the work as the essential international law WORt I Frincples maintains the authority of the orginal, sulscholarship with insight and a timely sense of Jopments, Principles remains the exsential compityy Profesor af Iateratinal Refuge Law, All Sauls Cellge, af nw: logically organized and cleanly exposed. A Remarkably up-to-date and io ‘wat, Nuatore-La Defense; former Chstperan, Unita Nations Inerational Law Commission hou. Ann Arbor: jormer Merri ofthe ternational Law maison ad of he fternational Curt of Justo ‘douts without consulting Brownlie’ Principles tht Hrownlle reflex is now stronger than ever” Semuel Wersworth, Barter, sx Court Chambers, to and wc per Rao, Ee (1901-2) / Leas Meum es fly Art Galery UK. SACS |The Bdge Art LAE MV1 TIVNOLLVNYALNI OI18Nd dO SAIMIONIMd SATINMOWG BROWNLIE'S PRINCIPLES OF PUBLIC INTERNATIONALTHEYAH OXFORD Great Clarendon Street, Oxford OX2 6DP, United Kingdom Oxford Usiversty Pras is adepartmen ofthe Univeeity of Oxford. i furthers the Univenty’ ebjetiveofexesllenc jn renearch achaarship, and educationby publuhing worldwide, Onfordnarepistcred trade mati of ‘Onford University Pros is tbe UK and in certain other countries © Estate of Sirlan Brownlie and ames Crawford 2012 “Themoral ighis ofthe suthorhavebeen asserted Pits Edition pablshed in 1958 ‘Sixth Eaton published in 2003 ‘Seventh Elton published x 2008 Impression: All rights reserved. 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Oxford dsclains any responsbityfor the materials ‘oniainedimany third party website referenced inthis work, an OUTLINE CONTENTS PART I PRELIMINARY TOPICS 1 Introduction 2 The Sources of International Law 3. The Relations of International and National Law PART I] PERSONALITY AND RECOGNITION 4 Subjects of International Law 5 Creation and Incidence of Statehood 6 Recognition of States and Governments 7 International Organizations PART II TERRITORIAL SOVEREIGNTY 8 Forms of Governmental Authority over Territory 9 Acquisition and ‘Transfer of Territorial Sovereignty 10. Status of Territory: Further Problems PART IV LAW OF THE SEA 11 ‘The Territorial Sea and Other Maritime Zones 12. Maritime Delimitation and Associated Questions 13. Maritime Transit and the Regime of the High Seas PART V THE ENVIRONMENT AND NATURAL RESOURCES 14 Common Spaces and Co-operation in the Use of Natural Resources 15. Legal Aspects of the Protection of the Environment PART VI INTERNATIONAL TRANSACTIONS 16 The Law of Treaties 17 Diplomatic and Consular Relations 18, Unilateral Acts; Estoppelvi OUTLINE CONTENTS: PART VIL STATE JURISDICTION 20. Sovereignty and Equality of States 21 Jurisdictional Competence 22 Privileges and Immunities of Foreign Stat PART VIIL NATIONALITY AND RELATED CONCEPTS 23. ‘The Relations of Nationality 24 Nationality of Corporations and Assets PART IX THE LAW OF RESPONSIBILITY 25. ‘The Conditions for International Responsibility 26 Consequences of an Internationally Wrongful Act 27 Multilateral Public Order and Issues of Responsibility PART X THE PROTECTION OF INDIVIDUALS AND GROUPS 28 The International Minimum Standard: Persons and Property 29 International Human Rights 30 International Criminal Justice PART XI DISPUTES 31 The Claims Process 32. Third-Party Settlement of International Disputes 33° The Use or Threat of Force by States Index 407 497 27 539 590 634 on 03 718 m4 78 CONTENTS PART I PRELIMINARY TOPICS INTRODUCTION og 1, Development of the Law of Nations 2, International Law as Law 3, ‘The Reality and Trajectory of International Law ‘THE SOURCES OF INTERNATIONAL LAW 1, Introduction 2, The Statute ofthe International Court of Justice 3. International Custom, 4. Treaties 5. General Principles of Law 6, Judicial Decisions 7, Other Material Sources 8. Other Considerations Applicable in Judicial Reasoning THE RELATIONS OF INTERNATIONAL AND NATIONAL LAW 1. Theoretical Approaches 2, Relations of International and National Law: An Overview th 3. International Law inthe Common Law Tradition _ 4, International Law in the Civil Law Tradition, naravil CONTINES PART I PERSONALITY AND RECOGNITION PART III TERRITORIAL SOVEREIGNTY 4 SUBIECTS OF INTERNATIONAL LAW 15 4 FORMS OF GOVERNMENTAL AUTHORITY OVER TERRITO} 1. Introduction us 1. The Concept of Territory 2, Established Legal Persons 16 2. Key’Terms and Distinctions 3. Special Types of Personality ra) 3. Territorial Administration Separated from State Sovereignty 4. Conclusions 126 4. Restrictions on Disposition of Territory 5, Conclusions 5 CREATION AND INCIDENCE OF STATEHOOD 127 1, Introduction 7 9 ACQUISITION AND TRANSFER OF TERRITORIAL 2. Legal Criteria of Statehood 1s BarEREONTY, 3. Some Issues of Statehood 136 Introduction 4. Achieving independence: Secession and Self-Determination Mi 2, Determining Title 5. Identity and Continuity of States 142 3. The Modes’ of Acquisition 4, Displacement of Title 6 RECOGNITION OF STATES AND GOVERNMENTS 143 pepe thsoressienty: Teciteehal Disparet 6, Territorial Sovereignty and Peremptory Norms 1, Recognition as « General Category 43 ae “_ sa 2. Recognition of States ry a RéShjpiNan ok Goveentienty ist 10 STATUS OF TERRITORY: FURTHER PROBLENS 4. Collective Non-Recognition and Sanctions 155 1; International Procedures of Territorial Disposition 5. Issues of Recognition Before National Courts 137 2 Sovereignty Displaced ori Abeyance 7 INTERNATIONAL ORGANIZATIONS 166 PART IV LAW OF THE SEA 1, Introduction 166 2. Legal Personality, 166 ‘THE TERRITORIAL SEA AND OTHER MARITIME ZONES. 3. Privileges and Immunities m Perr plea rac 4, Performance of Actsin the Law 179 Bee Secrets voxz 5, Interpretation of the Constituent Instrument 184 Pe cac nt ar & Relatfons of Ieterational Ongurizations Aes. 4, The Exclusive Economic Zone/Fisheries Zone 7. Law-Making Through Organizations 192 Pe sacs 8, Control of Acts of Organizations 196x CONTENTS 12 MARITIME DELIMITATION AND ASSOCIATED QUESTIONS 1. Introduction 2. Territorial Sea Delimitation 3. Continental Shelf Delimitation 4. Exclusive Economic Zone Delimitation 5. The Effect of Islands Upon Delimitation 13 MARITIME TRANSIT AND THE REGIME OF THE HIGH SEAS Introduction . Freedom ofthe High Seas . Jurisdiction over Ships on the High Seas Regimes of Transit to and from the High Seas . Regulation of High Seas Fisheries . The Seabed and Ocean Floor Beyond the Limits of ‘National jurisdiction 281 281 283, 285, 293 294 296 296 297 au 316 320 326 PART V THE ENVIRONMENT AND NATURAL RESOURCES 14 COMMON SPACES AND CO-OPERATION IN THE USE (OF NATURAL RESOURCES 1, Introduction 2. Co-operation in the Generation and Use of Energy 3. Transboundary Water Resources 4, The Polar Regions 5. Outer Space 15 LEGAL ASPECTS OF THE PROTECTION OF THE ENVIRONMENT 1. The Role of International Law in Addressing Environmental Problems 2. Emengent Legal Principles 3. Development of Multilateral Standard-Setting Conventions, 4, Evaluation 333 333 334 S88 352 SE28 PART VI INTERNATIONAL TRANSACTIONS. 16 ‘THE LAW OF TREATIES 1, Introduction 2. Conclusion of Treaties 3, Reservations 4. Observance, Application, and Interpretation of Treaties 5, Amendment and Modification of Treaties 6. Invalidity, Termination, and Suspension of Treaties 17 DIPLOMATIC AND CONSULAR RELATIONS. 1. Modalities of Interstate Relations 2, General Legal Aspects of Diplomatic Relations 4. Sta, Premises, and Facilities of Missions 4, Inviolability of Missions 5. Diplomatic Agents 6, Other Matters UNILATERAL ACTS; ESTOPPEL 1. Introduction 2. Unilateral Acts 3. Estoppel 4. Relation Between Unilateral Acts and Estoppal SUCCESSION TO RIGHTS AND DUTIES 1, Introduction and Overview 2 The Forms of Territorial Change 4, Sate Successsion and Municipal Legal Relations A. State Succession: Fields of Operation 5. Conclusionsxii CONTENTS PART VII STATE JURISDICTION 20 SOVEREIGNTY AND EQUALITY OF STATES 1, The Concept of Sovereignty 2. Some Uses of ‘Sovereignty’ 3. The Interaction of States with International Law 21 JURISDICTIONAL COMPETENCE 1. Overview 2. Prescriptive Jurisdiction over Crimes, 3. Civil Prescriptive Jurisdiction 4, The Separateness of the Grounds of Jurisdiction ‘5. Enforcement Jurisdiction 6 A General View ofthe Law 22 PRIVILEGES AND IMMUNITIES OF FOREIGN STATES 1. Evolution of the International Law of Immunity 12, The Modalities of Granting Immunity 43, Attachment and Seizure in Execution 4, Further Concerns and Issues PART VIII NATIONALITY AND RELATED CONCEPTS 23: THE RELATIONS OF NATIONALITY 1. Introduction 2, The Effective Link Principle and Nottebohim 3. The Application of Rules of International Law 4. A Functional Approach to Nationality, 24 NATIONALITY OF CORPORATIONS AND ASSETS 1. General Aspects 447 eee 456 457 a7 476 478 486, 487 487 491 22 509 513 318 525, 527 527 2) THE CONDITIONS FOR INTERNATIONAL RESPONSI PART IX THE LAW OF RESPONSIBILITY ITY. 1, Configuring the Law of Responsibility 2, The Basis and Character of State Responsibility 3. Attribution to the State | 4. Breach ofan international Obligation 5, Circumstances Precluding Wrongfulness | CONSEQUENCES OF AN INTERNATIONALLY WRONGFUL A 1, Introduction 2, Cessation, Reparation, Invocation 3 The Forms of Reparation 4. Invocation of Responsibility ) MULTILATERAL PUBLIC ORDER AND ISSUES OF RESPONSIBILITY 1, ‘The Varying Content of legality 2, Objective Consequences of legal Acts 4. An Emerging System of Multilateral Public Order? F ne PART X THE PROTECTION OF INDIVIDUALS AND ‘VIE INTERNATIONAL MINIMUM STANDARD: PERSONS AND PROPERTY a 1, State and Individual: The Search for Standards 2, Admission, Expulsion, and Liabilities of Aliens 4, Requirements for and Standards of Diplomatic Protection 4A Breach and Annulment of State Contractsxv ‘CONTENTS 29 30 a 32 INTERNATIONAL HUMAN RIGHTS 1. Introduction 2. Historical Perspectives 3, Sources of Human Rights Standards 4, Non-Discrimination and Collective Rights 5. Scope of Human Rights Standards: Some General Issues 6, Protection and Enforcement of Human Rights 7. An Evaluation INTERNATIONAL CRIMINAL JUSTICE 1, Introduction 2, Development of International Criminal Law and Institutions. 3, International Criminal Courts and Tribunals, 4, International Criminal Justice in National Courts 5. Conclusions PART XI DISPUTES ‘THE CLAIMS PROCESS 1, Jurisdiction and Admissibility Distinguished 2, Interstate Claims; Prior Negotiations and the Requirement of a Dispute 3. Interstate Claims: Grounds of Inadmissibility 4. Diplomatic Protection 5. Mixed Claims: Private Persons versus States ‘THIRD-PARTY SETTLEMENT OF INTERNATIONAL DISPUTES 1, Peaceful Settlement in General 2. Development of International Dispute Settlement 3, ‘The International Court of Justice 4. Other International Courts and Tribunals 634 634 635 638. 651 656 667 671 693 693 697 701 ms 718 718 79 7m 23 ‘CONTENTS )) THE USE OR THREAT OF FORCE BY STATES 1. Historical Overview 1815-1945 2, The Charter Probibition on Use or Threat of Force 3 Authorizing the Use of Force: The Security Council 4. Continuing Sources of Controversy under the CharterIxxx GLOSSARY ‘ratio; ratio decidendi, The principal propostion or propositions oflaw determining the ‘outcome of a case. or necessary forthe decision of a particular case cf dita). ration materiae. By reason ofthe subject-matter; thusan immunity ratione materiaeis an immunity accorded by reference to the subject-matter of the claim. ratione personae. By reason of the person: thus an immunity ratione personae is accorded by reason of a person’ status (eg a serving head of state). ratione temporis. By reference to time;thusan objection to jurisdiction ratione temporis is an objection by reference tothe time at which a claim arose. rebue sic stantibus. The implication that the obligations under a treaty are terminable in the event ofa fundamental change of circumstances. res communis, Objects or areas held in common, not subject to the sovereignty of a single state (eg, high seas, outer space) res inter alios acta. A matter affecting third parties and not opposable to the legal persons between whom there is an issue. res iudicata. The principle that an issue actually decided by a court should not be reopened, res nullius. An asset susceptible of acquisition but presently under the ownership or sovereignty of no one, sige socal. French legal concept for determining corporate domicile; may be loosely rendered as ‘head office or ‘predominant place of administrative activity’ stare decisis. The principle that a tribuinal should follow its own previous decisions and those of other tribunals of equal or greater authority. stipulation pour auirui. Contractual stipulation in favour ofa third party. sui generis, Not falling within normal legal categories; unclassifiable. travaux préparatoires. Preparatory works preliminary drafis, minutes of conferences, and the like, relating to the conclusion ofa treaty. ultra vires. Unauthorized by legal authority; invalid as beyond power. uti possidetis iris; uti possidetis, The presumption that the boundaties of a new state or entity follow those that existed under the previous (colonial) regime. PART I PRELIMINARY TOPICS1 INTRODUCTION “Then felt lke some watcher in the skies When a new planet swims into his ken. Keats law of nations, now known as (publ Hon of the late medieval pees 2 ‘Through an influential: wenesol he Poems ofl Keats (2003) 79-82. ex ‘itrnationl las invented by jeremny Beetham bn 1789 an established In peerence othe elder aw of nations alfa translation ofthe us gti of eskensiee, The Gent ives of Nations (2 Hol), International Lay (rd eda, 2010) 3; Simpson, in Crawford & Koskeaniem to International Lay (2012) 25; Keskensiemi, bi, 47: Jouanne, he Liber 2012, i use may been gt the ra ud pen pay {80-0GSBCE) snd the Bronze Age wld ptr ofthe Nea ant Litera in Cole, Writings (191) Scot, The Spanish Origin of ternational Law (1934, rep2000,. 1008. De Legationibus Libri Tres (1585) HispenicaeadvocationsUbr duo (613). Wl ch 3 Mile in Zaha a, The tenford Encylopedia of Pomp Oi) sdentregrte 1W9% De arenatuaect emu (672, Further: Tack(1999) ch, 734 us naturae metodo slentica peta (1740-18); as et (250, Further: eth 2a), Te Stanford Encylopedia Ploy ito stanfrdeduentrey/wof-chriin/#HanSe,4 PRELIMINARY TORIES custom and practice in such matters as treaty-making, the status of ambassadors, the use ofthe oceans, and the modalities of warfare. It was not continuous with the ius _gentium ofthe Romans, but the thirteenth-century rediscovery of Roman or civil law by figures such as Thomas Aquinas’ reinforced the idea that law could structure or at least moderate the relations between kingdoms, principalities, and republics." The ‘Thomist conceptualization of such relations owed much to the notion of the just war’ that was later to preoccupy Grotius and others. Atthat time, international law—if the term was even applicable—was essentially a moral question (resulting in the eleva- tion of the just war’ to a matter of Christian doctrine); but it was engaged with is familiar toa modern practitioner, such as territorial claims, treaties, the right oflega- tion, and related matters A signal development hinting at advances yet o come was that war was seen as the prerogative of the sovereign: For it is not the business of a private individual to declare war, because he can seek for redress of his rights from the tribunal of his superior. Moreover It is not the business of « private individual to summon together the people, which has tobe done in wartime. And as the care ofthe common weal is committed to those who are in authority, itis their business ‘to watch over the common weal ofthe ity, kingdom or province subject to them.” In terms of intellectual history, international law was thus European in origin, although the Europe in question was large, extending to the whole Mediterranean, to Russia and the Near East; thence international law travelled with the colonizers to the ‘Americas, to Asia, to Africa and eventually to Oceania. At this time Europe was not chauvinistic in defining membership of the international system." For example, the ‘Ottoman Empire was accepted asa valid participant as early as 1649." In the Far East, a number of states such as Siam/Thailand, China, and Japan sur- vived the colonial onslaught and continued to assert their independence, as dem- “onstrated by Macartney’s embassy to China in 1792 and his acid reception by the Qianlong Emperor.” By the mid-nineteenth century China had been largely cowed 1225-1274, Principally: Summa Theologa(1274) andthe Summa contra Genter (1264-127) "Further: Kingsbury &Straumana, in Tewon & Tastoulas (ds), Te Philvophy of International Lave 2010)33, rapes. tn Ballet al (1990) 17, 181-3. On the conceptof jst wat! chapter33. ‘Aguines, Summa Theologia (1274, English Dominican Province 1974), Question 4, Art. Generally: Anghic, Imperialism, Sovereignty and the Making of nteational Lav (2003), "Brownlie, in Bull & Watton (eds), The Expansion o International Society (1984) 357. and the Sultan of Turkey, I Jly 1648.1 CTS 457 The dea thatthe Oxtoman Empire was only accepted into fnternstional society withthe Treaty of Pais 30 March 1856, MTS 409 es solecie. © Generally: Feyrefite, The Cellsion of Two Civilizations (1893) The Qianlong Emperor refesed -Macariney'sembasy and later wrote t King George Il explaining in greater detail the easoning behind his ejection of the English request. He concluded with the threst that any attemgt ky English merchants ‘to exceed the minimal feedoms already granted would be met with instant expulsion (that event your ‘harbarian merchants will have hed along journey for aothing'Jand the injunction thatthe Engl king was INTRODUCTION 5 a thy the se of gunboat diplomacy, leading to the Treaties of Beijing in 18602" Japan, by ‘gontrast, engaged ina controlled opening to the west, with British naval advisersad ‘hy carly translation of Wheaton’s International Law: A few Asian nations were able { maintain their autonomy, either because t was convenient for the colonial powers {as in the case of Siam/Thailand) or because the state succeeded in internal modern: ping (as in the case of Japan, whose nevy crushed Russia's atthe battle of Tsushima 4h 1905), Similarly, Ethiopia was able to maintain its independence at the expense of Minly following the latter's defeat atthe battle of Adowa in 1896. The remainder of the ‘Airican continent, however, was subjugated: following the Berlin Conference of 1884 fund the ‘Scramble for Africa it was divided between Great Britain, France, Belgint, many, Spain, Portugal, and Italy to create @ political landscape that i il after the Second World War. {iy this stage, the ‘modern structure’ ofthe law of nations was recognizably in a system of diplomatic relations, recognition, international organizations, trea fand customary international law had taken on essentially modern contours, sme time, colonialism had reshaped the world in a Eurocentric image By (Me the number of states in the world had been reduced to some 64, of a land, China, Japan, and Afghanistan—had managed to retain ut formal qualification of their sovereignty. Porhapsasa concomitant of this reduction, sovereignty was assigned unique: the international sphere. By the 1920s, it was widely thought that international ‘entirely dependenton theconsent—express orimplied—of states;and was to states alone: /dlual States, and not of individual human beings, States solely and excl ‘subjects of International Law’* But the influence of earlier eras was not ‘ven atthis point in time—the crest of the positivist wave—the Perm {of International Justice had indicated that rights under international hi: ferred on individuals.* [Octet 1860123 C1871 (China-Gret Britain 26 October 186,123 CTS79 (China 860,123 CTS 125 China-Rassi) Kneraly: Yamauchi (1990) 24 Heorubashi LP ly: Packenham, The Scramble for Africa (1991) Anghie, “Bertin West Africa (2007) MPEPIL. The Conference was capped by the General Act concerning the i 845, 165 CTS 485, which in effec formalized the terms ofthe Scramble. Also: chapter 9. ‘Uera. ree settlement of former saves, was never colonized. Morocco was divided int sh aones but maintained a certain identity: Nationality Decres Issued in Tunis and Monae No: Rights of Nationaleof he United Sates of America in Morocco (France v US} ICY 1. 8 Lotus (1927) PCH SeeANo 10,18 JOppeaheim (st edn, 1908) 18, Further: chaper 4 Tl Postal Service n Dancig(3925) PCA) Ser 8 No I, 32-81. Also Steiner and Gross Posh” PRELIMINARY TOPICS At around this time, international legal personality gained an added dimension with the emergence of international organizations. In the nineteenth century states moved from the bilateral treaty and reliance on diplomatic contact to other forms of co-operation. The Congress of Vierina (1814-15) heralded an era of international con- ferences and multilateral treaties: later there appeared river commissions such as the European Commission of the Danube (1856) and administrative unions such as the International Telegraph Union (1863). After 1919 the League of Nations and then the United Nationsprovideda more developed attemptat universal peacekeepingarrange- ‘ments, and many specialized institutions concerned with technical, economic, and social co-operation were established. Permanent organizations with executive and ‘administrative organs paralleled but did not completely replace the system of ad hoc diplomacy and conferences.* Over the course of the twentieth century, international law underwent a profound process of expansion. Developments included, inter alia, the creation of international organizations of universal membership with treaty-making powers (sce chapter 7), «detailed elaboration of the law of the sea (see chapters 11-13), the establishment of Permanent bodies (or at least permanently available institutions) for the settlement of international disputes, including ‘mixed! disputes between states and private pat ties (see chapter 32), the prohibition on the use of force by states (see chapter 33); the ‘emergence of various sub-disciplines or specialist areas of work and study; notably, ‘human rights (see chapter 29), international environmental law (see chapters 14,15), international economic law. internationel criminal law (scechapter 30),and progress towards the codification of international law, principally through the work of the International Law Commission.” 2. INTERNATIONAL LAW AS LAW At an elementary level, the normative system of international law is derived from four sources, enumerated in Article 38(1) of the Statute of the International Court of Justice: (1) treaties; 2) customary international law; (3) general principles of law: and (4) ‘judicial decisions and the teachings of the most highly qualified publicists of the various nations, asa subsidiary means for the determination of rules oflaw’2* But “ Onthehistory a internaticnal organizations Kiabers, An Introduction to International ttutional ‘av (Ande, 2008) ch ; Reialda, Routledge History of Inernational Organizations (2008 ™ Forpublicregulationof monetary. tradeand economic iss: Ruir- Fabri, in Crawford Koskeame (2012)352. For protection of foregninvesient chapter 28 ® Forthe ILCs work: Wats, Pronto & Wood, 1-4, The International Law Commission, 1949-1998 and 1999-2009 1983, 2010, Further: Pellet in Zimmerman, Tomuchat & Oelles-Frahm (€ds) The Statute ofthe International nxTRODUCHION these, important in their own right, telluslittle about the wider intellectual history of {hh field or its normative underpinnings. (4) NATURAL Law ORIGINS 4 development of international law saw its gradual separation from matt ‘a gibi ea on by the Reformation and the wars of religion, notably the ity Years War which ended with the Peace of Westphalia (1648). Natural law a wool of thought had emerged from the philosophical traditions of Roman law anid ‘Roman Church, which conceived of a universal jus naturale (natural law properly iking) of which the ius gentium (the law of peoples) was a subset.” ‘Natural \ conceived, was universal; this was the background from which emerged Vit otiusjand other early theorists. Their contribution, willingly or not, was the sep aot the ius gentium from the ius naturale and its modulation into a law of nat Which applied specifically to the rulers of states. This was particularly evidentin) -of Grotius, who depicted international law as the gradual development of ut 9 principles of justice which could be deciphered through human agency (indep it of received religion): it as the Laws of each State respect the Benefit of that State; so amongst all or most, Pnght be, cod in Pact there ae some Lave agred on by cmon, Cia {the Advantage not fone Body nparticulas, but ofallin general And hii the Law of Nations, when used in Distinction to the Law of Nature. . ithe granted then, that Laws must be silent in the midst of Arms, provided they arto Lawsthat are Civil and Judicial, and proper for Times of Peace: bt not those that a petual Obligation, and are equally suited toall Times. For it was very well sad in Enemies, Written, that is, Civil Laws, are of no Force, but Unwritten are, which Nature dictates, or the Consent of Nations has instituted... [There are ‘which itwould be unlawful to practise even against an Enemy.” \inderstood, the law of nations was a system of norms whether derived versally applicable, ‘natural’ morality or attested by ‘the Consent of Nal ‘over time, thinking on the subject became progressively more concerned ited agenda of legal issues external to the state, as can be seen from a sid ‘omparison of Grotius’ De jure belli ac pacis (1625) and Vattels Le Droit. “The bridge between the two was Wolff, who attempted a description of th according to scientific principles." Wolff argued that collective societ ursher: Gietke, Political Theories ofthe Middle Age (1900, tr Mailand 1938) 73,167,172. (Ged edn,2010)3, Gots, De ure bella pci (1625, ed Tuck 2005) Prelim SSXVULXXVIL. ‘ing the 1740s, Wolf published avast work attempting to describe natural law ‘hela vlumeavolied these principles tothe lw of nations: Wolf us Genturt Method8 PRELIMINARY-TORICS not be promoted unless states formed a universal political entity, a ‘supreme state? from which would proceed the law of nations: LAlllthe nations scattered throughout the whole world canzot assemble together, ass self evident, that masi be taken tobe the willofall nations which they are boundtoagree upon, if followingthe leadership of nature they userightreason. Henceitis plain, because ithas to be admitted, that what has been approved by the more civilized nations is the law of nations. ‘Wolff was the progenitor of Vattel’s Le Droit des gens, which could claim to be the first international aw textbook.” But Vattel’ text wasat odds with many of Wolffs conclu sions, most notably with the concept of the ‘supreme state’, preferring instead to see the (European) state system asa collective capable of acting in the common interest.” ‘Thus Vattel asserted that the continent formed... «political system in which the Nations inhabiting this part of the world are bound by their relations and various interests into a single body. It is no longer, asin former times, a com fused heap of detached parts, ach of which had litle concern for the lot of the others, and rarely troubled itself over which did not immediately affect it. The constant attention of sovereigns to all that goes on, the custom of resident minister, the continual negotiations. that take place, make of modern Europe a sort of Republic, whose members—each inde- pendent but all bound together by a common interest—unite for the maintenance of order And the preservation of liberty. Hence arose that famous scheme of the political balance, or the equilibrium of power But greater minds than Vattel’s were at play. Immanuel Kant (1724-1809)" sought to re-characterize the binding character of international law, proposing an international federation of republican states (oedus pacificum) along substantially similar lines to Wolfs supreme state™—backed by coercive rules, as the only method by which a secure and lasting peace could be achieved: ‘There is only one rational way in which states coexisting with other states can emerge from the lawless condition of pure warfare. Just like individual men, they must renounce their savage and lawless fresdom, adapt themselves to public coercive laws, and thus form an. international state (civitas gentium), which would necessarily continue to grow until i © Tack (199) 187-8, Wolff 1749, tr Drakes Hemek 1934) 620, Thetndluence of Vattd was pethap strongestinthe newly formed ited Sates of America. Alongside Grotius and Puferdort.efersonrelerredtoVattel requelySeare(1919) 13 APSR 3795 Cohen 8 Jefferson (1971) 119 UPenn LR823, George Washington borroweda copy of Le Droit der gensfrem the New York ub lchibraryin 1789 and fled to return: AFP, "George Washington’ brary book eterned 221 years ate (he Guandian,20 ay 2010)- Generally: Janis Th Americen Tradition of International Law (2004). % Tuck (1999) 191-2 Also: Allo, The Health ef Narions (2002) 412-16, menting Vatel victory over walt, % Vatiel Le Droits gens(1758) 1AH.647, ® On Kant and international law: Tuck (1989) ch; Perreau Saussine, in Besson & Tasouls (2010) 53 For Kant own worksec the polemic "Perpetual Peace: A Philosophical Sketch’ (1795) reproduced in Reise. led), Kam: Poiical Writine nd edn, 1992)93. )) PROM POSITIVISM TO THE PRESENT DAY INTRODUCTION » Ihmacedall the peoples ofthe earth. But since this isnot the will of the nations, according Uhr present conception of international right... the postive ideaofa world republic ean Iyeralse, alts nao belost, thiscan at best find anegatve substute in theshape ssluringand gradually expanding federation likely to prevent war. The latter may check — ‘current of man’s inclination to defy the lw and antagonise his fellows, although there Bifalrys te a riak oft buroting forth aneve>” pire, secular or religious. States emerged as material, independent entities ional law was one of the ways they developed of managing their relations. The it paradox of how law could operate between sovereigns is resolved by the to consent in the formation of legal obligation and the role af co-operation (eaffairs—combined with the insight that sovereignty includes the ‘commitments not merely temporary in character. Indeed the law itself Jnternational law is highly state-centric, a position reinforced from a sith century by the development and subsequent dominance of positivism count of law and legal obligation. Applied to jurisprudence, positivism was die hed by the notion that only postive law—that is, law which had in some ‘enacted or made by authority—could be considered true law. International ih could only with difficulty be seen to be made—and then in a diffuse up inthis. MJ according to some positivists, notably John Austin (1790-1859), i ‘only ‘law improperly 0 called’ In this sense, Austin conjectured: Imposes.are enforced by moral sanctions by fear on the part of nations, oF by| ‘of sovereigns, of provoking general hostility, and incurring its probable shall violate maxims generally received and objected Ban 1795) 105. | Wimbledon (1923) PCI Ser ANo 1.28 The Province of arderuence Detreined (0432. 1008) 123» [PRELIMINARY TOPICS iNTRODUCTION u sanctions were decentralized and sporadic. This was an extreme position, not inher- ent in positivism as such butin the dogma of single sovereign asthe fount of all la ‘Austin’s friend and intellectual predecessor—Jeremy Bentham (1748-1832}—had no such issue with international lav, principally because he thought that national sov- reigns, just as they could proclaim laws for the benefit of their own communities, ‘could also together promulgate international law: they were not disabled from collec: tive action.® Bentham, unlike Austin, also believed that areal law might be enforced: bya religious or moral sanction: When a foreign state stands engaged by an express covenant to take such a part in the: ‘enforcement of such alaw as that in question, thisis one of the casesin which a foreign state aid to stand with reference to such law in the capacity ofa guarantee. Of acovenant of this the history of international jurisprudence. ‘of municipal systems ruptured by civil stefe since 1945. And whilst it may be said thal soational aw lacks secondary rules, this matters lessiffone accepts the view that second *y ules do not play such a decisive role in maintaining the more basic forms of legality i nicipal systems.” ‘THE BASIS OF OBLIGATION ct there are many examples of public order systems which lack an ident {ign but manage to function—ranging from the customary laws of indi es to the law ofthe European Union. The classification ofa system aslegal tredetermine its effectiveness: witness various national law systems in greater + disarray, The question is whether the rules, traditions and institutions of ys enjoy a least some salience within the relevant society, meet is sos | and are applied through techniques and methods recognizably legal from mere manifestations of unregulated force. There is no reason to deny (9 “ystems the classification of being legal—recognizing however that this ea¥é if sy questions open. ‘During the twentieth century, understanding of international law has ‘been ‘articulated through sociological theories," as well as latterly, by the res J inore rigorous and pragmatic natural law approach.” In particular, John defended the idea of an international law— particularly customary i ible to emerge without being made by anyone with authority to make iy generation and a sort many examples are to be met wit ‘Amore refined version of postivistlegaltheory was elaborated by HLA Hart (1907-92). Drawing on Kelsen, Hart distinguished three categories of rules (a) primary rules, ‘concerning human ection and interaction; (b) secondary rules (rules of adjudication, enforcement, and change) which underpin and operate in relation to the primary ules; and (6) the master ‘rule of recognition’, which enables the observer to identify the components of the system and to treat them as legal It was the internal attitude, mainly ofthe officials, those responsible for the application of the secondary rules, ‘which marked the system as legal and not merely a set of social rules, What mattered vwasnot their acceptance of primary rules but thetr acceptance of the systems by which, those rules were generated and applied: it was the combination of primary and sec~ ‘ondary rules which was the essence of law." ‘Measured by this more complex standard, Hart saw international lawas a marginal form, possessing some but not all the characteristics of a developed legal system and then only imperfectly. Ithad only rudimentary institutions of adjudication, enforce ‘ment,and change—no courts of compulsory jurisdiction, no legislature, 2 frail inter~ nal attitude on the part of offcials: ‘no other social rules areso close to municipal law as international law" but social rules they remained. ‘This position was the subject of critical scrutiny by Brownlie,* who argued that whatever the theoretical overlay of law/not law imposed by Hart (and postivists in general), the reality of international law told different story: ‘The lack of compulsory jurisdiction and a legislature is regarded by Hart not asthe spe- «ial feature of a system which operates in conditions of a certain kind, but as the marks of Gn outcast, of a butterfly which is not wanted for a pre-determined collection. Yet... the Stability of international relations compares quite well with internal law, given the grand hough there are direct ‘moral’ arguments of justice for recognizing jtative...the general authoritativeness of custom depends upon the formation has been adopted by the international commanity a¢ an a od of rule creation. For, given this fact, recognition ofthe authoritativeness 0 Jar customs affords all states an opportunity of furthering the common ational community by solving intersction and co-ordination problems ible. And this opportunity isthe root of al legal authority, whether it Bethe or (as here) of rales® nn HMotbly through the work of Myere McDeugal and the "Yale Jona ysl thiaking eg, McDougal Barks, The Public Order of the Oceans (1960 laches, lumen Righteand Word Public Onder (1980) MécDowgal (ec) Stuies Wold pis? McDougal Felco, The Internationa Lew of War (1984). Porter Rebaman shi8. + Foran analyssof Bentham inthis respect: ani (1984) 78 AJL 405,410-15. pesthatn As tntrodectin tothe Principles of Noraleand Legislation (1789, 1970 edn) 68-70 ° Hart, the Concept ofLaw Gad edn, 1994) ch5. ti ch 1. ln Evans Grd edn, 2010) 3, 18-18. Further: Orakheasb “Naural Law and fs TH ianls. Natal Law and Natural Rights(2nd edn, 2011) 244 ermphasisadded)te whole2 PRELIMINARY TOPICS 3. THE REALITY AND TRAJECTORY OF INTERNATIONAL LAW (a) ‘THE STATE AND sovEREIGNTY* States are‘ political entities equal in law, similar in form ...the direct subjects ofinter- national law.” Despite the manifest historical contingencies involved, once statehood is generally recognized, a new situation arises: the new state is ‘sovereign’, has ‘sover- cignty’sand this s true no matter how fragile its condition or diminutive itsresources. Inthis respect, sovereignty hasnot evelved much from the position described by Vattel in the eighteenth century: Since men are naturally equal, and a perfect equality prevails in ther rights end obliga- tions...nations composed of men and considered as so many free persons living together ima state of nature, are naturally equal, and inherit from nature the same obligations and rights. Power or weakness does notin this respect produce any difference. A dwarf is as ‘much a manasa giant; a small republic sno less sovereign state than the most powerful kingdom. ‘The state monopoly of sovereignty—and the capacity to act on theinternational plane that it brings with it—is on occasion the subject of criticism, to the point that its sug: gested that the word be avoided entirely.* A stronger challenge is the opposition to sovereignty as the key organizing concept of the international community. With the emergence of privatization and globalization as influential forces within the world economy, itis argued, sovereignty bears less resemblance to the way things are, a per- ception heightened when viewed against a background of anti-formalism and rule scepticisrm:” from that perspective, sovereign equality, a formal rule if ever there was one, is an obvious target. ‘These criticisms call for a response. For example Kingsbury emphasizes the disad- vantages of any normative transformation: State sovereignty asa normative concept is increasingly challenged, especially by a func- tional view in which the state loses its normative prerity and competes with supranational, private and local sctorsin the optimalallocation of regulatory authority. But discarding soy ereignty in frvour ofa functional approach will intensify inequality, weakening restraints on coercive intervention, diminishing critical roles of the state as @ locus of identity as an autonomous zone of polities, and redividing the world into zones.* © Generally: Crawford, in Crawford & Koskenniem (2012) 17. Reparation for Inuressufered i the Service ofthe United Nations, IC} Reports 1949 p174,177-8. % Vattel, Le Droit des gens (1758 [Prelim 98. % ([Tihesoverigntyofstatesin internation relations esentlly a mistake. an Meytimateoffpring Henkin 1999)68 Fda E812 "Wut tis also important to stress the flexibility of the concept of sovereignty and its INTRODUCTION ay pacity to provide a common denominator for the world’s manifold cultures anid tions such that an international society is possible. Asa concept, sovercighly « limited substantive consequences and isconsistent with a range of internal forn of government, Its also capable of responding to developm: as seen with the rise of international organizations. Ihe relationship there, ho ‘yor is a symbiotic one, with institutions such as the International Criminal olstering the internal competence of sovereignty through the principle of com sntaritys at least in theory.” Despite repeated suggestions of the ‘death’ of sovereignty—or its irrclevat ormative basis within intern: ough practice or through the accretion of new ideas and values. Such modific secretion is atthe present time dependent oa the will of states, and its not di predict that sovereignty will retain its hold on the international plane for the ible future.” ‘of the major developments of international law in the past century has b gence of international organizations with universal membership that the product of a World War. The first, the League of Nations, largely coneé J United States President Woodrow Wilson,® was established as part of the! {Versailles in 1919¢* it disintegrated with that peace over the course of ‘second, the United Nations, was established by the Charter of the 1945." Despite many tribulations, it still occupies the field as the g 1m on the international plane. “Although the two organizations are superficially similar, they chose: {o regulate the interaction of states. The Covenant of the League of [outlaw war per se, as distinct from limiting the circumstances of r30 /16C Statute, 7 fly 1998,2187 UNTS 3, Art 17 Further: Benzing 2003)7 Max Plan plementary in practice: Noowen, Complementarity in the Line of Pre (2012). shines i Kalo & Skinner (es Sovereignty Fragments (200) 28,46. Trarther Crawford, in Foe (ed), The Changing Consttiaion of the United Nations (197) fot nerational rguisatons: Clade, Sworn owshars theds, 1988). Ulivcihe, Fourteen Pots of Wilson (1918) (2007) MPEPIL. ‘Generally: evry, a Bosache, Feldanan & laser (i) The Treaty of Vries 998) wih Verses wasto timate undermine the Covenant athe Lag both vt te Carthgnian eco aie eprint var ul se: Keynes he sof the Pace (930) Matson, The Carthaginian Peace, oF The Economic isto.4 PRELIMINARY TOPICS (Articles XII, XII, XV). Indeed, it sought to use the institution of war asa response to the violation of its provisions (Article XVI). 1. Should any Member of the League resort to war in disregard of ts covenants under Articles XII, XII or XV, itsballipsofactobe deemed to have committed an act of war against all other Members of the League, which hereby undertake immedistely to subject it to the severance of ll trade and financial relations, the prohibition of allintercourse between theit tionals and the nationals ofthe covenant-breaking State, and the prevention of all finan: «ial, commercial and personal intercourse between the nationals of the covenant-breaking ‘State and the nationals of any other State, whether a Member of the League of not. Article XVI sought to guarantee the key commitmentsor covenants which positioned the League as a system for collective security and as guarantor of the performance of obligations under international law. A central procedural requirement was that of unanimity or qualified unanimity within the League Council, with guarantees for representation ofany Memiber ‘during the consideration of matters specifically affect {ng the interests of that Member’ (Articles [V and V). In practice the idea of ‘automa: ticity’ of sanctions was watered down—but automaticity was one of the factors which kept an isolationist United States outside the League* ‘The United Nations isa very different construct. It was created independent of any peace treaty, avoiding the unfortunate associations with a punitive peace that had dogged the League. ‘The close connection between commitment and sanction that characterised the Covenant was ruptured and replaced bya broad discretionary power of the Security Council. Where the Covenant overtly attempted to guarantee interna- tional law, backed by a system of collective security the Charter outlawed the unilat ral use of force outright save in defined and limited circumstances (Articles 2(4) and 51). Articles 39 and 42 of the Charter give the Security Council power to respond or not respond limited by the deliberately vague need to identify a ‘threat o or breach of the peace or act of aggression’ (see chapter 33). Where the League required consulta- tion and unanimity in the decision making process, the Charter withdrew the veto fromall except the five Permanent Members (Article 27(3))—the US, the UK, France, the People’s Republic of China (formerly the Republic of China), and Russia (formerly the USSR), The veto ceased tobe a concomitant of sovereignty and becamea guarantee that the five major powers could not be outvoted on key issues. A distinction might perhaps be drawn between the UN as an international organization—a piece of legal machinery with its own international personality (Articles 100, 104, and 105)—and its capacity to give effect to the common policies of the members within broad areas of competence. No trace of such a ‘constitutional’ aspect may be found in the language of the Charter. But such an understanding may be hinted atin subsequent interpretations. In Reparation for Injuries, for example, in + Eg Waters 1 History ofthe Laue of Nations (192) 66-74 INTRODUCTION 6 according to the United Nations claim-bringing capacity analogous to that of astate, the Court said that the founding members of the UN ‘represenifed] the vast majority of the members of the international community’** But itis too much to say that the LUN fs pre-eminent within the international system; we are only at the beginning of developments which might justify such a conclusion.” Notably, for the UN w function. in such a manner would require the better institution of democratic accountability ‘and tespect for individual human rightsata global level. (€) A SYSTEM OF INTERNATIONAL LAWS I ‘he reality of international law—whatever its theoretical underpinnings—is clearly. that ofa system of laws, albeit one that cannot be uncritically analogized to domes fic legal systems.” Moreover iti a system which, day in and day ou, is generally affective: millions of people are transported daily by ai and otherwise across sale youndaries; those boundaries are determined anc extended; the resources 0 al fated are extracted and sold across boundaries states are represented and comm “Iv Henkin’s words, “almost all nations observe almost all principles of intern Jay and almost all oftheir obligations almost all of the time’ vides-—in sigoficant part—not merely the vocabulary o “underlying grammar. [he reality of international aw, that isto sy. the actual use of rules described as “|iiernationa law by governments, ott be questioned. All normal governments ey ers to provide routine and ether advice on matters of international law nd efve ther relations with other Stats in terms of international aw. Governments ant als routinely use rules which they have fora very long time calle the Iw of ath “international law. The law delrits the competence of States. No Journey by are he place in reasonable limits iit were not fora network of legal structures invovingth isdction of States, the agreement of States and various [International Ciel Avi {anizatioa) procedares and standards. The lwalso proves tools fr constructing i Joos. Typically what in fect, the ocr ofthe EEC ia muilatera teaty™ Inthe absence of any formal hierarchy—the negation of which isthe point 0 ablished doctrine of the equality of states—the bass of obligation ini is found in the practice of states, which regard certain processes as rights and obligations and conduct themselves with i 1c) Reports 1949p 174,185 * further: Lavalle 2008 41 NILR 411; Tamon 2003) 99 AIL 175; Bianchi 2006) 17 Ef 20/1 489, Hinojosa Martinee (208) 57 ICLQ 35%; Orakheashvil, Colectie. Sec 2 “YThe value of municipsl hw analogies was proclaimed (tothe pont of overstatement) By aiterpace (1897-1960): Lauterpacht, Prine Law Sources and Analgics of international Law ( erpacht Fuction of Lae (938, repr 2011126. ‘ Soin Sw NlatnneRohaw nod. 1070 47: Ka (1987) 106 Ye L175986 PRELIMINARY TOPICS ‘mind: obtaining legal advice about makingand complying with the law; instructions ‘to sate officalsabout their obligations under international law;applyinginternational law domestically (including making multiple modifications of domestic aw.” International law has the characteristics ofa system, not sta random collection of rules: the basic constructs of personality, sources (including treaties, interpretation, ‘and responsibility, provide framework within which rules may begenerated, applied and, increasingly, adjudicated upon. The system is, though, institutionally deficient. “The absence ofa legislature with universal authority and the consensual basis forjudi- ial jurisdiction reinforce the voluntarist and co-operative character of most interna- tional law most of thetime. (D) THE TRAJECTORY OF INTERNATIONAL LAW ‘As demonstrated, the history of international law has been unusually tumultuous, though perhaps not more so than any other system of law developing over a compa: rable length of time. Have its fundamentals changed? There is no legal reason why: they should not. Indeed, the system itself exists in a persistent and even necessary state of flux. ‘Ata fundamental level, the power structures within the international system are such that sovereignty and statehood remain the basic units of currency. Thus, states may use their power to modify the law to make rules about statehood itself—and they have done, notably about colonial self-determination (chapter 5). They may qualify aspects of their sovereignty of an institutional basis by becoming members of inter national organizations (chapter 7) or accepting the jurisdiction of international tribu- nals (chapter 22). And sich undertakings are no longer exceptional; there is no longer 1 presumption against commitment. These developments (and others not supported bbyany institutional apparatus) have greatly expanded the content of international law and in so doing have diminished the sphere of domestic jurisdiction. The demands of international co-operation to give effectto the widening range of international obliga tions hasboth enhanced the rights of states and given them more obligations to fulfil But they have not altered the character ofthe state nor the basi for the obligation to comply with international lw, ‘The standard international legal relation remains that bilateral right and uty ‘between two states (and this is often true even though the formal basis of the rela- tionship is found in a multilateral treaty). It corresponds to a simple civil obligation (whether in contract or tort (éelict) or property) in domestic legal systems. However, this simplified version of international law is beginning to change. In part this is because of the commitment of states to international organizations, in part to the ‘use of international law to create obligations in the general interest (at least of those states which accept the obligations), such as for the protection of human rights or of INTRODUCTION wm the environment. But there is no legal manifestation of the “international commis pty, the interests of which are promoted in this way. Where there is an international ‘oiganization, it may have rights as against state members to implement (or even 10 ‘enlorce) accepted standards. Where there is not, the burden falls upon other states take action to secure the implementation in the general interest of another satel ‘obligations. without themselves being direct victims of any breach of the law. tis not foo much of an exaggeration to detect the development of a limited system of rules ‘of public law in modern international law (and, for international organizations and (nibunals, a similar development ofadministrative law) (ee farther, chapter 27) There Js no international criminal law which applies to states as accused, but there is ait Increasing body of rales, administered in part by international tribunals, which sub: pets the conduct of individuals (potentially including state oficial) rointernationall fefiminal law. ‘These developments, particularly in the field of human rights, have added another legory of personality (albeit heavily qualified) to those within the international im, namely individuals and sometimes corporations created by national law, longer possible to deny that individuals may have rights and dutiesin interna ‘but what rights and duties they do have depends upon the operation of pa es of international law and not on any notion of natural personality operating Wil legal system. Theimportance attached to international human rights within 1h constitutions has added another dimension to the international legal pe , ‘element of constitutional law where identified values give a category of rules hie jhical authority: Thus, it is maintained, egregious violations of fundamental rules Juiran rights have constitutional consequences for an errant state, beyond ribed by the standard law of state responsibility. are difficulties with this concept, both in identifying the particular rl Holating the legal consequences of their violation. The possiblity has encour speculation about the ‘constitutionalization’ of international law, a ich would appear to imply that statehood is something which is conferred by | jiitional system (and which could be taken away), rather than predom “consequence of material facts of which the law takes account. But there ice, even from the most progressive perspective, that the foundation of egal obligation and the basic character of the legal system which ists pro heen significantly modified. Proposals for judicial review of Secarity Cony ons, for'global administrative law’ and so forth look fragile, given the ‘of the institutional limitations of the international system. it (2008) $7 ICLO 383, On the emergence ofa ‘slobal administra {200968 LCP 15. Stewart (2008) 68 LCP 63: Dyzen haus (2005) 63 Li