The Evolution of Core Legal Principles 571
TABLE 27.3 Core Principles of the Classic and Contemporary Eras
Core principles Legal positivism Legal positivism
States & Nonstates
States & Nonstates
The failure of the ICJ to fully refute Belgium's Security Council, it leaves ample room for extra-
humanitarian intervention justification defense Council authorization for military intervention
in the Yugoslavia u NATO case along with the Se in the event that the Security Council fails to ad-
curity Council's postwar endorsement of the out- dress the issue. Accordingly, such alternative au-
come of that conflict signal that the international thorizations include the General Assembly of the
community is in the process of reconsidering the United Nations and authorization from subre-
Charter's prohibition on unauthorized interven- gional organizations. The clear implication of
tion for humanitarian purposes.
the report is that state sovereignty is being fur-
Reflecting an interest in endorsing the right ther eroded and the nonintervention principle
of states to intervene on humanitarian grounds that constituted a core and defining principle of
is the emerging Responsibility to Protect (R2P) the Contemporary legal era is weakening.
principle. In September 2000, at the onset of
the current international legal era, Canada an- Conclusion
nounced the creation of the International Com-
mission on Intervention and State Sovereignty As an integral part of world politics, international
(ICISS). As discussed in chapter three of this law is a fluid set of principles and rules that are al-
volume, R2P acknowledges a primary responsi- tered over the course of time as the legal and po-
bility of states to protect their own citizens. In litical disposition of states change. International
the event of a failure to do so, the Responsibility law, in its most fundamental sense, provides the
to Protect reverts to the international commu- parameters of acceptable, or legal, behavior of
nity. The December 2001 ICISS Report em- states and other legal persons. What constitutes a
braces three specific responsibilities: legal course of action in one era is considered il-
legal in another, as new international rules are de-
1. The responsibility to prevent the root veloped or existing rules erode. By undertaking a
causes and direct causes of internal conflict historical evaluation of international law with a
and other man-made crises putting popu- primary focus on the key foundational, or core,
lations at risk.
legal principles identified in three distinct eras,
2. The responsibility to react to situations of this chapter gives the reader a sense of the fluidity
compelling human need with appropriate of international law and its continued evolution
measures, which may include coercive into the twenty-first century.
measures like sanctions and international During the Classic Legal era (1648-1945),
prosecution and, in extreme cases, military four core principles of international law were
identified: legal positivism, the centrality of
3. The responsibility to rebuild, particularly states, the doctrine of intervention, and neutral-
after a military intervention. 16
ity. By the onset of the Contemporary era
(1945–1999), the doctrine of intervention and
Although the ICISS Report calls on states to seek the right of neutrality had disappeared as core
approval for military intervention from the UN legal principles, and the state-centric system
572 INTERNATIONAL LAW
gave way to a legal system in which both states before the current legal era ends and is replaced
and nonstate actors were considered subjects of by another remains to be seen. This chapter
international law. Additional core principles, in- posits that the most appropriate means of eval-
cluding nonintervention, human rights, and free uating the international legal order is through a
trade, emerged and became influential founda- focus on the core, or foundational, legal princi-
tional principles of the legal order. The twenty- ples that give definition to any era.
first-century era, only in its first decade, is
characterized by the erosion of the noninterven-
tion principle and, with the emergence of the NOTES
responsibility to protect, a decline in the legal 1. GERHARD VON GLAHN & JAMES LARRY TAULBEE,
sanctity of the state to control its domestic af- LAW AMONG NATIONS: AN INTRODUCTION TO PUBLIC
fairs free of outside interference. Because the INTERNATIONAL LAW 3 (9th ed. 2010).
2. Lassa Oppenheim, The Science of International
R2P concept bases its legitimacy in promoting Law: Its Task and Method, 2 AM. J. INT'L L. 340
the rights of individuals, the core principle of (1908).
human rights remains a defining feature of the
3. See ANTONIO CASSESE, INTERNATIONAL LAW
current legal order. It is too soon to tell if the free (2001); MALCOLM N. SHAW, INTERNATIONAL LAW
trade principle will be retained in the twenty-first (2008);
and VON GLAHN & TAULBEE, supra note I.
century; global economic turbulence as wit- TRODUCTION TO INTERNATIONAL LAW (7th ed. 1997).
nessed since 2008 may serve to reinforce the 5. Id. at 15.
principle or may cause its erosion if leading 6. HUGO GROTIUS, THE LAW OF WAR AND PEACE
states abandon open markets and free trade as (Francis W. Kelsey trans., The Bobbs-Merrill Company,
strategies for dealing with the implications of 1962) (1625).
7. Supra note 4, at 307.
grave levels of indebtedness.
8. LOUIS HENKIN ET AL, INTERNATIONAL LAW: CASES
How international law in the twenty-first cen- AND MATERIALS (1980).
tury ultimately evolves is a matter of great con- 9. Reparations for Injuries Suffered in the Service of
jecture and importance. Based on an evaluation the United Nations, Advisory Opinion, 1948 I.C.J.
of the core, or defining, principles of the interna- 174: Lawless u. Ireland, 332/57 Eur. Ct. H.R. 1 (1961).
tional legal order since 1648, there has evolved a Rights 3 (2d ed. 1998).
10. JACK DONNELLY, INTERNATIONAL HUMAN
struggle between efforts to empower the state, on 11. See Application of Yugoslavia, Legality of Use of
the one hand, and attempts to restrict state ac- Force, 1999 1.C.J. Ten individual cases were brought by
tion, on the other. During the Classic era (1648- the FRY, one against cach of the ten participating
1945) states increasingly enjoyed the right to NATO states.
control both their internal and external affairs
12. Aaron Schwabach, Yugoslavia 1. NATO, Security
Council Resolution 1244, and the Law of Humanitarian
with only limited legal restrictions found in in-
Intervention, 77 SYRACUSE J. INT' L. & Com. 93
ternational law. The rise of human rights, the (2000).
principle of nonintervention, and the free trade 13. GROTIUS, supra note 6, at Bks. II, III, XIX, XL.
mandate after World War II effectively curtailed
14. MICHAEL WALZER, JUST AND UNJUST WARS (2d
what states could legally do at home and abroad. ed. 1992).
15. U.N. Charter, art. 2, para. 7.
The twenty-first-century legal order, which dates
16. Report by the International Commission on In-
to 1999, appears to be further limiting states by tervention and State Sovereignty (ICISS), Dec. 2001.
requiring good governance at home. Accordingly, 17. According to the ICISS Report, the General As-
failure to protect one's citizens can result in hu- sembly enjoys the legal capacity to authorize armed in-
manitarian intervention justified under the Re- tervention for humanitarian purposes in the event that
sponsibility to Protect principle.
the Security Council fails to act based upon the 1950
What is certain is that the international legal has no legal validity because the
Uniting for Peace Resolution. That resolution, however,
powers that it grants to
system continues, as it has since its inception, to the General Assembly require a revision of the UN
evolve. Where that evolution ultimately arrives
International Law and Politics
JAMES LARRY TAULBEE
Some Preliminary Thoughts
The relationship between international law and
politics has always generated much debate. As
many have pointed out, positions range from
those who regard international law as little more
than a form of rhetorical justification for what
states wish to do to those who see an evolving
world order based on the rule of law at the in-
ternational level.' Needless to say, political real-
ists, liberal internationalists, Marxists, and
constructivists have very different views.? To
state an obvious proposition, the evaluation of
the "political" nature of international law de-
pends on the premises from which the analyst
begins. Yet the reader needs to keep this
proposition firmly in mind as we explore the
relationship between law and politics at the in-
In this chapter I will discuss the extent to
which international law guides statesmen in
making decisions. Rather than a systematic
discussion and critique of various theoretical
approaches, let me begin by stating my assump-
tions regarding how analysts have failed to ad-
dress critical questions about how politics and
law intersect at the international level. Most of
these misconceptions involve comparisons of in-
ternational law with idealized conceptions of
domestic law as it ought to operate within ad-
vanced industrial democracies.
. First, in the paragraph above, I have delib-
erately used the word guide because inter-
national law will seldom constitute the sole
determining factor in any decision process.
Second, most comparisons of interna-
tional law with domestic law tend to over-
estimate the efficacy of domestic law and
underestimate the role and impact of in-
• Third, comparisons often underestimate
or misconstrue the relationship between
law and politics because analysts tend to
focus on criminal law and procedure as
the model, when actually domestic civil
(private) law and procedure form a better
analog to the legal process at the interna-
• Fourth, comparisons tend to ignore the
fact that the international decision-mak-
ing process has different participants and
goals when compared to the domestic
• Fifth, comparisons often dismiss areas in
which international law seems an impor-
tant consideration as merely “low politics."
• Sixth, given points four and five, the inter-
national legal process does have a higher
political content than the ideal domestic
Seventh, defenders tend to overestimate the
coherence of the international legal order.
574 INTERNATIONAL LAW
Perspectives on Law and Politics
speculative utopias of an academic elite. If only
the Rule of Law can be fortified to exclude these
David Easton's classic definition of politics—the contrasting distortions, then at least the jurist's
authoritative allocation of values for a society part in the construction of a just world order
provides a useful point of departure. Easton's has been adequately executed. Our inher-
definition reminds us that politics involves de ited ideal of a World Order based on the Rule
cisions about how values and scarce resources of Law thinly hides from sight the fact that so-
are distributed within human societies. Al- cial conflict must still be solved by political
though some in particular, structural realists) means and that even though there may exist a
may quibble over whether an international "so- common legal rhetoric among international
ciety" exists, I will adopt the characterization lawyers, that rhetoric must, for reasons internal
used by Hugo Grotius and the English School. to the ideal itself, rely on essentially contested
This position has the utility of acknowledging political principles to justify outcomes to inter-
and emphasizing the role of sovereignty as a fun- national disputes.?
damental element of contemporary interna-
tional politics while also acknowledging the From this perspective, the question then be-
possibility that rational actors may find and act comes: What role(s) does law play in the
on common interests to create binding rules of broader political process? Understanding the re-
lationship between international law and inter-
Law may be defined as a mechanism that national political processes requires a brief
guides the actions of rational egoists (states/gov- examination of the roles law presumably plays
ernments and individuals) toward collective in organizing human society. The content of any
goals based on enlightened self-interest rather legal obligation, whether international or do
than individual goals based on self-interest nar- mestic, always involves some specified human
rowly defined. As such, it constitutes only one action/behavior either in terms of positive re-
method of determining the distribution of re- quirements or permissions to perform certain
sources and values and only one technique of duties under certain circumstances or in terms
dispute resolution within the broader political of prohibitions, that is, a duty to refrain from
process. It does not form the sole method, nor certain actions under certain circumstances.
does law necessarily provide a solution to all dis- John Locke argued that the principal function
putes. Nonetheless, many perceive law as a set of law is to build fences. He identified two es-
of techniques superior to politics, ignoring the sential fences—one that defines and governs the
fact that the law embodies a set of choices that relationship between the government and its cit-
result from political bargaining. Note that "law" izens, and one that defines and governs the rela-
in the United States has at one time permitted tionships between individual citizens. Locke's
slavery and segregation. Judith Shklar argued dichotomy roughly corresponds to the modern
that "those ... adherents who, in their determi- distinction between public and private (civil)
nation to preserve law from politics, fail to rec- law. When discussing international law, the
ognize that they too have made a choice among tendency is to focus on Locke's first category be-
political values." We find this particularly re- cause clearly the lack of an overarching interna-
flected in discourses about international law. tional political authority immediately calls into
Marti Koskenniemi observed that
question the possibility of an international pub-
lic law. The simple fact that no set of centralized
Throughout the present century, reconstructive institutions exist at the international level has al-
doctrines have claimed that what merits criti- ways bedeviled jurisprudence. Indeed, Nicholas
cism is the corruption of the Rule of Law either Onuf, noting the problematic sources of au-
in the narrow chauvinism of diplomats or the thority at the international level, has character-
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