Chapter 1 Guidance on Answering the Questions in the Book

Question 1:
Why was the Peace of Westphalia perceived of as a crucial turning point in the history and development of public international law?

Guidance:
The question asks the students to engage with the configuration of the international society around sovereign states. The book notes that the 1648 “Peace of Westphalia” was a significant event because the major European powers sought to create order on the European Continent through the compartmentalization of territory and individuals into sovereign states of equal importance under international law. The Westphalian Peace hereby inaugurated the nation state as the primary source of authority. Among the many attributes of sovereignty is the exclusive right of each state to govern its internal affairs without undue interference by other states. See also the discussion of jurisdiction in Chapter 5.

Question 2:
What is the difference between natural law and legal positivism? Do you see any reflections of the two theories in contemporary debates on public international law?

Guidance:
The question concerns some of the basic theories of international law. The book notes that “natural law” refers to a holistic set of ideas about natural and social life in the universe that are essentially inalienable. Natural law focused on the individual and its relations to the world but is also applied to states and the international relations because individuals are also individuals. With regard to legal positivism, the book notes that the primary tenant of positivism was/is the only true source of law. Thus, positivists attach primary importance to state consent, whether expressed explicitly or implicitly. As the book notes in Chapter 2 (see also Question 1 in Chapter 2), the existing theory of legal sources in Art. 38 of the ICJ Statute is grounded in positivist theory and the understanding that all primary sources of international law are derived from state consent, whether expressed explicitly or tacitly. There are a number of rights in international law that indicate a natural law-like understanding of the origin of the rights/obligation in question. As Chapter 9 notes, for example, modern human rights law is based on a notion that human rights are inherent to all human beings and that all individuals therefore possess certain rights. Some may also find natural law sentiments reflected in the concept of jus cogens.  

Question 3:
How would you describe the relationship between international law and national law in the legal system of your state?

Guidance:
The question forces the students to engage with the relationship between international and national law in the constitutional systems of their home state and to identify how international law is applied in their domestic legal systems. Depending on where they are from, the students are likely to find that their national legal systems are generally more willing to apply international norms derived from customary international law than treaty- based norms. The book notes that this is due to the fact that customary international law often contains the answers required to separate the powers of sovereign states – referred to in the book as the international law of coexistence, see also Question 5. The students may also find (again, depending on their home state) that treaties must be formally incorporated into national law before they are given direct effect, either on the basis of a statute where the treaty is annexed or via reformulation and interpretation in new domestic legislation.

Question 4:
Why does the conception of a national sovereign help to explain the role and primary purposes of international law?

Guidance:
The question asks the students to consider why sovereignty is important to understanding the purposes of international law. The book notes that domestic law is tailored to provide the answers to the many legal disputes that involve the relationship between citizens of a sovereign state or between the citizens and the state. But since all states are sovereign, national law cannot provide the answers to the legal disputes that involve the interests of more than one sovereign state. The answers to those questions can only be found in international law. The book hereby takes the approach of primarily perceiving international law from the standpoint of national law and as a “supplement” to national law. Thus, it is only when an issue is of interest to more than one national sovereign that resort must be had to international law. It is the two different ways whereby issues become of interest to more than one state – and therefore before international legal issues – that defined the two substantive structures of international law: the international law of co-existence and the international law of cooperation.

Question 5:
What is the difference between the international law of coexistence and the international law of cooperation? Why is the law of coexistence a more stable structure?

Guidance:
The book introduces the students to a distinction between the international law of co-existence and the international law of cooperation. The distinction (that is derived from the so-called “English School” of international relations) reflects the historic evolution of international law and illustrates how international law is centered around the configuration of the sovereign state as the primary actor in the international system. The “international law of co-existence” is that part of international law where one finds the legal answers necessary to separate the powers of the sovereign states. It is referred to as the law of “co-existence” because the primary purpose of this area of the law is to uphold peaceful coexistence in the international society. The book notes that it is a primarily horizontal legal structure and mainly concerned with how sovereign states interact with – and between – each other and less with how sovereign authority is exercised within the state. It also notes that the international law of co-existence is a fairly stable legal structure because it contains the more basic principles that govern how states can pursue their separate interests without violating the sovereignty of other states. The “international law of co-operation” is the part of international law that contains the legal answers to those issues that states have decided to turn into matters of international concern by adopting a treaty. Thus, the reason why the given matter is one of an international character is not because the topic is of inherent interest to two or more states but instead because a treaty is an international agreement governed by international law.

Question 6:
Where do you see a (potential) tension between order and justice in international law?

Guidance:
The question asks the students to consider the frequent tension between what many will perceive to be a just outcome and more overarching considerations of stability and order. In the last section of Chapter 1, the book notes how international law is often criticized for standing in the way of creating a more fair and just world. It also provides some examples, include a reference to how sovereignty often complicate efforts to assist a distressed civilian population and how the consensual character of treaties stand in the way of progress on noticeable issue of global concern, such as fighting poverty or combating climate change. Question 6 asks the students to come up with additional examples of where international law may be an impediment to achieving justice. In practice, of course, what is “just” is subjective and the students are likely to disagree on the examples they provide. In itself, of course, this is a point worth noting. The book contains numerous examples of where one may see a tension between justice and order or stability. For example, Chapter 3 notes how the stability of international relations dictates that treaties are generally always deemed to be valid regardless of how unfair they may be perceived to be. Chapter 4 stipulates how territorial borders are fixed and not subject to change and how stability also requires that people pursue their right to self-determination within their existing states. Chapter 6 mentions how state immunity, including the immunity of state representatives, may be a bar to bringing claims and/or criminal prosecutions against states and their representatives for serious violations of international law. Chapter 13 illustrates how the Charter of the United Nations is primarily concerned with upholding international peace and security and that end price for upholding the peace may come at the expense of the civilian population in individual states.

Question 7:
Can you think of any way that international society can be structured other than around states? And what consequences might an alternative configuration have?

Guidance:
The question seeks to engage the students in identifying alternative manners in which international society could be ordered rather than on the basis of the existing state-centric approach. The book notes that the “Westphalian” configuration is not the only way to structure the international society and that the emergence of sovereign states is actually a fairly recent phenomenon, at least when considered in a large historical perspective. The book also notes that, in theory, international society could, for example, be ordered around a “world government” with universal authority. Another option would be to configure the world along religious lines, as is the current ambition of the so-called Islamic State of Iraq and Syria that seeks to replace the existing states with an Islamic caliphate. Similar ideas have emanated from Iran since the 1979 Islamic Revolution.