Situating International Law

Fuad Zarbiyev (Azerbaijan)

Syllabus
How international law is situated in the broader framework of
international affairs. After introducing the students to the distinctive
nature of international legal discourse, the course will focus on how
various actors do things with international law as universalizing narrative
allegedly transcending power politics through specific themes such as:
Why do nations comply with international law even though the latter
lacks coercive enforcement mechanisms?
Why do states create international courts and tribunals or choose to
litigate their disputes before them even though those courts and tribunals
have the potential to reduce states’ decision control?
How is international law mobilized by social movements and
activists to change the world?
What is the place of international law in the management and
resolution of international crises?
How do foreign policy objectives shape and inform states’ attitudes
towards the making and interpretation of international law?
Is international law properly equipped to deal with global
problems?

Reaction paper (1500)

cc. Irene Miano
May 15th —June 5th (2500-3500)

Power disparity
International law does matter-justification
Lacks effectiveness

Engage international law intellectually.

It is important to be flexible.
Be optimistic.
Session 1 Is There Law in International
Affairs?
Legal phenomenon.

Reaction paper to all articles in a whole session. Main arguments.

Final exam. Very specific.

I love to live dangerously. (尼采)

・What are the criteria?

1. national legal experience.
2. universalizing force

nothing, lack (international law), being (拉康)

lack is a place holder

Godfather

You talked about international lawyers losing faith in international

law. But what is international lawyers’ faith in international law? That we
believe that international law is neutral and value-free? Or precisely
because it is not, we want to know how this seemingly neutral and value-
free reality of international law is constructed?

Taking some great notes there?

1. (2014) A Legal Fiction

Pointlessness.

What is the source of the authority of the principles of

international law?

Nothing. … Their content varies wildly according to which lawyer

is consulted.
2. (2005) Does International Law Matter?
This is a powerful and pervasive view of international law — that it
is neither prescriptively powerful as law nor descriptively compelling as
analysis.

The leading powers are now undergoing an agony of self-reflection

… and this is the mark of the great democracies and a contrast to a pre-
war period marked by secretive and arbitrary decision-making hidden in a
slew of misinformation.

And every so often, someone, somewhere, in the midst of brutality

disorder and lawlessness, stands up and says, as the US prison guard who
handed over evidence to US authorities in January 2004 said: ‘There are
some things going on here that I can’t live with’.

3. (2000) Is There Really “Law” in

International Affairs?
I. IS IT ‘LAW’ OR ISN’T IT?
First, it has to exist within a coherent structural framework—a
constitution—that defines the government’s authority, and by so doing,
limits it, thus preventing arbitrary authority.

A treaty is an exchange of promises—period. … Our word in that

case is our political word and our moral word. It has nothing to do with
legality.

But this is plainly wrong. Practice is practice, and custom is

custom; neither one is law. … “Well, as I understand it, what you’re
saying is the only way to change international law is to break it.”

No free person should subject himself to an untried system of

authority based so much on assumptions and so little on reality.
II. WHY DOES IT MATTER?
In short, this is not “jurisdiction” in a legal process sense, but
instead a justification for the legitimate use of force.

As in Chile, the key issue in Indonesia is whether nations, especially

emerging democracies, are to be afforded the chance to confront the
realities of their own histories. They should set the moral, political and
legal standards by which they wish to be judged, implement those
standards in viable judicial codes and institutions, and then live with the
consequences of those decisions. … neither spared the pain of so doing
nor the lesson of living with whatever it decides.

In fact, “universal jurisdiction” is conceptually circular: universal

jurisdiction covers the most dastardly offenses; accordingly, if the
offense is dastardly, there must be universal jurisdiction to prosecute it.

More precisely, the responsibility has migrated from the elected

representatives of the people most directly affected to others, whose
interests, opinions, motivations and capabilities are often far-removed
from the consequences of the actions under scrutiny.

C. The Implications of Domesticizing “International

Law”
Within each democratic government, political interests compete for
power: the legitimate, constitutional authority flows from victory, in order
to implement their policy preferences. … “Civil society,” by contrast,
seeks to re-argue its preferred issues, by trying to leverage political
power from outside of the democratic polities where they have been
unsuccessful politically.

Citizens can and should debate the merits of mandatory sentencing,

and its impact on racial minorities, and Australians are perfectly capable
of making up their minds on the subject without help (or implicit pressure)
from outsiders.
 … they represent a shift away from a constitution-based decision-
making structure toward one that subjects us to the vagaries of world
opinion.

III. CONCLUSION
We should be unashamed, unapologetic, uncompromising
American constitutional hegemonists. … International law is not law; it
is a series of political and moral arrangements that stand or fall on their
own merits, and anything else is simply theology and superstition
masquerading as law.

4. (2001) The Importance of International Law

‘The importance of international law’ is a beguilingly
straightforward statement: bold, direct, positive, and confident.
However, behind those apparent certainties lie the many uncertainties of
the altogether more diffident question: ‘is international law important—
and if so, how and why?’

… the rule of law which go to make up those systems reflect a fair

balance between the competing interests which exist within our own
societies.

DO STATES ACCEPT THAT AN EFFECTIVE

INTERNATIONAL LEGAL SYSTEM IS AN
IMPORTANT ELEMENT IN THE FABRIC OF THE
INTERNATIONAL COMMUNITY?
They do not, of course, always know what sovereignty means, but
it is clearly worth having and keeping. Since from their perspective it
probably includes something akin to a right to do whatever they want to
do, the last thing that States are enthusiastic about admitting is the
existence of something ‘out there’—like a system of law—which tells
them there are certain things they cannot do.
 … Those with real international power seldom pay much attention
to the law: for them, rather than international law being the framework
which controls what they may do, it is their actions which shape the law.

As Tolstoy put it in War and Peace, it is now ‘necessary to renounce

a freedom that does not exist, and to recognize a dependence of which we
are not conscious’.

In this light, if politics is the art of the possible, then international

law is merely the art of the plausible.

In effect, States’ apparent acceptance of international law may be

little more than high-sounding tokenism: they may feel that the
importance of international law can be safely acknowledged precisely
because, in the final analysis, it is weak and can be ignored.

DOES AN EFFACTIVE INTERNATIONAL SYSTEM OF

LAW, INCORPORATING THE RULE OF LAW, IN
FACT EXIST?
The concern in respect of these areas is not for ‘orderliness’, but
rather for ‘order’ in the sense of ‘international public order’.

Sovereignty ⟵ It is being demoted to a symbol of emotional and

nostalgic attachment to a fictitious past.

The world does have a social conscience: John Donne told us that
we should ‘ask not for whom the bell tolls’ —the answer (‘It tolls for
thee’) is international as much as personal.
DOES THE RULES OF INTERNATIONAL LAW
REPRESENT A FAIR BALANCE BETWEEN THE
COMPETING INTERESTS WITHIN THE
INTERNATIONAL COMMUNITY?

‘Muddling through’

CONCLUDING OBSERVATIONS
Its importance is a function of its effectiveness and its ability to
respond to change. Both, at the present time and for the most part, are
adequate, but perhaps only just.

5. (2020) Why Should We Care about

International Law?
Waldron’s insight is that arguing in law is desirable for reasons that
cannot be traced to whatever material outcomes it might produce. It is
desirable, even when it does not appear to settle an issue in dispute or to
have an operational effect.

“express[es] respect for people as reasoning (and reasonable)

beings,” which “does seem an unqualified human good.”

6. (2005) An Outsider Looks at the Foreign

Office Culture
Oddity, after all, is the mother of hypothesis, which, in turn, begets
research.

The culture of reticence, complaisance, and complicity … Concern

for preserving one’s effectiveness, far more than cowardliness, is
notoriously the principal reason for doing the wrong thing.
 As viewed from the foreign office, academic international lawyers
like to interpret laws as if from Olympus, far above any perspective of
national self-interest.

7. (1969) Introduction
Most of the authors in this book are political scientists; their
conclusions are stark and, on the whole, pessimistic. … with a trenchant
view of the reasons why international law plays a minor part

1. assets both for the policy-maker and from the

viewpoint of world order
(a) … international law provides a kind of common language that
does not amount to a common code of legitimacy yet can serve as a joint
frame of reference
(b) International law affords means of channeling conflict —
international law has provided statesmen both with alibis for shunning
force, and with alternatives to violence

2. law as a tool of policy

(a) useful for the protection or enhancement of a position
(b) mobilizing international support
(c) a policy-maker who ignores international law leaves the field of
political-competition-through-legal-manipulation open to his opponents
or rivals … chessboard

3. not used
(a) the appeal of reciprocity
(b) fuzzing the legal issue (cf. dropping any reference to the legal
principle at stake… a repli on a less explosive or more procedural legal
argument…)
(c) the very ambiguity of international law… as if international law
were irrelevant
4. detrimental to world order and thereby
counterproductive for the state
(a) escalation of claims and counterclaims
(b) authorize states to increase their power
(c) attempts to enforce or to strengthen international law, far from
consolidating a system of desirable restraints on state (mis)behavior, may
actually backfire if the political conditions are not ripe

But what they tell us is not, as so many political scientists seem to

believe, that international law is, at best, a farce, and at worst, even a
potential danger; what they tell us is that the nature of the international
system condemns international law to all the weaknesses and
perversions that it is so easy to deride.

International law is merely a magnifying mirror that reflects

faithfully and cruelly the essence and the logic of international politics. …
Like the somber universe of Albert Camus’ Caligula, this is a judgeless
world where no one is innocent.

It is the nature of the system which makes premature worldwide

attempts at regulating behavior through legal norms positively
dangerous, yet keeps “informal” agreements and habits of restraint
tactical and shifting, and insures that the grand principles or values that
are invoked by most, and are of moral-political significance rather than
of a legal nature, remain stakes in a contest for legitimacy and power.

8. (2022) The War in Ukraine and

International Law
‘Quod licet lovi, non licet bovi’ is among the worst enemies of
international law whose efficiency largely depends on its being perceived
as a set of legitimate and even-handed rules and principles.

Session 2 International Law and Politics

“the hand of power”v. “the glove of law”
 “Rather than seeing the hand of power in the glove of law,
mainstream international lawyers focus on the glove.”

Law as a continuation of politics by other means.

International law as ‘a view from nowhere’.

Instrumentalism (the advisor)

Formalism (the judge)

International Legal Competence

1. language
2. management of the relationship between international law and
international politics

“For the international lawyer in government service, the past and

the future of the nation are an integral part of its present.”

“To study ideology is to study the ways in which meaning serves to

establish and sustain relations of domination.”

“a body of timeless absolutes, good for all seasons and all places,
and postulated a priori in advance of actual problem situations.”

“have a particular interest in the universal, in reason, truth, virtue,

engage…”

1. (2004-2005) International Law and Politics

I. International Law, Politics and the Competence
of the International Lawyer
1. Introduction: International legal “Competence”
I shall argue that this competence involves the management of the
relationship between international law and what counts as “international
politics”, as seen from the perspective of the former.

Linguistic ability (oral + written) + polemical contestation

 In such situations, legal competence appears in the application of
the “legal/illegal” distinction to the facts at issue or the broader but
homologous differentiation between “international law” and “politics” to
the understanding of whatever aspect of the normative or factual world is
being discussed.

So I began to think that the competence of the international lawyer,

too, was independent of the particular client, position or argument she
was supporting.
There were distinctive, highly formal patterns in which one’s
argument had to be expressed in order for that argument to seem
professionally competent.

・the ability to use language in a formally correct way

irrespectively of what is being said in that language
In all spheres of international legal argument, protagonists engage
each other by defending their view as “law” while pushing the
adversary’s position into “non-law” … By becoming “non-law”, the
rejected position becomes (“merely”) “politics”.

Where politics is about power, war and violence, law is about rules,
peace and security. Law is the “reason” to the “passion” of politics, the
“objective rule” to the subjective bias of politics. … The point is only to
say that international law defines itself by opposing what seems
dangerous and what we understand as merely “political”.

・the reversibility of international legal argument

It is that reversibility that accounts for the continuation—indeed
provides the continued possibility—of international legal speech.

2. The Grammar Sketched: Between “facts” and

“ideas”
・the critique of apology
 … “politics” is a fact of power. … Law exists to prevent this. … Law
not only describes reality but is critical of it and poses to demands to it,
not about what “is” (as fact) but what “ought to be” (as idea).

Sources (normative but utopian)

・the critique of utopia

… politics as ideology, struggle… law must stand firmly as a social
fact, objectively present, verifiable, and authoritative irrespective of
anybody’s (political) ideas. … Law is the sovereign who sends out the
police to crush the rebellion;

Sovereignty (concrete but apologetic)

1) Against politics as facts (or power) law is invoked as

(normative) ideas;

2) Against politics as ideas (ideologies), law is invoked as

(concrete) social facts.

3. Analysis of Political Events

That transcendence—transcendence of the limits of oneself, of one’s
tribe or nation, or one’s interest-group—is a project embodying key
aspirations of modernity itself. These aspirations are less about definite
institutions or principles than about hope and freedom—hope in the sense
that the present world is not a permanent limit for political imagination,
and freedom to the extent the future would not be determined by
structure but by conscious human decision.

The histories of the law as the white knight can also be told as
narrative of ambition and greed of those very same knights.

“fact as proof of right”

4. Ideas and Facts in the Histories of International Law

5. Ideas, facts and the Structure of Doctrinal
Controversy
・Scepticism
Sceptics accept that international law is neither very normative (i.e.
its demands are only weak) nor very concrete (i.e. nobody pays much
regard for it) and ultimately leads lawyers such as Hans Morgenthau, for
instance, beyond international law altogether.

・Idealism
Law is both normative and concrete. … In critique, the “reality”
being condemned is associated with a past history (colonialism…) whose
ghost still lingers in today’s world. In the sociological grounding of the
critique, however, that which is “real” is understood as the “underlying”
or “invisible” world of interdependence and solidarity.

・Rule-approach
predominantly normative—and concrete only in a subsidiary,
suppressed sense

・Policy-approach
predominantly concrete—and normative only in an underdeveloped,
invisible way

a cultural icon—a last representative of the quintessentially modern

effort to bring about political progress by adopting the posture of staunch
objection to everything political
2. (2004) International Law and hegemony: a
reconfiguration
I shall describe international law as process of articulating
political preferences into legal claims that cannot be detached from the
conditions of political contestation in which they are made. Instead of
international law as strictly opposed to hegemony, I shall discuss it as a
hegemonic technique.

The Hegemonic Technique

Instead, it always appears through the positions of political actors,
as a way of dressing political claims in a specialized technical idiom in
the conditions of hegemonic contestation.

… two (understandable) objectives: to encompass as much as

possible of the behavior of one’s enemies while making sure that
nothing would limit the freedom of action of one’s own country. …
completely binding… completely open ended…

A Basic Ambivalence: Between Unity and Diversity

The Law of Force: Imperial Themes
The Law of Peace: Fragmentation Themes
1. new institutions have sometimes interpreted the general law in
unorthodox ways;
2. functional differentiation has institutionalized firm exceptions
into general law;
3. fragmentation pits particular regimes against each other;

Trade: Utilitarian Themes

Human Rights Themes
Globalisation Themes
To become a party is to agree to continued negotiation.

Conclusion: From Hegemony to Community

… poverty being the most striking example, that is, problems the
hegemon usually casts as outside regulation by public international law.

Unlike claims of privilege or interest, claims of law constitute the

claimants as members of a legal and thus also a political community.

Freedom and equality, however, can be realized only if the

international world is understood as a political community, that is, a form
of interaction where social power turns into political authority through
claims about rights and duties that are universalisable, that is, claims of
law.

3. (1994) International Law as Ideology:

Theorizing the Relationship between
International Law and International Politics
I. Realism and International Law
… international law is a part of international politics in a way that
is not true vice versa.

II. Theorizing the Power of Ideas

The power of international law can only be the power of the idea of
international law.

・Ideology
 … an ideology is an idea/principle or set of ideas analyzed in terms
of power. It is assumed that every political structure has one particular
principle integral to that power structure. The power structure is more
than that ideology, but without the ideology, the structure would collapse.

It does not even matter whether individuals believe the idea or not.
What is crucial is the demonstrated acceptance of the shared idea by
members of the political order.

An ideology upholds an order of power through blocking evidence

of that power structure. An unequal relationship of power is concealed or
denied. An ideology sustains a power structure through its portrayal of an
ideology’s subject matter as not only a source of power but as one of
prestige. This justifies utilization of that power source by those placed in a
favorable position by its use. Those in a less favorable position, on the
other hand, are unlikely to challenge the validity of that power source,
but rather to endeavor to improve their own position in relation to it.

… an ideology does not exist in isolation from other ideas and

meanings. … An ideology must deal with competing ideologies through
defeating or absorbing them.

III. The Application of Ideology Theory to the

Theorization of the International Law-
International Politics Relationship: The Idea of
International Law and Legal Discourse
As new issues arise in international politics so international law
expands to cover those areas in a manner such that the system retains the
appearance of political neutrality.

IV. The Idea of International Law and the Realist

Paradigm
V. Conclusion
 It has been suggested that the idea of international law is integral to
the international distribution of power and that it actually sustains the
structure of the international political order.

It can now be seen that States neither obey or disobey international

law; they simply act so as to demonstrate acceptance of the ideology of
international law.

4. (2004) The Relevance of International Law

for Foreign Policy Decision-making When
National Security Is at Stake: Lessons from the
Cuban Missile Crisis
I. The role of international law in US decision-
making during the Cuban Missile Crisis: The
Existing Literature
According to realists, law is at best a disguise for interests based on
calculations of power; foreign policy the manifestation of a rational
assessment as to what will enhance the power of the state.

II. Comparing Existing Interpretations of the Role

of International Law in US Decision-Making during
the Cuban Missile Crisis with the Historical Record
President Kennedy should write to Khrushchev responding
positively to Khrushchev’s first letter as though the second had not been
received.
III. Comparing the existing empirical literature and
its theoretical underpinnings against the historical
record
“[T]he art of using law as a means of pursuing national interests
is the art of drawing on the obligations of another state to play its part in
upholding the ideology in such a way that the rules of international law
discriminate against the other party, but do so in such a way as to retain
the appearance of law as neutral, both in construction and in
operation.”

IV. International Law as Ideology

V. International law as ideology and US policy-
making and implementation during the CMC
VI. Conclusions

5. (2018) The Empire of International

Legalism
The rule of law is broader: it is a widely shared ideology.

Legalism is a practice, specifically the practice of using law and

legal arguments to explain, justify, or contest acts and policies.

INTERNATIONAL LAW AS EMPIRE

Duncan Bell defines “empire” as a situation in which “a polity …
exerts decisive or overwhelming power in a system of unequal political
relations.” … Instead, I am highlighting that the international legal
system is also a political system based on the dominance of law over
politics for governments around the world. This relationship is
appropriately described as an empire.
 As a result, the power of international law is not a matter of
believing in law or not. … reinforced by material rewards and
punishments … toward the law or the idea of the rule of law.

THE ENCHANTED VIEW OF INTERNATIONAL LAW

For the United Nations, promoting international law is both a
means and an end.

THREE OPEN LINES OF RESEARCH

1. it encourages scholars to look more empirically at how
international legalization distributes gains and losses.

Pay attention to who is empowered by legalism to do what to

whom.

… consider empirically what these legal justifications produce for

real people in the world. … more show how they are designed to advance
some interests at the expense of others.

CONCLUSION

Session 3 The Problem of Compliance with

International Law
Compliance
(Why a problem? Problems inside? Then why matters? Ways
out?)
(e.g. CIL)
“the most helpful form of legal appraisal is one of degree,
conceiving of legality and illegality by reference to a spectrum.”
Effectiveness
Implementation

Breaking law in order to change it:

 1. remaining inside the law;
2. publicity;
3. accepting consequences;
4. generalizability;

Compliance trilemma

Myth is different from fiction. We don’t think there is anything false

about myth. The falseness of myth is ignored. Treat it as if it is true.

1. (2000) Compliance & Effectiveness in

International Regulatory Cooperation
INTRODUCTION
Compliance: conformity between behavior and a legal rule or
standard;
Compliance exists, but the causal link between it and the legal rule
of interest is very weak;
Can also occur for reasons entirely exogenous to the legal process;
Progressive realization (e.g. international human rights)
Effectiveness: the degree to which a legal rule or standard induces
desired changes in behavior;
Implementation: a critical step toward compliance, compliance
can occur without implementation;
The empirics of implementation process;

II. COMPLIANCE, IMPLEMENTATION, AND

EFFECTIVENSS
1. measuring or evaluating compliance;
2. ascertaining why compliance or noncompliance occurs;

Why is compliance a problem in international arena?

Compliance, Effectiveness & Causality

2. (2019) Is Compliance an Indicator for the

State of International Law
I. Compliance as an indicator: Empirical and
methodological challenges
II. Is compliance an accurate proxy for the status
of international law?
1. Beyond compliance
2. Against compliance
3. Is non-compliance ever useful?
… the continued vitality and relevance of customary international
law is premised upon non-compliant acts
III. Why compliance matters: The ‘compliance
trilemma’

↖ Ways out
 ↖the use of differentiated obligations
↖the possibility of ‘side payments’

IV. Conclusion

3. (2005) Toward an International Rule of law:

Distinguishing International Law – Breakers
from would-be law-makers
1. WHAT IS THE RULE OF LAW?
2. LAW-MAKING BY LAW-BREAKING
2.1 Amending Customary Law

2.2 A Breach Is a Breach?

3. STANDARDS FOR WOULD-BE LAW-MAKERS

3.1 Breaching Publicly
3.2 Accepting the Consequences of Breach

4. THE RULE OF SOFT LAW

4.1 The Growth of Soft Law

4.2 Respecting Soft Law

4.3 Enforcing Soft Law
5. GENERALIZABILITY: TESTING STATE SINCERITY
ordinary reciprocity
reciprocal tit-for-tat

4. (2012) The Quest for World Order and

Human Dignity in the Twenty-first Century:
Constitutive Process and Individual
Commitment
・myth system + operational code

5. (1985) World Politics and International Law

Problem
Reason: The Time-lag Phenomenon

Hope

Session 4 Is International Law Just?

What is the relationship between law and justice?

Justice as a by-product of the application of legal rules?

No.
Empirically speaking, what is the main product of legal rules?
Also, what is the designed product of legal rules?

Justice as allocation
 ‘how society distributes the things we prize’

Typologies
4. Comparative v non-comparative justice

Rawl’s Original Position

No personal conception of the good. Only primary social good.

(rights and liberties; powers and diverse opportunities; income and
wealth; and the social bases of self-respect)

Veil of ignorance: no one knows his or her place in society, class

position or social status, nor does anyone knows his or her race or
gender, fortune in the distribution of natural assets and abilities, level of
intelligence, strength, education, and the like. So no basis for
bargaining for advantage.

⟶ force you to be fair

the silence of international law

蛋糕模具
（if you are a foreign investor）

1. (2015) Legal and Ethical Approaches to

Global Justice: The Dialogue of the (Near-)
Deaf
on the forms, causes, and consequences of the gaps between the
disciplines

One can still endorse – or criticize – certain norms as reflecting

certain values without conceding a degree of moral consciousness to
states that they may well not deserve.
 International law is still dominated by Northern governments and
scholars, who see wealth inequities as one of many global issues to be
addressed, but not morally or politically more imperative than the others.

What is the morally permissible range of diversity among them?

It is not that the law is morally wrong, but simply that it is

irrelevant.

2. (2015) Conceptual Groundwork for a

Standard of Global Justice
A relational concept … who gets to do what, or who gets to have
what, vis-à-vis other actors’ claims.

How are we to live together, given that we have different ideas

about how to live?

・Justice as impartiality
 Yet that community is formed by the rules; it cannot be used to
justify the rules.

3. (2015) A Standard of Global Justice

the preservation of peace and the protection of human rights

1. Peace
・Peace first
Consequentialism tolerates some very serious harms to certain
individuals as long as they can be justified for the greater good.

・Peace from personal and structural violence

2. Human rights

・ Minimum
・ Equality
Session 5 Is International Law Biased?
What is the connection between biase and justice?
Playing favorites.
Consider if there is other outcome

Not just the application of law.

Counter-factual
 DE familiarization
The remarkable power of the unremarkable

Imagine INTERNATIONA LAW at the stage of formation

The way the international law is transmitted

Unconsciously biased: no western approach to international law

(some stand for universal), but we have Marxist (Third World) approach
to international law

Who (whoever has monopoly) has the power of universal?

Geneva is a city where nothing happens.

Law, from its beginning, is structured in certain ways.

e.g. breaches of international law: intellectual rights > hunger

that could have been conceivably possible

People know what they do; frequently they know why they do what
they do; but what they don’t know is what what they do does.

Makeup class

1. (2023) Black Guilt, White Guilt at the

International Criminal Court
systemic racism within the structural design of the court

nominally race-neutral stance ⟶ explicitly anti-racist orientation

I. Institutionalizing Black Guilt

1. Deferral of investigation or prosecution (Article 16 of
the Rome Statute)
2. The temporal limitations (Article 11 of the Rome
Statute)

Invite you to be counter-factual

3. The definitional limitations (Article 5 of the Rome

Statute)
White crimes

II. Prosecuting Evil

・Anti-racist expressive orientation
passive⟶ active
III. Decontextualizing Harm

2. (2006) The Evolution of International Law:

Colonial and Postcolonial Realities
Pragmatism

The colonial origins of international law

Viroria
The centrality of commerce to international law, and how commercial
exploitation necessitates war

Decolonization and the postcolonial state

Towards the present: the “war on terror”

Conclusion
They are racist, but hidden, which is more complex.
 Hell is empty, for all the devils are here.

Session 6 Legitimacy and Accountability in

International Law
Legitimacy: “the prestige of being considered binding”
“recognized right to rule”

・the relationship between legality and legitimacy

Something that is unlawful but legitimate (e.g. the Kosovo

intervention)
Lawful but illegitimate (e.g. perm-5)

Law has that universalizing effect that legitimacy does not have.
・various dimensions of legitimacy

What is the difference between conceptual legitimacy and normative

legitimacy?
Causal legitimacy

urge < demand

・justified disregard

1. practical consideration;
2. mandate limitations;

・substantive disregard and procedural disregard

・Which regulatory bodies?

・Who is entitled to regard?

“Where the decisions of administrative authorities’ target serious

harms on discrete groups and individuals, their moral claims for regard,
including adequate processes to ensure such regard, are overwhelming.”

When there is no water, food, shelter, who cares about legitimacy?

You thank for the people who give you those things. You may don’t know
what is legitimacy but you accept, that is to say, voluntarily accept. Your
power is dedicated to survive instead of struggle.
1. (2004) Sources of Legitimacy Beyond the
State: A View from International Relations
・Legal rational governance
・Democratic input?
It does not mean that they are legitimate, but that they are
legitimized differently.

・Functional output?

・the nature of domination structure

 ・rational justification

・a discursive equilibrium that is always open to

challenge (legal-rational legitimacy)
2. (2014) Remedying Disregard in Global
Regulatory Governance: Accountability,
Participation, and Responsiveness
Justified disregard

1. Institutional specialization &

Judicial ⟶ Executive ⟶ decisional
externalities

Diplomats fiddle while the world burns.

Administrative Law Requirements
(e.g. ‘the right to health’ general comment)

(1) Notice of proposed decisions

(2) Opportunity of comment
(3) Reason giving
(4) Opportunity for some form of review

2. Structural disregard
Regard is the antonym and remedy for disregard.

・Who to regard?

・justified disregard

⟵ decisional rules
⟵ accountability?
⟵ other regard-promoting mechanisms

We are all (to a certain extent) snobs.

 Non-rubbish test

3. (2012) Legitimacy in International Law and

International Relations
・Legitimacy: it has a right to rule (govern)
・Normative Legitimacy (the truth of the
philosopher) & Descriptive Legitimacy (the belief of the
people)
・Normative (relativity of) legitimacy (What are you talking
about?)
・Descriptive legitimacy (Whom are you talking to?)

・Relations
The normative criteria are the test of descriptive legitimacy.

Session 7 International Law and Activism

for Social Changes
 Governmental non-governmental organizations

Consultative status with ECOSOC (Article 71 of the UN Charter)

It is like asking fox to draw a manual of security for chickens.

INPUT(participatory) ⟶ THROUGH-PUT (procedural and

deliberative) ⟶ OUTPUT(result-based)

Key criterion: aiming at compliance, not raising awareness or

shaming wrongdoers
1. (2004) NGOs, the International Criminal
Court, and the Politics of Writing International
Law
・ICC ⟵ States

・the Power of NGOS: communicative action

・with resource poor

・volunteer experts

・well-documented summaries
2. (2021) Transnational Lawmaking Coalitions
・based on semantic indeterminacy of
international law

・defining transnational lawmaking coalitions

・individual actions
・for the purpose of lawmaking

・3 conditions

3. (2021) How Water Became a Human Right

4. (2022) NGOs as Enforcers of International
Law
・pluralization and privatization of international
law enforcement

・differentiation and competition

・autonomous enforcement of international law
・enforcement?

Key criterion: aiming at compliance, not raising awareness or

shaming wrongdoers

There is still room (↖ organizational competition).

・transnational?
 Evidence base is very solid.

↘ legitimacy, accountability, effectiveness

↖ 3 drivers
↖ What makes it possible?

Session 8 International Law and Power

Disparities

Power: You don’t have to move a finger, for a system has been
created in favor of your preference and it comes out with only one
outcome (e.g. BIT).
 Power is not an attribute, or something you can possess. For in
power it is a matter of relationship. There is no power outside its exercise.

The Manual

1. (2005) International Law in Times of

Hegemony: Unequal Power and the Shaping
of the International Legal Order

1. As an instrument of power
・ the value of multilateral institutions
・regulation, pacification & stabilization

⟵ the world can very well survive without the US (ICC, WTO)

・ the promises of international law

・stability, equality & coherence

Stability ⟵ Stopped a policy overnight (e.g. French minister with

criminal charge), but cannot change the law overnight

Coherence ⟵ Why is it OK for the US (Nicaragua) not China

(South China Sea)?

・the role of authority (internalization of the norms)

⟶ softer and more hierarchical international law
international law-making ⟶ informal policy networks

the privatization of international rule

⟶ the turn to domestic law

 national security consideration
anti-competition law
sanctions

2. withdrawn from
the world can very well survive without the US

(1) limiting the reach of international law ⟶ turning

to domestic law
(2) resistance to multilateral treaties ⟶ bilateral
treaties
2. (2006) Power and International Law
I. Classicism (Law was a science, and thus could be
divorced sharply from politics)

II. Three faces of realism (politics by other means)

1. traditional realism
2. structural realism

3. the realist-institutionalist hybrid

III. International law matters

1. sociology and international law

2. rationalist institutionalism
3. liberalism

IV. Constructivism

・A disciplined craft requiring practical wisdom and

sophisticated judgment
The finest practitioners of international law have less resembled
chemists with equations than decision makers glimpsing through a glass
darkly to guide human affairs against the brute fact of conflict and a fierce
desire for cooperation. They have all operated with a keen consciousness
of the primacy of power and the inevitability of conflict, yet have also
skillfully developed cooperative institutions for the betterment of
humanity. Dean Langdell, after all, was wrong: law is not a science; the
lawyer’s materials are not all found in printed books; and law cannot
divorce itself from politics.

3. (2004) 2 Sovereign Equalities

・philosophical roots
・1815

1. Formal equality

2. Legislative equality
3. Existential equality

・tolerated inequalities
4. (2004) 4 Legalized hierarchies

1. Legalized hegemony
2. Liberal anti-pluralism

3. Other hierarchies
(1) the class distinction between states and non-states
(2) internationalism certain territories

4. Conclusion
(1) human rights

(2) the use of force

Session 9 International Law and Global
Poverty
unintended but necessary consequence

Poverty (is a phenomenon created) is not just a condition, but a

relationship.

The remains of the day

How do we solve this problem?

Human rights sentimentality and solidarity (education and

socialization)

A matter of sensibility

1. (2016) The Role of Law in Global Value

Chains: A Research Manifesto
How does law shape the structure and organization of production
globally?

How is law impacted through this process?

・GVCs

Legal geography of GVCs

Law, value and power

Conclusion
2. (2011) Why Should It Matter That Others
Have More? Poverty, Inequality, and the
Potential of International Human Rights Law
false necessary

the right to life (bare minimum)

Things could have been otherwise, but they are the way they are
because of law.

Half of the world is starving, while half of the world is redoing their
kitchens.

Planned misery

Structured biases
 Nothing is being done to redo the machine.

We shouldn’t expect too much from law. Law very rarely addresses
structural problems. It is not impossible to invent new tools.

You are poor because of you don’t have institutions.

Kicking away the ladder

1. Poverty as an issue of unequal distribution of

resources and not of scarcity
2. Global equality as an instrumental good

3. Global equality as an intrinsic good

3. (2016) Creating Poverty

・Poverty is a by-product of the creation of
wealth

・Poverty as a Legal Regime

・Human Rights and Global Poverty: A Story of
Misconception and Exoneration

1. Distraction
2. Localization

3. Complicity (international economic law)

4. Distortion (imagined history of development)

Session 10 International Community:

Imperialism by another Name?
As if the international community is a person (I am wearing pajamas
under this suit. It will probably go to the bathroom when it wakes up.)

It is potentiality as opposed to existence.

Why is it that we have this community talk then?

Article 18
Precisely because of division

Common heritage of mankind

the origin that stinks (Nietzsche)

 Definitions
‘countries of the world considered collectively’ (newspaper)

I disagree with the subway/bus point. Whenever an event happens,

when we face a common danger. There is a community.

Tony Blair

Intcom (the US joined by some allies)

You can’t be old and still stupid.

Trust those who are seeking the truth, be skeptical of those who has
found truth.

Truth as a place holder. You don’t have it now does not mean it is
not necessary.

The phenomenon as oppose to the knowledge of the thing.

1. (2006) What the Hell is the International

Community?
If it only means the west, the great majority of the world is being
ignored.
2. (2002) Imagining the International
Community
1. Introduction
・the idea of community
・taken as given

・community v rabble ⟶ fairness discourse

function rather than the identity of actors

the history of the multiplication of states
the vital ‘universality’ of international law
2. The Rhetorical Usage of International
Community
・co-operation instead of co-existence
 Just as within domestic politics, the notion of community – the belief
that partnership and co-operation are essential to advance self-interest –
is coming into its own.

‘our self-interest and our mutual interests are today inextricably

woven together’

socialization of international society

D. Multiple and Concentric Communities

・legislators, addressees and adjudicators of the system (on
the basis of the functions and competences of their respective
members)

the 2001 ILC Draft Articles on State Responsibility ‘the

international community as a whole’ instead of ‘the international
community of states as a whole’

E. Legislators, Addressees and Adjudicators

in toto towards the realization of the rights of individuals

3. The Imagined International Community: A
Modest Critique

Fairness is a product of social context (community) and history.

legitimacy & distributive justice

3. (1998) The ‘International Community’:
Facing the Challenge of Globalization
1 The Meaning of the Term ‘Community’

2 Concepts of ‘International Community’

・Hobbesian

・Grotian
・Vattelian

・Neo-Grotian

・Kantian
3 Elements of Assessment of the Contemporary
International Community
A. Realism – Old and New

B. Kantian Individualism

4 Conclusion
4. (2019) International community
In fact, it often appeals precisely because it is evasive.

2.2 The Essential Normative Claim

2.4 The Use of the Concept in Different Traditions of

Thought
3. THE FUNCTION OF INTERNATIONAL LAW IN
THE INTERNATIONAL COMMUNITY
3.1 Generalities

4. THE PROPER LAW OF THE INTERNATIONAL

COMMUNITY: SELECTED SITES OF CONTESTATION

4. Conclusion
5. (2002) The new liberal imperialism
6. (2022) European Diplomatic Academy:
Opening remarks by High Representative
Josep Borrell at the inauguration of the pilot
programme
Refugee
Session 11 The Politics of Universal
Jurisdiction and International Criminal
Justice
Self-referral ⟵ the cooperation of state concerned

ICC being selective

Refugee flow

Positive incentives: 1. Legitimacy; 2. Domestic and transnational

human rights constituencies;

Negative incentives: 1. Diplomatic costs; 2. Economic costs;

1. (2011) The Diplomacy of Universal
Jurisdiction: The Political Branches and the
Transnational Prosecution of International
Crimes
national universal jurisdiction statutes

the role of the political branches, specifically the executive and the
legislature

gain the support of human rights groups and domestic

constituencies sympathetic to foreign human rights

defendants who impose low international relation costs (the

international community has most clearly agreed should be prosecuted
and punished and that their own states of nationality have not defended)

I. THE UNIVERSAL JURISDICTION ENFORCEMENT

REGIME
II. FIVE CASE STUDIES ON UNIVERSAL
JURISDICTION
Germany
England and Wales
France
Belgium
Spain
III. HOW STABLE IS THE CURRENT UNIVERSAL
JURISDICTIONAL REGIME?
2. (2010) Doing Justice to the Political: The
International Criminal Court in Uganda and
Sudan
Session 12 The Dynamics of International
Law: Contestation, Resistance, Change
and Resilience
Law-leverage states

New international economic order

 Romantics
Cynic

Realistic

1. (2014) International Courts as Agents of

Legal Change: Evidence from LGBT Rights in
Europe
It depends on the country. Context-specific.

America: Political actors don’t want to touch hot potatoes.

EU: Does not believe courts can initiate changes. Courts are never
leading the changes.

You want to avoid litigation.

International membership condition
Agenda-setting
2. (2018) International law and the practice of
legality: Stability and Change
interactional international law
practice of legality

human rights interpreted into revolutionary manner

I don’t see how to explain structural (only incremental) changes.

To be able to change you have to learn to speak in that language

(operating behind)
3. (2021) The Dynamics of International Law
Redux
Let us not use one-size-fits-all approach.
4. (2023) A Quiet Revolution in the Making?
The Changing State Authority in Treaty
Interpretation
open the black box of state authority in treaty interpretation
Essay question
Graduate
An issue (shouldn’t be as broad as our theme)
Something that cuts across many things