04 Feb The paper should be an analytic Case study of international law’s role in a political dispute.? Disputes need not have been ‘
The paper should be an analytic Case study of international law's role in a political dispute.
Disputes need not have been "resolved" to be studied.
Case studies chosen could involve disputes over Legitimacy of states, Territorial rule, the Use of force, Law of the Sea, Environmental Law, Humanitarian Law, International economic law, and many more.
The coursebook comprises a list of countless international law case studies. The final paper should be 8 to 10 pages, not including references.
INTERNATIONAL LAW FOR INTERNATIONAL RELATIONS
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1
INTERNATIONAL LAW FOR INTERNATIONAL
RELATIONS
Baş ak Çalı
3 Great Clarendon Street, Oxford ox2 6dp
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British Library Cataloguing in Publication Data Data available
Library of Congress Cataloging in Publication Data
International law for international relations / Başak Çali. p. cm. ISBN 978-0-19-955842-1 1. International law. 2. International relations. I. Çali, Başak, 1974– KZ3410.I5794 2010 341–dc22
2009042108
Typeset by MPS Limited, A Macmillan Company Printed in Great Britain on acid-free paper by
CPI Antony Rowe
ISBN 978–0–19–955842–1
1 3 5 7 9 10 8 6 4 2
Contents—Summary
Preface xvi
Guided tour of Learning Features xviii
Guided tour of the Online Resource Centre xx
Contributors xxii
Abbreviations xxv
List of boxes xxviii
List of tables xxxi
List of case studies xxxii
PART I STUDYING INTERNATIONAL LAW
1 International law and international relations: foundations for interdisciplinary study 3
Başak Çalı
2 Perspectives on international law in international relations 25
Fiona B. Adamson and Chandra Lekha Sriram
3 Basic principles of international law: a historical perspective 46
Antony Anghie
4 Perspectives on international relations in international law 71
Başak Çalı
PART II IDENTIFYING INTERNATIONAL LAW
5 International treaties 99
Emmanuel Voyiakis
6 Customary international law 122
Jason Beckett
7 Non- governmental organizations and international law 141
Meghna Abraham
8 International courts and tribunals 165
Juan M. Amaya-Castro
vi Contents
PART III TOPIC S IN INTERNATIONAL LAW
9 States and international law: the problems of self- determination, secession, and recognition 191
Christopher J. Borgen
10 Use of force in international law 213
Nigel Rodley and Başak Çalı
11 International humanitarian law 234
Elizabeth Griffi n and Başak Çalı
12 International criminal law 258
Paola Gaeta
13 International human rights law 281
Başak Çalı
14 International law for environmental protection 306
David M. Ong
15 World trade and international law 330
Thomas Sebastian
16 Global social justice and international law 351
Saladin Meckled-Garcia
CONCLUSION
17 International law in international relations: what are the prospects for the future? 379
Başak Çalı
Table of cases 395
Table of major multilateral international treaties and documents 397
Glossary 399
References 409
Index 421
Detailed contents
Preface xvi
Guided tour of Learning Features xviii
Guided tour of the Online Resource Centre xx
Contributors xxii
Abbreviations xxv
List of boxes xxviii
List of tables xxxi
List of case studies xxxii
PART I STUDYING INTERNATIONAL LAW
1 International law and international relations: foundations for interdisciplinary study 3
Introduction 4
What is international law? 5
The relationship between international law and international relations 7
Are international relations and international law two separate disciplines? 7
How does the knowledge produced in international relations and international law overlap, confl ict, and co-depend? 12
At what point and in what way does international law enter into international relations research? 16
Why study international law? 20
Conclusion 23
2 Perspectives on international law in international relations 25
Introduction 26
Realism 27
Theory 27
Actors 28
Processes 29
Liberalism 30
Theory 30
Actors 32
Processes 33
viii Detailed contents
Institutionalism 34
Theory 34
Actors 34
Processes 36
Constructivism 37
Theory 37
Actors 38
Processes 39
Marxism, Feminism, and Critical Theory 41
Theory 41
Actors 42
Processes 42
Conclusion 43
3 Basic principles of international law: a historical perspective 46
Introduction 47
The subject matter of a history of international law 47
The birth of modern international law: the sixteenth century 50
The beginnings of Empire 50
The Peace of Westphalia and Westphalian sovereignty: 1648 52
The Congress of Vienna: international law from 1815–1914 54
The League of Nations: international law from 1919–1939 57
The United Nations: 1945 to the present 60
The end of the Cold War: international law from 1989 64
Conclusion 68
4 Perspectives on international relations in international law 71
Introduction 71
What is international law? 73
Positivism about international law 74
Natural law descriptions of international law 77
International law as a process 79
Critical legal studies and international law 80
The purpose of international law 82
The relevance of theories of international law in international relations 86
The empirical relevance of international law 87
Detailed contents ix
The relevance of international law in the contemporary world 88
Conclusion 89
PART II IDENTIFYING INTERNATIONAL LAW
5 International treaties 99
Introduction 100
Why do states make treaties? 101
The relationship between treaties, customary international law, and the concept of ius cogens 103
Is there a hierarchy of sources in international law? 103
The concept of ius cogens in the Vienna Convention on the Law of the Treaties 104
The making of treaties 105
Negotiation 106
Representation and ‘full powers’ 107
Adoption, authentication, and expression of consent to be bound 107
Entry into force 108
Universality or integrity? Reservations to treaties 108
What are reservations? 110
Application, interpretation, and the position of third states 112
Third states 113
Temporal and territorial application of treaties 113
The interpretation of treaties 114
Amending a treaty 114
Ending international treaties 115
Invalidity 116
Termination and suspension 117
Settling disputes 118
Conclusion 119
6 Customary international law 122
Introduction 122
What rules govern the formation of CIL? The conduct- centred model 124
The CIL approach to state behaviour: states as agents with legal motivations 125
What are the material sources of CIL? 129
x Detailed contents
State actions 129
United Nations General Assembly Resolutions 130
Treaties and other texts 131
Identifying particular rules of CIL: the tipping point 132
CIL in the real world 134
The compatibility of CIL with ius cogens norms 135
(Why) do states comply with CIL? 136
Factors contributing to compliance with CIL: state identity and systemic benefi ts 136
Conclusion 138
7 Non- governmental organizations and international law 141
Introduction: non- governmental organizations in a terrain occupied by states 142
Motivations for NGO involvement in international law 143
Overcoming domestic politics or barriers 144
Economies of scale 145
Better forum for negotiations 145
Opportunities to gradually increase the scope or level of the commitment 145
Enhancing the legitimacy of NGOs 145
Mechanisms for international enforcement 146
NGOs and sources of international law 146
NGO participation in intergovernmental organizations and processes 149
The role of NGOs in the development of international law 151
Initiating new standards 151
NGO participation in negotiations, drafting, and entry into force of treaties 154
How can we explain NGOs’ ability to infl uence the process? 156
The role of NGOs in the enforcement of international law 157
Publicize non-compliance 158
Clarifi cation of what is non-compliance 158
Lobby for action in response to non-compliance 159
Evaluating NGO involvement in the development of international law 159
Redressing a democratic defi cit? 159
How do we gauge how effective NGOs have been? 161
Conclusion 161
Detailed contents xi
8 International courts and tribunals 165
Introduction: international courts in contemporary life 166
What are international courts? 166 Types of international courts 167
How international courts are formed 171
Who can bring a case to an international court? 171
What is the effect of international judicial decisions? 176
What are the functions of international courts? 178
Dispute settlement 178
Enforcing international law 179
Identifying and developing international law 180
When are international courts successful? 182
The future of international courts and tribunals 183
Conclusion 184
PART III TOPIC S IN INTERNATIONAL LAW
9 States and international law: the problems of self- determination, secession, and recognition 191
Introduction 192
International law and statehood 193
Statehood and sovereignty 193
What is the recognition of statehood? 195
International law of self-determination 197
Self- determination: from political rhetoric to legal right 197
Applying self- determination to international relations: who or what has a right of self-determination? 199
Applying self- determination to international relations: the territorial integrity of states 200
The problem of secession in international law and international relations 200
The majority view: no right of secession 201
The reply: the ‘extreme cases’ argument 203
Secession and state practice 204
Recognition and secession 205
Conclusion 207
xii Detailed contents
10 Use of force in international law 213
Introduction 213
The general framework on the use of force in international law 215
Self-defence 217
When can states resort to the right of self-defence? 218
What circumstances justify self-defence? 219
The conduct question 220
The use of force, self- defence, and non- state actors 221
Unilateral humanitarian intervention? 222
The collective security system under the United Nations Charter 224
The power of international law on the use of force: rhetoric or controlling? 228
Conclusion 231
11 International humanitarian law 234
Introduction 234
What is international humanitarian law and how is it made? 236
IHL treaties 238
Customary IHL 239
The nature of international humanitarian law 240
IHL and actor-centricism 240
International and internal armed confl icts 241
IHL and the International Committee of the Red Cross (ICRC) 242
Purposes of international humanitarian law and its basic principles 242
Compliance with international humanitarian law 249
Motivations of states and IHL: why do states agree to rules that govern armed confl ict? 249
Indicators of compliance 251
Non- compliance and accountability 252
Non- state actors and compliance with international humanitarian law 253
Conclusion 254
12 International criminal law 258
Introduction 258
The birth and evolution of international criminal law 260
The fi rst phase: the Nuremberg and Tokyo Tribunals 260
The second phase: the adoption of treaties for the repression of international crimes by states 262
Detailed contents xiii
The turning point: the establishment of international criminal courts 263
The core crimes and the rationale behind their international criminalization 265
War crimes 265
Crimes against humanity and genocide 267
The reasons for the different path of the international criminalization of war crimes with respect to crimes against humanity and genocide 270
The enforcement of international criminal law at the international level 271
The ad hoc criminal tribunals and the ICC: an overview 271
The United Nations Security Council and the International Criminal Court 272
The pros and cons of international criminal proceedings 274
The relationship between international criminal courts and national courts: primacy versus complementarity 275
Conclusion 278
13 International human rights law 281
Introduction 282
What makes up international human rights law and where do we fi nd it? 282
The origins of international human rights law 284
International human rights law institutions 287
The relevance of international human rights law in international relations 290
IHRL and intervention in the internal affairs of other states 291
IHRL and state sovereignty 293
Compliance with international human rights law 298
New international actors and international human rights law 300
Conclusion 302
14 International law for environmental protection 306
Introduction 307
International treaties for environmental protection 308
International environmental principles and the sustainable development paradigm 310
The integration principle 311
The preventive and precautionary principles 312
The polluter pays principle 313
The principle of environmental impact assessment (EIA) 314
xiv Detailed contents
The principles of access to environmental information, public participation in the environmental decision- making process, and access to environmental justice 315
Status of environmental principles in international law 317
Environmental treaty non- compliance mechanisms 319
Non- state actors and environmental protection 321
Self- regulation by TNCs in the fi eld of environment: the Equator Principles 323
A mixed regime for international environmental law? 324
Conclusion 326
15 World trade and international law 330
Introduction 331
The rationale for trade treaties 331
Types of trade treaties 334
The WTO: negotiating forum and monitoring institution 336
Facilitating bargains 337
Monitoring compliance 337
Basic disciplines: limiting protectionism 340
Limits on the forms of protection 340
Non-discrimination 341
Advanced disciplines: constraints on regulatory freedom 343
Loopholes and exceptions 345
Criticisms of the WTO: a biased forum? 347
Conclusion 348
16 Global social justice and international law 351
Introduction 352
What kinds of problems does social justice address? 352
What is justice and where does it apply? 355
Does international law have the right profi le for social justice to apply to it? 358
Can international law be used to advance the cause of social justice? 368
What standards of justice are applicable to international affairs? 372
Conclusion 373
Detailed contents xv
CONCLUSION
17 International law in international relations: what are the prospects for the future? 379
Introduction 380
The political (in)stability of international law 381
The international law respecting state: an idealist category? 383
Institution- building for international law 385
The creation of international organizations, courts, tribunals, and expert bodies 385
Domestic courts and international law 386
The breadth of international law 388
Complexity and differentiation in international law regimes 389
Non- state actors and international law 390
Non- state actors as potential law-makers? 390
Non- state actors as subjects of regulation 391
Non- state actors as threats to international law 392
Conclusion 393
Table of cases 395
Table of major multilateral international treaties and documents 397
Glossary 399
References 409
Index 421
Preface
International law has become a key element of any politics and international rela- tions degree. The existing range of international law textbooks for the student of law, while excellent, is inadequate for the student of international relations who has no prior legal background and comes to the fi eld with more knowledge and understanding of how states behave rather than what rules regulate state behaviour. The breadth of international law and institutions in contemporary global politics means that it is no longer possible to make sense of international politics without understanding international law and the complex regulatory frameworks that exist in international relations. This textbook gives the student that understanding for use in the real world or in further academic study.
This textbook provides the international relations student with what he or she needs to understand about international law in three ways. It maps out the different ways to approach the study of international law, explains the main sources of inter- national law- making, and identifi es the key topics of international law. Throughout, the book balances the technical, legal knowledge necessary to understand the nuances of international law with the broader political processes that shape both the content and effectiveness of international law. The intricacies of international law are presented accessibly to animate both the learning of international law and its evaluation. With this approach, International Law for International Relations aims to introduce the student to the international law perspective of international relations and how this perspective differs from other approaches in international relations.
This book has been lucky to have benefi ted from submissions from an excep- tional group of academics and practitioners in the fi elds of international law and international relations. For their hard work and effort I thank them. Every author is an expert in his or her fi eld and has either experience teaching international law to politics students or using international law in real- world political situations. The contributors have made the subject matter accessible and have refl ected carefully on the bearing international law has on the international issues it addresses. This means that the book draws a very rich and diverse picture of international law and enables the student to see the different patterns of interaction between law and politics in each topic.
Finally, thanks have to be given to Sabina Appelt. Everything the contribu- tors wrote was reviewed by Sabina and what started out as a student perspective soon turned into full- blown editing. It is a credit to Sabina that every chapter has
Preface xvii
substantively improved throughout the editorial process. Her speed, hard work, and sense of humour kept the process on track. I would also like to thank Elizabeth Griffin and the editors at OUP for their help and support and, of course, Sam for casting a layman’s eye over the text and making the coffee.
Başak Çalı
xviii Running heading
Guided Tour of Learning Features
This book is enriched with a range of learning tools to help you navigate the text and reinforce your knowledge of International Law. This guided tour shows you how to get the most out of your textbook package.
Chapter Overviews
Brief overviews at the beginning of every chapter set the scene for upcoming themes and issues to be discussed, and indicate the scope of coverage within each chapter.
Boxes, Tables and Case Studies
Throughout the book boxes, tables, and case studies provide you with extra information on particular topics that complement your understanding of the main chapter text.
Glossary Terms
Key terms appear in bold in the text and are defi ned in a glossary at the end of the book to aid you in exam revision.
Running heading xix
Questions
A set of carefully devised questions has been provided to help you assess your understanding of core themes, and may also be used as the basis of seminar discussion or coursework.
Further Reading
Reading lists have been provided as a guide to fi nding out more about the issues raised within each chapter and to help you locate the key academic literature in the fi eld.
Important Websites
At the end most chapters you will fi nd an annotated summary of useful websites, which will be instrumental in further research.
Guided Tour of Learning Features xix
xx Running heading
Guided Tour of the Online Resource Centre
www.oxfordtextbooks.co.uk/orc/cali/
The Online Resource Centre that accompanies this book provides students and instructors with ready-to-use teaching and learning materials. These resources are free of charge and designed to maximize the learning experience.
FOR STUDENTS:
Flashcard Glossary
A series of interactive fl ashcards containing key terms and concepts have been provided to test your understanding of the terminology of International Law.
Running heading xxi
Problem-solving Questions
For each International Law topic a problem- question is posed, together with a list of key considerations and a guide to sources of information to help you go about solving it.
Revision Tips
A checklist of the key points from each chapter is provided to help you to focus your revision.
Web Links
A series of annotated web links have been provided to point you in the direction of different theoretical debates, important treaties, working papers, articles and other relevant sources of information.
FOR INSTRUCTORS:
PowerPoint Presentations
These complement each chapter of the book and are a useful resource for preparing lectures and handouts. They allow lecturers to guide students through the key concepts and can be fully customized to meet the needs of the course.
Guided Tour of the Online Resource Centre xxi
Meghna Abraham is the Head of the Economic, Social and Cultural Rights Team at the International Secretariat of Amnesty International. She has previously worked with a number of NGOs and academic centres in India, Switzerland, and the United Kingdom.
Fiona B. Adamson is a Senior Lecturer (Associate Professor) of International Relations in the Department of Politics and International Studies at SOAS, University of London. Her work has appeared in International Security, European Journal of International Relations, International Studies Review, Cambridge Review of International Affairs, and a number of edited volumes.
Juan M. Amaya-Castro is Assistant Professor and Academic Head of the Depart- ment of International Law and Human Rights at the United Nations Mandated University for Peace in Costa Rica.
Antony Anghie is the Samuel D. Thurman Professor of International Law at the S.J. Quinney School of Law, University of Utah. He is the author of Imperialism, Sovereignty and the Making of International Law (2005).
Jason Beckett is a Lecturer in the Law School of the University of Leicester, where he teaches and researches in the fi elds of legal method, legal theory, political theory, critical theory, and Public International Law. His work has appeared in the European Journal of International Law, German Law Journal, and a number of edited volumes.
Christopher J. Borgen is Associate Dean for International Studies and Professor of Law at St. John’s University School of Law in New York City. He is the principle author of Thawing a Frozen Confl ict: Legal Aspects of the Separatist Crisis in Moldova, a report issued by the Special Committee on European Affairs of the New York City Bar, and he is the co- founder of Opinio Juris, a website devoted to debate and discussion on issues of international law and politics.
Başak Çalı is Lecturer of International Law and Human Rights at the Department of Political Science, University College London. Her work has appeared in the Human Rights Quarterly, European Journal of International Law, and a number of edited volumes.
Contributors
Contributors xxiii
Paola Gaeta is Professor in International Law at Florence University, Professor of International Criminal Law at the Law Faculty of the University of Geneva and the Director of the LLM Programme of the Geneva Academy of International Humani- tarian Law and Human Rights. Her most recent book is The UN Convention on Genocide: a Commentary (ed.) (2009).
Elizabeth Griffi n is an academic and practitioner with a specialization in interna- tional humanitarian and human rights law applicable in confl ict and post- confl ict situations. She is Adjunct Professor, George Washington University and Director of the Human Rights Center, UN Mandated University for Peace. Elizabeth serves as a consultant to Amnesty International and the UN Offi ce for the High Commis- sioner for Human Rights. She has extensive fi eld experience working for NGOs and the UN in Kosovo, Afghanistan, Bosnia Herzegovina, and Central America.
Saladin Meckled- Garcia is Lecturer in Human Rights and Political Theory and Director of the Human Rights Programme at the Department of Political Science, University College London. He has published a number of works in the fi eld of political philosophy, including works on justice theory, political authority, and human rights.
David M. Ong is Reader in International and Environmental Law at the Univer- sity of Essex, Law School. His work has appeared in the American Journal of International Law, the European Journal of International Law, the Irish Yearbook of International Law, and the Yearbook of International Environmental Law.
Sir Nigel Rodley KBE is Professor of Law and Chair of the Human Rights Centre, University of Essex. He is a Member (since 2001) and Vice- Chair (2003–2004, 2009–2010) of the UN Human Rights Committee and was UN Commission on Human Rights Special Rapporteur on Torture (1993–2001). Several of his articles and book chapters have dealt with aspects of the use of force in international law. He is the author of The Treatment of Prisoners in International Law (1999).
Thomas Sebastian is Counsel at the Advisory Centre on WTO Law in Geneva. In that capacity he represents developing and least developed countries in proceedings before the WTO dispute settlement system and provides advice on issues of WTO law.
Chandra Lekha Sriram is Professor of Human Rights and Director of the Centre on Human Rights in Confl ict at the University of East London School of Law. Her most recent book is Peace as Governance: Power- sharing, Armed Groups, and Contemporary Peace Negotiations (2008).
xxiv Contributors
Emmanuel Voyiakis is a Lecturer at Brunel Law School, UK. His research focuses on the theory and sources of international law and the theory of private law. His work has appeared in International and Comparative Law Quarterly, and in a number of edited volumes.
AI Amnesty International
ASEAN Association of South East Asian Nations
BYBIL British Year Book of International Law
CACJ Central American Court of Justice
CAN Computer Network Attack
CEDAW Committee on the Elimination of Discrimination against Women
CERCLA Comprehensive Environmental Response, Compensation and Liability Act
CIL Customary International Law
CLS Critical Legal Studies
CoE Council of Europe
CSCE Conference for Security and Cooperation in Europe
ECE Economic Commission for Europe
ECJ European Court of Justice
ECOSOC Economic and Social Council
ECOWAS Economic Community of West African States
EEZ Exclusive Economic Zones
EFTA European Free Trade Association
EHS Environmental, Health and Safety
EIA Environmental Impact Assessment
EU European Union
GATS General Agreement on Trade in Services
GATT General Agreement on Tariffs and Trade
HGA Host Government Agreement
ICC International Criminal Court
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cultural Rights
ICJ International Court of Justice
ICRC International Committee of the Red Cross
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the Former Yugoslavia
IFC International Finance Corporation
IGO Inter- G
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