The Development of International Law Since the War

1928 ◽  
Vol 22 (2) ◽  
pp. 330-350 ◽  
Author(s):  
Manley O. Hudson
Keyword(s):  
International Law ◽  
Legal Order ◽  
World War ◽  
The World ◽  
International Legal Order ◽  
The Law ◽  
Made In

We are now approaching the end of the first decade following the World War. Perhaps we are sufficiently removed from the heat and passion of that struggle to attempt to gauge the progress which the world has made in the development of international law since it was ended. Ten years is a brief period in any field of history; but before this decade was begun, most of us felt that it was going to see great things accomplished toward broadening and strengthening and extending the law by which the relations of states are governed. The war brought a challenge to our international legal order which could hardly have failed to create for our generation an opportunity to leave an impression on international law, such as has been left by no other generation in the three hundred years since the time of Grotius. As the decade is ending, and as our generation begins to find its energies so absorbed in other tasks, an appraisal of the progress we have achieved may enable us to judge the use we have made of our opportunity and the extent to which it still exists.

Part I Conclusion of Treaties, 1 Are Agreements between States and Non-State Entities Rooted in the International Legal Order?

2011 ◽  
Author(s):  
Olivier Corten ◽  
Pierre Klein
Keyword(s):  
International Law ◽  
Political System ◽  
Affirmative Answer ◽  
Legal Order ◽  
Vienna Convention ◽  
Clear Cut ◽  
Peace Agreements ◽  
National Jurisdiction ◽  
International Legal Order ◽  
Made In

Can peace agreements concluded between a State and a non-State entity produce legal effects in the international sphere, as mentioned in Article 3 of the Vienna Convention on the Law of Treaties? Could it be considered that, following the conclusion of such agreements, some areas that were traditionally conceived as pertaining to the national jurisdiction of States (such as the use of violence within national borders, or the choice of a political system) are as of now governed by international law? On the basis of numerous agreements reviewed in this study, a clearly affirmative answer would appear excessive. As far as the international legal effects of such instruments are concerned, much will depend on the specificities of each agreement and on the way it has been implemented. Most of these agreements prove to be rather ambiguous, a significant portion of their components evidencing their rooting in the domestic legal order. This ambiguity finds confirmation in the very pragmatic treatment of peace agreements by the Security Council and States when they call for compliance with these instruments. In the vast majority of cases, such demands are made in the name of the maintenance of international peace and security, without much attention being paid to the characterization in legal terms of the parties' undertakings under these agreements. It therefore appears difficult to reach clear-cut conclusions as to the legal effects of such peace agreements in the international sphere — and, as a consequence, as to their possible characterization as ‘treaties’ under international law.

Carl Schmitt’s Critique of Kant

2012 ◽  
Vol 40 (6) ◽  
pp. 688-713 ◽  
Author(s):  
Seyla Benhabib
Keyword(s):  
World War I ◽  
International Law ◽  
International Norms ◽  
Legal Order ◽  
World War ◽  
Top Down ◽  
The Earth ◽  
International Legal Order ◽  
The Relationship

Carl Schmitt’s critique of liberalism has gained increasing influence in the last few decades. This article focuses on Schmitt’s analysis of international law in The Nomos of the Earth, in order to uncover the reasons for his appeal as a critic not only of liberalism but of American hegemonic aspirations as well. Schmitt saw the international legal order that developed after World War I, and particularly the “criminalization of aggressive war,” as a smokescreen to hide U.S. aspirations to world dominance. By focusing on Schmitt’s critique of Kant’s concept of the “unjust enemy,” the article shows the limits of Schmitt’s views and concludes that Schmitt, as well as left critics of U.S. hegemony, misconstrue the relation between international law and democratic sovereignty as a model of top–down domination. As conflictual as the relationship between international norms and democratic sovereignty can be at times, this needs to be interpreted as one of mediation and not domination.

Part III Observance and Application of Treaties, 14 Treaties Establishing Objective Regimes

2011 ◽  
Author(s):  
Salerno Francesco
Keyword(s):  
International Law ◽  
Legal Order ◽  
Customary Law ◽  
Vienna Convention ◽  
Principle Of Relativity ◽  
International Legal Order ◽  
The Absolute ◽  
The Law

The issue of treaties establishing objective regimes has been neglected by the Vienna Convention on the Law of Treaties. Building on the principle of relativity of treaties, the Convention only deals with the effects of specific treaty rules on third states. This chapter argues that third states never acquire the same status of states parties, even when they consent to the specific treaty rules that affect them. Analysing the significance of treaties establishing objective regimes under general international law, it clarifies that such treaties may affect third states even when they do not embody rules of customary law. Due to the relevance for the international legal order of the unique erga omnes regime created by the treaty, the situation regulated by it can no longer fall within the scope of the absolute ‘freedom’ previously accorded to third states.

The Balance of Power in International Law: A History of an Idea

1979 ◽  
Vol 73 (4) ◽  
pp. 555-580 ◽  
Author(s):  
Alfred Vagts ◽  
Detlev F. Vagts
Keyword(s):  
World War I ◽  
International Law ◽  
Balance Of Power ◽  
Legal Order ◽  
World War ◽  
International Policy ◽  
The Past ◽  
Law Of Nations ◽  
International Legal Order ◽  
History Of

The existence of a significant relationship between the concept of the balance of power and international law would be regarded as improbable by most modern international lawyers. They would think of the balance as a wholly obsolete conception and, in any case, as a part of international policy, or worse, part of cynical Realpolitik rather than of law. Earlier generations of jurists, however, did see international equilibrium either as an integral part of the system of rules of the law of nations or at least as a necessary precondition to the existence of such a law. Such a view of the interrelationship was never unanimous; indeed, there were in the past many legal observers who saw the balance of power as an obstacle to the development of an international legal order based on something more moral than force alone. This article is devoted to a study of the relationships between those two concepts as seen by the publicists who created the corpus of international law, principally during the period from the Peace of Westphalia in 1648 to the outbreak of World War I in 1914. It is not a study of the balance of power at large—a topic to which volumes might be dedicated—but only of that idea’s relationship with law.

The Application of Soviet Laws and the Exception of Public Order

1927 ◽  
Vol 21 (2) ◽  
pp. 238-256 ◽  
Author(s):  
Max Habicht
Keyword(s):  
International Relations ◽  
International Law ◽  
The State ◽  
Public Order ◽  
Private International Law ◽  
World War ◽  
The World ◽  
Uniform Solution ◽  
The Law

One of the most controversial rules of private international law is the exception of public order, the rule not to enforce foreign laws which are contrary to the fundamental conceptions of the law of the state having jurisdiction. There is no country in which this exception has not played an important rôle in the refusal to enforce foreign laws, and numerous writers have discussed the importance and difficulties of the exception of public order. Its problems had been thoroughly studied before the World War by many authorities on private international law, among others by Bustamante, Fiore, Kahn, Klein and Pillet, without a uniform solution having been reached. When, after the war, the states began to reestablish their international relations, the exception of public order began anew to play its rôle in the courts the world over, and to put the same difficulties before the judges dealing with cases of conflict between domestic and foreign laws.

The Law of the Nations as the Civil Law of the World

2017 ◽  
Author(s):  
Christian Volk
Keyword(s):  
Civil Law ◽  
Legal Order ◽  
Individual State ◽  
Global Ethics ◽  
Specific Kind ◽  
Law Of Nations ◽  
The World ◽  
International Legal Order ◽  
The Law ◽  
Political Thinker

This chapter points out that Montesquieu argues in favour of a specific kind of political cosmopolitanism. For him, the law of nations appears as the civil law of the whole world. Essentially, it can be said that Montesquieu conceives of a law of nations that attempts to avert both the exploitation of other communities and also slavery. At the same time, however, he is not concerned with equating the law of nations with global ethics, or with establishing morally substantial yet politically ineffective obligatory requirements. Montesquieu tries to remain a political thinker who assumes the reality of individual state interests, but who wishes to integrate these in an international legal order that represents more than the consensus between states.

International Law as Insulation – The Case of the World Bank in the Decolonization Era

2019 ◽  
Vol 21 (4) ◽  
pp. 459-484
Author(s):  
Dimitri Van Den Meerssche
Keyword(s):  
United Nations ◽  
International Law ◽  
World Bank ◽  
Global South ◽  
Legal Order ◽  
The World Bank ◽  
The World ◽  
International Legal Order ◽  
Legal Concepts ◽  
Legal Interventions

Abstract This article maps out how (international) legal concepts and norms were employed during the inter-institutional struggle between the United Nations and the World Bank in the decolonization era. The first contribution is historiographical. Drawing on material from the Bank’s (oral) archives, the article gives an original account of the ways in which the organization bypassed the universalist aspirations that were gaining a foothold in the UN’s democratic bodies. Secondly, the paper retraces how this particular event gave rise to a clash between opposing imaginaries of international legal order, where axiological aspirations voiced by states from the Global South were ultimately frustrated by a functionalist understanding of international (institutional) law that justified the Bank’s institutional insulation. Finally, the paper aims to provide a modest methodological contribution to the field of international institutional law – a doctrinal discipline that traditionally pays little empirical attention to the historical and sociological performativity of concrete legal interventions.

On the Foundations of International Law

1945 ◽  
Vol 39 (2) ◽  
pp. 231-243
Author(s):  
John P. Humphrey
Keyword(s):  
International Relations ◽  
International Law ◽  
Middle Ages ◽  
Legal Order ◽  
Brute Force ◽  
The World ◽  
European System ◽  
International Legal Order ◽  
Independent States ◽  
Potential Enemy

Since the collapse of the European system of the Middle Ages and the birth of modem international law most jurists have worked on the assumption that the principles underlying the international legal order are radically different from those that lie at the base of national law. With the disintegration of the authority of the Pope and the Emperor there had come into being a number of independent states that recognized no political superior and hence considered themselves as equals. In their relations with each other, at least, these states acted like the sovereign bodies which in fact they were. In so far as international relations were concerned the world had returned to a condition of complete anarchy. The states of the world lived in that condition of natural equality described by Hobbes where each was the potential enemy of every other. In the formulation of their policies and in their acts each state took into account its own interests only and when these interests came into conflict, as they inevitably did, the only arbiter was brute force.

Sources in Legal-Positivist Theories

2018 ◽  
Author(s):  
Jörg Kammerhofer
Keyword(s):  
Structural Analysis ◽  
International Law ◽  
Common Sense ◽  
Theoretical Basis ◽  
A Priori ◽  
Legal Order ◽  
International Legal Order ◽  
Legal Positivist ◽  
The Law ◽  
The Way

This chapter demonstrates that the Kelsen–Merkl Stufenbau theory of the hierarchy of norms avoids many of the misconceptions of orthodox scholarship. This theory is the closest there is to a legal common-sense theory of the sources of international law. It is close to the mainstream, but provides a solid theoretical basis. False necessities are here deconstructed: the sources are neither a priori nor external to the law. Applying the Stufenbau theory to international law, the chapter concludes by sketching out the possibilities of ordering the sources of international law. A structural analysis of the international legal order clears the way for level-headed research on this legal order’s daily operations: norm-conflict and its application and interpretation.

Treaty withdrawal and recalcitrant States

2020 ◽  
Vol 9 (2) ◽  
pp. 225-240
Author(s):  
Joseph Crampin
Keyword(s):  
International Law ◽  
Legal System ◽  
Legal Order ◽  
Vienna Convention ◽  
High Profile ◽  
Binding Force ◽  
International Legal Order ◽  
International Legal System ◽  
The Law

The recent prevalence of high-profile unilateral treaty withdrawals raises broader questions over trust in treaty-making. Given the foundational importance of trust in treaties to international law, these withdrawals present risks to the international legal order generally. The issue for international law is how it can regulate treaty withdrawal in a way that preserves trust in the international legal system. The problem of trust is twofold. If international law adopts too permissive a stance towards unilateral withdrawal, then this will undermine trust in the binding force of treaties: pacta sunt servanda. If it is too restrictive, it will undermine the authority of international law, since it will result in situations in which recalcitrant States (ie States which have decided no longer to comply with their obligations) disobey, and are seen to disobey, their obligations. The paper seeks to explore this tension that underlies the regulation of treaty withdrawal. First, it analyses historical approaches to the problem, and, second, how the Vienna Convention on the Law of Treaties has sought to resolve it. It then examines how the principle is and can be used to achieve a balance between integrity and authority that can assist international law in regulating withdrawal and recalcitrance in a manner that preserves trust in treaty-making.

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