Kindred+pp+1+to+12

The Roles of International Law and International Lawyers - Kindred pp 1 to 12 -- Lisa

-traditionally, international law was seen as pertaining only to states but now the notion of international community has been expanded to include individuals (ie HR law)

-the idea that international law is directed towards an international community - but how unified must this community be and whose values does it represent?

-the age-old problem of international law: is law possible in a global society that is horizontal and has no legislature, no executive and only a rudimentary jurisdiction with no compulsorary jurisdiction? Iraq is one example illustrating how resort to influence over the law is often what results

-some believe that international law is obeyed - Louis Henkin's famous observation that "almost all nations observe almost all principles of international law and almost all of their obligations almost all of the timë" - Kindred notes that the problem is that this ignores situations where there is a public desire for international law to work but it often fails to shape state behaviour.

-origin of international law traced to the 16th/17th centuries and the rise of the nation state. Hugo Grotius (Dutch) wrote a classic treatise which was the first systematic account of the field addressed to modern concerns like sharing natural resources. Grotius secularized law by positing an ideal law grounded in human rationality, in right reason, rather than some formal process. The underpinning of all law was the natural principle of pacta sunt servanda (agreements must be carried out in good faith). Natural law as a tradition wanned in the 19th century but reemerged in the 20th.

-the 19th century saw the emergence of legal positivism - law was determined according to the actual behaviour of states not derived from preexisting principles. Elaborated by Kelsen, law was seen as a nonrmative science, with a rule being rooted in a pre-existing norm all the way back to a grundnorm or basic norm. See Hart.

-Voluntarism - a specific type of positivism associated with the preoccupation of state sovereignty and Hobbes, Machiavelli. States participate in the legal system as a matter of choice and thus, all obligations are voluntarily assumed. All law is grounded in the consent of states. This type of theory relates to the modern theory of statism.

-critiques of positivism: fails to account for existence of customary law (which is binding), it can lead to anarchy by arguing that breaches of law may indicate a norm may be changing and it constantly overemphasizes the role of states in the creation of law. -positives of positivism: notes that it is not enough for lawyers to posit abstract principles that bear no resemblance to lived reality

-legal realism: experience grounds the law rather than abstract loic or other natural constructions. Law is derived from practice, particularly that of courts and two, legal decisions are the result of political decisions. Realists are rule skeptics. It has been very popular in the US - The New Haven School has produced some of the most influential theories of international law.

Contemporary legal theory

-Some have argued for a return to traditional positivist theories like legal formalism. Unlike legal instrumentalism which views international law as existing to realize the objectives of some dominant part of the community, for the formalist, law provides a platform to evaluate behaviour and often allows for the representation of the weak

-theories of legitimacy - Thomas Frank - states are ore likelly to comply when a rule of international law is viewed as legitimate. Legitimacy is a question of process: who participated in the elaboration of the rule and how was it accomplished? . A value-based construction of international norms allows for law to affect change

-increasing interactions are seen between international relations scholars and international lawyers (with the decline of the political theory of realism and neo-realism) . Various liberal institutionalist scholars began to explore the effect of formal and informal institutions in modifying state behaviour, These theorists, while still acknowledging the role of state interests, they see law as having a role to play in building insitutions and their output.

-the IR approach closest to international law is constructivism. For constructivists, the international legal order is viewed as something that can be changed, with law playing a key constitutive role

-the composition of international law changes over time. In 1648, with the emergence of the nation-state, international law arose as the product of interstate relations and was imbued with European values. It formed part of the "toolbox" of colonial domination and repression. The emergence of many new states post WWII has changed the context, as has the diversity of actors on the world stage. Recently, developing states have urged a reformulation of international law, particularly aspects governing foreign investment, development and former colonial circumstances. Wholly new concepts such as that of self-determination have emerged.

-over the years, a number of new international organizations have emerged and new areas of law have emerged or further developed (ie international economic law with the rise of the multilateral corporation). In the last century, there were successful efforts to establish the doctrine of state responsibility, try individuals for war crimes and crimes against humanity, hold states and private persons responsible for human rights violations