History of International Law (HISH 126)

History Department

Midlands State University

P Bag 9055

Gweru, Zimbabwe

Office 53, extension 2389

Lecturer Chakawa J

Preamble

The module looks at the origins, development and application of International law from a historical perspective. It starts by tracing the formation of European international law, legal results of the First World War, developments after the second world war, the contribution of decolonization right up to the contemporary developments which have seen the emergence of the world court. There is a bias towards the place of Africa in the application of international law.

Aims and objectives

The major aim is to equip students with knowledge of how the international legal system had evolved and how it has been applied. With that knowledge, learners must be able to critique the place of the developing world especially Africa in international system. Furthermore, students should familiarize themselves with how the law has historically been applied both in times of war and peace. They are also expected to be able to differentiate between municipal law and international law. They are also expected to trace how international law was applied to Zimbabwe during the liberation war and afterwards.

Assessment

Students taking up this module shall be assessed in the following manner.

1)Individual long essay 10%

2)Class Test 10%

3)Oral presentation 5%

4)Examination 75%

Module Synopsis

a)History and Theory of international law.

-Formation of European international law, feature of European international law after 1648.

-Theory: naturalists and positivists, the theory of sovereignty.

-Legal results of the period up to the first world war.

-Watershed after the first world war.

-Developments after the second world war.

b)Sources of International Law

-Treaties, customs, general principles of law, judicial decisions, learned writers and other possible sources of international law such as acts of international organizations.

c)International Law and municipal law.

-Dualist and monist theories, attitudes of international law to municipal law, attitude of national legal systems to international law, customs and general principles, public international law and private international law.

d)Treaties

-Conclusion and entry into force of treaties, application of treaties, invalid treaties and termination of treaties.

e)The law of the sea

-Internal waters, territorial sea, contagious zone, the high seas, the continental shelf, the deep seabed and maritime boundaries.

f)Air space and outer space

g)History of International dispute resolution.

-Diplomatic methods of dispute settlement, legal methods of dispute settlement and arbitration.

-Negotiation, mediation and conciliation

-International Court of Justice

h)International wars, civil wars and the right to self-determination.

-Lawful and unlawful wars, prohibition of the use of force in the UN Charter, self-defense, civil wars self-determination and the use of force, consequences of violations of the right to self-determination and the effectiveness of modern rules against the use of force.

i)Means of waging war and criminal responsibility.

Lawful and unlawful means of waging war, nuclear weapons, law of neutrality, rules governing the conduct of civil wars and war crimes trials. Law of war and the Liberian conflict

j)Individuals and Corporations in the international system

-state responsibility to aliens

-Human rights and international criminal law

k) Africa and the international law in History

-the world court and Africa

-application of international law on Africa

-African grievances concerning the ICC and the international criminal tribunal

-Case studies, Omar al Bashar of Sudan, Charles Taylor of Liberia, Ggabo of Ivory Coast.

l) International law in Zimbabwe’s war of liberation and the post-colonial experience

Suggested Reading List

Daniel P. Moynihan, On the Law of Nations.Harvard, 1990.

Louis Henkin, How Nations Behave.2nd ed., Columbia.

Ian Brownlie, ed. Basic Documents in International Law. 4th ed., Oxford.

J.L. Brierly, The Law of Nations. 6th ed., by Sir Humphrey Waldock. Oxford University Press., 1963.

Lawrence Scheinman and David Wilkinson, eds. International Law and Political Crisis: An Analytic Casebook. Boston: Little, Brown, 1968. (Reprinted by APS.)

(If any of the above go out of availability, another reading may or may not be substituted).

Richard B. Finnegan, et al. Law and Politics in the International System: Case Studies in Conflict Resolution. Washington, D.C.: University Press of America, 1979.

MajidKhadduri, ed., Major Middle Eastern Problems in International Law. Washington: American Enterprise Institute, 1972.

Richard A. Falk, The Six Legal Dimensions of the Vietnam War. Princeton Center of International Studies, 1968.

Richard A. Falk, ed. The Vietnam War and International Law. 4v. Princeton, 1968-1976.

Major Politico-Legal Issue Areas

David P. Forsythe, Human Rights and American Foreign Policy: Congress Reconsidered. University of Florida Press, 1988.

Richard J. Erickson, International Law and the Revolutionary State: A Case Study of the Soviet Union and Customary International Law. Dobbs Ferry, N.Y.: Oceana, 1972.

Louis Henkin et al., Right v. Might: International Law and the Use of Force. New York: Council on Foreign Relations, 1989.

Stuart S. Malawer,Imposed Treaties and International Law. William S. Hein, 1977.

Gerhard von Glahn, Law Among Nations. 6th ed., Macmillan.

Burns Weston et al., eds, Basic Documents in International Law and World Order. West, 1990.

Human Rights Problems

Freedom House, Freedom in the World. Annual.

Human Rights Watch, Human Rights Report. Annual.

United States. Dept. of State.Country Reports on Human Rights Practices. Annual.

Lawyers Committee for Human Rights, Critique: A Review of the Department of State's Country Reports on Human Rights Practices.

International Law and Power Politics

Frederick Sherwood Dunn, The Diplomatic Protection of Americans in Mexico. Columbia, 1933.

Frederick Sherwood Dunn, The Protection of Nationals: A Study in the Application of International Law. Johns Hopkins, 1932.

William T.R. Fox, The American Study of International Relations. (Chapter on F.S. Dunn.)University of South Carolina Press, 1968.

Percy E. Corbett, Law and Society in the Relations of States. New York: Harcourt Brace, 1951.

Percy E. Corbettt, Law in Diplomacy. Princeton, 1959.

Percy E. Corbett, Morals, Law and Power in International Relations. Los Angeles: John Randolph Haynes and Dora Haynes Foundation, 1956.

Charles de Visscher, Theory and Reality in Public International Law. Rev. ed., Princeton, 1968.

Charles G. Fenwick, Foreign Policy and International Law. Dobbs Ferry, N.Y.: Oceana, 1968.

David P. Forsythe, The Politics of International Law: U.S. Foreign Policy Reconsidered. Boulder, Colo.: Lynne Rienner, 1990.

Morton A. Kaplan and Nicholas deB.Katzenbach, The Political Foundations of International Law. New York: Wiley, 1961.

Adda B. Bozeman, The Future of Law in a Multicultural World. Princeton, 1971.

Adda B. Bozeman, Strategic Intelligence and Statecraft. Washington: Brassey's, 1992.

Adda B. Bozeman, Politics and Culture in International History.Princeton, 1960.

Samuel P. Huntington, The Clash of Civilizations? New York: Foreign Affairs, 1993.

MajidKhadduri, ed. The Islamic Law of Nations: Shaybani'sSiyar. Johns Hopkins, 1966.

MajidKhadduri, War and Peace in the Law of Islam New York: AMS, 1955.

Jerome Alan Cohen, ed. China's Practice of International Law: Some Case Studies. Harvard, 1972.

John King Fairbank et al., eds. The Chinese World Order: Traditional China's Foreign Relations. Harvard, 1968.

G.I. Tunkin, Theory of International Law. Harvard, 1974.

G.I. Tunkin, International Law: A Textbook. Moscow: Progress Publishers, 1986.

Liberal Idealism and Legal Reformism

Myres S. McDougal and Florentino P. Feliciano, Law and Minimum World Public Order: The Legal Regulation of International Coercion. Yale, 1961.

Myres S. McDougal et al., Law and Public Order in Space.Yale, 1963.

Myres S. McDougal and Wiiliam T. Burke, The Public Order of the Oceans: A Contemporary International Law of the Sea. New Haven Press, 1962, 1987.

Myres S. McDougal et al., Studies in World Public Order. New Haven Press, 1986.

Myres S. McDougal and Florentino P. Feliciano, The International Law of War: Transnational Coercion and World Public Order. New Haven Press, 1961, 1994.

Myres S. McDougal et al., The Interpretation of International Agreements and World Public Order. Boston: MartinusNijhoff, 1967, 1994.

Richard A. Falk, On Humane Governance: Toward a New Global Politics. Cambridge: Polity, 1995.

Richard A. Falk et al., The Constitutional Foundations of World Peace. SUNY, 1993.

Richard A. Falk, The Promise of World Order: Essays in Normative International Relations. Temple University Press, 1987.

Richard A. Falk and Saul H. Medlovitz, eds., The Strategy of World Order. 4v.. New York: World Law Fund, 1966.

Richard A. Falk, A Study of Future Worlds. New York: Free Press, 1975.

Cyril E. Black and Richard A. Falk, eds., The Future of the International Legal Order. 5v. Princeton, 1969-1982.

Richard A. Falk et al., eds., International Law: A Contemporary Perspective. Boulder: Westview, 1985.

Saul H. Medlovitz, ed., On the Creation of a Just World Order. New York: Free Press, 1975.

Saul H. Mendlovitz and R.B.J. Walker, eds., Towards a Just World Peace: Perspectives from Social Movements. Boston: Butterworths, 1987.

Robert D. Bryant, A World Rule of Law, A Way to Peace. San Francisco: R&E Research Associates, 1977.

Questions

  1. Examine the role of Hugo Grotius to the development of international law.
  2. ‘It has been said that to the extent, law is law, it is not international, and to the extent that it is international, it is not law.’ Analyze this contention.
  3. How does the question of enforcement in international law differ from domestic law? How is it similar?
  4. Make a critical examination of the weaknesses of international law.
  5. In what sense can international law be seen as both revolutionary and conservative.
  6. Discuss the origins and duties of international law and what crimes it has had jurisdiction over.
  7. Discuss the requirements for a treaty to be regarded as a valid treaty.
  8. Discuss the requirements for statehood.
  9. Make an assessment of the principles relating to customary law as a source of international law.
  10. Identify 4 sources of international law. What are the major disadvantages of each of them?
  11. ‘For rules to become customs, there must be a constant and uniform usage.’ Do you agree?
  12. Compare and contrast international law and municipal law.
  13. Evaluate aspects of warfare dealt with in the conventions drafted at the Hague Conference of 1899 and 1907 and in many Geneva Conventions.
  14. Identify and explain six grand aspects or divisions of laws of peace according to Professor Dickson.
  15. Write all you know about the 1985 Convention on the Law of the sea.
  16. Examine the consequences of termination, withdrawal and suspension of treaties.
  17. What do you understand by effect of treaty and invalidity of treaty?
  18. What are the various methods involved in coercive means of settling international disputes.
  19. Do you agree that international law has been deliberately crafted by the West to unfairly punish African leaders?
  20. Judicial decisions are very important sources of international law. Discuss.
  21. Do you agree that the advent of Space Age has moved international law, like men himself beyond the territorial space?
  22. ‘If Cicero actually said, in time of war, the law is silent, in a sense he was correct.’ Discuss.
  23. Discuss the view that international laws were established by Western powers to support their domination.
  24. Nuremburg trials were simply victors’ justice and not real international law at play. Do you agree?
  25. Evaluate the role of Greek Scholars in the development of international law.
  26. Discuss the extent to which the United Nations is a legitimate law making entity in International Law.
  27. What constitutes crime under International Law?
  28. There is a continuing assertion that the great powers are the real culprits when it comes to violations of international law in contemporary international system. How valid is this assertion?
  29. Do you subscribe to the notion that the problem of classical international law especially for the Third World is its Western origins?
  30. Sovereign Immunity is no longer an absolute concept. Discuss.
  31. States and governments are not synonymous. Is this assertion correct?
  32. Discuss the extent to which the Law of the Sea protects the interests of coastal states in the developing world.
  33. International Law as we know it today can be traced back to the start of the modern international system. Discuss.
  34. What is the relationship between immunity and the International Criminal Court?
  35. What are the main tenets of international environmental law?
  36. Critically analyze the problems that arise when one state replaces another as a sovereign in respect of a given territory.
  37. What conditions are necessary for conclusion and entry into a treaty and what makes treaties invalid or void.
  38. Critically discuss the purpose of International Law relating to air space and outer space.
  39. Severe limitations on its powers prevent the International Criminal Court from functioning properly. Discuss.