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Max Planck Encyclopedia of Public International Law [MPEPIL]

History of International Law, since World War II

Martti Koskenniemi

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 21 April 2024

Since World War II

Published under the auspices of the Max Planck Institute for Comparative Public Law and International Law under the direction of Professor Anne Peters (2021–) and Professor Rüdiger Wolfrum (2004–2020). 

A.  The Post-War Era 1945–59

1.  The Legal Climate

According to a widespread conclusion among diplomats and politicians in the 1940s, the inter-war political system had failed at least partly owing to its ‘legalism’, its apparently excessive faith in the power of legal rules, institutions, and processes to bring about peace and justice among nations. The structures of the League of Nations, it was widely held, had failed to integrate concerns of power and policy, epitomized above all in the absence of the Great Powers from its institutions at crucial moments, the break-down of its machinery of collective security, and in the disappointments concerning the implementation of the Covenant provisions on disarmament, codification of international law, peaceful settlement of international disputes, and peaceful change (Codification and Progressive Development of International Law). The formal equality of League members, reflected in the principle of unanimity in the Assembly and the Council, had blocked even the possibility of effective action against potential or actual law-breakers. World peace required resolute action and this, in turn, necessitated that the future international system should enlist the support of the most powerful nations.

In foreign ministries and universities, lawyers increasingly subscribed to a ‘realism’ that emphasized the limits of law in a politically divided world and the need to base legal rules and institutions on the ‘sociological substratum’ of power and influence in international relations (eg Keeton and Schwarzenberger, Stone). Law could not go ‘against’ power—it could only at best enlist power for its own purposes—which therefore needed to be streamlined with the purposes of the Great Powers. The most important political and sociological fact of the post-war world was the ideological and military conflict between the socialist block and the West, led by the United States of America, and manifested in crises such as the Korean War (1950–53) and the Soviet intervention to crush the uprising in Hungary in 1956 (Intervention, Prohibition of; Russia). Although the conditions of the Cold War (1947–91) posed serious limits to legal imagination, by the 1950s the Soviet Union had largely given up its earlier opposition to international law in favour of a pragmatic acceptance of international law as a form of peaceful coexistence. As a result, a wide network of procedural rules developed to regulate inter-block relationships. In the 1950s and 1960s, most international lawyers saw their task in terms of the administration of these procedures, making sure that ideological conflict would be channelled into peaceful avenues, perhaps looking to a less confrontational age in the future when plans for a world rule of law might be more vigorously pursued.

Alongside the conception of international law as one of the vocabularies of peaceful coexistence, current thinking in the West sought ways in which to advance methodologically and politically beyond mere endorsement of the status quo. In the US, lawyers around Yale Law School began to think of international law as a technique for pursuing American values and foreign policy goals (McDougal). This type of ‘instrumentalism’ took seriously the lessons of the ‘political realism’ brought to the US by European refugees, although it differed from the latter in its relentless Missionsbewusstsein (Krakau; Legal Realism School). In part it also emerged from an endogenous legal realism at US law schools that had since the 1930s discarded the idea of law as static ‘rules’ in favour of more policy-oriented conceptions. Although there continued to exist voices that indicted sovereignty as the main obstacle to a law-governed international order (eg Jessup), most innovative thinking at US law schools in the post-war era focused on how to use sovereignty so as to attain a more robust and politically acceptable world order.

In Europe, the lessons of realism were integrated in foreign policy while legal doctrine turned largely inwards, focusing again on the transformation of international treaties into domestic laws, and on regional developments in the human rights and economic fields. Reconstruction in Europe called for regional integration, and if lawyers played a key role in the setting up of the Council of Europe (COE) and the European (Economic) Community (‘EC’), it was less in terms of applying old international law doctrines than through novel and often unorthodox ideas about functional and technical co-operation as a way to peace and security (Reuter). Traditional international law was set aside by theories of functional integration (Mitrany) to articulate the point of setting up regimes of human rights protection (European Convention for the Protection of Human Rights and Fundamental Freedoms [1950]) or economic co-operation within a customs union and in the development of nuclear energy (Rome Treaties on the European Economic Community and the European Atomic Energy Community [Euratom] of 1957; Customs Law, International; Nuclear Energy, Peaceful Uses). In their international law writings proper, European lawyers continued to focus on the activities of the United Nations (UN). Despite the efforts to distance the UN from its predecessor, legal-formalist readings of the United Nations Charter remained influential (Kelsen; United Nations Charter, History of).

In the South, colonialism had been discredited as an official doctrine and the process of national liberation was beginning to lead to serious opposition to Western rule by (largely Western-educated) local elites. At this stage, the movement to independence sought only incidental support from international law, largely experienced as one of the instruments of Western domination. To the extent that social and economic concerns were expressed in legal reform, this led to the transplantation of the model of the regulatory State with the goal of administrative modernization and the creation of local industries through import substitution (Trubek and Santos). However, the organization of the Non-Aligned movement (NAM) under the ‘five principles of peaceful coexistence’ at the Bandung Conference (1955) linked third world policies much closer to Soviet pragmatism than to the West. At this time, international lawyers from the South adopted a largely traditional vocabulary that highlighted the need for international reform but viewed reform in terms of the diplomatic and foreign policy positions of the large developing States (Alvarez; Diplomacy).

2.  The United Nations and Other International Organizations

Unlike the League Covenant, the adoption of the UN Charter was not accompanied by millennial rhetoric about ending war for all time or about an incipient world federation. The Charter put much less faith in formal techniques of pacific settlement of disputes and was more inclined to accept a special role for the Great Powers than the Covenant had been. This was manifested above all in the key position given to the five Permanent Members (Britain, China, France, the Soviet Union, and the US) acting through the UN Security Council (‘UNSC’; United Nations Security Council) as guarantors of international peace and security. In Art. 25 UN Charter the members simply ‘agree[d] to accept and carry out the decisions of the UN Security Council’. In contrast to the Covenant, the Charter did not provide detailed legal procedures for the maintenance of international peace and security. Instead, the UNSC received wide discretion to act (or not to act) as circumstances would require. Great Power co-operation was ensured by conditioning any action on agreement between them. Even in the settlement of international disputes, the choice of methods and procedures was left by Art. 33 UN Charter to the discretion of the members—with the ultimate sanction that if peaceful settlement were to fail, then the UNSC could take action, eg impose sanctions.

As is well-known, conditioning action by the UNSC on agreement between the Great Powers led to paralysis. In connection with the Korean War (1950–53), the Soviet Union began to block UN action so that the UNSC’s tasks were taken over in a kind of palace revolution by the Western-dominated UN General Assembly (‘UNGA’; United Nations, General Assembly) through the Uniting for Peace Resolution (1950). However, doubts remained about the legality of this action (eg Goodrich and Hambro 122–25). As the UNGA’s powers remained only recommendatory, and though emergency sessions followed one another, they made little practical difference.

The most important ‘constitutional’ development in this field was the initiation by the UNGA, together with the UN Secretary-General, of the peacekeeping activities of the organization in connection with the Suez Crisis of 1956 (Suez Canal). Smaller observation units had been sent to conflict zones by the UN since its inception but it was only in connection with brokering the deal for the withdrawal of British and French troops from the ill-fated Suez operation that larger peacekeeping, designed to secure a cease-fire agreement and to establish conditions for political settlement—UNEF I, was designed (Urquhart). The legal nature of peacekeeping and its constitutional basis remained, however, obscure, in a fashion that complicated the carrying out of the second large UN operation in the Congo in 1960 (Congo, Democratic Republic of the). The legal debates crystallized in the controversy over the distribution of the costs of peacekeeping among UN Member States in Certain Expenses of the United Nations (Advisory Opinion) by the International Court of Justice (ICJ) in 1962. Nevertheless, a pattern was established that lasted until the new types of conflict in the 1990s and the new political constellation in the UN made the traditional peacekeeping distinctly old-fashioned.

The UN Charter directed the UNGA to ‘encourag[e] the progressive development of international law and its codification’ (Art. 13 (1) (a) UN Charter). However, the idea was that instead of developing into a world legislature or a centre of international administration, the UN should function as a forum of multilateral diplomacy through which international conventions would be adopted and disputes could be settled peacefully. To carry out the former task, the International Law Commission (ILC) was set up in 1947 as a body of independent experts to prepare drafts for the codification and progressive development of international law. In its first session in 1949, the Commission adopted its first work programme that consisted of 14 topics: the law of treaties, State responsibility (Responsibility of States for Private Actors), jurisdictional immunities, laws of the high seas and of territorial waters, diplomatic and consular intercourse, extradition, right of asylum (Asylum, Diplomatic; Asylum, Territorial), recognition of States, and arbitration procedure. The ILC’s achievement in the period 1945–60 remained unimpressive. Work was concluded on five topics, with two draft conventions (on territorial sea and the high seas), the UNGA declining to take action on one suggestion (arbitral procedure), and two topics pending (diplomatic relations and statelessness). The ILC’s activity was characterized in terms of the ‘slowness of the progress, and disappointment at the results actually achieved’ (Rosenne 154). Although the work on arbitral procedure, reduction of statelessness, and in the field of international criminal law did not lead beyond drafts, significant preparatory work was, however, made for the Vienna Convention on Consular Relations (1963), the Vienna Convention on Diplomatic Relations (1961), as well as on the Vienna Convention on the Law of Treaties (1969).

10  The record of the ICJ was only somewhat better. However, the Court’s case-law did produce useful statements of aspects of the internal law of the UN institutions (Admissions 1949, Reparation for Injuries 1949, Competence of the General Assembly 1950, Effect of Awards of Compensation 1954) and in some cases constituted a pertinent intervention to clarify an obscure aspect of the law (Reservations 1951, Anglo-Norwegian Fisheries 1951) or to solve an issue of territorial title (Frontier Lands 1959). Although cases brought to the Court remained of rather marginal political significance, this did not detract from the Court’s ability to use them to develop important aspects of the law.

11  One aspect of League activity that most commentators felt had been successful was the work of functional international co-operation. That activity was not only resumed but significantly expanded within the UN. The International Labour Organization (ILO) continued its work accompanied by several new UN Specialized Agencies in the economic and social fields, in health and education as well as refugee protection (United Nations, Specialized Agencies). In the economic field, commissions (ECE, ECLA, ECA) were set up to co-ordinate regional economic development (United Nations, Regional Commissions). More significant economic activity was, however, undertaken through the Bretton Woods institutions, the International Bank for Reconstruction and Development (IBRD) (the World Bank), at this time predominantly concerned with economic reconstruction in Europe, and the International Monetary Fund (IMF), designed to make sure that currency problems would not lead to the kind of situation that had emerged in the late 1920s and early 1930s (Bretton Woods Conference [1944]). To the extent that the World Bank did deal with development, its focus was on ‘better off’ countries that were able to present conventionally creditworthy projects (Petersmann 25). Efforts towards a permanent organization for world trade (the Havana Charter [1948] failed) did lead to the adoption of the GATT (1947) under what was originally seen as only a temporary arrangement (General Agreement on Tariffs and Trade [1947 and 1994]).

12  The Organization of American States (OAS) was created by the 1948 Bogota Charter above all as a regional collective security agency under Chapter VIII of the UN Charter as well as for the settlement of disputes and as a centre for the many traditional forms of pacific co-operation between Latin-American States. The League of Arab States (LAS) was established in 1945 but remained a loose co-ordinating body finding common ground most frequently in their opposition to Israel (on which they declared war in 1948).

3.  Legal Doctrine

13  Although in the period 1945–59 ideas about world federation or a legally guaranteed world peace were still expressed in international legal doctrine, most new writing was directed towards either of two separate avenues. The largest volume of academic work sought to describe and systematize the largely procedural rules that underlay the diplomacy of the period. Especially in Europe, there was an effort—sometimes programmatically declared (Brierly)—to seek to concentrate on the less confrontational areas of international co-operation where legal concerns might seem most obviously pertinent. On the other hand, efforts were also being made to read international law sociologically, or as an aspect of the ‘power politics’ that characterized the international milieu (Corbett, de Visscher, Schwarzenberger; Sociological Theories of International Law). Few lawyers wanted to describe the UN Charter, for instance, as a world constitution. Instead it, too, was seen as a set of pragmatic provisions that enabled co-operation for mutual advantage by the two blocks. Legal innovation was predominantly limited to the regional sphere.

14  Inter-war lawyers had been critical of what they saw as the law’s excessive emphasis on State sovereignty. Although a critique of sovereignty still underlay most of Western writing, lawyers no longer sought immediate ways to exit from it even in the West. On the contrary, the pull of a policy-oriented realism suggested taking sovereignty seriously and using it so as to produce diplomatically credible accounts of the operation of law or the conditions of legal reform (McDougal, Stone). And neither Soviet nor third world lawyers shared the Western unease with sovereignty. Instead, for them it was the foundation from which they could oppose what they saw as the constant tendency towards Western domination. Statehood stood firmly as the law’s formal centre. That this centre was thoroughly political was manifested in the final victory of the declarative doctrine concerning the effect of recognition of States. The emergence of States, it was held, should be seen as a political, historical, and sociological process—a process of de facto consolidation of power in an entity, and not as a reflection of what existing States—in practice the most powerful States—were willing to accept as such (eg Chen). Efforts to mitigate the relative arbitrariness of this by postulating a duty to recognize once an entity had attained the required conditions of statehood (Lauterpacht [1947]) were not successful. In accordance with the political ‘realism’ of the age, recognition was to be seen as a political act of approval that did not create the State, even legally, but only put a final stamp of approval (by the individual State or by the community) on an entity’s statehood (Crawford [2006]).

15  The war had highlighted the need for protection of individuals and vulnerable human groups. Many Western lawyers called for including individuals as subjects of international law, and the first works on the role of international law in the protection of human rights were published (Lauterpacht [1950]). Nevertheless, the traditional position had not been changed by the UN Charter that included only brief and apparently incidental provisions on co-operation in the human rights field (Arts 1(3) and 55 (c) UN Charter). The Universal Declaration of Human Rights (1948) was deliberately drafted in a non-binding way. The work of the UN Human Rights Commission for a binding instrument or instruments proceeded painstakingly through the post-war period, animated by suspicions from the socialist and third world States, reaching a conclusion only in 1966. By contrast, the development of humanitarian law took important steps immediately after the war with the adoption of the Geneva Conventions I–IV (1949) on the protection of the wounded and sick on land and on sea and on the protection of prisoners of war and civilians (Humanitarian Law, International; Wounded, Sick, and Shipwrecked).

16  The Nuremberg trial of the major war criminals (1945–46) introduced two new categories of international crimes into practice: crimes against peace and crimes against humanity (International Military Tribunals; National Socialism and International Law). It also prompted the UNGA to consecrate the ‘Nuremberg principles’ in a formally non-binding resolution (UNGA Res 488 [V] of 12 December 1950) and to allocate work on a ‘Draft Code of Offences against Peace and Security of mankind’ in 1947 to the newly established ILC. Although the Commission was able to prepare a draft, its adoption was postponed by the UNGA in view of the effort to seek to define the concept of aggression. Overall, in the period 1945–60 no significant progress was made in the development of international criminal law.

17  The expansion of multilateral treaty-making in various fields of co-operation encouraged lawyers to think of this process as a kind of international legislation (Jenks). The position of treaties was highlighted by the fact that neither socialist nor third world States were willing to concede the immediate general applicability of traditional customary international law. Their strong voluntarism—State will as the ultimate source of international law—was an understandable derivation from their anti-imperialism and emphasis on domestic sovereignty. It led directly to the view that the main source of international law is the treaty—a view that underlay the controversy over the nature of the work of the ILC as either ‘codification’ or ‘progressive development’. The adoption of the four conventions prepared by the ILC at the First UN Conference on the Law of the Sea (1958) was an important success in the effort to enhance the acceptability and clarity of traditional rules by enshrining them in formal codification (Conferences on the Law of the Sea).

18  Yet, even as the period was one of all-pervasive legal pragmatism, this did not mean that lawyers refrained from policy proposals or from canvassing desired futures. Rather, those futures now became a projection of the ideology of pragmatism itself. Thus, the proliferation of multilateral treaties was often understood as part of a natural or historical process that headed towards a ‘common law of mankind’ (Jenks). The prospect of a nuclear war between the Great Powers prompted not only social scientists but lawyers to develop models and proposals for avoiding that type of catastrophe in the future (Clark and Sohn).

B.  Expansion 1960–84

1.  The Legal Climate

19  By far the largest single theme in international law in the 1960s was the emergence of a ‘new’ international law. The consolidation of the legal theory of ‘peaceful coexistence’ on the side of the socialist countries and their representatives in legal academia matched the rhetoric of novelty used by third world States and lawyers to bring the concerns of the South onto the international agenda. Although these rhetorics were far from identical, in practical terms they converged in the call for the overhauling of traditional ways to think about international law. At the outset, Western lawyers were divided about what to think of these claims. The point that ‘old’ customary international law ought not to bind the ‘new’ States seemed disruptive of the orderly operation of the international legal system. Moreover, the suggestion that UNGA resolutions, passed by large numerical majorities, dominated by non- or even anti-Western interests, might be thought of as a kind of international legislation, was felt as dangerously destabilizing.

20  However, as the claims of novelty became more familiar and were analyzed as to their specific content, it was realized that they often embodied ‘largely the familiar norms, but applied with a new style’ (Hazard 79). This was particularly true of the principles of sovereignty, sovereign equality and non-intervention, strongly asserted by the new and the socialist States—principles that had stood at the heart of ‘European public law’ since Vattel (States, Sovereign Equality). It was only their use to assert independence from the West that was new. It is paradoxical that one of the places of confrontation in the middle of the period we are now considering was the UN Special Committee set up to draft a declaration celebrating the 25th anniversary of the UN. After complex debates focusing, inter alia, on the right of national liberation movements such as the Palestine Liberation Organization (PLO) to use force and to receive external assistance, the Committee and the UNGA did reach consensus on the Friendly Relations Declaration (1970) that reaffirmed in rather familiar language seven leading principles of the UN Charter from non-use of force and pacific settlement of disputes to non-intervention, self-determination, sovereign equality, and the duty to fulfil good faith (bona fide) obligations under the UN Charter (Use of Force, Prohibition of ). In the end, there was little overt disagreement on the basic principles of the international order. The controversy was rather on the way they ought to be applied and which exceptions should be allowed. But the political debate on neo-colonialism also began to spill over into a controversy about the limits of the public order itself, to whether it could be extended to cover also powerful private economic activities.

21  By 1960, there was broad agreement that decolonization had become a ‘principle of international law’. This was reflected in the adoption of the UN Declaration on Decolonization (Res 1514 [XV] of 14 December 1960, with nine abstentions) that provided the legal basis for the work for independence of most European colonies in a few years. Soon, however, third world claims began to extend from public law sovereignty (which was, after all, a Western heritage) to the regulation of private transnational activities, initially through the adoption of the Declaration on Permanent Sovereignty over Natural Resources (UNGA Res 1803 [XVII] of 1962) that was interpreted so as to make the continued validity of private contracts to extract natural resources in the countries of the South dependent on the good will of the new sovereign (Natural Resources, Permanent Sovereignty over; Treaties, Validity). Through activities undertaken within and by the United Nations Conference on Trade and Development (UNCTAD) since 1964, third world lawyers sought to transform the pattern of international economic and financial transactions, particularly of international investments, in accordance with ideas about distributive justice. The project of the New International Economic Order (NIEO) was in 1969–74 written into countless legal instruments, treaties, commodity agreements, resolutions, and reports from the UN system. For example, the UN Centre for Transnational Corporations was set up in 1973 in order to regulate the activities of powerful private actors and strengthen the negotiation capacities of third world States. The process peaked with the adoption of the Declaration on the Establishment of a New International Economic Order (UNGA Res 3201 [S-VI] of 9 May 1974) and the Charter of Economic Rights and Duties of States (1974) (UNGA Res 3281 [XXIX] of 12 December 1974), adopted with 120 States in favour, six against (including the Federal Republic of Germany, United Kingdom, and US), and 10 (all Western) abstaining. Here the South found a platform for progressive development in its interests—while the vast majority of capital-exporting countries declared their opposition to it. The question of compensation for nationalization of foreign property—especially of natural resources concessions in the Middle East and in Africa—was dealt with in many international arbitration awards in the 1970s. While Western lawyers often insisted on the ‘Hull formula’ of ‘prompt, adequate and effective’ compensation, they became increasingly willing to settle for a compromise standard. Third world lawyers began by invoking a national standard but were willing to move to a standard of ‘appropriateness’ that would allow contextual adjustments (Sornarajah).

22  Towards the end of this period, the significance of claims of sovereignty in economic law started to erode. The law of state immunity, for example, began to make a clear distinction between the foreign sovereign’s ‘public’ acts to which immunity applied and ‘private’ (in practice, economic) activities to which it did not (Badr; European Convention on State Immunity [1972]). The adoption of the Convention on the International Centre for Settlement of Investment Disputes (ICSID) in 1966, with linkage to the World Bank, undermined State claims to regulate private economic activities within the framework of domestic concerns and principles while the enlargement of the GATT was premised upon a world-wide commitment to free trade and competitive advantage (Free Trade Areas).

23  Generally speaking, this was a period of renewed confidence in the ability of the ‘international legal system’ to manage international problems, irrespective of political controversies. The beginning of this period saw important developments in the codification of the traditional diplomatic law—the Vienna Convention on Diplomatic Relations, the Vienna Convention on Consular Relations, and, in particular, the adoption of the Vienna Convention on the Law of Treaties. With this, the basic procedural framework of diplomatic law was completed and a turn to new ‘functional’ areas of the law began. The most impressive legislative effort of the ‘new type’ concerned the law of the sea, no longer delegated to legal experts in the ILC but directly to the Third UN Conference on the Law of the Sea (‘UNCLOS’) in 1974–82 at which stakeholder groups negotiated with each other with the view to attaining a mutually acceptable ‘package-deal’. The debates within the UNCLOS over the establishment of the International Seabed Authority (ISA) for the purpose of administering the resources of the deep seabed gave impetus to the novel concept of common heritage of mankind and formed a model for the new dynamic of negotiations between the developed and the developing countries on various social and economic items, pursued at countless multilateral forums within and beyond the UN system.

24  One project that took place outside the UN framework was the preparation of two Additional Protocols to the 1949 Geneva Conventions (Geneva Conventions Additional Protocol I [1977]; Geneva Conventions Additional Protocol II [1977]). The three-year conference was convened by the International Committee of the Red Cross (ICRC) and led to the adoption of new rules on the protection of victims of international (Protocol I) and non-international (Protocol II) armed conflicts. The strong input by third world States led to the exemption of wars of national liberation from the scope of internal to international armed conflicts—a decision that some saw as minimizing any interest in having an instrument on the former issue.

25  At the same time, human rights law began to develop at the universal level especially through the adoption and entry into force (in 1976) of the International Covenant on Economic, Social and Cultural Rights (1966) (‘IESCR’), the International Covenant on Civil and Political Rights (1966) (‘ICCPR’), and the Optional Protocol to the former that provided for a (formally non-binding) individual complaints procedure. Many other human rights instruments, such as conventions on the Elimination of all Forms of Racial Discrimination (‘CERD’, 1964; Racial and Religious Discrimination), on the Elimination of all Forms of Discrimination against Women (‘CEDAW’, 1979; Women, Rights of, International Protection), as well as against Torture and other Forms of Cruel and Degrading Treatment (‘CAT’ 1984, Torture, Prohibition of) were adopted at the universal level. At the same time, their implementation organs, headed by the Human Rights Committee, began to take an increasingly activist role. Alongside national reporting as an instrument for monitoring the performance of the countries—a much-criticized but probably necessary form of implementation control—some countries became part of the individual complaints system introduced in some of these instruments. The increasing extension of human rights rhetoric in the UN system led to a remarkable narrowing of the scope of application of (the notorious) Art. 2 (7) UN Charter, namely the reservation of ‘domestic jurisdiction’ (Rajan). By the end of the period, a country that was forced to rely on that exception so as to avoid international discussion of its conditions was immediately regarded—especially in the West—as an international pariah. Nevertheless, the East-West conflict was reflected in the way the rights were understood and little progress was made at the universal level to institute any deep-going supervision of national implementation. In the relevant UN organs—above all the UN Commission on Human Rights—the Western emphasis on individual civil and political rights was routinely opposed by emphasis on economic rights and social rights and on the need to support struggles for self-determination in Africa and Palestine. More significant development began at the regional level where the Conference on Security and Cooperation in Europe (‘CSCE’, 1975) began as a political agreement over Europe’s post-war boundaries and as a process of dialogue on economic and human rights issues but was increasingly understood as a platform for monitoring the internal situation of countries in the socialist block (Organization for Security and Co-operation in Europe [OSCE]).

26  Last, but not least, the Stockholm Conference on the Human Environment (‘UNCHE’, 1972) constituted a starting-point for the rapid development of international environmental law under the auspices of the United Nations Environment Programme (UNEP) and in a regional and local context. Besides giving policy directives, the Stockholm Declaration reminded States of their responsibility not to cause harm to areas outside their jurisdiction and control while affirming their right to undertake environmental policies according to their preferences (Principle 21 of the Stockholm Declaration; Stockholm Declaration [1972] and Rio Declaration [1992]; Environment, International Protection). That principle was soon included in most environmental treaties and was understood to reflect the state of customary law. It was, of course, a compromise formulation. Efforts in the ILC, and elsewhere, to develop general rules on environmental responsibility or for liability for environmental damage caused by (inherently lawful) industrial or technological activity failed to advance. However, following widely publicized catastrophes such as the grounding of the tanker Torrey Canyon in the English Channel in 1967, treaty-regimes were rapidly created on issues such as liability for marine pollution by oil and hazardous substances (Brussels Agreement 1969–71) and intervention in the high seas (1969; Liability for Environmental Damage; Marine Pollution from Ships, Prevention of and Responses to). Likewise, regimes for (limited) liability for nuclear incidents emerged at the initiative of the IAEA (the ‘Vienna system’) and the OECD (the ‘Paris system’; International Atomic Energy Agency [IAEA]; Nuclear Energy, Peaceful Uses; Organization for Economic Co-operation and Development [OECD]). Global rules on marine pollution were also developed within the International Maritime Organization (IMO), formerly IMCO, and within the UNCLOS. The most impressive effort in this field was the rapid adoption of the Vienna Convention on the Protection of the Ozone Layer (1985), followed by the Montreal Protocol (1987) in order to combat the effect of emissions of chlorofluorocarbons (‘CFCs’) in the atmosphere on human health (Atmosphere, International Protection). The ozone regime formed the pattern for the kind of universal ‘framework’ treaties that were later adopted in different fields of environmental protection. Much of international environmental law was developed at the regional level, however. Commissions for the protection of regional seas were set up and regional agreements such as the 1979 Convention on Long-Range Transboundary Air Pollution were concluded in Europe.

27  Another large set of questions emerged with the imperial activities undertaken by the US in the Western hemisphere. The Cuban missile crisis in 1962 that led to the brink of a nuclear confrontation between the US and the Soviet Union had involved a formally illegal quarantine declared by the US around Cuba. Nevertheless, many US lawyers saw the actions of the Kennedy administration here as an ultimately innovative and justified way to use law in an area where formal details could not always be followed (Chayes). The US invasion of the Dominican Republic in April 1965 was a straightforward imperial operation the purpose of which was to oust an elected leftist government from power. Although the administration did dress this action in the garb of law, most lawyers—including many US lawyers—saw the action as blatantly illegal in terms of both the UN Charter and the Charter of the OAS (Friedmann). The last of these events was the support by the Reagan government for the ‘contras’ in the civil war in Nicaragua and the intervention in Grenada in 1983 ostensibly to protect the lives of American citizens there. Both actions, though formally justified by the Reagan government as lawful self-defence, were widely condemned as blatant violations of the UN Charter. In 1984 and 1986 in the Military and Paramilitary Activities in and against Nicaragua Case (Nicaragua v United States of America), the ICJ rejected the US plea of self-defence and condemned the US for the breach of many key principles of international law, including those of sovereignty, non-intervention, use of force, and violations of humanitarian law. In a sense, this case was the culminating point of one set of developments in the law that enshrined the formally equal status of old colonized territories as against Western imperial powers, and articulated the international consensus about the principles concerning the use of force under the UN Charter and under customary law.

28  Large-scale military action continued to be undertaken by the Great Powers outside the scope of international rules. The Vietnam War lasted until the Peace accords in 1973 and the final withdrawal of US troops took place in 1975. The fact that it was conducted without any serious discussion about its lawfulness (Falk [1968–76]) facilitated the equally imperial Soviet intervention in Czechoslovakia in 1968 (Czechoslovakia, Dissolution of) that was justified in terms of the so-called Brezhnev doctrine (Doctrines [Monroe, Hallstein, Brezhnev, Stimson]) sanctioning intervention to uphold socialism, and the pursuit of the war in Afghanistan (Afghanistan, Conflict) that ended only in the Geneva accords brokered by the UN Secretary-General in 1988. Legal rules on the use of force also had little role in the 1967, 1973, and 1982 military conflicts between Israel and its neighbours. However, the Palestinian conflict remained the privileged ground over which the application of humanitarian law was constantly debated.

2.  United Nations

29  The deadlock in the UNSC continued, with the limited exception of situations where agreement between the Great Powers could be reached to deal with issues of racial discrimination, such as those in South Rhodesia (where the UNSC instituted binding sanctions against the Ian Smith regime in 1965–79) and—in a more limited way—South Africa (where only a non-mandatory arms embargo was set up). Much of the UNSC’s activity was directed at the intractable Israel–Palestine problem with the period’s most significant activity—the signature of the Camp David Accords (1978)—taking place outside the UN system. The involvement of the UN in the conflict peaked in the adoption of the two resolutions in the aftermath of the Six-Day war in 1967—UNSC Resolution 242 and UNSC Resolution 338—that called for Israeli withdrawal from its occupied territories and the respect of the right of all States (including of course Israel) in the region to live in peace (Israel, Occupied Territories; Occupation, Belligerent). The UNSC was powerless to deal with military conflicts directly involving Great Powers such as Algeria, Vietnam, or Czechoslovakia. Despite its obscure legal basis, peacekeeping was consolidated as the principal UN activity in the field of maintenance of international peace and security (Higgins [1969–81]). Yet its problems were manifested in both of the period’s most important operations. The UN force in Cyprus (‘UNFICYP’, 1964) was successful in guarding the cease-fire line in the island but also froze the positions of the parties and undermined any sense of necessity of reaching a rapid solution. The Turkish intervention in Cyprus in 1974 was condemned by the UN Security Council without much effect on the ground, however. The force that was established in South Lebanon (‘UNIFIL’, 1978) had insufficient resources to keep the parties from each other’s throats and was easily overrun by Israel at the outset of its incursion into Lebanon in 1982.

30  After the 17-year preparation of the draft that became the Vienna Convention on the Law of Treaties, the ILC began to have increasing difficulty in getting its drafts accepted by States. The Vienna Convention on Succession of States in Respect of Treaties (1978) and the Vienna Convention on Succession of States in Respect of State Property, Archives and Debts (1983) were signed by only a few States and, while the former finally entered into force in 1996, the latter never received the required number of ratifications (State Succession in Treaties; State Succession in Other Matters than Treaties). The preference for pushing law-making into the plenary organs of the UN led to the establishment of several UN Special Committees to deal with legal matters. One of them was the Committee on the Definition of Aggression that finished its work in 1974 with a definition (UNGA Res 3314 [XXIX]) that, after giving examples of forms of aggression, was left incomplete, with reference to the discretion of the UNSC to define other acts as aggression if that was needed. Other Special Committees such as those dealing with the reform of the UN Charter, terrorism, or the use of mercenaries either failed to advance or produced proposals that failed to be widely adopted (see the International Convention against the Recruitment, Use, Financing and Training of Mercenaries, UNGA Res 44/34 of 4 December 1989). In other fields such as disarmament, space activities, and economic and social affairs, legal instruments—including treaties—were prepared and adopted, often with a significant input by developing countries. One such instrument was the 1967 Outer Space Treaty that defined outer space as a common heritage of mankind, prohibited the installation of mass destruction weapons in outer space, and reserved the Moon and celestial bodies for exclusively peaceful purposes. Another treaty prepared directly under the auspices of the UN was the 1977 Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques.

31  This was a period of relative silence at the ICJ. The 1960s began with an important ‘administrative’ case on UN law (Certain Expenses of the United Nations [Advisory Opinion], 1962) as well as one important territorial dispute (Temple of Preah Vihear Case, 1964). In declining locus standi to Ethiopia and Liberia in South West Africa/Namibia (Advisory Opinions and Judgments) in 1966, however, the Court came to face the collective anger and disappointment of the third world. The image of the Court as a representative of the old order was not dispelled by its virtual turn-around in the Namibia advisory opinion (1971) or in the ‘progressive’ but complex opinion in Western Sahara (Advisory Opinion) in 1975. Towards the end of the 1970s virtually no cases of significance were brought to the Court. Nor did attempts to activate the Court by providing occasion to clarify rules on diplomatic protection (Barcelona Traction Case, 1970) raise its status in the UN system. This is not to say that the Court would not have made significant pronouncements at this time. It laid out the basic doctrine on customary international law in the North Sea Continental Shelf Cases (1969) and clarified the structure of fishery rights in the Fisheries Jurisdiction Cases (United Kingdom v Iceland; Federal Republic of Germany v Iceland) in 1974. But these were also cases in which the Court came to act more or less as an arbitral body, canvassing the applicable law in terms of an undefined equity or balancing of contrasting rights. The same approach was chosen in the Nuclear Tests Cases (1974) where the Court constructed the relevant law in terms of French unilateral declarations, allowing it to by-pass the question of what general law might have said about the conduct of atmospheric tests. In this period, it became obvious that the Court could not avoid being seen—and acting—as a player in a field of complex international political tensions. It was only the bold stand that it took against US assistance to the contras in 1983–86 in the Nicaragua case that made it again seem like the carrier of a truly universal mission.

3.  Legal Doctrine

32  The period 1960–85 consolidated and universalised the doctrinal debates of the inter-war era. Where the division between more or less ‘formalist’ and ‘realist’ approaches to international law remained the key cartography of legal sensibilities, it was no longer limited to Europe, the US, and their dependent territories, but became a universal platform over which specific legal debates were waged between and across regional groupings. Lawyers largely shared a ‘welfarist’ view on international law, accepting that while it remained impossible to ‘legalize’ the hard core of the law on peace and security, it was nevertheless possible to attain workable consensus solutions in the economic, social and human rights fields. It would be possible to manage international problems through law because, as it was frequently said, the world had become increasingly interdependent so that attempts to regulate economic or environmental issues, for example, by individual States could no longer succeed (Friedmann).

33  Mainstream international lawyers sought to bring their welfarism within new understandings of legal sources (custom, treaties, the role of UNGA resolutions) and often depicted UN organs and agencies as aspects of an international legal ‘system’ in which the law was constantly being produced and administered by analogy to the legislative processes of the domestic—welfare—State (eg Mosler; Analogy in International Law). The normative power of UNGA resolutions through ‘instant custom’ was a much debated issue especially at the outset of this period (Cheng, Arangio-Ruiz). It also began to seem clear that the basic framework of the system—subjects, sources, processes—was being consolidated and that attention could now be turned from the frame to the policies that would be advanced from within it. Increasingly, lawyers specialized on technically bounded issues and rule-systems, coming to think of themselves as ‘law of the sea experts’, ‘human rights lawyers’, ‘trade lawyers’, and ‘international environmental lawyers’, identifying their universal activities with those of UN institutions but also actively participating in regional developments.

34  International law teaching began to look for a balance between the diplomatic frame and the various fields of particular legal substance. Textbooks still began either with a chapter on ‘statehood’ or legal ‘sources’ as the basis of international law—manifesting the opposition between a somewhat more ‘realistic’ and a somewhat more ‘formal’ orientation to the field. But the substance of the law that followed from these tended to be quite uniformly described in terms of a system of rules and institutions in the various areas of international legal regulation, often with the assumption that the centre of this substance lay in what had been attained in the UN. Alongside traditional topics such as the use of force, the relations between national and international law, recognition of States and governments, diplomatic and consular relations, and the law of treaties, new materials were collected under such headings as ‘human rights’ and ‘international law and the environment’. Much of the law so described had been developed at or was applied in international institutions. Accordingly, the first studies on something like an independent branch of ‘international institutional law’ began to develop, with a focus on the common procedures applicable in international organizations—including the nature of the constituent instruments and the binding force of the decisions by the various governing bodies (Bowett, Schermers; International Organizations or Institutions, Decision-Making Bodies).

35  In Europe, the most remarkable development was, however, the emergence of a new branch of legal professionalism within ‘European law’ that offered a field of innovation as an alternative to the somewhat static antics of public international law. The doctrines of supremacy and direct effect were consolidated, prompting lawyers to debate at length the ‘sui generis’ nature of the legal relationship that now existed between the members of the European Communities (European Union, Historical Evolution). With the ERTA Case judged by the European Court of Justice (‘ECJ’; European Union, Court of Justice and General Court) in 1971, the external competence of the European Economic Community became a topic of scholarship, followed by the intensive discussions on the place of treaties in Europe. ‘European Political Cooperation’ remained a weak structure that did not lead to effective co-ordination in foreign policy or, eg treaty-making. A robust body of doctrine and jurisprudence began to develop in Europe also on international human rights. The European Court and Commission of Human Rights (European Court of Human Rights [ECtHR]) began their activity in 1960 and their jurisprudence—together with proliferating academic commentary on it—laid down rapidly the basic standards of protection on issues such as right to privacy, freedom of speech, right to a fair trial and various standards of conduct by public authorities (Opinion and Expression, Freedom of, International Protection; Privacy, Right to, International Protection). In response to the challenges to the primacy of EC law and to its jurisdiction by powerful supreme courts of certain Member States, the ECJ drew inspiration from the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950, ‘ECHR’) and from national constitutional traditions, developing a novel jurisprudence on ‘fundamental rights’ in the 1970s, thus reconceiving the meaning of the EC treaties as legally ‘more’ than just the foundation of a customs union (Weiler; Customs Unions).

36  Third World lawyers began to attain increasing visibility, especially in various UN plenary organs in which their States held numerical majorities. From early emphasis on political aspects of self-determination, their attention turned to economic law. Perhaps the most important theme in the middle of the period was ‘permanent sovereignty over natural resources’ (Natural Resources, Permanent Sovereignty over), a topic under which one could deal with nationalization of foreign property, international commodity agreements, technology transfer, the regulation of multinational companies, and broad themes relating to the uses of the outer space or the law of the sea. The latter seemed particularly important as a pilot for the effort to create institutional structures for the international management of resources (see, eg Bedjaoui). Many third world governments were opposed to the development of human rights institutions which they saw as an effort to continue Western intervention in their internal affairs. But they also emphasized the importance of economic and social rights as a precondition for meaningful political development in the South. The controversial decision by the ICJ in the South West Africa/Namibia case (1966) confirmed to many third world lawyers an intrinsically conservative bias in traditional dispute settlement. In general, they were divided between their criticism of the prevailing political and economic structures and their indictment of the implication of international law in buttressing various neo-colonial practices on the one hand, and their strong reliance on many traditional aspects of international law that supported their independence, on the other: ‘For the underdeveloped and developing nations, it is the dynamic and progressive character of contemporary international law that appear most relevant for their aspirations’ (Pathak 2). This notion of ‘progress’ was obviously quite different from the one advocated by many supporters of the third world agenda in the West.

37  In the US, most academic international lawyers came from the liberal centre or the liberal left, as represented by the East Coast law schools (Harvard, Columbia, NYU) and had little problem with adjusting to—and developing—the welfarism of their European and third world colleagues. US lawyers played an active and often innovative role in the political and legal activities at international organizations. Critique of imperial activities such as the Vietnam War or interventions in the Western hemisphere (Cuba, Dominican Republic, Grenada, Nicaragua) or concerns over extensive interpretations of the right of self-defence did not spill over into the everyday world of the development and application of international law. At Yale, Myres McDougal’s ‘policy-orientation’ was linked more closely with US foreign policy agendas but failed to extend beyond parts of the US legal academy (see Kennedy [2003]). The same was true of other political-science-inspired technical approaches to international law and international organization such as ‘international legal process’ or the study of ‘transnational law’. The position of international law in international relations departments of US universities declined from what it had been earlier, in particular owing to the ‘scientism’ that became prevalent in those departments and which did not, as Stanley Hoffmann has observed, leave room for legal-normative analyses (Hoffmann, [1963] ASIL Proceedings 27). Apart from the brief era of President Carter (1977–81) which saw, among other activist phenomena, the use of the ‘Alien Torts Claims Act’ as an instrument to bring human rights violations in foreign countries to be adjudicated in US courts, the US government remained wary of extensive international engagements. In particular, it remained in opposition to the more radical third world proposals, especially in the economic field. The gap between positions in academia and in the government peaked quite dramatically in the refusal of President Reagan, after many years of wrangling, and despite concessions made by others, to sign the UN Convention on the Law of the Sea in 1982. At the end of this period, the US international law establishment was alienated from, and often in direct opposition with, the American foreign policy elite.

C.  Into a New World? 1985–2001

1.  The Legal Climate

38  In the mid-1980s, another period of détente between the Great Powers set in. The relations between the two blocks had been managed, inter alia, through the ‘process’ that began at the Conference on Security and Co-operation in Helsinki in 1975, continued through the 1980s, and was formalized as an ‘Organization’ (even if the fact that this name-change was not based on a treaty testified to some reluctance to envisage the situation as permanent) in December 1994. ‘Perestroika’ in the Soviet Union and the accompanying changes in Eastern Europe peaked in the 1990 Paris Charter that laid a novel foundation for East–West relations. The break-up of the Soviet Union that seemed to inaugurate a new era of international consensus was legally manifested in something of a movement ‘forward into the past’. Doctrines that had long remained inapplicable (and had perhaps been considered obsolete), or had been applied in novel ways during decolonization, began to receive currency: the recognition of statehood and State succession (under the respective treaties of 1978 and 1983 as well as customary law) articulated in legal terms the dissolution of the Soviet Union, the Socialist Federal Republic of Yugoslavia (Yugoslavia, Dissolution of), and Czechoslovakia, as well as the merger of the German Democratic Republic into the Federal Republic of Germany (Stern, Eisemann, and Koskenniemi).

39  No wonder, perhaps, that many felt that work for a constitutionally founded ‘international legal community’ could finally take off from where that project had been left early in the League period. Towards the end of the Iran–Iraq War (1980–88), the Great Powers finally agreed to make use of the UNSC as well as of the good offices of the UN Secretary-General so as to put pressure on the parties. The desire to make the UN work more efficiently—‘as it was intended by the drafters’—in order to uphold international peace and security was increasingly expressed (Berridge; White). This seemed confirmed by the way in which the UNSC had been able to react to the occupation of Kuwait by Iraq in August 1990 during the Iraq–Kuwait War (1990–91) by first establishing a full-scale economic embargo on Iraq and then authorizing the use of force against it (UNSC Res 661 and 678). The manner in which the cease-fire was imposed on Iraq and a sanctions regime established, seemed to indicate a transformed sense of will and opportunity on the part of key players to make reality of rule-based collective security.

40  At this time, also, the often painful disarmament talks between the superpowers took a leap ahead by the signing of the strategic arms reductions treaties in 1991 and 1993, which provided for limits and reductions on the strategic arms available to their parties. Although the latter never entered into force, both were largely complied with in this period.

41  It was to some extent against this general trend (though this was not visible at the time) that Western Europe was pursuing ‘an ever closer union’. The legal doctrines of direct effect and supremacy as well as the novel ‘fundamental rights’ jurisprudence of the ECJ opened the way to an understanding of the European Union (‘EU’) as not merely a commercial arrangement but a community of values. Nevertheless, efforts to streamline the EC treaties, as well as to enhance the functioning of the institutions did not lead to impressive results. The treaties of Maastricht (1991), Amsterdam (1997), and Nice (2001) did make important changes, including extending the Union’s international capacity and the harmonization of the European Common Foreign and Security Policy. Making the institutional changes necessary to accommodate further enlargement was constantly postponed, however. Neither was there an effective resolution of the problem of the relationship between the Union and the ECHR. In legal doctrine, increasing attention was given to the role of treaties in the European legal system as well as the co-ordination of the treaty-making capacities of Member States and the institutions of the Union (Heliskoski). As the external competence of the EU extended to new areas, it became often difficult to understand for third States—who ought they to negotiate with? Although it seemed clear that the old treaties could no longer work in novel conditions, what to do with this was postponed to future debates about a European Constitution.

42  In the early and mid-1990s, the rhetoric of the ‘rule of law’ was everywhere (Goldstein and others). At the Rio Conference on Environment and Development in 1992 (‘UNCED’), 20 years after the Stockholm Conference had initiated multilateral international action in this field, two framework treaties were adopted on combating climate change and on the preservation of biological diversity, together with an ambitious agenda for coping with problems of environment and development, and a set of new institutions, above all the Commission on Sustainable Development (CSD) (Sustainable Development) within the UN (Birnie and Boyle; Biological Diversity, International Protection; Climate, International Protection; Sustainable Develoement). As a result of the Uruguay Round talks, the World Trade Organization (WTO) was established in 1994, with a permanent, legally based mechanism for the settlement of disputes. The WTO Appellate Body (‘AB’) may have received its name and some of its procedures from the reluctance of trade negotiators to establish a formal court. Nevertheless, it did not take long for commentators, or the members of the AB itself, to interpret its activity as that of a regular and in some respects even very advanced international law-applying tribunal whose jurisprudence could not be seen as ‘clinically isolated’ from public international law (Pauwelyn; Jackson). By 2010, the AB had dealt with more than 100 of the altogether 400 cases submitted to the WTO dispute settlement system (Annual Report of the AB [17 February 2010] WTO Doc WT/AB/13).

43  The events in the civil war in the former Yugoslavia led to heated debates about what to do about the war crimes and crimes against humanity, even genocide, committed by the parties. This item had, as we have seen, been initiated in different forms in the UN as early as 1948, but its development had remained hostage to the suspicions across the two blocks. In 1993 the UNSC took the unprecedented step of establishing the International Criminal Tribunal for the former Yugoslavia (ICTY) by a resolution adopted under Chapter VII of the Charter. This was then followed by the establishment in the following year of the International Criminal Tribunal for Rwanda (ICTR) to deal with the genocide that had meanwhile been carried out in Rwanda. The Statutes of the two ad hoc tribunals, together with the Nuremberg and Tokyo charters, as well as a draft by the ILC, became the basis for the negotiations for a permanent international criminal tribunal, with general jurisdiction. Those negotiations led, in 1998, to the Rome Treaty, establishing the International Criminal Court (ICC) that commenced its activity in 2002 (Cassese; Gaeta and Jones).

44  Finally, a more widespread and a more institutionally embedded version of human rights activism arose in the late 1980s. In Europe, the COE began to expand its activities in Eastern and Central Europe, and new States—including the Russian Federation—signed up to the ECHR. The human rights case-load grew in such a way that led to the abolition of the European Commission of Human Rights and the setting up of the ECtHR as a single human rights court in Europe. In parallel, the Inter-American Court of Human Rights (IACtHR) began its activity in 1979 and the African Charter on Human and Peoples’ Rights (1981) was adopted in 1981 and a Commission began work in 1987. The number of special multilateral human rights treaties rose rapidly (see above). Also the activity of the expert bodies set up under these treaties increased, leading sometimes to severe financial and logistical problems, eg with the treatment of the national implementation reports. Although the treaty bodies sought to streamline and co-ordinate their activities within the UN system, they remained insufficiently resourced. Many States were critical of this ‘treaty congestion’ and stressed that instead of adopting new human rights instruments, attention needed to be directed to ensuring the effective implementation of existing ones. On the other hand, the institutionalization of human rights as a regular part of diplomacy and the work of intergovernmental organizations led to the creation of an increasingly pragmatic human rights ethos, and questions were raised about its continued transformative potential (Kennedy [2004]).

45  In 1999 there were in existence over 30 significant international courts and tribunals. One of them was the International Tribunal for the Law of the Sea (ITLOS) set up in Hamburg under the Annex XV UN Convention on the Law of the Sea. The Tribunal commenced its activity in 1997 and by 2011 altogether 18 cases had been submitted to it. Even the OSCE established a Court of Arbitration and Conciliation in 1995, which, however, has so far never been used. The relatively infrequent use of ITLOS may follow from the fact that it entered a field where the ICJ had already developed an appreciable jurisprudence and arbitration provided a workable alternative for States reluctant to have recourse to it. The OSCE, again, has been such a deeply political context that there has been little use for legal techniques within it. As can be seen, the most significant (at least quantitative but perhaps also qualitative) development within international jurisdiction has taken place within the WTO dispute settlement system.

46  The end (or at least significant lessening) of East-West antagonism did not come as an unmitigated gift to the South. In the first place, through most of the 1980s Third World countries were forced into a retreat from their advocacy of NIEO. Efforts to regulate economic development through the UN and intergovernmental organizations were slowly given up. The UN Centre on Transnational Corporations, for example, was closed in 1992. The importance of the UNGA also decreased in peace and security matters as the UNSC’s activities increased. The last two major resolutions following the pattern of the Friendly Relations Declaration (1970), the 1982 Manila Declaration on the Peaceful Settlement of Disputes between States (UNGA Res 37/10 [15 November 1982] GAOR 37th Session Supp 51, 261) and the 1988 Declaration on the Prevention and Removal of Disputes andSituations Which May Threaten International Peace andSecurity and on the Role of the United Nations in this Field (UNGA Res 43/51 [5 December 1988] GAOR 43rd Session Supp 49 vol 1, 276) failed to have any effect on the development of international law or the direction of international events. In 1994 an important symbolic defeat was suffered by the South when the negotiations conducted under the auspices of the UN Secretary-General for safeguarding the ‘universality of the Law of the Sea Convention’ (ie for ensuring that leading Western States would ratify it), led to the implementation agreement that set aside the idea of an International Seabed Authority as a body for redistributing the wealth created through the extraction of seabed minerals. As third world faith in formal diplomacy waned, contestation of the injustices of the international system was taken over within new social movements advancing post-colonial themes, especially in the anti-globalization context (Rajagopal).

47  In the course of the 1990s, social deprivation and political crises led to increasing war and ethnically articulated violence in the third world but also in the margins of Europe in a way that undermined the period’s initial optimism. The failure of effective international response to the civil wars in Somalia and Haiti (Haiti, Conflict; Somalia, Conflict) and especially to the genocide in Rwanda (1994)—as well as to the Yugoslavian succession wars (1991–99)—led to an intensive debate on humanitarian warfare (Chesterman; Humanitarian Intervention). This peaked in the North Atlanti Treaty Organisation bombing of Serbia in 1999 as the UNSC had seemed unable to respond effectively to the deteriorating situation in Kosovo (North Atlantic Treaty Organization [NATO]). The bombing was illegal under the UN Charter but was held to be justified by many Western observers (Simma). Others read the readiness for humanitarian warfare as an instrument for selective Western politics and were concerned about the reality of pervasive and continuous economic and cultural intervention by the West everywhere (Orford). By 2001, the Canadian initiative titled Responsibility to Protect emerged as a broad framework within which it was hoped to encompass both military and non-military aspects of the security of vulnerable populations (International Commission on Intervention and State Sovereignty [2001]). The prospects of universal consensus towards lowering the threshold of international violence were, however, lost with the terrorist attacks on New York and Washington in September 2001. At that point, the US and its allies decided to conduct their ‘global war on terrorism’ unilaterally and outside international rules and institutions.

48  Another series of frustrations arose from the continuation of economic and social problems in the South, despite improved global political conditions. The benefits of globalization had failed to be distributed equitably. This led to a spiral of endemic conflict, social deprivation, and health crises especially in Africa, but also elsewhere. The policies of Western-led economic and financial institutions—especially the WTO and the World Bank—peaked in the so-called ‘Washington Consensus’ that favoured free trade and ‘restructuring’ of governments so as to open domestic markets for competitive principles. They were widely seen as responsible for the continuation of poverty and social dislocation in the third world. Combined with continuing environmental degradation, this had the effect of leading to the formation of a powerful anti-globalization movement that attacked the WTO and the World Bank as aspects or symbols of an unjust world order (Rittich). This contributed to the rise of various civil society institutions and concerns as to the level of diplomacy so that international law too was affected. For example, the adoption of the Ottawa Treaty to Ban Landmines (1997) was largely achieved owing to organized civil society lobbying. Other significant law-making processes in the environmental and criminal law fields were also inspired and prompted by active civil society participation (Lindblom). The negotiations conducted within the OECD to adopt a Multilateral Treaty on Investment (‘MAI Treaty’) collapsed in 1998, largely owing to the sense that it would have been biased in favour of capital-exporting industrialized States. The latter States responded by beginning the development of a network of bilateral investment treaties (BITs) that incorporated largely the same principles that had been suggested in the aborted MAI Treaty.

2.  United Nations

49  The number of UNSC meetings and resolutions rose to unprecedented numbers, many of those resolutions having been made under Chapter VII of the UN Charter. In situations such as the break-up of the former Yugoslavia, Haiti, and Somalia, peacekeeping was being transformed into ‘peace enforcement’ with endless discussion about what this ought to mean in terms of the personnel and equipment that participate in such operations and what their rules of engagement ought to be. The high point of the UNSC’s early optimism was constituted by its first meeting at the level of Heads of State and Government on 31 January 1992. The ethos of that moment was well expressed in the UN Secretary-General’s Agenda for Peace (1992–95) and Agenda for Development (1993–94).

50  With rising expectations and expanding activity came increasing problems. The resources of the UN did not make it possible to attain far-reaching objectives. Contributors to ever-expanding peacekeeping activities became tired of renewed demands and many conflicts came to be dealt with only in a half-hearted way. Questions of fairness and UN accountability arose. One incident of this was the adoption of economic sanctions against Libya in 1992 owing to its unwillingness to co-operate in the investigation of the terrorist attacks against the Pan Am flight over Lockerbie and the UTA flights in the 1980s (Lockerbie Trial). In particular, third world countries felt that the UNSC was reacting selectively, on the basis of Western priorities, and that some of its actions—eg the economic sanctions on the whole of the Iraqi population—were unjustified in view of the suffering they caused (see, eg UN Sub-Commission on the Promotion and Protection of Human Rights, UN Doc E/CN.4/Sub.2/2000/L.32). Likewise, the contrast between the UNSC’s passivity in African crises and its intense involvement in the Yugoslavian succession wars seemed to point to a bias in favour of ‘white man’s’ concerns. The effort to reform the procedures and the composition of the UNSC began with some fanfare in the early 1990s, but had petered away by the end of the century into one more routine of low-level meetings at headquarters.

51  The political changes in the 1990s were more complex and difficult than was seen at the time of the Paris Charter and the first Gulf War. Civil war and ethnic tension became rooted as part of the normality of life in Africa, the Balkans, and the Middle East: ‘As Council Members listened and learned with dismay about the unfolding tragedies of Yugoslavia, Haiti, Somalia, Central Africa, the Caucasus, and a dozen other hot spots, they could only reflect, ironically, that the recent Iraq crisis was really very simple by comparison’ (Kennedy [2006] 67). The spiral of events was unprecedented so that failure of the UN in Rwanda, including the way it affected the whole of the Great Lakes region towards the end of the 1990s, became the lowest point in the UN’s history (Great Lakes Region, Africa).

52  Law-making in the UN increased in volume, but perhaps decreased in importance. The ILC finalized a draft convention on the non-navigational uses of international watercourses that was adopted in 1997 but has so far failed to receive the required amount of ratifications to enter into force. It was drafted as a ‘framework treaty’—that is to say, posing only generally formulated principles and directing the States to procedural co-operation and to the establishment of managerial regimes for particular watercourse systems. The projects on State immunity and the diplomatic courier and bag were also disposed of, but have so far not led to the adoption of formal treaties. By far the most significant achievement of the ILC was the finalization of the draft articles on State responsibility (2001) that effectively codify much of the relevant law in this field (Crawford [2002]). Most of the regulatory activity in the UN in this period, however, went into the organization of a succession of global conferences on large themes such as children (1990, New York), environment (1992, Rio de Janeiro), human rights (1993, Vienna), population (1994, Cairo), social development (1995, Copenhagen), women (1995, Beijing), human settlements (1996, Istanbul), and food (1996, Rome). Children, International Protection; Environment, International Protection; Food, Right to, International Protection; Women, Rights of, International Protection). These conferences (Conferences and Congresses, International) produced a number of reports and recommendations few of which, however, were conceived in legally binding terms. The organization of these conferences was inspired by the hope that the UN might finally emerge as a kind of administrative centre for dealing with social problems in a global environment (Lindgren Alves). Although the conferences did establish complex follow-up mechanisms, their effectiveness in tackling the relevant problems left much to be desired. The series of conferences ended with the Millennium Summit in New York in 2000 that set up an ambitious (but again, not legally formulated) agenda for meeting what the report called the ‘challenges of globalization’, in particular poverty and deprivation in the third world, as well as reforming the UN itself. Nevertheless, they did function as a useful foil for civil society activism and created the sense that international law, too, needed to ‘step down’ from the abstractions of formal diplomacy so as to cope with problems that were intrinsically of a universal nature (UNGA Res 55/2 of 8 September 2000 and Report of the UN Secretary-General, UN Doc A/54/2000; United Nations, Millennium Declaration).

53  After its establishment in 1995, the WTO became the key forum and symbol for the new law of international trade that was written into the three Uruguay Round Treaties—the GATT now supplemented by the General Agreement on Trade in Services (1994) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (1994). It was also being developed by the case law of the AB and the increasingly voluminous academic commentary to it, often synthesized into a ‘constitutional’ view of the new trade law (Cass [2005]). However, the free trade ethos of this system reflected the values of the victors of the Cold War and was looked upon with suspicion by many countries in the Third World embittered by what they came to see as an increasingly bad deal. Allowing unlimited access to products or services from the developed countries and establishing strong protections of intellectual properties (overwhelmingly from the industrialized world) were felt to put developing States at a permanent disadvantage and disrupt indigenous trade and cultural patterns (Indigenous Peoples; Intellectual Property, International Protection). Together with the Bretton Woods institutions’ restructuring efforts in Third World States, the new trade system became the target of the anti-globalization movement that spread grassroots activism into an increasing number of fields formerly held in exclusive diplomatic preserve.

54  This period witnessed the most active use of the ICJ in the whole of its history or that of its predecessor. With the European countries committed to settling their disputes within the institutions of the EU, and the Great Powers keeping their traditional distance to the ICJ (the US having withdrawn its acceptance of the Court’s jurisdiction in 1984) developing countries began to use the ICJ to deal with territorial and maritime problems that had been bestowed upon them often as a legacy of the colonial era. No doubt, there was some embarrassment in applying the uti possidetis doctrine as widely as the Court did, when that effectively consecrated instruments or decisions made at colonial capitals in completely different circumstances. But as the Court bluntly put it in the Frontier Dispute Case [Burkina Faso/Republic of Mali] in 1986, any other course of action would simply encourage ‘fratricidal struggles’. Nevertheless, emphasis on equity and reasonableness were also consolidated as part of the Court’s territorial jurisprudence, thus somewhat mitigating the rigour of decision-making by formal title. These notions were crucial also in the Court’s treatment of the Gabčíkovo-Nagymaros Case (Hungary/Slovakia) in 1997. The Court could not overlook the significance of the transition in Eastern Europe to a treaty concluded in 1977 in view of a new environmental consciousness that was extending in countries previously under authoritarian regimes. The Nuclear Weapons Advisory Opinions showed the limits of the Court’s usefulness to deal with what were also political questions of first-rate importance.

3.  Doctrinal Developments

55  The period 1985–2001 was one of expansion and diversification in international legal doctrine. Three aspects of it are noteworthy. First, the welfare-oriented centralism—focus on the UN and other public law organizations—that had been the mainstream until the 1980s remained strong, especially in Europe and in the Third World, while new political and theoretical orientations arose to challenge its priorities and sometimes its methods and basic orientation. In the early 1990s, the political developments seemed encouraging from the perspective of the traditionalists who were enthusiastically examining the new legal instruments—human rights and environmental treaties and the statutes of the criminal courts—as well as the practice of their implementation bodies, raising interpretative issues and treating the available materials more or less as domestic lawyers would treat domestic legal sources for interpretation and systemization purposes. The increased activity of the UNSC brought questions of war and peace—including peace enforcement and humanitarian intervention—to the centre of the legal debates and suggested readings of the UN Charter (as the League Covenant had once been read) in a constitutional light (eg Tomuschat). It was perhaps symbolic that one of the most debated issues concerned the possibility of judicial review of UNSC decisions (Fassbender).

56  Second, however, alongside the optimism flagged by the traditionalists, international legal doctrine became increasingly specialized. ‘Generalists’ continued to teach the law of the UN Charter and other traditional textbook topics, often through the vocabulary of international community or shared values and objectives, but even they needed to venture into special fields such as international trade law, human rights law, international criminal law, international humanitarian law, and so on to make sense of recent developments. It was not difficult to notice in that process that the principles and biases in the special branches were often far from identical or even compatible with the principles of the (old) general law or the preferences of its representative institutions. Methods and approaches to study and engage in international law became increasingly diversified. In the past, international law had oscillated between more or less ‘legalistic’ and ‘realistic’ approaches on diplomatic behaviour, State actions and policies, and acts of public international institutions, especially the UN. Now it was being approached from a much wider variety of perspectives, integrating such exotic disciplines as political theory, international relations, anthropology, literature, economics, post-colonial studies and so on. New themes reflecting the political changes included international law’s role in enhancing democracy and its relation to religion. Some of the new literature at the end of the 1980s and the beginning of the 1990s was framed in terms of abstract, philosophically oriented, and sometimes highly critical statements about the discipline (Carty; Allott). Some of that literature took an interdisciplinary look at international ‘facts’ so as to develop more reliable ‘models’ of State behaviour, especially in view of gaining improved compliance (see Slaughter, Tulumello, and Wood). The interdisciplinary orientation—particularly en vogue in the US around the middle of the 1990s—often developed into an overtly political direction, invoking a ‘liberal agenda’ as the political ground for the development of international law. Other approaches, again, were critical precisely about the kind of ‘liberalism’ they had felt had been the mainstay of the profession since its inception, and sought to find ways for new voices to be heard, and to correct biases that were understood to infect traditional modes of thinking about international law (Dallmeyer; Charlesworth and Chinkin). Still other new approaches used the resources of critical theory to develop structural analyses of the (political) conditions and biases of international law as discourse and a professional practice (Kennedy [1987]; Koskenniemi [2005]; see also Cass [1996]). Overall, discussions of method and the history of international law became livelier and more overtly political than in prior eras (Ratner and Slaughter).

57  With fragmentation of international law and new methods came also a change in the professional profile of the international lawyer. One no longer looked only into foreign offices to find a place for international law work. Instead, the most varied job opportunities opened in international organizations, non-governmental bodies, and with private commercial operators. Towards the end of this period, for example, traditional ‘public international law’ had become almost extinct at US law schools where teaching was directed to more narrowly defined specializations such as ‘international business transactions’, ‘human rights litigation’, or ‘law and development’. This was in part a response to the needs of new types of legal specialization that had emerged in practice; in part it reflected a more ideological move away from international law to specialized work with no longer a necessarily welfarist or public law ethos. In Europe and the Third World, however, the traditional public law orientation of the discipline was maintained. It was often articulated in a constitutionalist vocabulary (Klabbers) but also supplemented by expanding work on human rights, trade law and other special disciplines. Everywhere, international law tended to be invoked in the most varied types of civil society advocacy.

D.  Confrontations 2001–Present

58  The relative instability of the late post-Cold War era peaked in a novel series of confrontations at the beginning of the 21st century that received an ideological colouring from North-South relations on the one side in the ‘fight against terrorism’ and on the other side from anti-imperialism often articulated in cultural or religious vocabularies. In the new configuration, ‘globalization’, while still often seen as an opportunity, especially for the expansion of private and semi-private economic networks, was often seen as a threat to traditional values and preferences (Loquin and Kessedjian, Berman)—with these two orientations providing the language for much of the novel confrontation. The US appeared as an overt challenger to the inherited structures and norms of public international law—the laws of the use of force, humanitarian law, environmental law, and many aspects of world-wide co-operation in public international institutions (Byers and Nolte). Europe, for its part, seemed often to be substituting the lack of active global engagement by formal reliance on traditional UN Charter law as well as its own regional economic and human rights activism. As the invasion of Iraq (Iraq, Invasion of [2003]) demonstrated, the enlargement of the EU to 25 Member States had not improved the coherence of its foreign and security policy. China and Russia were focused on economic reconstruction and preparing for future Great Power status while much of the third world oscillated between efforts towards democracy and economic reform on the one side, retreat to deprivation and violent conflict on the other. The three developments that had commenced in the prior era were sharpened into new forums for the search of spiritual and material hegemony: fragmentation, deformalization, and empire (Koskenniemi [2004], [2007]).

59  Fragmentation meant the intensification of the functional differentiation of the international normative world into special laws that were articulated as increasingly autonomous regimes, each equipped with a special ethos and catering to a special audience: trade, security, human rights, environment, social development, investment, diplomacy and so on. Each such ‘field’ asserted its speciality and pursued its own principles and objectives with increasing intensity, often in response to actual or feared encroachments from adjoining fields, their experts and their values and preferences (Fischer-Lescano and Teubner). This appeared above all in the institutionalization of new forms of law—new tribunals, new committees and expert bodies, new forms of legal specialization—that received their pull from their effort to respond more ‘efficiently’ to the novel ‘challenges of globalization’.

60  Prompted by expressions of concern by successive Presidents of the ICJ, the UNGA allocated the question of fragmentation of international law to the ILC which produced in 2006 a wide-ranging study on the matter, detailing techniques of normative conflict-solution but refraining from taking a stand on the institutional problems (conflicting jurisdictions between special bodies, overlapping competences and hierarchical relations). In a sense, the ILC recognized that fragmentation was not merely a legal-technical problem but reflected changes in the hegemonic structures of the international world; it did not arise from technical carelessness but from widely felt dissatisfaction with the way old ‘general’ institutions had been able to work. The Study Group of the ILC expressed, however, optimism about the ability of traditional conflict-resolution techniques to deal with the problem.

61  Deformalization related to the development of the content of international law itself: the more complex and situation-specific global problems appeared, the more difficult it seemed to respond to them through rules and institutions that were formulated in a universally homogenous fashion. For many actors and in many fields, formal rules appeared a part of the problem rather than its solution. Problems of security, for example, were often said to fall outside the operation of any formal lawfulness. Such large interests were at stake that rule of law concerns or insisting on formal rights might be counterproductive or outright dangerous. The needs of rapidity and flexibility were overriding (Glennon). The debate on the permissibility of torture or other forms of cruel or degrading treatment in the aftermath of the Abu Ghraib scandal, especially in the US, epitomized the uncertainties of the new moment (Greenberg). Parallel developments took place in other fields of international law. Problems having to do with environmental degradation, for example, or problems articulated in terms of conflicts between rights, had to be negotiated on a case-by-case basis, in a process in which the adjustment of conflicting interests and rights was conceived in terms of overall balancing. This highlighted the role of the experts appointed in the implementation organs of the relevant legal instruments. Multilateral treaties were understood (and often drafted as) ‘frameworks’ within which such expert groups were granted the authority to determine how the broad standards were to be applied in practice, how rights were to be balanced, and how scarce resources were to be allocated (Koskenniemi [2007]). In this process, powerful interests often held sway. For example, the failure to agree on universal rules on the conditions of glove investments lead to the establishment of a global network of bilateral investment treaties (over 2500 in 2006) that largely tied the hands of national governments to regulate domestic economic conditions.

62  Finally, ‘empire’ denotes not only the massive effort by the Bush administration since 2001 to have the US opt out from international rules and institutions and to proceed in norm-creation and enforcement through unilateral channels or in the context of ‘coalitions of the willing’, but also the perhaps more significant emergence of transnational economic, financial, and cultural networks and forms of dependency and expertise with a focus in the North and a bias against governmental regulation of all types, but unlocalizable in any sovereign government or public interest—a kind of ‘empire of civil society’ (Rosenberg; Hardt and Negri). With the return of the US to multilateralism after 2008, practices of international executive authority that had already been exercised by the UN and other international institutions in the third world crisis situations were strengthened (Orford [2011]). International presence, even military intervention—or at least the possibility of such intervention through the vocabulary of ‘responsibility, to protect’—became a visible, though contested part of the activity of international institutions.

63  Fragmentation, deformalization and empire are likewise actualized in the way academic elites have struggled for the development of vocabularies that would, more robustly than traditional public international law, articulate the practical nature of the task of ‘managing’ problems that a concern about ‘globalization’ has pushed to the foreground. The managerial ethos was visible in particular in the discourse on ‘global governance’ that dressed the most significant international issues as ‘management problems’ instead of legal or political conflicts in order to allocate them to the novel kinds of globally ambitious expertise. In this process, old public law institutions such as the UN and other intergovernmental organizations often seem slow or ineffective as instruments for responding to what is often articulated as ‘challenges’ that arise from the global economic and technological changes. Thus ‘government’ has become ‘governance’, ‘legitimacy’ replaces ‘lawfulness’, ‘compliance’ takes the place of legal ‘responsibility’; and international legislation is taken over in a vocabulary of regulation. These novel idioms have often resulted in empowering experts in ‘international relations’ and ‘political theory’ as the native speakers of a new global normative system that some third world lawyers have seen in terms of an ‘imperial global State in the making’ (Chimni).

64  Yet the outcome of these confrontations is anything but certain. The era has introduced new legal vocabularies in international law, new professional techniques and political preferences. But the basic orientations in the field—the need to produce abstract ideals about the better world and to engage with the institutional politics of various international actors—continues to mark the intellectual and political possibilities open for lawyers interested in engaging with the kind of progressivism that has been international law’s natural home. Although the present is marked by confrontations, some of them having to do with the very limits of international authority, the identity of the actors confronting each other has become increasingly unstable, the boundaries between them increasingly uncertain, old alliances and antagonisms unworkable. Neither the ‘United States’, ‘Europe’ nor the ‘third world’ remain as homogeneous or clear-cut entities as they were once imagined to be. The undermining of geographical boundaries by globalization is accompanied by increasing internal diversity of traditional actors. Although this may undermine traditional legal structures, and contribute to functional differentiation, it also opens the field for imaginative possibility. The tension between utopian hopes and institutional engagement remains, and the accompanying dangers of abstract irrelevancy and co-option in managerial routines are as palpable as ever. The fluidity of the moment is both an opportunity and a threat. Here another confrontation takes place between technical vocabularies and forms of institutional expertise in which international lawyers are engaged whether they will want this or not. And in preparation, they will need to give a response to two questions. What would it take for international law to become the language of global authority? And why would that be a good thing?

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A. The Post-War era 1945–59:

B. Expansion 1960–84:

C. Into a New World? 1985–2001:

D. Confrontations 2001:

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