these preliminaries in mind, we now provide a skeleton of our theory of international law. We put flesh on these bones in subsequent chapters.
Consider two states, A and B. At time 1, the two states have certain capacities and interests. The capacities include military forces, economic institutions, natural resources, and human capital. The interests are determined by leaders, who presumably take account in some way of the preferences of citizens and groups. At time 1, the states divide available resources in some stable fashion. They divide territory along a border, and they divide collective goods such as airwaves, fisheries, and mineral deposits in ways that might or might not prevent overexploitation. At time 2, something changes. One state, say state A, becomes wealthier as a result of more efficient domestic economic arrangements, or valuable resources are discovered on its territory, or a technological invention alters the distribution of power, or a change in domestic institutions in one state results in a new aggregation of citizen preferences.
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As a result of the shock, the time 1 status quo is no longer stable. In the simplest case, the power relation between A and B changes, as A’s power increases relative to B’s. State A then demands a greater share of resources from state B. In the past, this demand might have been for territory or tribute; but in the modern world, A will usually demand something more intangible, like access to markets, greater protection for intellectual property, military assistance or base rights, foreign aid, and diplomatic assistance. State A might also threaten to close its own markets, violate B’s intellectual property rights, reduce the military assistance it had been rendering B, reduce the foreign aid it had been giving to B, cut back on diplomatic assistance to B, and so forth. Any of these things might happen because A had provided these benefits to B in return for benefits that it no longer wants (because of a change in interest) or needs (because of a change in relative power).
If A and B had perfect information about the other (if, that is, each knew the others’ interests and capacities completely), their relations would adjust smoothly and quickly to the shock, and at time 3 there would be a new division of resources: a new border, new diplomatic activities, a new level of military assistance in one direction or the other, a new level of foreign aid, or new trade patterns. In the real world of imperfect information, their adjustments will be slow and usually suboptimal. There might be significant conflict, including war, as states learn about one another and bluff and bargain over the new order, exaggerating their strengths and concealing their weaknesses. Eventually the situation between the two states will stabilize.
The relations between the two states at any time can be described as a set of rules. But here care must be used, for several very different things might be going on. Consider a border between A and B. The border is a rule that delineates the territory of each state, where it is understood that neither state can send individuals or objects across the border without the permission of the other state. Territorial borders are generally thought to be constituted and governed by international law. Assume that States A and B respect the border. What explains their apparent compliance with international law? Our theory of international law posits that one of four things might explain such compliance.
First, it is possible that neither of the two states has an interest in projecting power across the border. State A does not seek resources in state B’s territory, and would not seek them even if B were unable to resist encroachment. It is barely able to control its own territory, and wants to have nothing to do with B’s. State B has the same attitude to State A. When a pattern of behavior – here, not violating the border – results from each state acting in its self-interest without any regard to the action of the other state, we call it a coincidence of interest. As we will show in subsequent chapters, international law scholars often err in
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inferring self-conscious compliance with international law from a situation that is in fact a coincidence of interest in which international law and other states’ interests played no role in state behavior.
There is a second possible explanation for the border. State A might be indifferent between one border and another border deeper in what is now state B’s territory. The additional territory might benefit state A, but it would also bring with it costs. The main concern for the states is that of clarifying the point at which state A’s control ends and state B’s begins, so that the two states can plan accordingly and avoid conflict. State B has the same set of interests and capacities. Once the two states settle on a border, neither violates the border because if either did conflict would result. We call this state of affairs coordination. In cases of coordination, states receive higher payoffs if they engage in identical or symmetrical actions than if they did not. A classic coordination game from domestic life is driving: all parties do better if they coordinate on driving on the right, or driving on the left, than if they choose different actions.
A third possible explanation for the border is cooperation. States A and B would each benefit by having some of the other’s territory, all things equal. But each knows that if it tried to obtain more territory, the other state would resist, and a costly breakdown in relations, and possibly war, would result. Thus, the States agree (implicitly or explicitly) on a border that reflects their interests and capacities, and the border is maintained by mutual threats to retaliate if the other state violates the border. In such cases of cooperation, states reciprocally refrain from activities (here, invasion or incursion) that would otherwise be in their immediate or short-term self-interest in order to reap larger medium- or long-term benefits.
The final possibility is coercion. State A is satisfied with the existing border but state B seeks to expand its territory at A’s expense. If B is sufficiently powerful, it can dictate the new border. Because state A is weaker, and state B benefits from the extra territory whether or not state B resists, state A yields (either before or after military conflict) and a new border is created. Other states might or might not object: they also might benefit from the new border or be powerless to resist it. Coercion results when a powerful state (or coalition of states with convergent interests) forces or threatens to force weaker states to engage in acts that are contrary to their interests (defined independently of the coercion).
We argue that some combination of these four models of strategic behavior explain the behaviors associated with international law. These models do not exhaust the possibilities of international interaction. But they provide a useful framework for evaluating a range of international legal regimes. As we
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explain throughout the book, each type of behavior has different characteristics that make it more or less stable and effective, depending on the circumstances. The behavioral regularity that results from coincidence of interest differs from the other three in an important respect: It involves no other-regarding element. By contrast, behavioral regularities arising from coordination, cooperation, and coercion all result from States adjusting their actions in response to other States’ actions, or expectations about how other states will act. In this sense, only these latter three models could be the basis for what we would properly call a rule of inter-national law.
The “rules” of international law reflected in these three logics differs in a crucial respect from how international law rules are usually understood in international law scholarship. The usual view is that international law is a check on State interests, causing a State to behave in a way contrary to its interests. In our story, the causal relationship between international law and state interests runs in the opposite direction: International law emerges from nations’ pursuit of self-interested policies on the international stage. It is not a check on national self-interest; it is a product of national self-interest.
The bulk of the book is devoted to applying this framework to various regimes of international law. The argument unfolds in three parts. Part I analyzes customary international law. We argue in this Part that much of what is called CIL is actually coincidence of interest, and that CIL that reflects cooperation, coercion, or coordination can occur in bilateral contexts but rarely in multilateral contexts. CIL’s well known theoretical incoherence has resulted from international lawyers’ characteristic method of inducing from a few isolated instances of seemingly compliant behavior a universal norm applicable to all states, ignoring all the evidence to the contrary. We examine five areas of CIL: wartime restrictions on seizure, ambassadorial immunity, the territorial sea, and the coastal fishing vessel rule of The Paquete Habana (1900), and several rules of CIL related to sovereignty and recognition.
Part II analyzes treaties, the second form of international law. The main puzzle here is: why do States use treaties instead of CIL? We argue that treaties specify the focal points for coordination or self-enforcing cooperation, and that domestic processes that are often required for treaty formation can reveal useful information about a state’s interests. In addition, we explain how nonlegal agreements work, why states increasingly use multilateral treaties, why these treaties nonetheless depend on the logic of bilateral monitoring and enforcement, and why states enter into treaties with vague or hortatory commitments. Finally, we argue that many scholars fall into the trap of treating treaties as though they were domestically enforced laws or contracts; we argue to the contrary that concepts like “enforcement,” “breach,” “remedy,” and “damages” cannot be
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imported to the international sphere without violence. Treaties can succeed only if they are self-enforcing, and this constraint places limits on how they are designed, and what they can accomplish. We discuss treaty regimes related to the laws of war, human rights, and trade.
Part III addresses several external challenges to our instrumental theory of international law. Some scholars claim that the pervasive use of international moral and legal rhetoric demonstrates the efficacy of international norms and cannot be explained in instrumental terms. We argue that this claim is wrong, and show why it would be rational for states to talk to each other in the language of international law and morality even if they were not motivated by a desire to comply with morality or law. Another challenge to our thesis comes from those who claim that, even if states comply with international law only when it is in their interest to do so, they nonetheless have a moral obligation to comply with it even when doing so is not in their interest. We argue, to the contrary, that states have such no moral obligation. We also address a related challenge from cosmopolitan theory, which argues that states have a duty to act on the basis of global rather than national welfare. Such duties cannot, we think, be reconciled with cosmopolitans’ commitment to liberal democracy, a form of government designed to ensure that foreign policy, including engagement with international law, serves the interests of citizens rather than elites or rulers, and almost always produces a self-interested foreign policy. The final chapter examines the role of modern international idealism in debate about such institutions and practices as universal jurisdiction, the International Criminal Court, and humanitarian intervention, and argues that idealists are repeating the mistakes of the 1920s and 1930s.
INTERNATIONAL LAW SCHOLARSHIP
Most scholarship on international law has been written by law professors. Although these scholars have proposed many different theories, almost all of the theories share an assumption that we reject: that states comply with international law for non-instrumental reasons. (We exclude here the jurisprudential literature (for example, Hart __), which has different concerns). Doctrinally, this assumption is reflected in the international law rules of opinio juris (the “sense of legal obligation” that makes CIL binding) and pacta sunt servanda (the rule that treaties must be obeyed). Theoretically, the assumption is expressed in various ways, but they all reduce to the basic idea that states comply with CIL or a treaty because it is the morally right or legitimate thing to do. Although states violate their obligations, they try not to, and do so only under unusual conditions, when the gains from violation are great. Thus, mainstream international law scholarship does not deny that states have interests and try to pursue them. But it claims that international law puts a break on these interests.
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Many international law scholars do not question the assumption that states follow international law for noninstrumental reasons. For them, the premise is enough to justify the research agenda, which is that of doctrinalism – identifying the “black letter law” of international law, in any given domain, independent of actual behaviors. Other scholars are self-conscious about the assumption and seek to explain the conditions under which international law “exerts a pull toward compliance” – that is, exercises normative influence on state behavior (Franck 1990, 24-25). Brierly (1963) says nations obey international law because they have consented to it. Franck (1990, 24) says they do so because international law rules came into existence through a legitimate (transparent, fair, inclusive) process. Koh (1997, 2603) says that international law becomes part of a nation’s “internal value set.” This theorizing often fuels, and is overtaken by, normative speculation about improving international law. If only international law were clearer and more detailed, imposed stricter obligations, were based on the decisions of international tribunals, emanated from multilateral institutions, were incorporated more thoroughly into domestic law, or reflected the needs and interests of more states, or more diverse states, then international law would be violated even less than it already is.
This research agenda is a dead end. The assumption of a tendency toward compliance has little if any explanatory value, and is in tension with states’ frequent violation of international law. The narrower view – that states comply with international law that reflects morally valid procedures, or consent, or internal value sets – is not supported by the evidence, as we will show in subsequent chapters. Noninstrumental accounts of international law also mask many different reasons why states act consistently with international law, and result in an impoverished theory of compliance. Finally, they do not provide good explanations for important aspects of international law unrelated to compliance, including the content of international law – why states agree to some rules rather than others – and the structure of multilateral institutions such as tribunals and commissions.
There is, to be sure, a more sophisticated international law literature in the international relations (IR) subfield of political science. The methodological commitments of international relations theorists in political science are different from those of most international lawyers. Positive analysis is the hallmark of IR literature; IR scholars seek primarily to explain, rather than interpret or prescribe, international behaviors. For this reason among others, IR scholars take theoretical, methodological, and empirical issues more seriously than international lawyers do, and they draw more generously on economics, sociology, and history.
Until recently, IR theorists did not study international law as a category apart from the institutions embodied by international law. The dominant
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American theory of international relations – realism – treated international law as inconsequential or as outside its research agenda. Although one of the founders of modern realism, Hans Morgenthau, wrote a great deal about international law, he never reconciled his (limited) optimism about international law with his austere views about international power relations, and perhaps for this reason no realist followed his lead. Other theories, such as Hedley Bull’s (__) theory of international society, were more optimistic about international cooperation, but did not focus on international law as a distinctive institution.
This has changed in recent years with a turn toward the study of “legalization” in its own right (Goldstein et al., 2000). A related development is a growing interest among some international law scholars in the tools of IR theory (Slaughter, Tulumello, and Wood 1998; Burley 1993; Setear 1996; Abbott 1989). There is also a small and growing rational choice literature in international law being developed by economists and economically minded lawyers. (Dunhoff and Trachtman 1999; Setear 1996; Sykes __; Guzman 2002).
Our approach falls much closer to this tradition than to the mainstream international law scholarship tradition. But, as will become clear, our views differ in many respects. Ours is a comprehensive analysis of international law. The greatest overlap between extant IR and rational choice IL scholarship and our book comes in Part II on treaties. But this tradition has ignored CIL (the topic of Part I) altogether, and it has said relatively little about the rhetorical and normative issues discussed in Part III. In addition, we are more skeptical about the role of international law in advancing international cooperation than IR institutionalists and most rational choice-minded lawyers. And our methodological assumptions are more consistently instrumental than is found in this literature, which frequently mixes instrumental and noninstrumental explanations. (Abbott et al. 2000). Finally, unlike the political scientists, our concerns are the traditional ones of international law scholarship and lawyers generally. We are interested in the nuts and bolts of international law, unlike the IR scholars, whose primary focus remains the realm of international politics.
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Chapter 5. The Laws of War
[This chapter is preliminary and incomplete.]
The laws of war comprise two topics: jus in bello, the rules that govern the weapons and tactics that may be used during a war; and jus ad bellum (use of force), the rules that govern the circumstances under which states may go to war. Simplifying, jus in bello prohibits states from using weapons and tactics that are too awful or destructive, and that disproportionately harm civilians. Jus ad bellum currently permits states to make war only when acting in self-defense or in obedience to a command of the U.N. security council.
USE OF FORCE
Grotius (__) believed that a war could be legal or illegal but by the nineteenth century the conventional wisdom was that war was an instrument of politics. Positivist international law scholars looked around at the practices of states and concluded the decision to go to war was no more subject to international law than the decision to raise or lower tariffs. Mutual defense pacts, to be sure, were common, and some of them may have worked. And the great powers after the Napoleonic Wars were able to agree on some general rules intended to preserve the status quo from a revanchist France or revolutionary governments, and to keep conflicts in the Balkans and colonial areas from spinning out of control. But these general agreements, though intended to keep the peace, were never thought to be a part of international law.
All of this changed in the twentieth century. The League of Nations was the first effort to institutionalize collective security. The conventional story is that a naive Wilson believed that international law and arbitration could replace war, but his efforts were undermined by cynical Europeans and his own government, which had no interest in entangling the United States in the affairs of the dying empires. Whatever the truth in this story, the idea of collective security was popular among many people, as it could be seen as a vindication of the sacrifices made during World War I and (in the United States) as a justification for American involvement in that war. But the League of Nations was a failure, as was the Kellogg Briand pact, which outlawed aggressive war and required arbitration.
Why did collective security fail? The problem is that whenever two states have a conflict over resources, one of the states is more powerful. The two states will not always know which state is more powerful, and often each state will believe itself more powerful than the other, but in any event a state that believes itself more powerful will always be tempted to threaten war in order to get what it
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wants. War is costly and risky, but it is attractive whenever the expected gains are high enough. Since the power of the each state is constantly waxing and waning, there are always opportunities for a newly powerful state to exert its will over a newly weak state and upset the status quo.
It is conceivable that a state might, in the abstract, think that outlawing war would be desirable, as it could, in the future, just as likely find itself in a weak position as in a strong position. This is perhaps why the Kellogg-Briand pact could obtain so many signatures. But most of the time some states will covet the territory of weak neighbors, and so refuse to sign such agreements unless compelled. And, in any event, without an enforcement mechanism, nothing can prevent states from violating a legal prohibition of war when they discover, in the future, that war is in their interest.1 The evidence is overwhelming that concerns about reputation are not strong enough to deter states from going to war – one of the reasons why we have been reluctant to attribute other forms of international cooperation, such as trade, to states’ concern for their reputation.
Of course, collective security is supposed to supply the enforcement mechanism. But collective security is vulnerable to free riding. In theory, a state can benefit from collective security. If it contributes troops to a peacekeeping action involving other states, then it can also expect to obtain contributions from other states when it is being illegally threatened. In practice, states are never willing to contribute significant military forces to a conflict in which their own interests are not at stake. The immediate cost is not outweighed by future benefits because the state expects that other states would similarly free ride when it is in need. And, finally, there are massive asymmetries in the costs and benefits of world security. The United States could not possibly, in 1919, have expected a foreign power to pose a threat to its security, and so could not have seen any net benefit from committing itself to intervene in foreign wars.
History repeated itself with the United Nations. Under the U.N. charter, states were supposed to contribute troops to an army under U.N. authority. This did not happen because no state could trust its troops with an authority over which it did not have unilateral control. Under the U.N. charter, war was permitted only for self-defense and for executing an order of the security council. But there was no reason to expect the states in the security council to cooperate, and they did not during the Cold War. The problem was that the United States and the Soviet Union were rivals: each saw gain in the other’s loss. So with the anomalous exception of the Korean War – caused by Soviet refusal to participate because of
1 Technically, we should say when territorial expansion is in their interest. War will not occur when information is complete: the weak state will simply yield. War occurs because of imperfect information. See Zagare and Kilgour 1993; Morrow 1989; Powell 1993; Koubi 1994; Lemke and Werner (1996); and Brito and Intriligator 1985.
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the conflict over China’s participation in the U.N. – the security council authorized no collective security actions for the first 45 years of its existence. During this period, there were more than 100 wars, depending on how one counts the various conflicts that occurred (Balint 1996, Weisburd 1997, Glennon 2001) – not one of them in compliance with the UN charter because, of course, not all states could have been acting in their self-defense. Although during this time the U.N. did serve numerous useful functions – as a diplomatic forum, as an umbrella for various aid institutions – its use of force rules were a dead letter.
With the end of the Cold War, observers hoped that the U.N. would finally serve its original functions. The security council authorized the first Gulf War, and the various American led efforts to maintain pressure on Saddam Hussein’s government up until 2003. But it has become increasingly clear that the early 1990s were an anomaly in the modern history of international relations. At the end of the Cold War, American power and prestige were at their zenith. Other states, at least temporarily, were willing to follow American leadership and endorse American actions. It has since become clear to those other states that American ascendance threatens their own influence over international affairs, and in a reenactment of the classic balance of power mechanism, sometime friends as well as traditional enemies are coalescing into an opposing force. Having seen that the U.S. has used the original U.N. authorization to attack Iraq in 1991 as an excuse for maintaining a large military presence in the Persian Gulf, in the future states like China and Russia, and possibly France, will veto resolutions sponsored by the U.S. unless given significant concessions. The failure to obtain U.N. authorization for the intervention in Kosovo will likely be remembered as an early indication of the second failure of the U.N. charter to establish an effective mechanism for collective security.
With the failure of the U.N., international law scholars have sought to construct a CIL regulating use of force. Weisburd (1997) believes that UN authorization is no longer a legal obligation, if it ever was, but, generalizing from the conduct of states between 1945 and 1991, argues that ordinary invasions are illegal, but that certain wars are legal even without UN authorization. These include wars by colonial dependents against their imperial masters, and third party interventions in civil wars. Franck (2002) splits hairs, arguing that states that engage in humanitarian intervention violate the law but will not be punished. [ASIL symposium.] By contrast, Glennon (2001) argues that recent history shows that states do not, in practice, acknowledge legal restrictions on their ability to go to war.
The one seed of hope that international lawyers have extracted from the depressing history of warfare comes from the Kosovo intervention, even though they have also been troubled by its flagrant violation of the U.N. charter. But a
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number of scholars have argued that humanitarian intervention – and Kosovo was taken to be an example of humanitarian intervention, though the truth is more complex – may be a permissible exception to the prohibition on non-authorized war or even an obligation. But these claims do not bear the most casual scrutiny (see Table 1). There have been hundreds of humanitarian crises during, say, the twentieth century, and it is nearly impossible to find an unambiguous example of humanitarian intervention, and there is none involving a major military commitment. Because leaders have always clothed their invasions in idealistic language, a determined scholar can always build a case for humanitarian intervention by taking this language at face value, and ignoring the actual conduct of states. But if we did take the language at face value, then we would have to conclude that the nineteenth century lawyers were wrong – there were plenty of interventions that were justified on humanitarian grounds. The truth is that states rarely spend blood and treasure to resolve humanitarian crises in other states, and the few ambiguous cases that can be mustered as weak counterexamples – the intervention in Somalia, for example, which ended after 18 American soldiers were killed; the intervention in Kosovo, where the use of low-risk (for pilots) but dangerous (for civilians) high-altitude bombing compromised the humanitarian ideals that supposedly motivated the intervention (Kahn 1999) – are swamped by the hundreds of invasions where the humanitarian justification was not remotely plausible. (See also Stowell 1921.)

1
a short history of
international law
Stephen C Ne
SUMMARY
This history will emphasize broad trends in international law, in both the conceptual sphere
and in State practice. The discussion will move chronologically, beginning with a cursory look
at the ancient world, followed by a rather fuller discussion of the great era of natural law in
the European Middle Ages. The classical period (1600–1815) witnessed the emergence of a
dualistic view of international law, with the law of nature and the law of nations co-existing
(more or less amicably). In the nineteenth century—the least known part of international
law—doctrinaire positivism was the prevailing viewpoint, though not the exclusive one.
Regarding the inter-war years, developments both inside and outside the League of Nations
will be considered. Since the post-1945 period will occupy most of the remainder of this
book, this discussion will confi ne itself to a few historically-oriented comments on some of
its most general features.
I. introduction
No area of international law has been so little explored by scholars as the history of the
subject.   is is a remarkable state of a# airs, probably without parallel in any other academic discipline (including other branches of law). Although this intellectual scandal (as it well deserves to be called) is now being remedied, we are still only in the earliest stages of the serious study of international legal history. Many blank spots exist, some of which will be identi, ed in passing in the discussion below. is short history—inevitably very short history—can give only the most general . avour of the major periods of development of international law. It will accordingly not be possible to give more than the most token attention to developments outside the Western mainstream. Both ideas and State practice will be covered.   e ideas chie. y concern what international law was thought to consist of in past times. State practice is concerned
4 stephen c neff with what States actually did. It was the two in combination—if not always in close harmony—that made international law what it became.
II. ancient worlds
For a vivid indication of how persons from even the most diverse cultures can relate to one another in a peaceful, predictable, and mutually bene, cial fashion, it is di< cult to top Herodotus’s description of ‘silent trading’ between the Carthaginians and an unnamed North African tribe in about the sixth century BC. When the Carthaginians arrived in the tribe’s area by ship, they would unload a pile of goods from their vessels, leave them on the beach and then return to their boats and send a smoke signal.   e natives would then come and inspect the goods on their own, leave a pile of gold, and retire.   en the Carthaginians
would return; and, if satis, ed that the gold represented a fair price, they would take it and depart. If not satis, ed, they would again retire to their ships; and the natives would return to leave more gold.   e process would continue until both sides were content, at which point the Carthaginians would sail away with their gold, without a word exchanged
between the two groups. ‘  ere is perfect honesty on both sides’, Herodotus assures us, with no problems of theB or con. ict (Herodotus, Histories, p 336).
  is silent trading arrangement may have been successful in its way, but a process of interaction so in. exibly ritualistic and so narrow in subject matter could hardly su< ce for political interactions between States, even in ancient times. Most people probably have the feeling that something rather more elaborate is required to merit the grand name of ‘international law’. Indeed, the ambiguity of the term ‘international law’ leads to various di# erent answers to the question of when international law ‘began’. If by ‘international law’ is meant merely the ensemble of methods or devices which give an element of predictability to international relations (as in the silent-trading illustration), then the origin
may be placed virtually as far back as recorded history itself. If by ‘international law’ is meant a more or less comprehensive substantive code of conduct applying to nations, then the late classical period and Middle Ages was the time of its birth. If ‘international law’ is taken to mean a set of substantive principles applying uniquely to States as such, then
the seventeenth century would be the starting time. If ‘international law’ is de, ned as the integration of the world at large into something like a single community under a rule of law, then the nineteenth century would be the earliest date (perhaps a tri. e optimistically). If, , nally, ‘international law’ is understood to mean the enactments and judicial decisions of a world government, then its birth lies (if at all) somewhere in the future—and, in all likelihood, the distant future at that.
If we take the most restricted of these de, nitions, then we could expect to , nd the best evidence for a nascent international law in the three areas of ancient Eurasia that were characterized by dense networks of small, independent States sharing a more or less common religious and cultural value system: Mesopotamia (by, say, the fourth or third
millennium BC), northern India (in the Vedic period aB er about 1600 BC), and classical Greece. Each of these three State systems was characterized by a combination of political fragmentation and cultural unity.   is enabled a number of fairly standard practices to emerge, which helped to place inter-State relations on at least a somewhat stable and predictable footing.   ree particular areas provide evidence of this development: diplomatic a short history of international law 5
relations, treaty-making, and the conduct of war.1 A major additional contribution of the Greek city-States was the practice of arbitration of disputes, of which there came to be a very impressive body of practice (see Ager, 1996).
It was not inordinately di< cult for some of these practices to extend across deeper cultural
lines as well. One of the earliest surviving treaty texts is between Egypt and the Hittite Empire, from the thirteenth century BC.   e agreement concerned an imperial division of spheres of in. uence, but it also dealt with the extradition of fugitives.   e problem of good faith and binding force was ensured by enlisting the gods of both nations (two thousand strong in all) to act as guardians (Bederman, 2001, pp 147–150).
With the advent of the great universal religions, far more broadly-based systems of world order became possible. One outstanding example was the Islamic empire of the seventh century AD and aB erwards. Signi, cantly, the body of law on relations between States within the Muslim world (the Dar al-Islam, or ‘House of Islam’) was much richer than
that regarding relations with the outside world (the Dar al-Harb, or ‘House of war’). But even with in, del States and nationals, a number of pragmatic devices evolved to permit relations to occur in predictable ways—such as ‘temporary’ truces (in lieu of treaties) or safe-conducts issued to individuals (sometimes on a very large scale).2
In Western history, the supreme exemplar of the multinational empire was Rome. But the Roman Empire was, in its formative period, a somewhat tentative and ramshackle a# air, without an over-arching ethical or religious basis comparable to the Islamic religion in the later Arab empire.   at began to change, however, when certain philosophical
concepts were imported from Greece (from about the second century BC).   e most important of these was the idea of a set of universal principles of justice: the belief that,
amidst the welter of varying laws of di# erent States, certain substantive rules of conduct were present in all human societies.   is idea , rst surfaced in the writings of Aristotle (Rhetoric, p 1370). But it was taken much further by the philosophers of the Stoic school,
who envisaged the entire world as a single ‘world city-State’ (or kosmopolis) governed by the law of nature. Cicero, writing under Stoic in. uence, characterized this law of nature as being ‘spread through the whole human community, unchanging and eternal’ (Cicero,
Republic, pp 68–69).
  is concept of a universal and eternal natural law was later adopted by two other groups, the Roman lawyers and the Christian Church, and then bequeathed by them to medieval Europe.   e lawyers in particular made a distinction that would have a very long life ahead of it: between a jus naturale (or natural law properly speaking) and a jus gentium (or law of peoples).   e two were distinct, but at the same time so closely interconnected that the di# erences between them were oB en very easily ignored. Natural law was the broader concept. It was something like what we would now call a body of scienti, c laws, applicable not just to human beings but to the whole animal kingdom as well.   e jus gentium was the human component, or sub-category, of it. Just as the law of nature was universal in the natural world, so was the jus gentium universal in the human world.
1 On the Middle Eastern and Greek practice, see generally Bederman, 2001. On ancient India, see Bhatia, 1977.
2 On Islamic views of international law, see generally Khadduri, 1955.
6 stephen c neff
III. the middle ages: the natural law era
  e European Middle Ages o# ers an intriguing picture of dizzying variety and complexity, combined—not always very coherently—with the most sweeping universality.   e variety was most apparent in the de-centralized world of feudalism, with its complex and interlocking layers of rights and duties, and its di# usion of governmental powers and jurisdictions.   e universality was evident in two major spheres: philosophically and jurisprudentially, in the continued stress on natural law; and politically, in the Holy Roman Empire and in the revival of Roman law which underpinned it.
A. the universalist outlook: medieval natural law
  e European Middle Ages became the great age of natural-law thought. During this period, natural-law conceptions developed under the umbrella of the Catholic Church.
But it must be remembered that the idea was not speci, cally Christian in its inception, but rather was a legacy of the classical Stoic and Roman legal traditions.   e dominant tradition—represented outstandingly by   omas Aquinas—was rationalist in outlook, holding the content of the natural law to be susceptible of discovery and application by means of human reason rather than of revelation.
Natural law is one of the many parts of international law that have never received the systematic study that they merit. In the present context, only a few of its most salient features can be noted.3 Perhaps its single most outstanding feature was its all-embracing
character. It encompassed and regulated the natural and social life of the universe in all its in, nite variety—from the movements of the stars in their courses to the gurgling of the four humours through the veins and arteries of the human body, from the thoughts and deeds of all of the creatures of land, sea, and air, to those of human beings and the angels in the heavens. Its strictures applied universally to all cultures and civilizations, past, present, and future.
  ere continued to be, as in the ancient period, a distinction between the jus natural and the jus gentium, though still without any very sharp line between the two.   e jus gentium was much the lesser of the two, being seen largely as an application of the broader natural law to speci, cally human a# airs. Sometimes it was regarded as comprising universal customs of purely human creation—and therefore as a sort of supplement to natural law properly speaking.   ese jus gentium rules were sometimes referred to as ‘secondary’
natural-law rules. It must be stressed that this original jus gentium did not consist entirely, or even primarily, of what would now be called rules of international law. Instead, it was a collection of laws common to all nations, a# ecting individuals in all walks of life, from the highest to the lowest, and dealing with all aspects of human social a# airs—contract,
property, crime, and the like. It was more in the nature of an ethical system of universal or trans-cultural scope, setting out general norms of conduct, as opposed to a legal code with a list of prohibitions and punishments. One aspect of this grand intellectual scheme should be particularly stressed: the fact that there was no strong tendency to think that any body of law existed that was applicable uniquely to international relations as such. States,
3 For a good short account of medieval natural-law theory, see generally Gierke, 1938.
a short history of international law 7
like private persons, were permitted lawfully to wage war for such purposes as the punishment of wickedness or, generally, for the enforcement of the law—but not for vainglory or conquest or oppression.4   is in fact was the conceptual kernel of natural law’s most outstanding contribution to international law: the doctrine of the just war.
B. the pluralist outlook: the italian city-states
Even if (as the natural-law writers maintained) the whole of human society formed a single moral and ethical community, there was no denying that the world also consisted of a welter of di# erent polities, of a bewildering variety of sorts, and of varying degrees of independence from one another—extending all the way from the great empire of Rome itself (ie, of Byzantium) to the patchwork of feudal jurisdictions which carpeted Western Europe.
Nowhere was the tension between the universalistic and the pluralistic tendencies of the period more evident, in practice, than in the debates over the legal status of the various ‘independent’ city-states of northern Italy.   ese obtained substantial de facto independence from the Holy Roman Empire in the late twelB h century, when the cities of the Lombard League defeated the forces of Emperor Frederick I.   ere was, however, considerable debate over what this ‘independence’ really meant. To this matter, two of the most
prominent medieval lawyers—Bartolus of Sassoferato and his student Baldus of Ubaldis, who both wrote in the fourteenth century—turned their attention. Broadly speaking, the conclusion of Bartolus (largely echoed by Baldus) was that the cities were independent in the sense of being wholly self-governing and independent of one another, but that, in their relations inter se, they continued to be subject to rules of the Empire. Here we see the , rst glimmer, in European society, of the concept of independence of States operating
in conjunction—sometimes very uneasily—with subjection to a larger set of norms governing inter-State relations (Hinsley, 1986, pp 81–82, 88–90, 167–174). For this reason, Bartolus has been called, with some justice, the , rst theorist of international law (Sereni, 1943, pp 58–63).
C. developments in state practice
It is from the pluralist rather than the universalist side of the great medieval conceptual divide that we must look for innovations in State practice.   e reason is easily seen: it is in the day-to-day relation of di# erent States and peoples with one another that the practical problems of law are most likely to arise.
Much of the State practice in the Middle Ages consisted of traditional ways inherited from ancient times.   e area of diplomatic relations is an example, with diplomats increasingly being accorded a broad (but not absolute) degree of immunity from judicial process in host States. Beginning in about the eleventh century, European (chie. y Italian) States began to conclude bilateral treaties that spelled out various reciprocal guarantees of fair treatment.   ese agreements, sometimes concluded with Muslim States, granted a range
of privileges to the foreign merchants based in the contracting States, such as the right
4 For a thorough exposition of medieval just-war theory, see Russell, 1975. For a shorter account, see Ne# ,
2005, pp 44–68.
8 stephen c neff
to use their own law and courts when dealing with one another.   e same process was at work in the sphere of maritime trading.   e seafaring community made use of the laws of
Oleron (which were actually a series of court decisions from the small island of that name in the Bay of Biscay), and also of a code of rules called the Consolato del Mare, compiled in about the thirteenth century for the maritime community of Barcelona.   ese codes governed the broad range of maritime activities, including the earliest rules on the rights of neutral traders in wartime. Certain aspects of the conduct of war witnessed a high level of re, nement in the Middle Ages—most notably the law on the ransoming of prisoners of war (a welcome step forward from the alternatives of enslavement and summary killing). ‘  e law of arms’ (as it was known) was expounded in the fourteenth century, , rst by John of Legnano and later by a
monk named Honore de Bonet (or Bouvet), whose book entitled # e Tree of Battles, of the 1380s, became very in. uential.5 Accounts of medieval warfare, however, incline observers to harbour grave doubts as to whether even these practical rules exerted much real in. uence.
With the European explorations of Africa and, particularly, the New World from the fourteenth century onward, questions of relations with non-European societies assumed an urgent importance—while, at the same time, posing an immense practical test for the universality of natural law.   e Spanish conquest of the Indian kingdoms in the New World sparked especially vigorous legal and moral debates (even if only aB er the fact).  e Dominican scholar, Francisco de Vitoria, in a series of lectures at the University of
Salamanca, concluded that the Spanish conquest was justi, ed, on the ground that the Indians had unlawfully attempted to exclude Spanish traders from their kingdoms, contrary to natural-law rules. But he also confessed that his blood froze in his veins at the thought of the terrible atrocities committed by the Spanish in the process.6 In 1550–51,
there occurred one of the major legal confrontations of history, when two prominent , gures—Juan Ines de Sepulveda and Barolome de las Casas—debated, at length, the lawfulness and legal bases of the Spanish conquest of the New World, under the judgeship of the theologian and philosopher Domingo de Soto.   e result, alas, was inconclusive, as Soto declined to render a judgment (Pagden, 2001, pp 77–79). In short, medieval international law was a jumble of di# erent beliefs and practices— from the rare, ed conceptions of the law of nature, to the more serviceable rules by which
various communities conducted their actual day-to-day business, from warfare and diplomacy, to buying and selling.
IV. the classical age (–)
In the seventeenth and eighteenth centuries, a new spirit entered into doctrinal thought on international law.   is is sometimes put in terms of a secularization of natural-law thought.   at, however, is a very misleading characterization, since natural-law itself was (and had always been) primarily secular in nature. What was new in the seventeenth
5 On medieval law on the conduct of war, see Keen, 1965.
6 Vitoria, ‘On the American Indians’, in Political Writings, pp 231–292; Letter to Miguel de Arcos, ibid,
pp 331–333.
a short history of international law 9
century was a willingness to give a degree of formal recognition to State practice as a true source of law, rather than regarding it as merely illustrative of natural-law principles.   E result was a kind of dualistic outlook, with natural law and State practice maintaining a wary, and rather uneasy, form of co-existence—a state of a# airs much in evidence to the present day.
A. grotius and hobbes
  e principal harbinger of this new outlook was the Dutch writer Hugo Grotius, whose major work On the Law of War and Peace was published in Paris in 1625—a work so dense and rich that one could easily spend a lifetime studying it (as a number of scholars have).7 As a natural-law writer, he was a conservative, writing squarely in the rationalist tradition inherited from the Middle Ages. In international law speci, cally, he had important forerunners, most notably the Italian writer, Alberico Gentili, who produced the , rst truly
systematic study of the law of war at the end of the sixteenth century.8
Where Grotius did break important new ground—and where he fully earned the renown that still attaches to his name—was in his transformation of the old jus gentium into something importantly di# erent, called the law of nations.   e distinctive feature of this law of nations was that it was regarded as something distinct from the law of nature, rather than as a sub-category or means of application of natural law. Furthermore, and most signi, cantly, this law of nations was not regarded (like the old jus gentium) as a body
of law governing human social a# airs in general. Instead, it was a set rules applying speci, - cally to one particular and distinctive category of human beings: rulers of States. Now, for the , rst time in history, there was a clear conception of a systematic body of law applicable speci, cally to the relationship between nations. Eventually, although not until the late eighteenth century, the label ‘international law’ would be applied to this corpus of rules—
with Jeremy Bentham as the coiner of the term (Nussbaum, 1947, pp 135–136). It should be appreciated that Grotius’s law of nations, or ‘voluntary law’ as it was sometimes known, was not designed to supplant or undermine traditional natural law. Far from it.   e function of this law of nations was basically an interstitial one—of , lling gaps where the natural-law principles were too general, or devising workable rules as pragmatic substitutes where the application of the strict natural law was, for some reason, unfeasible.   e law of nature and the law of nations, in short, were seen as partners rather
than as rivals. For this reason, the earliest academic chairs in the , eld were commonly designated as being devoted to ‘the law of nature and nations’, in (presumably) happy partnership.   e , rst such chair was occupied by Samuel Pufendorf, at the University of Heidelberg in 1661. In the English-speaking world, the , rst one was created at the University of Edinburgh in 1707.
  ere were some, however, who contended that the partnership between the law of nature and the law of nations was anything but a happy one. Foremost amongst these 7 Much of the study of Grotius has been by political scientists rather than speci, cally by international lawyers. Remarkably, there is no comprehensive and accessible survey of his international legal thought and in. uence in English. For an older work that is still of value, see Knight, 1925. For a brief overview of his legal
thought, see Tuck, 1999, pp 78–108. For a more thorough study, see Haggenmacher, 1983.
8 On Gentili, see generally Van der Molen, 1968.
10 stephen c neff
dissidents was the English writer   omas Hobbes, whose master work Leviathan was written in 1651, shortly aB er Grotius’s death. In sharp contrast to Grotius, Hobbes denied that the pre-political condition of human society had been orderly and law-governed. He maintained, instead, that it was a chaotic, even violent, world, with self-preservation as the only true natural right (Hobbes, Leviathan, pp 80–84). Security could only be attained
by the radical step of having all of the persons in a state of nature surrender their natural rights to a sovereign power of their own creation—with the result that, henceforth, the only law which they would live under would be the law promulgated by that sovereign. Natural law was not rejected in its entirety, but it was radically stripped-down, to the point of being reduced, in essence to two fundamental tenets: a right of self-preservation, and a duty to perform contracts or promises. It was this stripped-down version of natural law
which, in the opinion of Hobbes, constituted the sole body of law between independent nation-states.
On this thesis, the only possible way in which States could construct a stable international system was through the painstaking process of entering into agreements whenever this proved feasible.   e natural-law duty to perform promises was the fundamental basis of this system, with the detailed substantive rules being provided by the various agreements that were actually concluded.   ese agreements could take either of two forms:
written or unwritten.   e written form, of course, comprised treaties, of the sort of that States had been concluding for many centuries.   e unwritten form was customary law, which in this period was seen predominantly as simply a tacit or unwritten treaty.
It is hardly surprising that, amongst traditional natural lawyers (ie, followers of
Grotius), Hobbes’s conclusions were unwelcome in the extreme, since they entailed the ruthless discarding of so much of the content of traditional natural law. But they were also not easily refuted. Some writers, such as Pufendorf, attempted to take at least some of Hobbes’s ideas into account, while still adhering to the older idea of a detailed, substantive natural law. Others basically ignored the Hobbesian challenge as best they could and continued to expound natural law in a systematic manner. In fact, the seventeenth
and eighteenth centuries were the great age of systematic jurisprudence, in which natural law was re-housed (it might be said) in grand logical edi, ces of a hypotheticodeductive nature, modelled on that most magni, cent of all intellectual constructions, mathematics.
  e culmination of this systematic natural-law movement came in the mid-eighteenth century, at the hands of the German philosopher Christian Wol# , who , ttingly had been trained as a mathematician. Wol# ’s massive eight-volume encyclopaedia of natural law contained detailed discussions of practically everything under the sun and even beyond (including a discourse on the characteristics of the inhabitants of other planets)—while paying virtually no heed to State practice. It holds an honourable place on the list of the world’s great unread masterpieces.9
  e most famous and in. uential writer in the Grotian tradition was the Swiss diplomat Emmerich de Vattel, whose famous exposition of # e Law of Nations was published in London
in 1758. As the , rst systematic international-law treatise of the modern kind, it would not 9 On Wol# ’s cosmological views, see Wol# , Cosmologia. Only the , nal volume of the main work on natural law concerned international law. For an English translation, see Wol# , Law of Nations Treated According to a Scienti, c Method.
a short history of international law 11
look drastically out of place on a twenty-, rst century bookshelf, as the works of Grotius or Wol# certainly would. Instead of setting out a grand philosophical scheme, Vattel’s intention was to provide a sort of handbook for lawyers and statesmen. Moreover, its
graceful style ensured it a wider usage by lawyers, judges, and lay persons than any other international-law writing had previously had. It can make a good claim to being the greatest international-law textbook ever written. With it, we stand at the threshold of modern international-law writing.10
In a number of ways, Vattel’s treatise was a popularization of Wol# ’s ideas, but it was written in a very di# erent spirit. Where Wol# had been disdainful of the voluntary law, Vattel fully embraced it, cheerfully and candidly expounding it alongside the natural law whenever appropriate. He has been accused of inconsistency—of constantly being on both sides of issues—but that charge is unfair.   e fact is that he had two bodies of law to expound, which sometimes provided di# ering solutions to practical problems. He was generally very forthright about which law he was treating at any given time. It is we who
tend to misunderstand the nature of his task because the dualistic mentality of that era is so foreign to us.
  e best example of the dualistic ‘method’ concerned war.   e natural law on just wars allowed a State to resort to force in self-help to vindicate a legal right that had actually been violated (or was threatened with violation)—so that, in a given con. ict, one side would be , ghting justly, and the other one not.   e voluntary law, however, was not concerned over which party had the stronger legal claim to use force (ie, it did not deal with the jus ad bellum, in legal terminology). Instead, it simply treated each side as if it had lawfully
resorted to war. It then contented itself with regulating the conduct of wars, , xing rules for both parties to apply, on an even-handed basis, in their contention against one another (the jus in bello, in the common legal parlance). In e# ect, then, the natural law saw war in terms of law enforcement and as a sanction for wrongdoing.   e voluntary law, in contrast, saw war more in terms of a duel.
B. the laws of nature and nations in action
  e writing of Grotius and Hobbes and their followers was not done in a vacuum. Various forces were at work in this period, which served to give this new law of nations a concrete
reality. One of the most important of these trends was the emergence (gradual to be sure) of strong central governments, at least in Western Europe, which increasingly gained the upper hand over the older, di# used jurisdictions of the feudal age. Particularly important for this trend was the innovation of standing armies in place of the older temporary feudal levies. In addition, these centralizing Nation-States were coming to be seen as permanently existing, corporate entities in their own right, separate from the rulers who governed
them at any given time—with long-term interests and political agendas of their own.
At least some of the . avour of the medieval natural law survived, however, chie. y in the form of the idea of the existence of something that has come to be called the ‘community of States’.   e clearest symbol of this—if that is the right word for it—was the peace settlement arrived at in Westphalia in 1648, at the conclusion of the   irty Years War in Germany. It is curious that something called the ‘Westphalian system’ is sometimes spoken of as a
10 On Vattel, see generally Jouannet, 1998.
12 stephen c neff
synonym of anarchy or of radical views of absolute State sovereignty—conceptions which actually belong (as will be seen) to the nineteenth century and not to the seventeenth.11 In reality, the Westphalian settlement was an arrangement reached within the framework of the Holy Roman Empire, with certain prerogatives of the imperial government carefully
preserved—ie, with the older medieval idea of ‘independent’ States being subject, at the same time, to certain higher norms.   e Peace of Westphalia did, however, provide a sort of template for later times in the way in which it marked out a division of labour (so to speak) between national and international spheres, placing religion carefully in the realm of domestic law.
  e idea of a community of a community States—distinct from, but also analogous to, a community of individual persons—was apparent in sundry other ways in the seventeenth and eighteenth centuries. One of these was in the concept of a balance of power.   is was hardly an altogether new idea, but in this period it attained a formal articulation and recognition that it had never had before (most notably in the Peace of Utrecht in 1713, at the conclusion of the War of the Spanish Succession). In conjunction with this concept, the
period was one of limited—though also of frequent—warfare. At least in Western Europe, war was largely conducted with trained professional forces, and for limited ends. As a result, European diplomacy bore more resemblance to a meticulous game of chess than to a lurid Hobbesian inferno of mayhem and turmoil. Even warfare oB en had a ritualistic air, with its emphasis on manoeuvre and siege rather than on pitched battle.
Economic relations manifested much this same combination of cooperation and competitiveness. On the competitive side, this period marked the high tide of mercantilism, with its intense rivalry for trade advantage. But there was also a high degree of cooperation, under an ever-strengthening rule of law, chie. y in the form of a network of treaties of friendship, commerce, and navigation (‘FCN treaties’ in the standard legal parlance), which provided a range of safeguards for merchants operating in and trading with foreign
countries.
V. the nineteenth century (–)
  e nineteenth century, extraordinarily, is the least explored area of the history of international law. Its outstanding feature was the rise, and dominance, of the legal philosophy known as positivism.   is conferred onto international law a scienti, c gloss—or alternatively, in the opinion of some, tied it into a narrow strait-jacket. But positivism did not, or not quite, have the century to itself. A new tendency known as the historical school of law
made some important contributions; and natural law, against heavy odds, managed to survive, although in new and unexpected ways.
A. ‘the public law and system of europe’
With the de, nitive defeat of revolutionary and imperial France in 1815, the victorious
European powers (Britain, Prussia, Russia and Austria) craB ed a new kind of peace settlement, based not merely on the balance of material power between the major States but 11 See, for example, the discussion of the ‘logic of Westphalia’ in Falk, 1975, pp 59–69.
a short history of international law 13
also on a set of general principles of a more substantive character.   ese general principles
were, to be sure, of a decidedly conservative character.   e goal was to craB a continentwide set of political arrangements that would (it was hoped) keep the scourge of revolution from breaking out again.
  e peace settlement was to be policed by the major powers—who were, of course,
self-appointed to the task—by way of military intervention where necessary.   e powers
even had a grand name for their enterprise: the ‘public law and system of Europe’.   is
legal order was based on faithful adherence to treaty commitments, together with respect
for established laws and legitimate governments and property rights within the States of
Europe. But it also included a duty on the part of rulers to ‘earn’ their legitimacy by providing
responsible and e< cient government to their peoples and also by cooperating with
movements for orderly and peaceful change.
A few of these interventions by the Concert of Europe may be noted brie. y.   e , rst
ones were in the cause of ‘legitimacy’ in the 1820s, when there were military interventions
to subdue revolutions in Naples and Sardinia (by Austria) and in Spain (by France). Also
in the 1820s, the intervention of Britain, France, and Russia in the Greek independence
struggle led to independence for the Kingdom of Greece. Great-power involvement similarly
led to Belgian independence in the 1830s. Sometimes the powers intervened diplomatically
in post-war peace settlements, if the terms imposed on the losing side looked to
be too destabilizing for the continent as a whole.   is occurred in 1878, when the major
powers stepped in to prevent Russia from exacting too harsh a peace against Turkey aB er
a victorious war.
On at least some of these occasions, humanitarian considerations played a part, alongside
the more usual political jockeying.   e most common cause for concern on this
front was the relief of Christian populations that were held to be victims of oppression
in the Ottoman Empire.   is was certainly one of the motivations for the Greek intervention
in the 1820s. In 1860, the powers intervened in a communal-violence crisis in
the Mount Lebanon area.   e most forceful of these great-power humanitarian actions
was probably the one in Crete in 1897, when the powers stepped in to stop atrocities and
counter-atrocities between Greeks and Turks. In virtually none of these cases was there
a pure humanitarian motive, untouched by any other consideration. But some (arguable)
precedents were established for later advocates of the lawfulness of humanitarian
intervention.
  e Concert of Europe ‘system’ (if it could really be called that) was overtly hegemonic,
in modern parlance.   ere was little sign of any principle of equality of States. Still, the
Concert of Europe did at least provide an ideal—if not always the reality—of collective,
orchestrated State action for the preservation of international peace. To that extent, it
foreshadowed the post-1945 United Nations. International lawyers, however, never gave
it much attention.12 Instead, their ambitions were directed to another end: to unshackling
international law from its natural-law heritage and making it something like a science in
the modern sense of that term.
12 For one of the few legal texts to treat this subject, see Dupuis, Principe d’équilibre, 1909. See also
Simpson, 2004, which devotes considerable attention to policing practices of the major powers in the
nineteenth century.
14 stephen c neff
B. the positivist revolution
On the conceptual front, the major feature of the nineteenth century was the dominant
role of positivism. By ‘positivism’ is meant such a wealth of things that it may be best to
avoid using the term altogether.   e expression ‘positive law’ had been in use since the
Middle Ages (since at least the fourteenth century) to refer to the man-made law of particular
States, in contrast to divine law (ie, the commands of God) or natural law. What
was new in the nineteenth century, however, was something called a ‘positive philosophy,’
the chief propounder of which was the French social philosopher Auguste Comte. By
‘positive’, Comte meant something like ‘scienti, c’ or ‘objective’ or ‘empirical’, in contrast
to speculative or religious modes of thought. He maintained that the human race had
gone through three great historical stages: the theological, the metaphysical, and (now) the
‘positive’. In the theological stage, religious ideas had been dominant. In the metaphysical
stage, legalistic and jurisprudential thinking had prevailed—meaning, in essence, natural
law. But the third age—the ‘positive’ era (as Comte called it)—was now dawning, promising
the true and , nal liberation of the human mind from the superstitions and dogmas of
the past.
In its original form, positivism envisaged the emergence of a sort of technocratic utopia,
in which the world would be governed not by clerics or politicians or lawyers (as in the past
benighted ages of theology and metaphysics), but rather by engineers and industrialists
and , nanciers.   is vision had , rst been put forward by the eccentric French nobleman,
the Comte de St-Simon, in the early nineteenth century.13 (Auguste Comte’s early career,
incidentally, had been spent as St-Simon’s secretary.)   is early vision, taken to its logical
conclusion, envisaged the obsolescence of the nation-state.
  is original positivism of St-Simon and Comte was a strange amalgam of technocracy
and evangelism. Indeed, positivism actually did become a religion, with the most in. uence,
as it happened, in Brazil (whose national . ag is emblazoned with the positivist motto
‘Order and Progress’). Not surprisingly, lawyers turned the positive philosophy in a somewhat
di# erent direction.
1.          e positive philosophy applied to international law
As noted above, there was nothing the least bit new in the nineteenth century about the
idea of positive law. What was distinctive about positivism as a school of jurisprudential
thought was the doctrinaire insistence that positive law is the only true law, ie, the wholesale
and principled rejection of natural law as a valid or binding guide to conduct. On this
point, nineteenth-century positivism went even further than Hobbes, who was its major
progenitor.   e doctrinaire positivists (as they could fairly be termed), that is to say, held
fast to the voluntary law, while at the same time breaking the link between it and the
natural law—that link which had been so central a feature of the Grotian tradition.   e
partnership between the law of nations and the law of nature, in short, was now regarded
as irredeemably dissolved.
One of the most central aspects of positivism was its close attention to questions of the
sources of international law—and, in particular, to the proposition that international law
was, fundamentally, an outgrowth or feature of the will of the States of the world. Rules of
13 On St-Simonism, see Manuel, 1956.
a short history of international law 15
law were created by the States themselves, by consent, whether express (in written treaties)
or tacit (in the form of custom). International law was therefore now seen as the sum total,
or aggregation, of agreements which the States of the world happen to have arrived at, at
any given time. In a phrase that became proverbial amongst positivists, international law
must now be seen as a law between States and not as a law above States. International law,
in other words, was now regarded as a corpus of rules arising from, as it were, the bottom
up, as the conscious creation of the States themselves, rather than as a pre-existing, eternal,
all-enveloping framework, in the manner of the old natural law. As a consequence,
the notion of a systematic, all encompassing body of law—so striking a feature of natural
law—was now discarded. International law was now seen as, so to speak, a world of fragments,
an accumulation of speci, c, agreed rules, rather than as a single coherent picture.
In any area where agreement between States happened to be lacking, international law
was, perforce, silent.
Another important e# ect of positivism was to replace the older, medieval, teleological
picture with what might be termed an instrumentalist outlook.   at is to say, the law was
no longer seen as having any innate goal of its own, or as re. ecting any universal master
plan. Instead, the law was now regarded, in technocratic terms, as a means for the attainment
of goals which were decided on by political processes. Law, in short, was now seen
as a servant and not as a master. It was to be a tool for practical workmen rather than a
roadmap to eternal salvation.
Closely allied to the consent-based view of international law was the , rm insistence of
most positivists on the centrality of the State as the principal (or even the sole) subject of
international law, ie, as the exclusive bearer of rights and duties on the international plane.
States were now perceived as possessing what came to be called ‘international personality’—
and, crucially, as also possessing a set of fundamental rights that must be protected at
all times. Foremost of these fundamental rights was the right of survival or self-preservation.
  is meant that, in emergency situations, States are entitled to take action that would
otherwise be contrary to law.   e most dramatic illustration of this point in the nineteenth
century occurred in 1837, when the British government, faced with an insurgency
in Canada, sent troops into the United States, in pursuit of insurgents who were using
that country’s territory as a safe haven.   ey succeeded in capturing the miscreants, killing
several persons in the process and destroying a boat named the Caroline.   e United
States vigorously objected to this armed incursion into its territory. Britain justi, ed its
action as self-defence.   e diplomatic correspondence between the two countries in this
dispute produced the classic exposition of the principle of self-defence: action in the face
of a crisis that is ‘instant, overwhelming, leaving no choice of means, and no moment for
deliberation’.14   is remains today as the canonical statement of the criteria for the exercise
by States of self-defence (although it really was a statement of the general principle of
necessity rather than of self-defence per se).
  e stress on the basic rights of States also gave to positivism a strongly pluralistic cast.
Each nation-State possessed its own distinctive set of national interests, which it was striving
to achieve in an inherently competitive, even hostile, environment. Each State was sovereign
within its territory. And each State’s domestic law could re. ect that country’s own
particular history, values, aspirations, traditions, and so forth. It was in this period that
14 29 British and Foreign State Papers pp 1137–1138.
16 stephen c neff
the principle of ‘the sovereign equality of States’ became the fundamental cornerstone—or
even the central dogma—of international law, along with the concomitant rule of nonintervention
of States into the internal a# airs of one another.
A , nal point is in order concerning the technocratic outlook of positivism.   is had
the important e# ect of de-politicizing international law, at least in principle. International
lawyers in the nineteenth century became increasingly reluctant to trespass into areas of
political controversy. In this regard, they presented a sharp contrast to their natural-law
forbears, who had proudly worn the mantle of the social critic.   e positivist lawyers were
more inclined to see themselves instead as the juridical counterparts of Comte’s engineers.
In particular, it came to be widely agreed that fundamental national-security interests
were questions of politics and not of law—a distinction that Grotius and Vattel would have
found di< cult to grasp. By the same token, positivism had a strongly non-moralistic . avour.
Nowhere were these features more important than on the subject of war. Positivists
tended to view the rights and wrongs of a State’s decision to resort to war (the jus ad bellum)
as a political rather than a legal issue.   erefore, war was now seen as an inevitable
and permanent feature of the inter-State system, in the way that friction was an inevitable
and permanent feature of a mechanical system.
2.          e professionalization of international law
  e scienti, c and technocratic and a-political ethos of positivism brought a new sense
of precision, a business-like character to the study and practice of international law. One
consequence of this was an increasing sense of professionalism and, to a certain extent,
of corporate solidarity. An important sign of this was the founding, in 1873, of two major
professional bodies in the , eld, the International Law Association and the Institut de Droit
International.   is was also the period in which international law became a subject of university
studies in its own right, separate from general jurisprudence—and, in particular,
from the study of natural law. (  is is also a subject which still awaits detailed treatment.)
  e nineteenth century was also the period in which major systematic treatises began
to be written in the various European languages. Where Vattel had led, many followed. In
1785, Georg Friedrich de Martens wrote an important treatise, which departed from earlier
writing in being based primarily on State practice rather than on natural-law doctrine.
In English, the most notable early exposition was by Henry Wheaton, an American diplomat
and legal scholar, whose Elements of International Law was , rst published in 1836. Its
popularity is indicated by the fact that it was translated into French, Spanish, and Italian,
with new editions produced for fully a century aB er the , rst one. Wheaton was followed
in Britain by Robert Phillimore, whose treatise of 1854–61 ran to four volumes (with two
further editions).   e , rst major German-language exposition was by Auguste Wilhelm
Hel er in 1844 (which ran to eight editions by 1888).   e , rst treatise to be a conscious
embodiment of the positive philosophy was by an Argentinian diplomat, Carlos Calvo,
in 1868.15   is text expanded from two to six volumes over the course of , ve editions to
1896.   e French were slightly later in the , eld, with a Précis du droit des gens, by   eophile
Funck-Brentano and Albert Sorel in 1877. More in. uential was the Manuel de droit international
public by Henry Bon, ls in 1894 (with eight editions by the 1920s). One of the most
15 Calvo, 1880–81. For the , rst edition, in Spanish, see Carlos Calvo, Derecho internacional teórico y
práctico de Europa y América (2 vols, Paris: D’Amyot, 1868).
a short history of international law 17
popular texts was that of the Swiss writer Johann Kaspar Bluntschli, whose exposition in
1870 (in French) took the form of a systematic ‘code’.
A pronounced di# erence of style, if not of substance, emerged between the Anglo-
American writers and their continental European counterparts. Doctrinaire positivism,
as a systematic philosophy, was primarily the product of continental writing, the two most
outstanding , gures being the Italian Dionisio Anzilotti (later to be a notable World Court
judge) and the German Heinrich Triepel. English-language writers, for the most part,
were more empirical in outlook, concentrating more heavily on State practice, court decisions,
and the like, treating international law as a sort of transnational version of English
common law.   is intellectual division of labour (so to speak) between the pragmatic and
the doctrinal remains in evidence to the present day.
C. the historical and natural-law schools
If positivism was by far the dominant trend in nineteenth century international law, it
did fall short of having a complete monopoly. Two other schools of thought in particular
should be noted.   e , rst was a new arrival: the historical school, which was intimately
connected with the romantic movement of the period. Its impact in international law has
received, as yet, hardly any serious attention.   e other alternative to positivism was natural
law, severely reduced in prestige to be sure, but surviving rather better than has generally
been appreciated.
1.          e historical school
At the core of the historical school’s philosophy was the thesis that each culture, or cultural
unit, or nation possessed a distinctive group consciousness or ethos, which marked it o#
from other cultures or nations. Each of these cultural units, as a consequence, could only
really be understood in its own terms.   e historical school therefore rejected the universalist
outlook of natural law.   is opposition to universal natural law was one of the most
important features that the historical school shared with the positivists.
In international law, the impact of the historical school is evident in three principal
areas.   e , rst was with regard to customary law, where its distinctive contribution was
the insistence that this law was not a matter merely of consistent practice, however widespread
or venerable it might be. A rule of customary law required, in addition, a mental
element—a kind of group consciousness, or collective decision on the part of the actors to
enact that practice into a rule of law (albeit an unwritten one). In fact, this collective mental
element was seen as the most important component of custom, with material practice
relegated to a clear second place. Customary law was therefore seen, on this view, as a kind
of informal legislation rather than as an unwritten treaty (as the positivists tended to hold).
  is thesis marked the origin of the modern concept of opinio juris as a key component of
customary international law.16
  e second major contribution of the historical school to international law was its theory
that the fundamental unit of social and historical existence was not—or not quite—the
State, as it was for the positivists, but rather the nation-state. In this vision, the State, when
properly constituted, comprised the organization of a particular culture into a political
16 See Tasioulas, 2007. See also   irlway, below, Ch 4.
18 stephen c neff
unit. It was but a short step from this thesis to the proposition that a ‘people’ (ie, a cultural
collectivity or nation or, in the German term, Volk) had a moral right to organize
itself politically as a State. And it was no large step from there to the assertion that such a
collectivity possesses a legal right so to organize itself.   is ‘nationality school’ (as it was
sometimes called) had the most impact in Italy, where its leading spokesman was Pasquale
Mancini, who was a professor at the University of Turin (as well as an o< ce-holder in the
government of uni, ed Italy). Although the nationality thesis did not attract signi, cant
support amongst international lawyers generally at the time, it did pre, gure the later law
of self-determination of peoples.17
  e third area where the in. uence of the historical school was felt was regarding imperialism—
a subject that has attracted strangely little attention from international lawyers.
It need only be mentioned here that the historical school inherited from the eighteenth
century a fascination with ‘stages’ of history. Under the impact of nineteenth-century
anthropological thought, there came to be wide agreement on a three-fold categorization
of States: as civilized, barbarian, and savage.18   e Scottish lawyer James Lorimer was
the most prominent international-law writer in this category.   e implication was all too
clear that there was a kind of entitlement—moral and historical, if not strictly legal—for
the ‘civilized’ countries to take their ‘savage’ counterparts in hand and to bring them at
least into contact with the blessings of modern scienti, c life.
2.          e survival of natural law
  e dominance of positivism, with its stern and forthright opposition to the very concept
of natural law, brought that venerable body of thought to its lowest ebb so far in the history
of international law. Virtually the only important legal , gure explicitly to claim allegiance
to that tradition was Lorimer. It should not be thought, though, that the natural-law ideals
of old died out altogether.   at was far from the case. If they lost the central position that
they had previously held, they nevertheless maintained their hold in many ways that were
not altogether obvious.
One reason that natural-law ideas were not always recognizable was that, to some extent,
they were re-clothed into a materialistic and scienti, c garb.   is was particularly so with
the new science of liberal political economy. Underlying this new science was a belief,
directly imported from traditional natural-law thought, in a natural harmony of interests
amongst human beings across the globe.   is was , rst enunciated in a systematic way by
the French physician Francois Quesnay in the 1750s, and then developed into its modern
form in Britain by Adam Smith, David Ricardo, and John Stuart Mill.   e centrepiece of
their programme was support for free trade—and, more generally, for a breaking down
of barriers between individual economic actors the world over.   ey were, in short, the
pioneers of what came to called ‘globalization’ (Ne# , 1990, pp 28–44).
In more traditional areas of international law, the legacy of natural law is most readily
discerned in the area of armed con. ict—speci, cally concerning what came to be called
measures short of war. It has been observed that positivism basically accepted the outbreak
of war as an unavoidable fact of international life, and contented itself with regulating
17 On the nationality (or Italian) School, see Sereni, 1943, pp 155–178. On the modern law of selfdetermination,
see Craven, below, Ch 8.
18 See Kuper, 1988, pp 76–78.
a short history of international law 19
the conduct of hostilities. But that approach applied to war properly speaking. Regarding
lesser measures of coercion, the legacy of just-war thought lingered on.   is was the thesis
that a resort to armed self-help was permissible to obtain respect for legal rights, if
peaceful means proved unavailing.   e most important of these forcible self-help measures
were armed reprisals.   ese were far from an unusual occurrence. Indeed, the nineteenth
century was a golden age (if that is the right word for it) of armed reprisals.   e
most common cause of such actions was injury to nationals that had gone unredressed by
the target country. A famous illustration was Britain’s action against Greece in the ‘Don
Paci, co’ incident of 1850, in which Britain blockaded Greek ports to compel that country
to pay compensation for injury in. icted by mob action against a British subject. One of
the largest scale operations was a blockade of Venezuelan ports in 1902–03 by a coalition
of major European powers, to induce that State to pay various debts that were owing to
foreign nationals. Reprisals sometimes also included occupations of territory and even
bombardments of civilian areas.
It could hardly escape the attention of observers that reprisal actions were, for obvious
practical reasons, a prerogative of the major powers—and that they accordingly gave rise to
some strong feelings of resentment in the developing world. In the wake of the Venezuelan
incident of 1902–03, the Foreign Minister of Argentina, Luis Drago, proposed an outright
ban against the use of force in cases of contract debts.   at was not forthcoming. But
a milder restriction was agreed, in the so-called Porter Convention of 1907 (named for
the American diplomat who was its chief sponsor), adopted by the Second Hague Peace
Conference.   is convention merely required certain procedural steps to be taken before
armed reprisals could be resorted to in debt-default cases.
It is one of history’s great ironies that the natural-law tradition, which had once been so
grand an expression of idealism and world brotherhood, should come to such an ignominiously
blood-spattered pass. A philosophy that had once insisted so strongly on the protection
of the weak against the strong was now used as a weapon of the strong against the
weak. It is, of course, unfair to condemn a whole system of justice on the basis of abuses.
But the abuses were many, and the power relations too naked and too ugly for the tastes of
many from the developing world. Along with imperialism, forcible self-help actions leB a
long-lasting stain on relations between the developed and the developing worlds.
D. the achievements of the nineteenth century
One explanation for the remarkable lack of attention by international lawyers to the nineteenth
century lies perhaps in the pervasive dominance of doctrinaire positivism over
international legal writing generally.   ere was much, admittedly, that was unattractive
about nineteenth-century positivism, particularly to modern eyes—its doctrinaire quality,
its narrow horizons, its lack of high ideals, the aura of super, ciality raised to the pitch of
dogma, its narrowly technocratic character, its ready subservience to power. But it would
be wrong to judge it on these points alone because its solid achievements were many. If it
lacked the breadth and idealism of natural-law thought, it also discarded the vagueness
and unreality that oB en characterized natural-law thought at its worst. In many ways,
positivism was a breath (or even a blast) of fresh air, countering the speculative excesses of
natural-law thought. Even if positivism sometimes went too far in the opposite direction,
we should nonetheless appreciate the valuable services that it performed in its time.
20 stephen c neff
It is clear from even a cursory survey of the nineteenth century that, when the wills of
States were coordinated, impressive results could follow (see generally Lyons, 1963). In the
spirit of the St-Simonians, there were various forms of what would come to be called the
functional cooperation of States. Progress on this front was most notable in the areas of
international communication and transportation: from the international river commissions
that were set up to ensure freedom of navigation on the Rhine and Danube Rivers
(which had been commercial backwaters since the Middle Ages), to special arrangements
for the Suez and Panama Canals, to the founding of the International Telegraphic and
Universal Postal Unions (1865 and 1874 respectively). In the spirit of the liberal economists,
policies of tari# reduction gathered momentum (with conclusion of the Cobden-
Chevalier Treaty in 1860 between France and Britain being the seminal event). Barriers
between States were assiduously broken down in other ways as well.   e late nineteenth
century became an age of remarkable freedom of movement of peoples, with migration on
a massive scale (passports were unnecessary for much of international travel in the nineteenth
century). Capital too moved with great freedom, thanks to the linking of currencies
through the gold standard.   e period was, in short, a great age of globalization, with the
world more closely integrated economically than it would be for many decades thereaB er
(and in some ways more so than today) (see Ne# , 1990, pp 38–71).
  e positivist era was also the period in which we , rst see the international community
‘legislating’ by way of multilateral treaties, for the most part in areas relating to armed con-
. ict.   e , rst major example of this was the Declaration of Paris of 1856. It restricted the
capture of private property at sea, by providing that ‘free ships make free goods’ (ie, that
enemy private property could not be captured on a neutral ship). It also announced the
abolition of privateering. Within , ve years, it attracted over 40 rati, cations. In 1868, the
Declaration of St Petersburg contained a ban on exploding bullets. More importantly,
it denounced total-war practices, by stating that the only permissible objective of war is
the defeat of the enemy’s armed forces. Alongside the law of war—and in some ways in
close partnership to it— was the full . owering of the law of neutrality, which, for the , rst
time, emerged in the full light of juridical respectability as a sort of counterpart to the
unrestricted right of States to resort to war on purely political grounds.19
  ere was ‘legislation’ in other , elds too. On the humanitarian front, the period witnessed
a concerted e# ort by the nations of the world to put an end to slave trading.   e culmination
of this e# ort occurred in 1890, when the General Act of the Brussels Conference
established an International Maritime O< ce (at Zanzibar) to act against slave trading.
In the less-than-humanitarian sphere of imperialism, the major powers established, by
multilateral treaty, the ‘rules of the game’ for the imperial partitioning of Africa.   is took
place at the Berlin Conference of 1884–85. (Contrary to the belief of some, that conference
did not actually allocate any territories; it established the criteria by which the powers
would recognize one another’s claims.)
  e culmination of nineteenth-century international legislation—and the arrival of
parliamentary-style diplomacy and treaty-draB ing—came with the two Hague Peace
Conferences of 1899 and 1907.   e , rst Conference draB ed two major conventions: one on
the laws of war and one on the establishment of a Permanent Court of Arbitration (which
was actually a roster of experts prepared to act as judges on an ad hoc basis, and not a
19 For the most magisterial exposition of this subject, see Kleen, 1898–1900.
a short history of international law 21
standing court).   e Second Hague Peace Conference, in 1907, was a much larger gathering
than the earlier one (and hence less Europe-dominated). It produced 13 conventions
on various topics, mostly on aspects of war and neutrality.20
Yet another major achievement of the nineteenth century was in the area of the peaceful
settlement of disputes. Although it was widely agreed that fundamental security issues
were not justiciable, the nineteenth century marked a great step forward in the practice of
inter-State arbitration.   e trend began with the Jay Treaty of 1794, in which the United
States and Britain agreed to set up two arbitration commissions (comprising nationals of
each country) to resolve a range of neutrality and property-seizure issues that had arisen
in the preceding years.   ese were followed by a number of ad hoc inter-State arbitrations
in the nineteenth century, of which the most famous, again between Britain and the
United States, took place in 1871–72, for the settlement of a host of neutrality-related issues
arising from the American Civil War.21
For all the impressiveness of these achievements, though, the state of the world was
well short of utopian. Economic inequality grew steadily even as growth accelerated.   e
subjection of much of the world to the European imperial powers, together with the ‘gunboat
diplomacy’ that sometimes followed in the wake of legal claims, stored up a strong
reservoir of ill-will between the developed and the developing worlds. Nor did the Concert
of Europe prove adequate, in the longer term, to the maintenance of international peace.
  e Franco-Prussian War of 1870–71 proved, all too dramatically, that war between major
powers, on the continent of Europe, was far from unthinkable—and the steady advance
in weapons technology and armaments stockpiles promised that future wars could be far
more deadly than any in the past. In due course, the Great War of 1914–18 delivered—
spectacularly—on that menacing promise.
VI. the twentieth and twenty-first
centuries (– )
Since much of this book will cover twentieth-century developments, no attempt will be
made at comprehensive coverage here, particularly of the post-1945 period. But certain
aspects of both the inter-war and the post-1945 periods which have received comparatively
little attention so far will be emphasized.
A. the inter-war period
  e carnage of the Great War of 1914–18 concentrated many minds, in addition to squandering
many lives. Many persons now held that nothing short of a permanently existing
organization dedicated to the maintenance of peace would su< ce to prevent future ghastly
wars.   eir most prominent spokesman was American President Woodrow Wilson.   e
fruit of their labours was the establishment of the League of Nations, whose Covenant
was set out in the Versailles Treaty of 1919.   is new system of public order would be of an
20 For an informative and lively account of these conferences, see Tuchman, 1966, pp 265–338.
21 For a detailed and informative account, see Crook, 1975.
22 stephen c neff
open, parliamentary, democratic character, in contrast to the discreet great-power dealings
of the Concert of Europe.   e League was, however, tainted from the outset by its
close association with the Versailles peace settlement, an incubus which it never managed
to shake o# .
1.          e League and its supplements
  e League was a complex combination of conservatism and boldness. On the side of conservatism
was the decision to make no fundamental change in the sovereign prerogatives
of nation-States as these had developed up to that time. No attempt was made to establish
the League as a world government, with sovereign powers over its member States. Nor did
the Covenant of the League prohibit war. Instead, the resort to war was hedged about with
procedural requirements—speci, cally that either a judicial or political dispute-settlement
process must be exhausted before there could be war between League member States. On
the side of boldness was the Covenant’s provision for automatic enforcement action against
any League member State resorting to war without observing the peaceful-settlement
rules.   is enforcement took the form of economic sanctions by all other League member
States, a tactic inspired by the Allied blockade of Germany during the Great War.   ere
was, however, no provision for military action against delinquent States.
In due course, two major initiatives supplemented the League’s e# orts to maintain
peace. In 1928, the Pact of Paris was concluded, in which the States parties forswore
any resort to war as a means of national policy.   e practical e# ects of this initiative,
however, were not impressive. For one thing, no sanctions were provided. It was also
carefully understood by the signatories that self-defence action would be permitted—a
potentially large loophole.   e second initiative was the Stimson Doctrine of 1932,
announced by the United States (and named for its Secretary of State at the time) in
the wake of Japan’s occupation of Manchuria. It held that any situation brought about
by aggression would not be accorded legal recognition by the United States. Here too,
the immediate material impact was not great; but it had some precedential value, since
the UN General Assembly endorsed it as a general principle of international relations
in 1970.
Only on one occasion was the sanctions provision of the Covenant invoked: against Italy
for its invasion of Ethiopia in 1935–36.   e sanctions failed to save Ethiopia, since the conquest
was completed before they could have any serious e# ect.   is failure led to a period
of profound soul-searching amongst international lawyers as to what the role of law in the
world should be.22 It similarly led States into desperate searches for alternative sources of
security to the League Covenant. A number of countries, such as Switzerland, Belgium,
and the Scandinavian States, reverted to traditional neutrality policies. But there were
also a number of imaginative proposals for informal, but coordinated, action by States
against aggressors (eg, Cohn, 1939; Jessup, 1936).   ere was even a sort of return to ad hoc
great-power management, in the form of a collective and coordinated non-intervention
policy organized by the major powers at the outbreak of the Spanish Civil War in 1936.
Unfortunately, this e# ort too was largely unsuccessful because of inadequate implementation
and great-power rivalry (see Watters, 1970).
22 See, notably, Niemeyer, 1940.
a short history of international law 23
2.          e achievements of the inter-war period
Although the League failed as a protector against aggressors, it would be far wrong to suppose
that the inter-war period was a sterile time in international law generally. Precisely
the opposite was the case. It was a time of ferment, experiment, and excitement unprecedented
in the history of the discipline. A World Court (known formally, if optimistically,
as the Permanent Court of International Justice) was established as a standing body, with
its seat at the Hague in the Netherlands. It did not have compulsory jurisdiction over all
disputes. But it decided several dozen cases, building up, for the , rst time, a substantial
body of international judicial practice.   ese cases were supplemented by a large number
of claims commissions and arbitrations, whose outpourings gave international lawyers a
volume of case law far richer than anything that had ever existed before.
  e codi, cation of international law was one of the ambitious projects of the period. A
conference was convened for that purpose by the League of Nations in 1930, but its fruits
were decidedly modest (consisting mainly of clari, cations of various issues relating to
nationality). But there were further initiatives by the American States in a variety of , elds.
  ese included a convention on the rights and duties of States in 1933, which included
what many lawyers regard as the canonical de, nition of a ‘State’ for legal purposes.23   e
American States also concluded conventions on maritime neutrality, civil wars, asylum,
and extradition.
  e inter-war period also witnessed the , rst multilateral initiatives on human rights. A
number of bilateral conventions for the protection of minorities were concluded between
various newly created States and the League of Nations. In the event, these proved not to
be very e# ective; but they set the stage for later e# orts to protect minority rights aB er 1945,
as well as human rights generally.   e principle of trusteeship of dependent territories
was embodied in the mandates system, in which the ex-colonies of the defeated countries
were to be administered by member States of the League. But this was to be a mission of
stewardship—‘a sacred trust of civilization’—under the oversight of the League. Finally,
the League performed heroic labours for the relief of refugees, in the face of very great
obstacles—in the process virtually creating what would become one of the most important
components of the law of human rights.
It was a period also of innovative thinking about international law.   at the doctrinaire
positivism of the nineteenth century was far from dead was made apparent by the World
Court in 1927, when it rea< rmed the consensual basis of international law, in the famous
(or infamous) Lotus case.24 But positivism also came under attack during this period,
from several quarters. One set of attackers were the enthusiasts for collective security, as
embodied in the League of Nations.   e American scholar Quincy Wright was a notable
exemplar.   is group were sympathetic to the return of just-war ideas, with the Covenant’s
restrictions on the resort to war and the provision for collective aid to victims of unlawful
war.   eir single most notable contention was that neutrality must now be regarded as
obsolete.
Within the positivist camp itself, a sweeping revision of nineteenth-century thought
was advanced by writers of the Vienna School, led by Hans Kelsen.   ey discarded the
State-centred, consent-based, pluralistic elements of nineteenth-century positivism, while 23 See Craven, below, Ch 8. 24 ‘Lotus’, Judgment No 9, 1927, PCIJ, Ser A, No 10.
24 stephen c neff
retaining its general scienti, c outlook.   e Vienna School then reconceived international law—and indeed the whole of law—as a grand, rationalistic, normative system.25   e French lawyer Georges Scelle advanced a broadly similar vision, though with a sociological  avour, in contrast to the austere formalism of Kelsen.26   ere was even something of a revival of natural-law thought, most notably in the writing of the Austrian Alfred Verdross (who was something of a maverick member of the Vienna School).27 In short, the inter-war period did not bring an end to war or aggression. But it was the most vibrant and exciting era in the history of the discipline up to that time (and perhaps since).
B. after 
In the immediate aB ermath of the Second World War, international law entered upon a period of unprecedented con, dence and prestige, for which ‘euphoria’ might not be too strong a word. International lawyers even found themselves in the (unaccustomed) role of heroic crusaders, with the dramatic prosecutions of German and Japanese leaders for crimes under international law at Nuremberg and Tokyo in the late 1940s (see generally Taylor, 1992; and Cryer and Boister, 2008). At the same time, great plans for the future were being laid.
1. Building a new world  e founding of the United Nations in 1945, to replace the defunct League of Nations, was a critical step in the creation of a new world order. With the UN came a new World Court (the International Court of Justice, or ICJ), though still without compulsory jurisdiction over States.   e heart of the organization was the Security Council, where (it was hoped) the victorious powers from the Second World War would continue their wartime alliance in perpetuity as a collective bulwark against future aggressors. (It may be noted that
‘United Nations’ had been the o< cial name for the wartime alliance.)   e UN therefore marked something of a return to the old Concert of Europe approach.   e special status of the , ve major powers (the principal victors in the Second World War, of course) was formally re. ected in their possession of permanent seats on the Security Council, together with the power of veto over its decisions.   e UN Charter went further than the League Covenant in restricting violence. It did this by prohibiting not only war as such, but also ‘the use of force’ in general—thereby
encompassing measures short of war, such as armed reprisals. An express exception was made for self-defence. Regarding action against aggressors, the UN was both bolder and more timid than the League had been. It was bolder in that the Charter provided not only for economic sanctions but also for armed action against aggressors.   e UN Charter was more timid than the League, however, in that sanctions (whether economic or military) were not mandatory and automatic, as in the League Covenant.   e Security Council— dominated by the major powers—was to decide on an ad hoc basis when, or whether, to
25 On the Vienna School, see Kunz, 1934. For a clear and succinct account, see Friedmann, 1949, pp 105–117. See also Nijman, 2004, pp 149–192.
26 See Scelle, 1932–34. See also Dupuy, 1990; Nijman, 2004, pp 192–242.
27 See Verdross, 1927. a short history of international law 25
impose sanctions.   e result was to make the UN a more overtly political body than the League had been.
Parallel to this security programme was another one for the promotion of global economic prosperity.   e economic-integration e# ort of the nineteenth century, shattered by the Great War and by the Great Depression of the 1930s, was to be restructured and given institutional embodiments.   e International Monetary Fund was founded to ensure currency stability, and the World Bank to protect and promote foreign investment and (in due course) economic development. Trade liberalization would be overseen by a body to be called the International Trade Organization (ITO).
In a host of other areas as well, the aB ermath of World War II witnessed a huge increase in international cooperation.   ere scarcely seemed any walk of life that was not being energetically ‘internationalized’ aB er 1945—from monetary policy to civil aviation, from human rights to environmental protection, from atomic energy to economic development, from deep sea-bed mining to the exploration of outer space, from democracy and governance to transnational crime-, ghting.   e cumulative e# ect was to weld the States of the world in general—and international lawyers in particular—into a tighter global community than ever before. It is easy to understand that, amidst all this hubbub of activity, a certain triumphalist spirit could pervade the ranks of international lawyers.  e euphoric atmosphere proved, alas, to be very short-lived. Scarcely had the UN begun to function than it became paralysed by Cold-War rivalry between the major power blocs—with the notable exception of the action in Korea in 1950–53 (only made possible by an ill-advised Soviet boycott of the Security Council at the relevant time). Nor did
the new World Court , nd much e# ective use in its early decades.   e ITO never came into being (because of a loss of interest by the United States). Plans for the establishment of a permanent international criminal court were also quietly dropped. Nor did the UN Charter’s general ban against force have much apparent e# ect, beyond a cruelly ironic one: of propelling self-defence from a comparative legal backwater into the very forefront of international legal consciousness. Since self-defence was now the only clearly lawful category of unilateral use of force, the UN era became littered with self-defence claims of varying degrees of credibility, from the obvious to the risible. In particular, actions that previously would have been unashamedly presented as reprisals now tended to be deB ly re-labelled as self-defence.28 All was not gloom, though, by any stretch of the imagination. In non-political spheres, lawyers fared a great deal better, very much in the technocratic spirit of nineteenth-century positivism.   e codi, cation of international law, for example, made some major strides, in large part from the activity of a UN body of technical experts called the International Law Commission.   e principal areas of law that received a high degree of codi, cation included the law of the sea (with four related conventions on the subject in 1958, replaced in 1982 by a single, broader convention), diplomatic and consular relations (in the early 1960s), human rights (with two international covenants in 1966), and the law of treaties
(in 1969).
At the same time, though, it was not so clear that the fundamentals of the subject had changed very much.   e basic positivist outlook continued to have great staying power. Some of the most important political and intellectual upheavals of the twentieth century
28 See Gray, below, Ch 21.
26 stephen c neff
leB strangely little mark on international law. Socialism, for example, far from being a major challenge to lawyers, was actually a conservative force. Socialist theorists tended to write more dogmatically in the positivist vein than their Western counterparts did, insisting with particular strength on the upholding of respect for State sovereignty (see Tunkin, 1974). Nor did the massive in. ux of developing States onto the world scene bring about any fundamental conceptual upheaval. For the most part, the developing countries readily accepted established ways, although they made some concrete contributions in peci, c areas. One was the establishment of self-determination as a fundamental, collective human right. Another was in the area of succession to treaties by newly independent States, with the States being given an option of choosing which colonial treaties to retain.
2. New challenges Around the 1980s, a certain change of atmosphere in international law became evident, as something like the idealism of the early post-war years began, very cautiously, to return. ere were a number of signs of this. One was a sharp upturn in the judicial business of the World Court.   is included a number of cases of high political pro, le, from American
policy in Central America to the Tehran hostages crisis to the Yugoslavian con. icts of the 1990s.29 In the 1990s, the ITO project was revived, this time with success, in the form of the creation of the World Trade Organization (WTO), which gave a signi, cant impetus to what soon became widely, if controversially, known as ‘globalization’.30 Human rights began to assume a higher pro, le, as a result of several factors, such as the global campaign against South African apartheid and the huge increase in activity of non-governmental organizations.31   e end of the Cold War led to tangible hopes that the original vision of the UN as an e# ective collective-security agency might, at last, be realized.   e expulsion of Iraq from Kuwait in 1991 lent strong support to this hope. Perhaps most remarkable of all was the rebirth of plans for an international criminal court, aB er a half-century of dormancy. A statute for a permanent International Criminal Court was draB ed in 1998, entering into force in 2002 (with the , rst trial commencing in 2009).32 In this second round of optimism, there was less in the way of euphoria than there had
been in the , rst one, and more of a feeling that international law might be entering an age of new—and dangerous—challenge. International lawyers were now promising, or threatening, to bring international norms to bear upon States in an increasingly intrusive manner.
A striking demonstration of this occurred in 1994, when the UN Security Council
authorized the use of force to overthrow an unconstitutional government in Haiti. In 1999, the UN Security Council acquiesced in (although it did not actually authorize) a humanitarian intervention in Kosovo by a coalition of Western powers. It was far from clear how the world would respond to this new-found activism—in particular, whether the world would really be content to entrust its security, in perpetuity, to a Concert-of-Europe style directorate of major powers.
International legal claims were being asserted on a wide range of other fronts as
well, and frequently in controversial ways and generally with results that were unwelcome to some. For example, lawyers who pressed for self-determination rights for various
minority groups and indigenous peoples were accused of encouraging secession
29 See   irlway, below, Ch 20. 30 See Loibl, below, Ch 24.
31 See Steiner, below, Ch 26. 32 See Cryer, below, Ch 25.
a short history of international law 27
movements. Some human-rights lawyers were loudly demanding changes in the traditional practices of non-Western peoples. And newly found (or newly rejuvenated) concerns over democracy, governance, and corruption posed, potentially, a large threat to governments all over the world. Some environmental lawyers were insisting that, in the interest of protecting a fragile planet, countries should deliberately curb economic growth. (But which countries? And by how much?) Economic globalization also became intensely controversial, as the IMF’s policy of ‘surveillance’ (a somewhat ominous term to some) became increasingly detailed and intrusive, and as ‘structural adjustment’ was seen to have potentially far-reaching consequences in volatile societies. Fears were also increasingly voiced that the globalization process was bringing an increase in economic inequality.
VII. conclusion
How well these new challenges will be met remains to be seen. At the beginning of the twenty-, rst century, it is hard to see the UN ‘failing’ in the way that the League of Nations did and being completely wound up. No one foresees a reversion to the rudimentary ways of Herodotus’s silent traders. But it is not impossible to foresee nationalist or populist backlashes within various countries against what is seen to be excessive international activism and against the elitist, technocratic culture of international law and organization.
If there is one lesson that the history of international law teaches, it is that the world
at large—the ‘outside world’ if you will—has done far more to mould international law than vice versa. By the beginning of the twenty-, rst century, international lawyers were changing the world to a greater extent than they ever had before. But it is (or should be) sobering to think that the great forces of history—religious, economic, political, psychological, scienti, c—have never before been successfully ‘managed’ or tamed. And only a rash gambler would wager that success was now at hand. Perhaps the most interesting chapters of our history remain to be written.
Cases in China
Huanfang DU
Renmin University
Abstract: As a result of development in the relations of foreign economy and trade,
there have been a great number of civil and commercial cases involving foreign
elements in China. Many problems of private international law are very pressing,
such as choice of jurisdiction, choice of law and judicial assistance, etc., which need
to be resolved step by step. In fulfilling China’s commitments to the WTO entry and
in reforming the judicial system, the Supreme People’s Court of the PRC redefined
the jurisdiction over foreign-related civil and commercial cases and implemented
centralized jurisdiction over particular cases. Most Chinese courts can respect
applicable law chosen by the party The courts generally use the principle of the most
significant relationship to resolve the problem about applicable law of the dispute,
contract or other property rights and interests, when the parties have not chosen the
applicable law.
Key Words: Choice of Jurisdiction, Choice of Law, Private International Law, China
Vol 4. No.4 December 2009 Journal of Cambridge Studies
73
I. Introduction
Generally speaking, the theory of private international law (PIL) is usually connected with the
judicial practice of private international law. The historical development of private international law
supports this view. As to China’s private international law, as a result of development in the
relations of foreign economy and trade, there have been a great number of civil and commercial
cases involving foreign elements. Therefore, many problems of private international law are very
pressing, such as choice of jurisdiction, choice of law and judicial assistance, etc., which need to be
resolved step by step.1
This article introduces choice of jurisdiction and choice of law in foreign-related judicial practice in
Chinese courts. It is divided into three parts. The first part examines a judicial interpretation on
centralized jurisdiction and some methods of ascertainment-of-jurisdiction in Chinese courts. The
second part analyses choice-of-law methods in civil and commercial cases involving foreign
elements and the last part draws a short conclusion.
II. Choice of Jurisdiction: Judicial Interpretation and Methods
1. Judicial Interpretation on Centralized Jurisdiction
On December 25, 2001, the Supreme People’s Court of the People’s Republic of China (PRC)
issued the Rules on Certain Issues Relating to Jurisdiction over Proceedings of Foreign-Related
Civil and Commercial Cases2 [hereinafter referred to as Rules], which implements centralized
jurisdiction over particular cases. The main contents of the Rules are following:
Art. 1 The first-instance adjudication of foreign-related civil and commercial cases shall
be governed by the following People’s Courts: (1) People’s Courts in the Economic and
Technological Development Areas approved by the State Council; (2) Intermediate People’s
Courts in the provincial capital cities, the capital cities of autonomous regions and
municipalities directly under the Central Government; (3) Intermediate People’s Courts in
the Special Economic Zones and cities directly under State planning; (4) Other Intermediate
People’s Courts designated by the Supreme People’s Court; and (5) Higher People’s Courts.
The regional jurisdiction of the above Intermediate People’s Courts shall be determined by
their own Higher People’s Courts.
Art. 2 Where the parties concerned refused to accept a first-instance judgment or ruling
given by a People’s Court in an Economic and Technological Development Area established
with the approval of the State Council, the second-instance trial of the case shall be under the
jurisdiction of the local Intermediate People’s Court.
Art. 3 This set of Rules shall be applicable to the following cases: (1) Cases of disputes
over foreign-related contracts or rights infringement; (2) Cases of disputes over letters of
credits; (3) Cases of application for the cancellation, recognition or enforcement of
international arbitral decision; (4) Cases of application for verifying the binding force of
foreign-related civil and commercial arbitration clause; and (5) Cases of application for the
recognition or enforcement of civil or commercial judgments or rulings given by foreign
courts.
1 Han Depei (ed.). Private International Law. Beijing: Higher Education Press & Beijing University Press: 55-61 (2000);
Huang Jin (ed.). Private International Law. Beijing: Law Press: 118-124 (2nd ed. 2005).
2 Legal Interpretation (2001) No. 22, adopted at the 1203rd Session of the Judicial Committee of the Supreme People’s
Court on December 25, 2001.
Journal of Cambridge Studies
74
Art. 4 This set of Rules shall not be applicable to cases of border trade disputes taking
place in frontier provinces bordering foreign countries, cases involving foreign-related real
estate and cases of foreign-related disputes over intellectual property.
Art. 5 For jurisdiction over cases of civil and commercial disputes involving parties
concerned from the Hong Kong Special Administrative Region, the Macao Special
Administrative Region or Taiwan Region, this set of Rules shall be referred to in application.
Art. 6 Higher People’s Court shall exercise the supervision over jurisdiction over
foreign-related civil or commercial cases. Where a foreign-related civil or commercial case
has been accepted by a court in excess of jurisdiction, the court concerned shall be told to
transfer the case to a People’s Court with jurisdiction over it, or there shall be a ruling that
the court concerned transfers the case to a People’s Court with jurisdiction over it.
Art. 7 This set of Rules shall go into force on March 1, 2002. For cases that were
accepted by People’s Courts before the entry into force of this set of Rules, they shall still be
adjudicated by the same People’s Courts on a continued basis.
(1) The Background and Significance of Centralized Jurisdiction
In faithfully fulfilling China’s commitments to the WTO entry and in reforming the judicial system,
the Supreme People’s Court of the PRC, in accordance with Article 19 of the Civil Procedural Law
of the People’s Republic of China [hereinafter referred to as Civil Procedural Law] 3 greatly
redefined the jurisdiction over foreign-related civil and commercial cases by issuing the Rules as a
set of judicial interpretations, bringing foreign-related civil and commercial cases under the
centralized jurisdiction of a small number of intermediate or grassroots courts. According to the
Rules, foreign-related civil and commercial cases are now shifted in a centralized way to a small
number of intermediate or grassroots courts that take more such cases and that are relatively highly
capable of adjudicate such cases, from ordinary intermediate or grassroots courts. This means
optimization of judicial resources in China and a major move to reform the judicial system of the
country.
This way has some advantages as the following: Firstly, it is beneficial to regional handling of
foreign-related civil and commercial cases by the courts concerned, countering interference by local
government authorities and maintaining unity of the judicial system.
Secondly, to authorize a small number of intermediate and grassroots courts to exercise jurisdiction
over the first-instance trial of foreign-related civil and commercial cases is in the interest of
concentrating advantageous judicial resources on well handling such cases. It is also in the interest
of strengthening supervision over and guidance to the adjudication of foreign-related civil and
commercial cases and realizing specialization in the trial of such cases.
Thirdly, to bring foreign-related civil and commercial cases under centralized jurisdiction means
upgrading of the adjudication of such cases. The final-instance trial of foreign-related civil and
commercial cases by Higher People’s Courts is beneficial to raising the quality of adjudication and
ensuring impartiality of justice.
And lastly, to bring foreign-related civil and commercial cases under centralized jurisdiction is
beneficial to optimizing the structure of judges and strengthening professional training of judges. It
is also in the interest of developing a force of highly qualified judges who well understand laws
3 It was adopted at the 4th Session of the Seventh National People’s Congress (NPC) of the PRC on April 9, 1991. It has
been revised at the 30th Session of the Standing Committee of the Tenth NPC of the PRC on October 28, 2007 and shall
go into force on April 1, 2008.
Vol 4. No.4 December 2009 Journal of Cambridge Studies
75
(including relevant international laws and conventions), who have good knowledge about
international economy and trade, and who are good at foreign languages.
From the point of this original intention and Chinese present trial situation, this way of centralized
jurisdiction is positive. On the other hand, however, as a general judicial interpretation, the exercise
of the Rules inevitably has the profound influence on the jurisdiction over foreign-related civil and
commercial cases. This kind of jurisdiction has cross-regional character, besides the Higher People’s
Courts, only do the minor grassroots (Economic and Technological Development Areas) People’s
Courts and the specific Intermediate People’s Courts exercise this kind of jurisdiction as to the firstinstance.
Moreover, the trial grade of this kind of case also enhanced correspondingly. Besides the first trial
cases accepted by the People’s Courts of Economic and Technical Development Areas are
adjudicated finally by the Intermediate People’s Courts, the most cases are adjudicated finally by the
Higher People’s Courts. This means the Higher People’s Courts will shoulder heavy responsibility
on trials of foreign-related cases in final processing, no matter whether the cases are complex or
simple, whether the amount of dispute is big or small and no matter how the effectiveness of cases
does.
(2) The Sphere of Centralized Jurisdiction
The Rules has removed three kinds of cases being not suitable for the centralized jurisdiction while
it accepts definitely five kinds of cases being suitable for the centralized jurisdiction. But there are
some problems as following:
Firstly, besides above five kinds of cases under the centralized jurisdiction, whether it has excluded
others? Along with accession of WTO and as the advancement of globalization of world economics
further speeds up, foreign-related relations in civil and commercial matters deepens day by day, new
and complex cases emerge also unceasingly, then whether can they enjoy the centralized jurisdiction?
The Rules should have the positive preparation for this but cannot negatively wait for new
jurisdiction problems to be appearing. Therefore, the best method is to establish an elastic provision
in the Rules to hold the new cases, which in the future will possibly appear.
Secondly, what are detailed cases included in above five kinds of cases? The Rules has not been
clear about it, but the speech delivered by Wan E’xiang, the vice president of the Supreme People’s
Court at the press conference4 has been generalization, for instance, the disputes over foreign-related
contracts are disputes over the international economy trade, the investment, the finance, the
insurance, financing, guarantee, negotiable securities, stock, trust, cooperation, management
between the legal persons and legal person and other organization and so on; the disputes over
foreign-related torts mainly are disputes over bill, negotiable securities, shareholder’s rights and
interests, company’s rights and interests, property rights and so on. Therefore, there may be
disputable that whether different courts apply to the Rules.
At last, are three kinds of cases being not suitable for the centralized jurisdiction absolute? The
quantity of the dispute over the frontier trade is generally speaking so few that that it is not suitable
for the centralized jurisdiction has its rationality. However, it is difficult to differentiate in certain
situations the relationship between the case of foreign-related real estate, the case of foreign-related
intellectual property, the case of foreign-related contract and the case of foreign-related torts, which
may reduce the overlap situation, such as the contract of real estate development, the torts of real
4 Wan E’xiang. Answer for Reporters’ Question on Rules on Certain Issues Relating to Jurisdiction over Proceedings of
Foreign-Related Civil and Commercial Cases. Civil Trial Instruction and Reference. 1: 135-137, (2002).
Journal of Cambridge Studies
76
estate, the contract of trademark transfer, the torts of copyright, and so on. Moreover, as far as these
two kinds of cases involving, the amount of them is huge and their society affect is also wide.
Therefore, the Rules has no reason to remove them from the centralized jurisdiction. Even if it is to
emphasize the particularity of these two kinds of cases, whether it is the dispute over the contract or
the dispute over torts, which is distinguished into the real estate case or the intellectual property case,
they also should enjoy the optimized judicial resources of the Rules and carry on the centralized
jurisdiction.
2. Choice of Jurisdiction and Its Ascertainment Methods
(1) Common Jurisdiction and Special Jurisdiction
So-called common jurisdiction has another name called “ordinary trial”, in which court determines
one’s jurisdiction under the relationship between the defendant and the court area. 5 Generally
speaking, the courts regard the defendant’s residence as the jurisdiction ground. Chinese courts
regard the defendant’s residence as the basis of exercising common jurisdiction over the foreignrelated
cases in civil and commercial matters too. According to Articles 235 and 22 of the Civil
Procedural Law; the courts have jurisdiction over the foreign-related cases in civil and commercial
matters if the defendant’s residence is located in China.
This is either suitable for the situation that foreign plaintiffs (natural person, legal person or other
organizations) prosecute, or suitable for the foreign-related cases in civil and commercial matters
taking place between Chinese parties who have residences in China, e.g., Hubei Technology Import
& Export Co. v. Hubei Branch of Chinese People’s Insurance Co.6 Besides, Article 23 of the Civil
Procedural Law has also stipulated the plaintiff’s residence as the supplement of common
jurisdiction.
The common jurisdiction, however, is just a kind of jurisdiction while there is not special
jurisdiction. So-called the special jurisdiction has another name called “special trial”, in which court
determines one’s jurisdiction under the relationship between the object of litigation and the court
area.
Under defendant’s domicile not located in China, the Civil Procedural Law stipulates also some
special jurisdiction principles according to different nature of the foreign-related cases in civil and
commercial matters. According to the Article 241 of the Civil Procedural Law, the courts shall have
jurisdiction over an action arising from contractual relation or other property rights and interests, if
the place where the contract is concluded, or the place where the contract is performed, or the place
where the subject matter of the action, or the defendant’s property, or the branch entity of the
defendant or the place where a tortuous act is committed is within the territory of the PRC.
In addition, Articles 24 to 33 of the Civil Procedural Law have also stipulated that some special civil
and commercial cases can be adjudicated by courts where the residence of defendant is located. In
judicial practice, most cases are mainly taken by the place where the contract is concluded, or the
place where the contract is performed or the place where a tortuous act is committed for as
jurisdiction ground.
(2) Agreed Selective Jurisdiction and Presumptive Jurisdiction
5 Editorial Board of Chinese Encyclopedia Book (ed.). Chinese Encyclopedia Book (Law Issue). Beijing: Chinese
Encyclopedia Book Press: 419 (1984).
6 (2002)-E’min-Si-Zhongzi-No.11, the 2nd judgment of Hubei Higher People’s Court of the PRC; (2001)-Wujing-Chuzi-
No.141, the 1st judgment of Wuhan Intermediate People’s Court of the PRC.
Vol 4. No.4 December 2009 Journal of Cambridge Studies
77
Agreed selective jurisdiction means that both sides agree to select a court while being desirable
before or after dispute.7 During international civil action in China, the agreed selective jurisdiction is
only limited to express selection and it should reach in the written form but not oral agreement. For
example, in Yuancheng (Qingdao) Trading International Corp. v. Xixia City Hengxing Trade Co.
Ltd., the bill of lading involved in the case is stated clearly:8
Any dispute and claim right of the last instance caused by the contract is in Chinese court but
not other courts.
That is to say that the parties chose the Chinese court as jurisdiction court through the form of
written agreement, thus it establish that Chinese court shall have jurisdiction over this case.
According to the Article 242 of the Civil Procedural Law, there are still three questions. Firstly, the
range of this kind of choice is generally limited to the disputes over foreign-related contract or other
property rights and interests but excludes the disputes over the personal identity, the personal ability
and family relationship; Secondly, the court of this kind of choice has contacts with dispute and is
only limited to the court of first instance; Thirdly, this kind of choice can’t violate the provisions
about the rank jurisdiction and exclusive jurisdiction in China.
But in practice, the parties have not chosen the court desirably in advance in most cases, and it is
very difficult for the party to reach an agreement after the dispute took place. So, the courts adopt
presumptive jurisdiction to define their jurisdiction during trying. So-called presumptive jurisdiction
means that when one party is litigating to a court, another party doesn’t challenge for this court’s
jurisdiction, or he mentions counter-action in this court.9 The Article 243 of the Civil Procedural
Law stipulates it.
However, this kind of jurisdiction can’t violate the exclusive jurisdiction. In addition, the defendant
should volunteer to appear before court and reply on the essential question of dispute or mention any
counter-actions.10
In Sino-Add (Singapore) PTE. Ltd. v. Karawasha Resource Ltd., the court decides:11
Under the plaintiff of external enterprise of Singapore litigated an action to this court, the
defendant of the other legal person of enterprise of the Hong Kong Special Administrative
Region neither appeared before this court to the action nor put forward any objection about
jurisdiction or other. Therefore, it should assert that the defendant accepted jurisdiction of this
court over the case; According to the Article 243 of the Civil Procedural Law, this court has
jurisdiction over this case legally.
In above case, though this court has adopted presumptive jurisdiction, the defendant involved in the
case neither appeared before the court nor replied for the plaintiff’s action, it seems that it does not
accord with the terms which are stipulated by the Civil Procedural Law.
(3) Exclusive Jurisdiction
7 Li Haopei. Introduction to International Civil Procedural Law. Beijing: Law Press: 58-64 (1996).
8(2001)-Gao-Jing-Zhongzi-No.229, the 2nd judgment of Tianjin Higher People’s Court of the PRC; (2001)-Haishang-
Chuzi-No.46, the 1st judgment of Tianjin Maritime Court of the PRC.
9 Li Shuangyuan. General Introduction to Chinese Private International Law. Beijing: Law Press: 653 (1996).
10 About “Special Appearance” and “General Appearance”, see Li Shuangyuan & Xie Shisong. Introduction to
International Civil Procedural Law. Wuhan: Wuhan University Press: 220 (1990).
11 (2001)-Gaojin-Zhongzi-No.257, the final judgment of Tianjin Higher People’s Court of the PRC, the 1st judgment of
Tianjin Maritime Court of the PRC.
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Exclusive jurisdiction means that the countries concerned keep their acceptance to the lawsuit and
make the right awarded unconditionally over specific foreign-related cases in civil and commercial
matters, it then get rid of the jurisdiction of other national courts over these cases.12 According to
Article 244 of the Civil Procedural Law, the courts of the PRC shall have jurisdiction over those
arising from a dispute concerning Sino-foreign joint venture contracts, Sino-foreign co-operative
enterprise contracts, or Sino-foreign cooperative exploration and development of natural resources
contracts, which are performed within the territory of the PRC.
In Ural Potassium Co. Ltd. v. Jinan Huaiyin General Chemical Factory, the court decides in the
second instance: 13
This case belongs to Sino-foreign joint venture dispute over management contract. That Ural
chose and prosecuted to this court according to the contract arrangement is according with the
Article 246 of the Civil Procedural Law, and therefore, Jinan Intermediate People’s Court
should enjoy jurisdiction over this case.
Besides above-mentioned three kinds of special contract cases, according to Articles 235 and 34 of
the Civil Procedural Law, the following cases are adjudicated exclusively by Chinese courts too: (1)
those arising from a dispute concerning an immovable located within the territory of the PRC; (2)
those arising from a dispute concerning operations in a harbor located within the territory of the
PRC; (3) those arising from a dispute concerning a succession, if the domicile or the habitual
residence of the deceased, or the place where the main assets locate is within the territory of the PRC.
III. Choice of Law: Different Methods in Different Cases
1. Principle of Party Autonomy
Most Chinese courts can respect applicable law chosen by the party, including the applicable law
written in the contract terms or the clause of the bill of lading before the dispute took place, or the
applicable law agreed orally between the parties in the course of trying. So long as this kind of
choice is volunteering, not violates Chinese mandatory or forbidding regulations, and the
international treaty that the PRC participates in, doesn’t provide other rules, courts should apply the
applicable law chosen by the party to the case at first.
From these existing effective rules, including Article 145 (1) of General Rules of the Civil Law of
the PRC [hereinafter referred to as GRCL]14, Article 126 of Contract Law of the PRC and Article
269 of Maritime Law of the PRC, all of them have not limited the way of expression that the party
chosen the applicable law. Article 100 of Model Law of the Private International Law of the
People’s Republic of China15 drafted by Chinese Society of Private International Law has also not
required making a desirable choice in written agreement clearly. In fact, the choice made in the oral
contract should be a kind of desirable choice too, because the decisive factor that realizes party
autonomy is intention of expression but not way of expression.16
12 Huang Jin (ed.). Private International Law. Beijing: Law Press: 639 (2nd ed. 2005).
13 (2002)-Lu-Mingsi-Zhongzi-No.2, the 2nd judgment of Shandong Higher People’s Court of the PRC; (2001) Ji-
Zhongjing-Chuzi-No.20, the 1st judgment of Jinan Intermediate People’s Court of the PRC.
14 Article 145 (1) provides that: The parties to a contract involving foreign elements may choose the law
applicable to settlement of their contractual disputes, except as otherwise stipulated by law.
15 Chinese Society of Private International Law, Model Law of the Private International Law of the People’s Republic
of China. Beijing: Law Press: 22 (2000).
16 Shenjuan. Interpretation on the Theory of Applicable Law of Contract. Beijing: Law Press: 72 (2000).
Vol 4. No.4 December 2009 Journal of Cambridge Studies
79
In practice, although the parties have not made the desirable choice in written or oral form, it can
clearly show the law that the parties intend to chose, from situation that the parties concluded
contract, content of contract and the behaviors of the parties, etc. Such as in Germany Victory
Shipping Co. v. Junye (Tianjin) Trading International Inc., the court of the second instance analyses
that: 17
During the second instance, the parties of both sides quote the Maritime Law of the PRC and
the GRCL as the basis of claim and debate, which should be regarded as that the parties of
both sides chose Chinese law as applicable law of this case. So, according to Article 145 of the
GRCL, this case should be ruled by the Chinese law.
We can say that this is a kind of special choice, and it respects party autonomy. Article 7 of 1985
Convention on Applicable Law of Contract for International Sale of Goods stipulated also that:
Party’s agreement on choice of law shall be shown clearly, or contract content and the
behaviors of party show this kind of choice clearly on the whole.
But in practice, this special choice should be distinguished with presumptive choice of court. The
former is a kind of hint that the parties chose applicable law, reflecting a selecting intention of the
party, but the latter is that the court infers according to various kinds of factors that the parties chose
the applicable law, not really representing the party’s intention. For example, in Hebei Shenglun
Import & Export Co. v. Jingchuan International Shipping Co., the court thinks:18
Though the back clauses of bill of lading stipulated that dispute arising from this bill of lading
should been resolved in Korea or at discharge port according to the choice of carriers and apply
to British law, both the plaintiff and the defendant didn’t put forward any opinions that this case
shall apply to the law outside the lex fori. So, this case should apply to the law of the PRC.
Unless the party has abolished the original clause of applicable law clearly, the existing clause of
applicable law is still effective, and the court should resolve the substantive problems about the
dispute according to the law that the party has chosen. In above case, though the party has already
chosen the applicable law of dispute, the court inferred that the party chooses the lex fori, i.e.
Chinese law. It should be said that this way violated the principle of party autonomy. The severity of
the problem still lies in that this kind of presumptive method entrusts a judge with relatively great
right of freedom, which will cause subjective random easily, thus it may reduce the certainty and
predictability of the result of the application of law.
2. Principle of the Most Significant Relationship
The courts generally use the principle of the most significant relationship, to resolve the problem
about applicable law of the dispute, contract or other property rights and interests, when the parties
have not chosen the applicable law.19 This is according with legislation and legislative spirit.20 But
in judicial practice, there are different practices in different cases.
In some cases, the court determines the law of the place with which it has the most significant
relationship by examining the factors of localization, such as the place of conclusion of contract, the
17 (2001)-Haishang-Chuzi-No.119, the 1st judgment of Beihai Maritime Court of the PRC.
18 (2002)-Haishang-Chuzi-No.144, the 1st judgment of Tianjing Maritime Court of the PRC.
19 Article 145 (2) of the GRCL provides that: If the parties to a contract involving foreign elements have not made a
choice, the law of the country to which the contract is most closely connected shall be applied.
20 Han Depei (ed.). Private International Law. Beijing: Higher Education Press & Beijing University Press: 204 (2000).
Journal of Cambridge Studies
80
place of performance of contract, the place of delivering of goods, etc. Such as in Jinxi Industry
Group Co. Ltd. v. Germany Rickmers Linie Co., the court thinks:21
Both sides have not made an arrangement on choice of law when they concluded the transport
agreements. However, the place of conclusion of the agreements is in Beijing of the PRC, the
place of actual performance of contract is at New Harbour of Tianjin of the PRC. According to
the principle of the most significant relationship in private international law, the case shall be
governed by the Chinese law.
In some cases, the court’s analysis of factors of the most significant relationship is improper. Such
as in Dafei Shipping Co. Ltd. v. Shangdong Orient International Trade Co., the court of the second
instance thinks:22
The Dafei Co. and the Oriental Trade Co. have not arranged the applicable law in the bill of
lading, and, in the course of the trying of this case, both sides didn’t reach an unanimous
agreement on choice of law too. From analysis of connecting factors of application of law, the
Dafei Co. is a French legal person but the Oriental Trade Co. is a Chinese legal person; The
place of issuing bill of lading is in China but the performance place of bill of lading is in Russia;
The Shipping place of goods under bill of lading is in China but the delivering place of goods is
in Russia. Especially Chinese court obtains jurisdiction over this case in accordance with the
law and this case is judged in the Chinese court. So, China is the country that has the most
significant contacts with this case and the Chinese law shall be applied to this case according to
the Article 145 (2) of the GRCL.
From the all above-mentioned connecting factors involved this case, it’s hard to say that China has
the most significant contacts with this case. In addition, this court made jurisdiction and trying of
this case for as connecting factors, which misunderstood the principle of the most significant
relationship in fact. The jurisdiction item and application of law are two independent relatively legal
problems, i.e. the case ruled by one country can’t reduce that the case shall be ruled by the law of
this country.
In other cases, the court doesn’t explain why does it use the principle of the most significant
relationship. Such as in Shangdong Weihai Ship Factory v. DS-Rendite-Fonds Nr.52 MS”Cape
Charles” GmbH & Co Containe reschiff KG, the court thinks:23
The contracting parties can make a choice of law governing the foreign-related contract.
Failing choice of the law, the contract is governed by the law of the place with which it has the
most significant relationship. According to the Article 145 of the GRCL, this case shall be
governed by the law of the place with which it has the most significant relationship, i.e. the
Chinese law.
How did this court draw a conclusion that “the Chinese law” is “the law with which it has the most
significant relationship”? According to the judgment, the court didn’t explain why.
Therefore, as to application of the principle of the most significant relationship, the courts should
combine the concrete conditions of the case to determine the law of the place with which it has the
most significant relationship on the basis of analyzing and appraising the various kinds of
21 (2000)-Guang-Haifa-Shizi-No.92, the 1st judgment of Guangzhou Maritime Court of the PRC.
22 (2002)-Lumin-Si-Zhongzi-No.20, the 2nd judgment of Shangdong Higher People’s Court of the PRC; (2000)-
Qinghaifa-Haishang-Chuzi-No.289, the 1st judgment of Qingdao Maritime Court of the PRC.
23 (2002)-Qinghaifa-Weihaishang-Chuzi-No.1, the 1st judgment of Qingdao Maritime Court of the PRC.
Vol 4. No.4 December 2009 Journal of Cambridge Studies
81
connecting factors involved dispute objectively. It is necessary to prevent the judges from borrowing
the right of freedom to expand application of the lex fori at the same time.
IV. Conclusion
At present, through many kinds of way including judicial training and academic exchange, Chinese
judges who handle with civil and commercial cases involving foreign elements have accumulated
much experience and are constantly improving their ability to try cases involving foreign elements.
However, there are still some problems in existence in practice, including but not limited to ignoring
the application of law, distorting the parties’ intent and writing judgments and verdicts without
reason and analysis, etc. Luckily, The Supreme People’s Court in charge of the trial work of the
foreign-related cases has obviously realized these problems and has taken some measures. Under a
climate of relatively light legislation, the Supreme People’s Court issued some relevant judicial
interpretations aimed to solve some problems concerning jurisdiction, applicable law and judicial
assistance, etc., and to provide direction to lower courts for dealing with similar cases in the future.
No doubt, resolving above problems must be promoted combining with the process of reform in
Chinese trial of foreign-related cases in civil and commercial matters day by day.

Introduction to International Law
Robert Beckman and Dagmar Butte
A. PURPOSE OF THIS DOCUMENT
This document is intended to provide students an overview of international law and the structure of the international legal system. In many cases it oversimplifies the law by summarizing key principles in less than one page in order to provide the student with an overview that will enhance further study of the topic.
B. DEFINITION OF INTERNATIONAL LAW
International Law consists of the rules and principles of general application dealing with the conduct of States and of international organizations in their international relations with one another and with private individuals, minority groups and transnational companies.
C. INTERNATIONAL LEGAL PERSONALITY
International legal personality refers to the entities or legal persons that can have rights and obligations under international law.
1. States
A State has the following characteristics: (1) a permanent population; (2) a defined territory; (3) a government; and (4) the capacity to enter into relations with other States. Some writers also argue that a State must be fully independent and be recognized as a State by other States. The
international legal system is a horizontal system dominated by States which are, in principle, considered sovereign and equal. International law is predominately made and implemented by States. Only States can have sovereignty over territory. Only States can become members of the
United Nations and other international organizations. Only States have access to the International Court of Justice. .
2. International Organizations
International Organizations are established by States through international agreements and their powers are limited to those conferred on them in their constituent document. International organizations have a limited degree of international personality, especially vis-à-vis member States. They can enter into international agreements and their representatives have certain
privileges and immunities. The constituent document may also provide that member States area legally bound to comply with decisions on particular matters. The powers of the United Nations are set out in the United Nations Charter of 1945. The main political organ is the General Assembly and its authority on most matters (such as human rights and economic and social issues) is limited to discussing issues and making recommendations.
The Security Council has the authority to make decisions that are binding on all member States when it is performing its primary responsibility of maintaining international peace and security.
The main UN judicial organ is International Court of Justice (ICJ), which has the power to make binding decisions on questions of international law that have been referred to it by States or give advisory opinions to the U.N.
3. Nationality of individuals, companies, etc.
Individuals are generally not regarded as legal persons under international law. Their link to State is through the concept of nationality, which may or may not require citizenship. Nationality is the status of being treated as a national of a State for particular purposes. Each State has wide
discretion to determine who is a national. The most common methods of acquiring nationality at birth are through one or both parents and/or by the place of birth. Nationality can also be acquired by adoption and naturalization.
Companies, ships, aircraft and space craft are usually considered as having the nationality of the State in whose territory they are registered. This is important because in many circumstances
States may have international obligations to regulate the conduct of their nationals, especially if they are carrying out act activities outside their territory.
Under the principle of nationality of claims, if a national of State A is injured by State B through internationally unlawful conduct, State A may make a claim against State B on behalf of its injured national. This is known as the doctrine of diplomatic protection.
D. SOVEREIGNTY OF STATES OVER TERRITORY
Sovereignty is the exclusive right to exercise supreme political authority over a defined territory (land, airspace and certain maritime areas such as the territorial sea) and the people within that territory. No other State can have formal political authority within that State. Therefore, sovereignty is closely associated with the concept of political independence. Classical international law developed doctrines by which States could make a valid claim of sovereignty over territory. The doctrines included discovery and occupation and prescription.
During the period of Western colonial expansion new territories and islands were subject to claims of sovereignty by discovery and occupation. Sovereignty could also be transferred to another State by conquest (use of force) or by cession where the sovereignty over the territory would be ceded by treaty from one State to another.
Since a State has sovereignty over its territory, the entry into its territory by the armed forces of another State without consent is a prima facie breach of international law. Among the attributes of sovereignty is the right to exclude foreigners from entering the territory, which is traditionally referred to as the right to exclude aliens.
Since a State has sovereignty within its territorial sea (with some exceptions such as the right of innocent passage), it has the exclusive authority to exercise police power within its territory sea. For example, if foreign ships are attacked by “pirates” in the territorial sea of a State, the only State that can exercise police power and arrest the pirates in the territorial sea is the coasta State.
E. INTERNATIONAL OBLIGATIONS (SOURCES OF LAW)
It is generally accepted that the sources of international law are listed in the Article 38(1) of the Statute of the International Court of Justice, which provides that the Court shall apply: a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
b) international custom, as evidence of a general practice accepted as law;
c) the general principles of law recognized by civilized nations;
d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
1. Treaties
International conventions are generally referred to as treaties. Treaties are written agreements between States that are governed by international law. Treaties are referred to by different names, including agreements, conventions, covenants, protocols and exchanges of notes. If States want to enter into a written agreement that is not intended to be a treaty, they often refer to it as a Memorandum of Understanding and provide that it is not governed by international law.
Treaties can be bilateral, multilateral, regional and global. The law of treaties is now set out in the 1969 Vienna Convention on the Law of Treaties which contains the basic principles of treaty law, the procedures for how treaties becoming binding and enter into force, the consequences of a breach of treaty, and principles for interpreting treaties. The basic principle underlying the law of treaties is pacta sunt servanda which means every treaty in force is binding upon the parties to it and must be performed by them in good faith. The other important principle is that treaties are binding only on States parties. They are not binding on third States without their consent. However, it may be possible for some or even most of the
provisions of a multilateral, regional or global treaty to become binding on all States as rules of customary international law.
There are now global conventions covering most major topics of international law. They are usually adopted at an international conference and opened for signature. Treaties are sometimes referred to by the place and year of adoption, e.g. the 1969 Vienna Convention. If a State
becomes a signatory to such a treaty, it is not bound by the treaty, but it undertakes an obligation to refrain from acts which would defeat the object and purpose of the treaty.
A State expresses its consent to be bound by the provisions of a treaty when it deposits an instrument of accession or ratification to the official depository of the treaty. If a State is a signatory to an international convention it sends an instrument of ratification. If a State is not a
signatory to an international convention but decides to become a party, it sends an instrument of accession. The legal effect of the two documents is the same. A treaty usually enters into force after a certain number of States have expressed their consent to be bound through accession or ratification. Once a State has expressed its consent to be bound and the treaty is in force, it is referred to as a party to the treaty.
The general rule is that a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose. The preparatory work of the treaty and the circumstances of its conclusion, often called the travaux preparatoires, are a supplementary means of interpretation in the event of ambiguity.
2. Custom
International custom – or customary law – is evidence of a general practice accepted as law through a constant and virtually uniform usage among States over a period of time. Rules of customary international law bind all States. The State alleging the existence of a rule of customary law has the burden of proving its existence by showing a consistent and virtually
uniform practice among States, including those States specially affected by the rule or having the greatest interest in the matter. For example, to examine the practice of States on military uses of
outer space, one would look in particular at the practice of States that have activities in space. Most ICJ cases also require that the States who engage in the alleged customary practice do so out of a sense of legal obligation or opinio juris rather than out of comity or for political reasons.
In theory, opinio juris is a serious obstacle to establishing a rule as custom because it is extremely difficult to find evidence of the reason why a State followed a particular practice. In practice, however, if a particular practice or usage is widespread, and there is no contrary State practice proven by the other side, the Court often finds the existence of a rule of customary law. It
sometimes seems to assume that opinio juris was satisfied, and it sometimes fails to mention it.
Therefore, it would appear that finding consistent State practice, especially among the States with the most interest in the issue, with minimal or no State practice to the contrary, is most important. Undisputed examples of rules of customary law are (a) giving foreign diplomats criminal immunity; (b) treating foreign diplomatic premises as inviolable; (c) recognizing the right of innocent passage of foreign ships in the territorial sea; (d) recognizing the exclusive jurisdiction of the flag State on the high seas; (5) ordering military authorities to respect the territorial boundaries of neighboring States; and (6) protecting non-combatants such as civilians and sick or wounded soldiers during international armed conflict..
3. General Principles of Law
General principles of law recognized by civilized nations are often cited as a third source of law. These are general principles that apply in all major legal systems. An example is the principle hat persons who intentionally harm others should have to pay compensation or make reparation. General principles of law are usually used when no treaty provision or clear rule of customary law exists.
4. Subsidiary means for the determination of rules of law
Subsidiary means are not sources of law, instead they are subsidiary means or evidence that can be used to prove the existence of a rule of custom or a general principle of law. Article 38 lists only two subsidiary means - the teaching (writings) of the most highly qualified publicists (international law scholars) and judicial decisions of both international and national tribunals if they are ruling on issues of international law. Writings of highly qualified publicists do not include law student articles or notes or doctoral theses.
Resolutions of the UN General Assembly or resolutions adopted at major international conferences are only recommendations and are not legally binding. However, in some cases, although not specifically listed in article 38, they may be subsidiary means for determining custom. If the resolution purports to declare a set of legal principles governing a particular area, if it is worded in norm creating language, and if is adopted without any negative votes, it can be evidence of rules of custom, especially if States have in practice acted in compliance with its terms. Examples of UN General Assembly Resolutions which have been treated as strong evidence of rules of customary international law include the following:
• GAR 217A Universal Declaration of Human Rights (1948)
• GAR 2131 Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their Sovereignty (1965) [Declaration on Non-
Intervention]
• GAR 2625 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations (1970) [Declaration on Friendly Relations]
6
• GAR 3314 Resolution on the Definition of Aggression
Some of these resolutions have also been treated as subsequent agreement or practice of States on how the principles and provisions of the UN Charter should be interpreted.
In addition, Article 38 fails to take into account the norm-creating effect of modern global conventions. Once the international community has spent several years drafting a major international convention, States often begin in practice to refer to that convention when a problem arises which is governed by the convention - in effect treating the rules in the Convention as customary. Furthermore, if the Convention becomes universally accepted the provisions in the Convention may become very strong evidence of the rules of custom, especially if States which
are not parties have also acted in conformity with the Convention. Examples of such conventions would be the 1959 Vienna Convention on Diplomatic Relations and the 1969 Vienna Convention on the Law of Treaties.
5. Hierarchy of norms
In theory there is no hierarchy among the three sources of law listed in Article 38 of the ICJ Statute. In practice, however, international lawyers usually look first to any applicable treaty rules, then to custom, and last to general principles. There are two types of norms or rules – not previously discussed - which do have a higher status.
First, peremptory norms or principles of jus cogens are norms that have been accepted and recognized by the international community of States as so fundamental and so important that no derogation is permitted from them. Examples of jus cogens principles are the prohibitions against
wars of aggression and genocide. A war of aggression is the use of armed force to take over another State or part of its territory. Genocide is the killing or other acts intended to destroy, in whole or in part, of a national, ethnical, racial or religious group.
Second, members of the United Nations are bound by the Article 103 of the United Nations Charter, which provides that in the event of a conflict between the obligations of members under the Charter – including obligations created by binding decisions of the Security Council - the
Charter obligations prevail over conflicting obligations in all other international agreements.
6. Role of the International Law Commission (ILC)
The ILC was established by the UN in 1948. The 34 members of the ILC are elected by the General Assembly after being nominated by member States. They possess recognized competence and qualifications in both doctrinal and practical aspects of international law and the ILC reflects a broad spectrum of expertise and practical experience The mandate of the ILC is the progressive development and codification of international law. The ILC usually spends many years studying areas of international law before presenting draft articles to the General Assembly for adoption as a draft convention. The primary written products of the ILC aside from the draft articles themselves are the detailed periodic reports prepared by the
Special Rapporteurs on each subject and the official commentary for each draft article.
Sometimes the official commentary to an ILC draft article or the Rapporteur’s report will indicate whether that draft article is intended to codify a rule of customary law or is intended to progressively develop the law on that point. When the ILC Draft Articles are approved, they are
approved together with the official commentaries.
The official commentaries to ILC draft articles and the reports of the ILC and its rapporteurs can be considered for two purposes. First, they are part of the travaux préparatoires when interpreting a treaty related to the subject of the draft article. Second, they are the writings of 34 highly qualified publicists speaking in unanimity and therefore serve as a subsidiary means for determining rules of customary law.
F. JURISDICTION OF STATES
1. Principles of Jurisdiction
The concept of jurisdiction refers to the power of a State to prescribe and enforce criminal and regulatory laws and is ordinarily based on the territorial principle, under which a State has jurisdiction over activities within its territory. Some states also claim jurisdiction over activities outside their territory which affect their territory.
States can also claim jurisdiction based upon the nationality principle by extending jurisdiction over their nationals even when they are outside the territory. For example, civil law countries extend their criminal law to cover their nationals while abroad while common law countries usually
only do so in exceptional cases.
There is also a very narrow category of crimes – including genocide and war crimes - over which States may assert jurisdiction based upon the universality principle, which gives all States have jurisdiction irrespective of nationality or location of the offence.
Almost all States claim jurisdiction under the protective principle, under which a State asserts jurisdiction over acts committed outside their territory that are prejudicial to its security, such as treason, espionage, and certain economic and immigration offences. The most controversial basis for jurisdiction – followed by very few States - is the passive personality principle, which establishes jurisdiction based on the nationality of the victim. In recent years States have asserted jurisdiction over terrorist acts outside their territory directed against their nationals, thereby basing jurisdiction on a combination of the protective and passive personality principles.
Modern counter-terrorism treaties establish jurisdiction among State Parties based on the presence of the offender within their territory. If a persons who are alleged to have committed the offence established in the treaty (e.g, hijacking of an aircraft) is present in their territory, a State Party to the treaty is under an obligation to take the persons into custody, and to either prosecute them or extradite them to another State Party that has jurisdiction over the offence.
If two or more States have jurisdiction over a particular offence, they are said to have concurrent jurisdiction. In such cases the State which is most likely to prosecute the offender is the State which has custody over him. No State may exercise jurisdiction within the territorial sovereignty of
another State. The police of State A cannot enter the territory of State B to arrest a person who
has committed a crime in State A. Also, if a crime takes place in the territorial sea of a coastal State, no State other than the coastal State my intercept and arrest the ship carrying the offenders.
States enter into bilateral treaties to provide for the extradition of alleged offenders. Sending an alleged criminal to another State for investigation or prosecution in the absence of an extradition treaty is referred to as rendition.
The high seas and outer space are outside the territorial jurisdiction of any State. The general principle of jurisdiction in these common areas is that ships, aircraft and spacecraft are subject to the jurisdiction of the “flag State”, or State of registration. The general principle is that ships on
the high seas are subject to the exclusive jurisdiction of the flag State, and cannot be boarded without its express consent. The most notable exception is piracy. All States have a right to board
pirate ships on the high seas without the consent of the flag State.
2. Immunities from Jurisdiction
The principle of sovereign equality of States requires that the official representatives of one State should not be subject to the jurisdiction of another State. For example, the law of the sea provides that warships are subject only to the jurisdiction of the flag State. Even if warships
commit acts contrary to the right of innocent passage or the laws and regulations of the coastal State, the coastal State’s only remedy is to escort the offending warship out of the territorial sea.
The principle of State immunity or sovereign immunity provides that foreign sovereigns enjoy immunity from the jurisdiction of other States. The principle of diplomatic immunity provides that the diplomatic agents of the sending State have complete immunity from the criminal jurisdiction
of the receiving State. Since this immunity belongs to the sending State and not to the diplomat, it can be waived by the sending State. Also, the receiving State has the right to expel any diplomatic agent from its country by declaring them persona non grata. The premises of an embassy or diplomatic mission as well as its records and archives are also inviolable. The authorities of the receiving State cannot enter a foreign embassy without the express permission of the head of mission, even in the case of an emergency.

G. STATUS OF THE SEAS, OUTER SPACE AND ANTARCTICA
1. High Seas
The high seas are governed by several fundamental principles. First, no State may purport to assert sovereignty over any part of the high seas. Second, all States have the right to exercise the freedoms of the seas, including freedoms of navigation, freedom of overflight, freedom to lay
submarine cables and pipelines, and freedom to conduct marine scientific research. Freedom of fishing was a traditional high seas freedom but fishing on the high seas is subject to restrictions as set out in the 1982 United Nations Convention on the Law of the Sea. It is generally agreed
that freedom of the seas also includes the right of all States to use the high seas for military purposes, including weapons testing and naval exercises.
2. Exclusive economic zone
Coastal States are permitted to claim an exclusive economic zone (EEZ) of up to 200 nautical miles from the baselines from which the territorial sea is measured wherein they have the sovereign right to explore and exploit the natural resources of the sea and of the seabed and subsoil. The EEZ is neither under the sovereignty of the coastal State nor part of the high seas. It is a specific legal regime in which coastal States have the rights and jurisdiction set out in UNCLOS, and other States have the rights and freedoms set out in UNCLOS. Other States have the right to exercise high seas freedoms in the EEZ of any State. With respect to jurisdiction over
matters outside of economic activities, the principles of jurisdiction governing the high seas apply in the EEZ.

3. Deep Seabed beyond the limits of national jurisdiction
The natural resources of the deep sea bed beyond the limits of national jurisdiction are vested in mankind as a whole under the principle of the common heritage of mankind. No State may claim or exercise sovereignty or sovereign rights over any part of this area or its resources and it is
governed by the International Sea Bed Authority (ISBA) No State or natural or juridical person may appropriate any part of the area or its resources except under the authority of the ISBA.
4. Outer Space
The principles governing the use of outer space are similar to those that the high seas. First, no State may purport to assert sovereignty over any part of outer space. Second, all States have the freedom to use outer space for peaceful purposes. Third, States on whose registry a space object is launched shall retain jurisdiction and control over the space object and over any persons on board the space object. .
5. Antarctica
Official claims to sectors of the ice-covered continent of Antarctica were made by seven States – Argentina, Australia, Chile, France, New Zealand, Norway and the United Kingdom. A sector was also claimed by Admiral Byrd on behalf of the United States, but the United States never officially adopted Byrd’s claim, and refused to recognize the claims of the six claimant States. In 1959 the seven claimant States, together with 5 other States whose scientists had been conducting research in Antarctica (Belgium, Japan, South Africa, the United States and the USSR) entered into the Antarctic Treaty. The Antarctic Treaty “froze” the claims of the seven claimant States, and stated that no new claims to sovereignty would be made. It also stated that Antarctica should be used only for peaceful purposes. The Antarctic Treaty permits States parties to conduct scientific research in Antarctica and its provisions are generally respected by non-party States as customary law.

H. PRINCIPLES GOVERNING RELATIONS BETWEEN STATES
The general principles governing friendly relations between States are set out in UN General Assembly Resolution 2625. It states that the progressive development and codification of the seven principles below would secure their more effective application within the international community and would promote the realization of the purposes of the United Nations. Therefore, the resolution sets out the consensus in the international community on the content of the following seven principles:
1) States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purpose of the United Nations
2) Pacific settlement of disputes
3) Non-intervention in matters within the domestic jurisdiction of any State, in accordance with the Charter
4) Co-operation with one another in accordance with the Charter
5) Equal rights and self-determination of peoples
6) Sovereign equality of States
7) States shall fulfil in good faith the obligations assumed by them in accordance with the Charter
I. RESPONSIBILITY OF STATES FOR WRONGFUL ACTS
The 2001 ILC Articles on the Responsibility of States for Internationally Wrongful Acts set out the principles in this important field of international law. The ILC Articles are a combination of codification and progressive development. Even though the ILC Articles have not been adopted
as an international convention, some of the provisions have been referred to by international courts and tribunals as reflective of customary international law.
States are responsible to other States for their internationally wrongful acts. A State commits internationally wrongful act when conduct consisting of an act or omission (a) is attributable to the State under international law; and (b) constitutes a breach of an international obligation owed by that State to the injured State or the international community. Therefore, if a dispute arises between two States, the first question is whether the offending State owed an international obligation to the injured State under either a treaty or under customary law. The second question is whether that obligation was breached by conduct consisting of either an act or an omission that
is attributable to the offending State.
The rules on attribution are based on common sense. The conduct of an organ of the State is attributable to the State because a State acts through its official representatives, such as its Head of State, Minister of Foreign Affairs, Ambassadors and government ministries and departments.
The official acts of these persons and organs are attributable to the State.The conduct of private persons or private entities is generally not attributable to the State unless the State knew of the conduct and failed to act in relation to that conduct when it had an international obligation to act.
However, the conduct of a person or entity empowered by the law of the State to exercise elements of government authority is attributable to the State and a State may also ratify and adopt the conduct of private persons or control their conduct in such a manner that it can be attributed to the State. A State is in breach of an international obligation when conduct attributable to it is not in conformity with what is required by the obligation. A State may not rely on provisions of its internal or domestic law as justification for failure to comply with an international obligation. The
responsible State is under an obligation to cease the wrongful act if it is continuing. It is also under an obligation to offer appropriate assurance and guarantees of non-repetition, if circumstances so require. In addition, the responsible State is under an obligation to make full reparation for the injury – both material and moral - caused to the other State by the internationally wrongful act.
The forms of reparation under international law are restitution, compensation and satisfaction. The preferred form of reparation is restitution, which requires the State to re-establish the situation which existed before the wrongful was committed. Insofar as the damage is not made good by restitution, the State much pay compensation to cover the financially assessable damage, including loss of profits insofar as it is established. If the injury cannot be made good by either restitution or compensation, the State must provide satisfaction, which may consist of
acknowledgement of the breach, an expression of regret, a formal apology or another appropriate remedy.
There are defenses available to the responsible State which preclude the wrongfulness of an act, including valid consent by the injured State, self-defence, force majeure, distress, necessity and valid countermeasures. The ILC Articles set out the requirements which must be met before
these defenses can be invoked. Some of the provisions of the ILC Articles on these “defences” can be classified as “progressive development” rather than a codification of customary international law.
J. THE ROLE OF THE ICJ
The ICJ is the chief judicial organ of the United Nations. All members of the UN are automatically parties to the Statute of the International Court of Justice. The jurisdiction of the ICJ in “contentious disputes” between States is subject to the principle of consent. It can obtain jurisdiction in three ways. First, the States parties to a dispute may enter into an ad hoc agreement to refer a particular legal dispute to the court. Second, States can submit an “optional clause declaration” to the UN Secretary-General declaring that they accept the jurisdiction of the ICJ over certain categories of disputes with other States which have also filed an optional clause declaration. This category of disputes is quite rare, as many States are not willing to accept the jurisdiction of the ICJ in advance for wide categories of disputes. Third, many international conventions contain dispute settlement clauses called “compromissory clauses” allowing disputes between States parties to the convention to refer disputes concerning the interpretation or application of provisions of that convention to the ICJ by one of the parties to the dispute. Some conventions allow States to “opt out’ of such compromissory clauses.
If a dispute between two States is decided by the ICJ, the decision is final and binding as between the parties to the case. It is not binding on other States. However, to the extent that the ICJ pronounces on issues of customary law or treaty law, its judgment will be treated as an
authoritative interpretation of international law by many States.
The ICJ also has advisory jurisdiction. The UN Security Council and the UN General Assembly may request advisory opinions on any legal question. The UN General may also authorize other UN organs or specialized agencies to request advisory opinions on legal questions arising within
the scope of their activities.


 PUBLIC  INTERNATIONAL LAW AS A CAREER,  
by Anthony D'Amato, 1 American University Journal of International Law and Policy 5 (1986) Code A86b This article has been revised since publication.
Law students are likely at some point in their education to become fascinated with the idea of pursuing a career in public international law. What species of law could possibly be more important? they might ask. International law deals with the truly significant questions facing the world: war and peace, human rights, freedom of travel and emigration, terrorism and interventionism, international ecology and environmental preservation, and interesting new problems such as ocean mining and outer space
exploration and exploitation. By comparison, the daily concerns of domestic lawyers, such as whether corporation A must pay corporation B a sum of money, do not seem vested with epochal significance.
Yet immediately, the student encounters a fundamental paradox: although international law seems to be the most important species of law in content and significance, it is clearly the least important in terms of career opportunities. Law firms do not appear to care about the prospective applicant who wants to work in public international law or who has taken law school courses and seminars in that field.
In brief, there exists an egregious case of market undervaluation. The most important field is the one least financially rewarded. This undervaluation also extends to law schools, which are creatures of the financial marketplace to a far greater extent than their apologists would concede. Although courses
in international law do have some standing in law schools, perhaps more than their marketability would suggest, law faculties generally look upon them as _soft law _ and consign them to a distinctly secondary place in the curriculum. The law school, as Duncan Kennedy and others have pointed out, is really a microcosm of the world of the large law firm, and students are trained to become cogs in the financially successful institutions of corporate America.1
Law firms exist and persist by skimming profits off the transactional costs of interactions among corporations, citizens, and the government. Some lawyers increase the friction of those transactions so as to generate more work for themselves. A law school graduate may eventually become disillusioned
with the stultifying mechanics of adding friction by couching contracts, codes, statutes, regulations,
warranties, and pleadings in complex legal jargon that ensures the hiring of more lawyers to read and interpret those work-products.

I. INTERNATIONAL LAW IS A DISTINCT DISCIPLINE

I would like to address the question of why there is such a huge undervaluation of public international law in legal education and practice. I will also try to examine some implications of this inquiry for law students. Finally, I shall make some personal remarks, not because my own situation is
an example of anything in particular, but because I acknowledge that it is necessary for the observer to recognize his own position in the field he describes. I could hardly expect the reader to accept m observations about a field unless I am willing to turn these observations inward and examine my own reasons and biases for choosing an economically irrational career in public international law.
Professor David Kennedy has described the duality of international legal studies at Harvard Law School. On the one hand, _the international law library occupied pride of architectural place in a law school that offered an extremely wide variety of seminars on the law of far flung places. _2 But on the other hand, he perceived that international law was:
3 Id. at 366. (At Northwestern Law School, I teach a first-year course in pub lic internat ional law. However, most law schools do not of fer international law to first-year students.)
4 See Anthony D _Amato, "Is International Law Really _Law _," 79 Nw. U.L. Rev. 1293 (1985).
5 Cf. Duncan Kennedy, "Legal Education as Training for Hierarchy," in The Politics of Law 47 (D. Kairys ed. 1982) (challenging the dichotomy between those subjects considered _hard _ and those considered _peripheral _ in the law school curriculum).
not in the mainstream of my legal education . . . [the course offering] were all upper level courses and yet did not seem to be related to first year domestic offerings in any hierarchical or progressive way. Although international law seemed to make some claim to be concerned with fundamental jurisprudential questions or jurisdictional priority, many of the courses presented international law as the specia lized continu ation of som e domes tic subject suc h as taxation o r investment . . . few if any of my professors _specialized _ in international, comparative or historical legal studies. 3
I can add from anecdotal experience that faculty members who microscopically examine Article 9 of the UCC or spend their lives researching advance sheets of cases brought under Rule 10-b5, tend to look at
international law as parasitical on _real _ law. They view international law as a hopeless attempt by
quasi-lawyers (who are closet political scientists) to claim that, somehow, international political decisions follow legal standard instead of those of national self-interest. It is not law, they say, because there are few international courts, fewer international courts, fewer international decisions, and those decisions are not enforceable.
The more generous of these professors might say that if there is such a thing as international law, students are best trained for it by learning to _think like a lawyer _ in all the conventional courses. Then, when those students must someday grapple with a public international law problem, they will be well
equipped to handle it using the usual tools of legal analysis. A leading private practitioner of public international law reacted the same way when I asked him whether he would be interested in interviewing the best students in my international law classes. He responded that he was only interested in my best
students period, and not those who had taken international law. _They _ll get all the international law training they need from us, _ he explained; _just send me the top students and we _ll teach them the rest. _
All of these attitudes and arguments can be refuted decisively. Yet who will listen? What noninternational law professors will read these remarks? What busy practitioner will care? Nevertheless, for the record, here are some brief refutations:
A. That international law is _really law _ is a topic I have addressed at length elsewhere.4 Suffice it here to say that any legal system, domestic or international, defines the set of entitlements of its subjects and provides for enforcement of those entitlements by depriving the transgressor of one or more of them. The domestic legal system accomplishes this enforcement in familiar ways (courts, judgments, the sheriff), whereas the international system does it by less visible, but equally effective, entitlement deprivations that are carefully regulated by prescriptive norms. No observer can understand international relations without knowing how these norms define proper national interests and provide for their enforcement.
B. When law professors say that international law is not really needed as a subject because all that is necessary is the ability to _think like a lawyer, _ the best answer is to ask them to pick any subject other than torts, contracts, or criminal law, and justify its independent status. Are not sales, tax, agency,
bankruptcy, trusts and estates, and constitutional law simply variants of contract law? Can not family law, antitrust, regulated industries, administrative law, and just about any other course you can name be
considered as simply admixtures of torts and contracts? What justifies all those courses?5 Proponents of those courses will insist that there is something _extra _ about their subject matter that cannot be deduced from the principles of torts and contracts, and which requires a specialized understanding of other kinds of intellectual issues. We can reply that the same is true of international law. Not only are there special problems when nations, as well as individuals, are the creators and subjects of the same law, but
international law also borrows from an amalgam of foreign legal systems those special procedures and arguments that have fused to make international law a distinct specialty. Finally, if not most importantly, there are jurisprudential issues, such as figuring out what customary international law consists of and how it is proved, that have no close analogues in domestic law. In terms of intellectual challenge, public international law should take a back seat to no other legal discipline.
C. Practicing international lawyers who claim that junior associates need no law school training in international law so long as they have good minds, may unknowingly be wearing blinders. Their law firms may have missed decisive international law issues in their litigation and negotiations simply
because no lawyer on the staff realized that those issues were present in the factual situations. Attorneys may engage in international law practice without recognizing potentially crucial arguments in their favor.
Regardless of whether they win or lose those cases, they may never know what they have missed (unless the other side comes up with those _missing _ arguments). I have read many decisions in which I could spot hidden and potentially decisive international law issues that neither side argued and the judge certainly failed to notice. Hence, the international lawyers who hire young law students with the attitude that they will learn whatever public international law they will need to know in the course of working for the firm, may be begging the question by adopting this inbred attitude. Yet, as I have said, these _refutations _ conjure up the image of hitting one _s head against the wall. It may take years before rational argument makes a dent in the minds of comfortable law professors and more than comfortable practicing attorneys. International law today may be to law what eighteenth
century biology was to science, and it may take a paradigm shift before international law is given its proper status in the law school curriculum and in law firm placement.

II. MARKET UNDERVALUATION
Unfortunately, if the market undervalues international law, it may remain undervalued for a long time. Law students cannot be blamed for turning their intellectual energies to the problem of getting corporation A to pay a sum of money to corporation B, because that sum of money includes the attorneys _ livelihood. What advice can be given to a law student who wants to spend a lot time thinking about and studying international law?
One possibility is to go to work for corporation A. The student, however, must make sure that corporation A is a multinational corporation with a great deal of business outside the United States. The fact that foreign business is involved does not guarantee that in-house counsel in the international legal
affairs division of corporation A will practice public international law, but there remains that possibility.
Dealings with foreign governments, foreign legal systems, choice-of-law problems, and questions of sovereign immunity, certainly can arise when one _s client is a multinational corporation. Additionally, the attorney will be dealing with foreign attorneys and foreign bar associations. A variety of individual issues facing employees of the corporation will also arise including: the validity of marriages abroad, adoptions, immigration and emigration, passports, visas, false arrests and detentions, and civil liberties in
foreign countries. Finally, corporation A might have operations in areas that directly come unde international law: the oceans of the world (fishing, seabed mining, conservation, navigation), international rivers, harbors and straits, the polar regions, or even outer space technology.
I have advised many of my students to look for work in the legal departments of corporations that have an international business, and from time to time I hear from some of them that they enjoy a tremendous degree of responsibility for far-flung international business and legal matters. They say that
public international law plays an important part in their professional lives. So there can be some public international law _success stories _ in the legal department of the right corporation.
A second possibility is to work in the office of the Legal Adviser to the Department of State. These lawyers for the most part practice pure public international law. The work is obviously exciting and challenging, but he jobs are few and there is huge competition for limited positions. Other branches of government have specialty divisions in their legal departments for international law, such as the Departments of Justice and Commerce. In addition, the entire Foreign Service field welcomes legally trained applicants for career positions.
The third possibility, joining a law firm, is unlikely to result in an international law practice except in special or _lucky _ cases. Yet there are many international lawyers in law firms in New York and Washington D.C., and increasingly more in other major cities.
Fourth, many students interested in international law find that their first jobs do not include any work in that field. This is perhaps the most critical point of decision for young people interested in international law. Most people just tend to forget international law and become absorbed in the law practice they are in. It is difficult to keep in touch with a field when you are absorbed in entirely different matters. Sometime, however, the best opportunities open up several years after you are doing nothing but domestic law.
Sometimes lightning will strike, as happened to a young lawyer working for a large law firm when, because of his knowledge of Spanish and his prior studies in international law, he was assigned to work on the project of a Latin American country. A year or two later, due to the volume of the work and
the country _s insistence, he left the firm and opened up his own practice devoted almost entirely to legal work for that country. He now has a highly successful small firm servicing one satisfied client. Indeed, his example suggests a model for other countries _ to have individual legal representation in the United States.
Young attorneys, however, should not wait for lightening to strike. The best thing for an attorney not practicing international law to do is to write an article or two on an international law subject. The best subjects are those that might interest your clients. For example, I suggested to a former student who
is working for a large oil company that she write an article on deep-sea oil drilling. She is not involved with her company _s international law division, but she could write an article that, a few year from now, might enable her to obtain an important position in that division. In general, I would suggest to young lawyers that they contact their former professors of international law from time to time and ask for ideas about topics of current interest. Writing an essay in a legal periodical is the best way for a young attorney to rise above the crowd, and perhaps to lay the groundwork for a later career in international law.
Finally, a broad category of career opportunity is to teach public international law in a law school. There are over one hundred and fifty law schools that have, or could be talked into having, a faculty member who specializes in public international law. By research and writing, teachers of public
international law can build an international reputation which can lead to employment as an attorney on important international law cases. So long as this practical work coincides with the professor _s research and teaching interests and does not interfere with class preparation, experience as counsel in this kind of case may enhance and enrich the professor _s knowledge of the field. All seriously interested students should consult two excellent books of career opportunities in international law published by th American Bar Association and the John Bassett Moore Society of International Law.6
Nevertheless, adding up all these opportunities realistically does not produce an encouraging sum. It is very difficult to practice international law and make a living at the same time. You have to be convinced that sometimes the most important things in the world simply do not have much of a market value, and you must be prepared to make a financial sacrifice in order to do them. (Your friend _s affection for you may be the single most valuable thing in your life, but does it have any market value?
People who are demonstrating against the MX missile may _ and I hope only _may _ _ be engaged in the single most important activity in the brief history of sentient life on the planet Earth, but they hardly are paid for their efforts. More likely, they are rounded up and thrown in jail.7) If making money makes life worth living, you should probably go into any field at all except public international law. On the other hand, if dedicating your life to the ideals of world peace and human rights gives your existence meaning,
don _t expect others to pay you much. For if others placed much value on world peace and human rights, then we would have already attained those ideals and there would be no need for your services now.
Instead, people place value on building up nuclear arsenals of planetary destruction and on in-groups exploiting out-groups. This global insanity is called the market system, so if you want to fight it, don _t expect that very same system to reward you.
III. PERSONAL OBSERVATIONS
Let me now make some personal observations about my career as a teacher and practitioner of public international law. The first dilemma I had to face was to reevaluate my relationship to the government. Putting it this way may strike the reader as grandiose, yet I believe studying international law is extremely liberating in terms of philosophical perspective. I was conscious of wanting to work in a discipline where the actors were nation-states, one of which was my own country. What should I think of the policies and preferences of the United States? As a citizen, could I possibly be an impartial observer? How could I write or advocate anything in international law if I could not genuinely treat all nations equally?
I wondered what it would be like for people who wanted to work in international law if they lived under dictatorships. No doubt they could not progress very far unless they served as justifiers and apologists for their governments. They would either have to absorb and internalize the values of their countries, or else be committed to a life of hypocrisy, but in either event they would have an all-powerful _client _ whose policies they could not second-guess and whose actions they would have to justify by their legal arguments.
Fortunately for me, the United States is a free society. No one told me how I had to come out in my writings. When in the late 1960's my non-classroom time was spent entirely in research, writing, and active litigation contesting the legality of the Vietnam War, I was not muzzled or financially penalized in any way. I must add, however, that most of my colleagues were distinctly unsympathetic and that I was looked upon as a _nut. _ A few years later, when it became politically and academically respectable to oppose the Vietnam War, those social and collegial pressures abated.
My attitude toward the Vietnam War was itself a minority view. People were roughly divided into two main camps: the overwhelming majority (including academics) who supported the war for geopolitical reasons, and the minority (including draftees) who believed that the war was a geopolitical mistake and not in the best interest of the United States. I was in a very small third camp, opposed to the war for reasons of international human rights. It was quite clear long before _hard _ evidence surfaced that the United States engaged in war crimes atrocities in Vietnam that were not sporadic violations but endemic to our uncomfortable military situation there. Thrust into a guerrilla war, we responded the same way as did the United States troops in the Philippines in 1900.8 Of the many incidents I could
Revolution; Th e United States in the Third World 99-100 (19 68) (analogizi ng the American s upport of terrori sm in the post -World War II Greek government to the American support of the Diem government in Vietnam). 9 See Anthony D _Amato, International Law and Political Reality: Collected Papers, Vol. 1, at 33-35 [hereinafter Collected Papers, Vol. 1].
10 Noam Chomsky, American Power and The New Mandarins 14 (1969 ).
11 See Senate Comm. On Foreign Relations & House Comm. On Foreign Affairs, 99th Cong., 1st Sess., Country Reports on Human Rights for 1984 1159-69 (Joint Comm. Print 1985) (State Department Report chronicling abuses of human rights and atrocities committed in Afghanistan by the Soviet-backed regime).
12 See John Norton Moore, Law and the Indo-China War 570-98 (197 2) (Chapter XIII, The Justiciability of Challenges to the Use of Military
Force Abroad, citing cases, and discussin g the basis of challenging American actions in th e Vietnam War) 13 United States v. Baranski, 484 F.2d 556, 570-71 (7th Cir. 1973) (reversing convictions of draft resisters an d holding part of the Military Selective Service Act unconstitutional).
14 Id. at 556. In the Baranski case, the defendants had poured blood on a number of files in the draft board office. The court sequestered these
files for evidence in the case, and the potential draftees whose files were sequestered were never drafted. The government decided not to appeal
the case to the United States Supreme Court even though the Seventh Circuit held part of the Military Selective Service Act unconstitutional.
The Seventh Circuit _s decision also contradicted the Fourth Circuit precedent in another case involving the pouring of blood on Selective Service
files. See United States v. Eberhardt, 417 F.2d 1009, (4th Cir. 1969) (affirming convictions under the same provision held unconstitutional in
recount, let me just give one. By 1969, American aircraft had engaged in thirty-nine distinct bombing attacks on the internationally renowned leper sanatorium in Quyuh Lap, North Vietnam. The roofs of the building in the sanatorium were painted with the Red Cross.9 Nevertheless, this humanitarian, nonmilitary target was a favorite among United States pilots, many of whom now captain your friendly domestic airplanes. In an interview at the time, one of the pilots explained the _psychology _ of this kind
of bombing mission: When you hit school buildings, or hospitals, or especially dams, you have a feeling of accomplishment. You see the effects below in terms of scattering adults and children, or water bursting and knocking down houses, or buildings caving in.
Instead, to drop bombs in the leafy jungle would mean that there would be no visual results. Yet the bombs had to be dropped somewhere, because the pilots were sent out with full loads of bombs and told to come back after dropping them.
I thought long and hard whether I could blame the United States for these violations of human rights and I decided that I could not. In the first place, it seemed to me that other countries in the same position might do the same thing. (Many years later, this thought was confirmed by the Soviet atrocities
in Afghanistan,11 their own _Vietnam. _) Secondly, the policy of the United States was subject to change.
By bringing the atrocities to light, instituting lawsuit,12 and making it clear to military commanders that they were personally at risk for commanding or condoning war crimes, there was a chance, in a free society, to make a difference. Thus I found myself in an interesting logical trap: I could not blame the United States without blaming myself because I was a citizen of the United States. The only way I could avert self-blame was to campaign actively against the policy I deplored. So long as I did engage in such
campaign, I could not blame the United States as a whole for its policy! In brief, as a member of the state, the battle I had was not with the state itself but with other members of the state.
This perspective, which may seem simplistic now, was liberating for me at that time. I could fight the United States government _s policies in Vietnam in the name of the United States! The government, after all, did not represent the United States any more than I did; though the government might have effective power, it was as subject to the Constitution as I was. Incidentally, a small but sweet moment for me was when the United States paid me as a public defender for a case where the court reversed the convictions of persons who had disrupted a draft board office, and held unconstitutional a part of the Military Selective Service Act.13 Receiving that check provided a real lift to my spirits because the United States actually paid me for defeating the government in a case that the government went to great lengths to win.14
Out of the specific experiences I had regarding the Vietnam War,15 I believe I developed an internationalist perspective. There are no _good nations _ or bad nations, _ but there are nations which from time to time violate the basic human rights of all peoples. One _s moral perspective should be grounded, I believe, in these universal human rights. If one _s own state violates these rights, one has a moral duty, I assert, to try to oppose effectively those policies. Effectiveness, I hasten to add, is not the same as joining in mass demonstrations or writing letters to Congress, though for some people such
outlets may be all that are available. For people who have the training and opportunity to fight on a more effective basis, I believe that their moral obligation is commensurately greater.
In addition to the anti-Vietnam activities, I was fortunate to be involved as assistant counsel to Liberia and Ethiopia against South Africa in the World Court cases of the mid-1960s,16 and in various individual human-rights cases throughout my teaching career.17 Not all professors of international law
get these opportunities and I am grateful that a good number of them have come my way. To some extent these cases involved clashes with my university and colleagues, but I must admit that the freedom of a professor of law to take unpopular positions, while not as great as that of a sole practitioner or a member of a very small law firm, is certainly not as restricted as that of lawyer in a large law firm. Lawyers in large firms are tremendously shackled by the decisions of their partners concerning what is good for business and what would reflect adversely upon existing clients. Yet, even their freedom to take an unpopular human rights case is favorable compared to those attorneys who work as in-house counsel for
corporations (who may rarely if ever get leave to work on such cases) or counsel for the Department of State or Justice or other branches of the government (who would be totally barred from handling any private human rights cases).
As much as I would like to see good students become professors of international law, I would not want to paint an idyllic picture of the academic scene. There are petty satraps in the academic field as in any other, and small-minded people who are clever at in-fighting and office politics manage to puff themselves up into large dimensions on law school faculties.
When I read about Einstein or other great scientists whose work I admire, I find in their lives a great sympathy toward their students and a large-minded willingness to have their theories revised or improved by the next generation. In my own field, however, I have found instead a fear of new ideas and especially a fear of having one _s pet theories be upset by one _s own students. In part, I attribute this difference to a medieval sense of _priesthood _ that still seems to permeate international law, though it has long since dissipated in physics, chemistry or biology. The elderly priests of international law have their legitimacy at stake; what they _ve pronounced as the truth depends, they believe, on the validity of the theoretical arguments they have used to support their pronouncements. If someone challenges the
validity and consistency of that intellectual scaffolding, their words of wisdom might tumble down. Hence some of them may view students as heretics rather than as fellow truth-seekers.
If international law, by means of good scholarly standards, can increase in precision and objectivity, and if its underlying theory can be made clearer and more intellectually satisfying, much of the _priesthood _ attitude will necessarily fade away. The discipline will become stronger as it becomes
more logically rigorous. In my view, prospects for the field of international law are extremely optimistic.
If students approach the field realistically, I think they will be pleasantly surprised.

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