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Pil 2

1. Theories of international law differ in their views of the role and importance of international law. Realists are generally skeptical, seeing it as limited by state interests and upholding sovereignty, while liberals view it positively as codifying ethical principles to promote cooperation. 2. Critical views question whose interests international law serves, noting potential for abuse to maintain unequal power structures. 3. Debates include the limits of international law in an anarchic system without central authority versus its ability to deepen interdependence through codifying agreements.

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67 views26 pages

Pil 2

1. Theories of international law differ in their views of the role and importance of international law. Realists are generally skeptical, seeing it as limited by state interests and upholding sovereignty, while liberals view it positively as codifying ethical principles to promote cooperation. 2. Critical views question whose interests international law serves, noting potential for abuse to maintain unequal power structures. 3. Debates include the limits of international law in an anarchic system without central authority versus its ability to deepen interdependence through codifying agreements.

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عبدالقوي حماد
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Public International Law

Dr Mustafa Khedewi
Last Lecture

International Law
Introduction
definition and branches

Domestic and Development of


International Law International Law
Today’s Lecture
• Natural and Positive Law
• Theories of International Law
Homework

Why the Peace of Westphalia is relevant to our


study of International Law?
What is the Cold War?

To what extent is it
relevant to the situation
in Ukraine?
Are we facing a new world order?

Or a new World War?

What could the UN do?


Cold War
the threat of Nuclear weapon is back
Development Natural Positive
of Law Law Law
A moral system to which
human laws do, or should,
Natural law: conform; natural law lays
down universal standards of
conduct derived from nature,
reason or God.
Law is, or should be, rooted in a moral system.

Law should conform to a set of prior ethical


standards, implying that the purpose of law is to
enforce morality.
Natural Law Medieval thinkers such as Thomas Aquinas thus
took it for granted that human laws have a moral
basis.
Natural law, he argued, could be penetrated
through God-given natural reason and guides us
towards the attainment of the good life on Earth.
This notion came under attack from the 19th
century onwards through the rise of the ‘science of
positive law’.
A system of enforceable
commands that operates
Positive law: irrespective of their moral
content.
Positive law sought to free the understanding of law from
moral, religious and mystical assumptions.

Positive Many have seen its roots in Thomas Hobbes’ command


theory of law: ‘law is the word of him that by right hath

Law command over others’.

By the 19th century, such thinking had been developed into


the theory of ‘legal positivism’, in which the defining feature
of the law is not its conformity to higher moral or religious
principles, but the fact that it is established and enforced by
a political superior, a ‘sovereign person or body’.
This boils down to the belief that law is law because it is obeyed.
One of the implications of this is that the notion of international law is
highly questionable.
If, for example, treaties and UN resolutions cannot be enforced, they
should be regarded as a collection of moral principles and ideals, and
not as law.
Although the rise of legal positivism made natural law theories
distinctly unfashionable in the 19th century, interest in them revived
significantly during the 20th century.
• This occurred, in part, through unease about the cloak of legality behind
which Nazi and Stalinist terror had taken place. The desire to establish a
higher set of moral values against which national law could be judged was,
for example, one of the problems which the Nuremberg Trials (1945–49)
and Tokyo Trials (1946–48), sought to address.
• This was made possible by reference to the notion of natural law, albeit
dressed up in the modern language of human rights (see p. 304). Indeed, it
is now widely accepted that both domestic and international law should
conform to the higher moral principles set out in the doctrine of human
rights. As far as international law is concerned, this has been reflected in a
substantial expansion of international humanitarian law, as discussed later
in the chapter.
 Remember:

Theories offer filters

Theories and Theories constitute


Approaches mutual checks

Theories act as
lenses
Realism

Mainstream Liberalism
Theories

Critical theory
1. Interwar debate: idealism vs realism

2. 1960s: traditionalism vs behaviouralism

Great Debates in IR 3. 1980s: Neo-Neo

4. 1980s: rationalism vs reflectivism


Liberal
Internationalism
Based on liberal philosophy:
• individual liberty
• belief in human progress
• rationality
• harmony of interests
• co-operation via organisations

Optimistic view of the possibility for


peaceful relations. (Distinguish this
from realist thought).
The state as the principal actor in international
politics (state-centric assumption of realism)

State as the legitimate representation of the


Realism: collective will of the people

Key actors: State legitimacy allows it to exercise authority


the state within its borders

Outside state borders, condition of ANARCHY –


no overarching central authority above
individual states
Realism: Key Ideas

STATISM: state as main actor, state sovereignty: authority to make and


enforce laws
In condition of anarchy, states compete for power and security: the
competitive logic of power politics
States’ key interest is SURVIVAL (for some, enough power for survival;
for others, hegemonic position)
SELF-HELP: As war always a possibility, states must provide own
security (making others insecure, and leading to a security dilemma)
Theoretical Approaches to International Law

CRITICAL
REALIST LIBERAL
VIEWS
Realists are generally sceptical about international
law and its value, usually drawing a sharp distinction
between domestic law and international law.
While domestic law derives from the existence of a
sovereign authority responsible for enacting and
enforcing law, the absence of a central political
authority in the international realm means that what
is called ‘international law’ is perhaps nothing more
than a collection of moral principles and ideals.
Realist view Thomas Hobbes, put it, ‘where there is no common
power, there is no law’.
Morgenthau, international law amounted to a form
of ‘primitive law’, similar to the behavioural codes
established in pre-modern societies.
However, only ultra-realists go as far as dismissing
international law altogether.
• Most realists accept that international law plays a key
role in the international system, albeit one that is, and
should be, limited.
• International law is limited by the fact that states, and
particularly powerful states, are the primary actors on
the world stage, meaning that international law largely
reflects, and is circumscribed by, state interests.
Realist view • Realists also believe that the proper, and perhaps only
legitimate, purpose of international law is to uphold the
principle of state sovereignty. This makes them deeply
suspicious of the trend towards ‘supranational’ or
‘world’ law, in which international law becomes
entangled with the idea of global justice and is used to
protect individual rights rather than states’ rights.
• Liberals have a clearly positive assessment of
the role and importance of international law.
• This stems from the belief that human beings
are imbued with rights and guided by reason.
• As the international sphere is a moral sphere,
core ethical principles should be codified
Liberal view within a framework of international law.
• For idealists, such thinking implied that in
international politics, as in domestic politics,
the only solution to the disorder and chaos of
anarchy is the establishment of a supreme
legal authority, creating an international rule
of law.
• This doctrine of ‘peace through law’ was expressed, for
example, in the establishment of the League of Nations
and in the 1928 Kellogg-Briand Pact, which in effect
banned war.
• Although modern liberals and particularly neoliberals have
long since abandoned such idealism, they nevertheless
continue to believe that international law plays an
Liberal view important and constructive role in world affairs.
• For them, regimes of international law reflect the common
interests and common rationality that bind statesmen
together. By translating agreements among states into
authoritative principles and by strengthening levels of
trust and mutual confidence, international law deepens
interdependence and promotes cooperation.
• The idea that there is a tendency for interdependence to
be consolidated through formal rules of international
behaviour is reflected in the functionalist theory of
integration

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