International Law by Prof.

Pierre dArgent
Week 1: Introducing International Law

INTERNATIONAL LAW AND HUMANITY

Ladies and gentlemen,

First of all, let me warmly welcome each and every one of you, and thank you very much for having
enrolled for this course!
The course is about International law, but let me begin with two numbers which have very little to do
with any law. The first number is this one: 7,226,259,052 [seven billion, two hundred and twenty-six
million,two hundred and fifty-nine thousand and fifty-two]
The second number is: 3,153,600,000 [three billion, one hundred and fifty-three million, six hundred
thousand]
What are those numbers?
You've probably guessed that the first number is the approximate number of human beings living on
Earth on the day. This video was recorded, in 2015.
But what about the second number?
It could be the world population a few decades ago, but this is not what I intended to convey. The 3
billion plus figure is the number of seconds in one hundred years, not counting the leap years: 60
seconds in one minute multiplied by 60 for one hour, multiplied by 24 for one day, multiplied by 365
for one year, multiplied by one hundred.
Now, look at those two figures together and try to grasp what "humanity" very concretely means
today, at the beginning of the 21st century: currently, there are more than twice as many human
beings on the planet than there are seconds in a life of one hundred years. In other words: would you
live one hundred years, and would you spend your entire long life of one hundred years, from birth
to death, only paying one second attention to every other fellow human being without eating,
sleeping, playing, learning, working, and all the rest -- that would still not be enough; you would still
only have met, for one second each, with less than half of humanity. Just think about it for a second.
This is what humanity concretely means in this time and age. It is huge. So, to a large extent,
humanity -- understood as the collection of living human beings -- humanity remains an abstraction.
We live, we die, and what do we really know and experience about humanity? Only a tiny fraction of

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it. However, we can all relate to each other, we all participate in humanity, and since 1948 the
Universal declaration of human rights proclaims that "all human beings are born free and equal in
dignity and rights." And we know that it is far from being a given in all parts of the world, for each
and every one of our fellow humans.
In this course, we are not going to speak much about humanity and about human rights. Rather, the
course will be mostly about abstract legal entities, like States or international organizations and their
relations under the law. This may sound very abstract and remote from our shared humanity, but let
me make this clear from the start: international law may be mainly about relations between States,
but, beyond the mediation of States, international law is ultimately about us, human beings. It is
about us living separately in States, but it is abouts us living together on this planet.
As the planet shrinks and the world population expands, never before has it been so important in my
view to educate in international law and to raise the public awareness about it. This is one of the
purposes of this course.
I sincerely hope that you'll enjoy it and find it valuable.

INTERNATIONAL LAW AROUND US

When one thinks about international law, various images and ideas may pop in your mind: you may
think at war and peace between nations, ongoing humanitarian crisis, or other global issues, like
global warming or the protection of the environment.
You may also think at the protection of basic human rights, from the freedom of speech and of
demonstration to the right to food or the promotion of social rights for workers.
Or more dramatically, you may think at despicable international crimes, in the context of violent
uprisings or acts of terrorism.
You may think at more personal dramatic events that affected your family in recent years, or at more
distant events that made history and allowed for your parents or grand-parents to meet, or events
that forced your family to migrate.
On a more peaceful note, you may just think at your latest long-distance flight, getting a visa at the
embassy of the country you visited, or at the fruits from exotic places you bought yesterday at the
supermarket.
Maybe you're employed or someone in your family is employed by a large transnational corporation
and you've been living abroad because that company made investments there.
Or you have sailors in your family, commercial pilots or engineers working on off-shore oil platforms.

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Or just take your smartphone and look at it, and imagine, besides of course the incredible
engineering and technology that made it, imagine the amount of law that was indeed going into it:
not only the fact that you bought it and that you have also contracted with a phone company, which
are largely issue of domestic law, but also the oceans, the phone has travelled after having been
manufactured, the minerals that had to be extracted to make the components and that were
exported, the patents that protect the software in all jurisdictions, the agreements that have been
contracted in order for the data that you download to travel around the planet at the speed of light,
etc.
As much as our daily lives are constantly influenced and shaped by rules of domestic law that go
most of the time unnoticed, they are also increasingly influenced and shaped by rules of
international law.
At a time of globalization, this does not come as a surprise: the more we interact with each other, the
more we need common rules to sustain that interaction and make it predictable.
Law mediates between us and offers us a common ground for action. And the complexity resulting
from interaction calls for more law.
But what is that law that transcends national settings? How does it come to existence? How can it be
upheld? What can be done when it is not respected? And also: when you look around and see how
much international law is at the same time hypocritically invoked and constantly disregarded by
governments, is it really law?
Is it possible to have international law as law, or are international relations actually governed by
nothing else but power and might? Would international law offer the best illustration of the well-
known thought of Blaise Pascal, who famously wrote that "Unable to make what is just strong, we
made what is strong just"?
And where is justice in this world? Is not justice the purpose of any law?
Those are the kind of questions we are going to try to answer in this course. Or, at least, the course
will help I hope you to have a more informed and articulate view on those fundamental questions
that I just raised and that will be looming large throughout the course despite the fact that, as I
started by recalling, we are actually surrounded by international law all the time.

INTERNATIONAL LAW AND ITS VARIOUS NAMES

This course is about International Law, but as you've probably heard in the teaser, one can be even
more precise by saying that it is about Public international law.
What does that mean?

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Using the adjective "public" to describe international law is in contrast to Private international law.
Private international law is the law applicable to the relations between individuals and corporations
when those relations are international, that is when those relations are not entirely located in one
State.
Private international law is at issue for instance when a Frenchman marries an Argentinian lady in
Moscow, they settle and buy a flat in South Korea, have kids in Australia and finally divorce in South
Africa.
Many questions will arise: which judge may actually adjudicate on the divorce?
Which law applies to it?
Private international law is also at stake for instance if a Chinese company sells goods to a Californian
company, and that they are shipped on board a Danish cargo insured in Switzerland and which sinks
off the coast of India because of a collision with an oil tanker flagging the flag of Panama.
The same questions arise: which court may hear the case and which law applies?
Private international law is sometimes called "conflict of laws" because it is about resolving the
conflict between the various domestic laws and jurisdictions that could potentially apply in a case,
and choosing the right one.
That choice is usually to be made by application of domestic rules or by rules common to States and
contained in treaties that those States have contracted.
Private international law is a very important field of law today, but this course will not address those
transnational private law issues. Rather, the course will address the law applicable between public
entities that are engaged in international relations. It will be about the law of what the newspapers
call the international community.
Public international law, or to make it short, international law,
is sometimes called the Law of Nations.
In Roman times, Roman law was applicable between the citizens of Rome, while the law applicable
between the Roman Republic (or the Roman Empire) and the tribes and kingdoms of the rest of the
world , that law was called "jus gentium". Jus gentium was common to both the Romans and the rest
of the world. It was said to be common to both because it was said to derived from reason and was
close to natural law. Jus gentium was human, whereas Jus civile was specific to a people: the Roman
people.
Today, international law is still referred to as "le droit des gens" in French, or Vlkerrecht in German
or Volkerrecht in Dutch, which are all translations of the old "jus gentium". International law may still
be called by its Roman name today, and treaties between kingdoms, cities and empires may have
existed for thousands of years in fact, one of the oldest recorded treaty is the peace treaty of Kadesh
which had been contracted around 1259 BC between the Hittites and the Egyptians.

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However, the intellectual and structural foundation of international law as we know it today is more
recent. This is what we are going to see in the next video.

A FOUNDATIONAL MOMENT

It is usually considered that modern international law was born in 1648 out the peace treaties of
Osnabruck and Munster. By those two treaties, an end was put to the Thirty Years war that raged
within what was still considered in Europe as the Holy Roman Empire.
They also put an end to the Eighty years war between catholic Spain and reformed Netherlands, with
Spain finally recognizing the independence of the Dutch low countries.
The reason for what is called the "peace of Westphalia" to be used as the starting point of modern
international law is that the paradigm underlying the peace treaties was the equal sovereignty of
States on their respective territories and without a higher authority above them.
European nations had fought against each other for over Thirty years, and none had really won the
war, which was largely fought along religious lines.
States and nations were exhausted, new nations had been born and the basic social model that was
used to bring peace to Europe was very simple: in order to live together in peace, States would live
separately, each of them being sovereign on its own territory and equal to one another.
As a result, two higher authorities that had shaped European history for centuries lost much of their
influence:
on the temporal side, the Emperor of the Holy Roman Empire;
on the spiritual side, the Pope.
The legal bounds of hierarchy, allegiance and authority that existed between the Emperor and the
Pope on the one hand, and the European princes and monarchs, on the other, those bounds were
definitively replaced by a new understanding of the relations between the kings and princes.
That new understanding is based on equal sovereignty.
As a result, the legal order stemming from such paradigm is repugnant to any higher law imposed
from above on the various States.
The model of equal sovereignty is a model of a liberal legal order where each polity adopts for itself
its own laws and eventually contracts with other equal entities to create obligations between them.
But none of them has the authority to impose obligations on the other or to command that other
entity.

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If one should mentally or graphically represent such legal order, it would be characterized by its
horizontality, its flatness as opposed to the verticality of an imperial legal order based on the
hierarchy between the various legal subjects.
International law is horizontal and decentralized.
This basic structure of international law has not much changed over the centuries and it is still very
much with us today.
Article 2, paragraph 1, of the United Nations Charter proclaims that "The Organization is based on
the principle of the sovereign equality of all its Members", while paragraph 7 protects what is called
the "domestic jurisdiction" of States from outside interference.
What is quite extraordinary is that if the composition and the concerns of the international
community have of course radically changed over the centuries, nothing has so far fundamentally
replaced the Westphalian legal model based on equal sovereignty.

FROM WESTPHALIA TO VERSAILLES

Born in Europe, the public law of Europe established by the peace of Westphalia spread around the
world to become the fundamental paradigm of international law. In 1776, thirteen American colonies
of the British crown seceded from it to become independent States. They created between them
constitutional bounds within the American Republic, but they did not intend to change the
fundamental paradigm of international relations and law. based on equal sovereignty. Latin-
American colonies of Spain and Portugal followed suit a few decades later, and again the basic social
structure remained the same: equal sovereignty of States.
In 1815, at the Congress of Vienna, the turmoil resulting from the French revolution and the
Napoleonic wars was put to rest by an exercise of restoration at the domestic level and by the re-
establishment of a balance of powers, balance of powers whereby one State alone was not
sufficiently powerful to put in danger the peace on the continent.
In 1885, at the Congress of Berlin, European States shared and apportioned between them the
African continent, extending to their colonial domination the logic of balance of power between
them.
And then, in 1914, the balance of powers proved its limits, failed to keep peace and Europe
collectively committed suicide:
the Great War raged for four long years only to leave the continent on its knees, both materially and
spiritually.
Centuries of progress, science and industrial development were turned into a terrible war machine.

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It was a total war, and the first international war in which citizens of all social classes, not only
professional soldiers, were called to fight and die.
The war ended because of the late involvement of the United States of America in the war, which
tilted the stand-off in favour of the Allied and Associated powers.
Germany was finally defeated, together with the Austrian-Hungarian Empire and the Ottoman
Empire.
After the war, the peace was largely based on the famous Fourteen Points made public by the United
States President Wilson in January 1918.
It resulted in the peace treaty of Versailles and the other peace treaties concluded with the central
powers in 1919.
Germany became a republic. Germany had to pay war reparations.
Germany lost all of its colonies: Alsace-Lorraine was restituted to France; the Austrian-Hungarian
Empire and the Ottoman Empire were dismantled.
On the ruins of the Austrian-Hungarian Empire, new States were created on the basis of the principle
of nationalities, and Poland, which had disappeared as a State for 123 years, Poland was re-
established.
Furthermore, and for the first time in human history, an international organization was set up for the
purpose of maintaining international peace and security.
That organization was called the "League of Nations" and its Covenant was the first part of the peace
treaty of Versailles.
Versailles was a defining moment in history and that is why I chose a painting representing the
ceremony of the signature of the peace treaty as the banner for this course.
The painting is by William Orpen and it is to be seen at the Imperial War Museum in London.
However, when you think of it, Versailles was a very ambivalent moment for international law: it was
a peace treaty and it embodied the hope that international law, notably through the establishment
of the League of Nations, that international law could bring peace to the world.
And, as we know, that hope, that promise of international law, dramatically failed only 20 years later.
After the rejection of the peace treaty by the US Congress and the isolation in which Western powers
had kept the young Soviet Union since the revolution of 1917, the League of Nations was born as a
very weak organization and it proved incapable of reacting to the challenges posed by fascist Italy,
Imperial Japan and Nazi Germany in the 1930's.
Furthermore, and despite presenting itself as an instrument of peace and justice between nations,
and the beginning of a new era, the treaty of Versailles was also an instrument of continued
domination, therefore pointing to the deep ambivalence of international law: it was of course an

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instrument of domination over Germany, but look around the table: you only see faces of white men,
except for an Indian Maharajah as obedient servant of the British empire.
True, if you look at the whole painting through the link that you will found after this video, you'll also
see the representative of Japan represented on the painting. But that's it.
That was the world, and the world order, in 1919. Of course, today, the face and the concerns of the
international community have dramatically changed.
But the ambivalence of international law both as a promise of peace and justice, and an instrument
of domination, that ambivalence remains.
That is why Versailles is so appropriate to illustrate this course.

FROM VERSAILLES ONWARDS

From a legal point of view, the inter-war period was marked by another turning point, which added
to the League of Nations' rules limiting the freedom of States to resort to the use of force to settle
their disputes.
Rules however that did not completely outlaw war as an instrument of national policy.
What was called then 'the outlawry of war' was achieved by the treaty of Paris of 1928, which is also
called the Briand-Kellogg Pact as it was a joint idea of the French and the American foreign affairs
ministers. About ten years later, however, international law bitterly proved its limits again.
Poland was invaded by Nazi Germany on 1st September 1939 and Eastern Poland was invaded two
weeks later by the Soviet Union.
The Second World War began. It ended with the total victory over Germany, its occupation and
division, as well as the division of Europe.
Detached from any peace treaty, the Charter of the United Nations was signed in San Francisco on 26
June 1945 with- as the first sentence of the preamble emphatically stresses - with the determination
and the very noble ambition "to save succeeding generations from the scourge of war, which twice in
our lifetime has brought untold sorrow to mankind".
War with Germany had ended on 8 May 1945, but war with Japan was still raging, only to end with
the atomic bombs dropped on the cities of Hiroshima and Nagasaki on 6 and 9 August 1945.
As I recalled earlier, the UN Charter continues to be based on the principle of equal sovereignty of
States.
Quickly after the second World War, the Cold War divided the great victorious powers and paralysed
the United Nations to a large extent.

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However, during the late 1950's and throughout the 1960's, one major achievement of the UN was
to foster the decolonization of Asia and Africa.

A new principle of international law emerged and it radically changed the face and the agenda of the
international community: it is the right of peoples to self-determination, understood as the right of
European colonies to become independent.
But then again, and despite the revolutionary aspect of the right to self-determination, the basic
structure of international law did not change: colonies wanted to become what their former masters
were, they wanted to become States.
The fundamental paradigm of international law remained the equal sovereignty of States.
In many places around the world, the decolonization was a bloody and messy process.
Not only because some colonial powers were fiercely reluctant to relinquish their domination, but
also because it allowed for the East and the West to fight wars by proxy in order to try to attract
within their respective spheres of influence the newly born States.
And then came some years of detente during which Washington and Moscow tried to accommodate
their deep differences and eventually also to limit their respective arsenals.
With the liberation of Nelson Mandela in February 1990, with the reunification of Germany a few
months later and with the collapse of the Soviet Union in 1991, the cold war gradually came to an
end and it opened an intensive era of cooperation between States.
When Iraq invaded Kuwait in August 1990, the UN Security Council stood together and acted jointly,
proving a new resolve and opening a new era for the revival of the UN and for the development of
international law.
But international law was not only a matter of peace and security in the narrow sense of the world:
three fundamental issues -development, human rights and the protection of the environment - those
three new issues created a new sense of interdependence between the nations of the world, gave
new dimensions to the notion of peace and security and directly challenged the paradigm of State
sovereignty on which international law had so far been built and which international law had
protected.
The last decade of the XXth century saw the creation for instance of the World Trade Organization, of
the Yugoslav and Rwandan International Criminal Tribunals,
of the International Criminal Court, of the Organization for the Prohibition of Chemical Weapons, saw
also the creation of the Kyoto protocol on climate change, it saw also the Rio summit on sustainable
development and the establishment of many peace-keeping operations around the world.
Just to name a few of institutions and a few instruments that are based on the fundamental idea that
coexistence and cooperation between nations are best served and achieved through the

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development of international law, and at the same time that sovereignty must be transcended in
order to adequately address common challenges.
So, despite terrible failures like the genocide in Srebrenica and in Rwanda, the end of the XXth
century was marked by a deep sense of multilateralism and common purpose.
The development of TV networks, of the Internet, telecommunications and social media, together
with a growing air transport industry and the expansion of international trade, all that provided for a
new era of globalization.
True, the United States of America established itself as the only superpower, but it was largely seen
as a benevolent superpower, a power which was positively engaged with the rest of the world and
which strived with the rest of the world to improve it.
All that suddenly came to an end with the terror attacks of 9/11 and, even more, with the invasion of
Iraq in March 2003 by the US and UK forces.
Multilateralism came to a halt and was replaced by unilateralism, sometimes clothed in so-called
coalitions of the willing.
But coalitions also proved to have limits and more problems arose.
While coalitions come and go, institutions are resilient and their international law instruments
remain.
It is of course to soon to tell and nobody can read in the future, but, despite its pitfalls and its limits,
international law remains one if not the only viable tool that can provide legitimacy for action in the
world and foster coexistence and cooperation between States.
Coexistence and cooperation.
That is what International law is fundamentally about.
Coexistence and cooperation may sound very modest purposes compared to a prophetic agenda of
peace and justice in the world, but what a difference coexistence and cooperation make and how
essential they are in the pursuit of those higher ideals.

INTERNATIONAL LAW AS A COMMON LANGUAGE

As we have seen in the previous video, international law is fundamentally about coexistence and
cooperation.
One of the main reasons why international law is an instrument of coexistence and cooperation
between States is because it provides them with a common language. States speak the language of
international law.

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States (and peoples within States) may have very different and diverging political discourses, cultural
references, economic priorities and spiritual understandings of life -- however, one if not the only
normative language that brings them together is international law. States will always try to justify
their actions in light of international law. Maybe those justifications will not be correct and their
actions will be in breach of international law -- either because the facts do not match the law they
invoke, or because their interpretation, understanding, of the law is wrong. But no State ever says
publicly: "I very well know that what I am doing is in contradiction with international law, but I could
not care less".
Of course, any State would use a more diplomatic language to say that. However, States never say
things like that in substance and in public. They will always try to give reasons for their actions, and
reasons that make sense under international law. One thing is to say that you consider what you do
to be politically good and desirable (but that is obvious and the other States will respond they simply
are of a different view); another thing is to say that, additionally, it is legitimate under international
law.
From that moment onwards, the other States will be able to react and respond to the legal argument
presented in support of the action they oppose (or agree with). International law will serve as a
mediating language, a professional language of justification, and political intentions and goals will
need to be phrased, using the language of international law. In that sense, (international) law
domesticates politics.

Read the following speeches by President Obama and President Putin and see how they both rely on
international legal arguments to enhance the legitimacy of their respective policy:

-Remarks by the U.S. President in Address to European Youth, Palais des Beaux Arts,
Brussels, Belgium, March 26, 2014.

-A Plea for Caution From Russia, What Putin Has to Say to Americans About Syria, Vladimir
Putin, September 11, 2013 in the New York Times.

COURSE CONTENT AND STRUCTURE

Let me now quickly present the structure of the course for the various weeks to come. And the
structure of the course reflects its aim, which is to teach you the fundamentals of international law. It

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is not about all the rules and all the institutions of international law, but about its basic principles and
rules, its structural elements which explain that it can be considered indeed as a legal order.
Having acquired that basic knowledge, you'll find it easier to learn by yourself some specific fields of
international law, like human rights, international humanitarian law, investment law, law of the sea,
etc.
So, after this introductory week, week 2 will set the stage where international law is played and
developed. By this, I mean that we are going to survey the actors and the subjects of international
law.
International law, like any law, is about relations between subjects. And it is therefore crucial to
understand who makes law and on whom it is binding.
After having paid attention to the "who" question, we'll turn to the "what" question and we'll
address the making of international law. What is international law means what are the processes by
which rules of international law come to existence.
And this is an important, more technical, part of the course, and it is usually referred to as the issue
of the sources of international law.
The making of international law will keep us busy during week 3 and week 4.
Then, we shall turn to the "how" question: knowing who makes international law and what it is, we
are going to see how it is applied. Therefore, week 5 will be dedicated to the application of
international law, which requires to understand, among other things, how international law is
interpreted, and what is required to comply with international legal obligations, including in
domestic law. Week 6 will also be dedicated to the how question, but turning to another issue:
what happens when international obligations are not respected? How is it possible to claim
responsibility for breaches of international law? And that issue will be taken a step further during
week 7, which will be about seeking justice through international courts and tribunals.
The pacific settlement of disputes, most notably through arbitration and through the law and
procedure of the International Court of Justice, will be studied.
But international criminal justice is also an important part of todays international law and well say a
few things about it and about the international criminal court, before turning to issues of immunities
before domestic courts.
And the course will end with week 8 by addressing the rules relating to international peace and
security -- i.e. all matters of war and peace, notably the rules relating to the use of force in
international relations, and the powers and actions of the United Nations Security Council. So, that is
the content of the course for the weeks to come - our menu if you want. And as always on edX, you
do not have immediate access to all those weeks of teachings at once, as each one will be released in
due course.

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Also, do not worry if you are lacking a little bit behind in the course, and you can still be doing some
work relating to week 2 for instance after week 3 was released -- it does not matter much as long as
you complete all the exercises and quizzes on time.
All along the way, you will see, there will be videos, readings, quizzes, exercises and some
discussions.
And we'll also have a few Google hangouts in order to interact more directly during live Q&As
sessions. Dates of those Q&As sessions are to be found in the syllabus and in the calendar of the
course. So, that's about it for now. I hope you've enjoyed the course so far and I hope that you'll take
it right up to the end!

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