Custom, Power, and the Power of Rules: International Relations and Customary International Law

By Michael Byers | Go to book overview

2
Law and international relations

International relations as an academic discipline seeks to explain those political developments which occur outside the confines of the nationState. Although its intellectual roots extend to Antiquity and the Renaissance, international relations is generally considered to be a relatively young academic discipline which grew out of a split between two groups of Anglo-American international lawyers during the 1930s and 1940s. The split occurred as a result of attempts by some lawyers to move away from positivism, which defined international law as a set of objectively determinable rules which were devoid of moral content and applicable to States solely on the basis of their consent, towards more inclusive conceptions of international law.1

The move away from positivism during the inter-war and early postwar periods towards an approach, often referred to as 'legal-moralism', was notably influenced by President Wilson of the United States and bore overtones of earlier conceptions of natural law. This new approach envisaged international law as a tool for the achievement of world peace through the operation of international organisations, systems of collective security, free trade and processes such as disarmament and national selfdetermination.2

It was, however, strongly rejected by some writers, such as Carr and Morgenthau, as a misplaced idealism. From the perspective of these 'realists', States were self-interested actors engaged in a ruthless struggle for power, considered as the ability of a State or States to control or influence directly how other States behaved, through factors such as wealth, military strength, size and population. Morgenthau wrote:

Power may comprise anything that establishes and maintains the control of man over man. Thus power covers all social relationships which serve that end, from

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1
On positivism, see generally: Ago (1984). Positivism itself had replaced natural law as the dominant approach to international law during the late nineteenth and early twentieth centuries. On natural law, see generally Verdross and Koeck (1983).
2
See Wilson's 'Fourteen Points', in Scott (1918) 359–62. See also Barker (1918); Laurence (1919); Lansing (1921); Lauterpacht (1933).

-21-

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Custom, Power, and the Power of Rules: International Relations and Customary International Law
Table of contents

Table of contents

  • Title Page *
  • Contents vii
  • Foreword ix
  • Preface xi
  • Acknowledgments xiv
  • Table of Cases xvi
  • Table of Treaties xix
  • Abbreviations xxi
  • Part 1 - An Interdisciplinary Perspective *
  • 1 - Law and Power 3
  • 2 - Law and International Relations 21
  • 3 - Power and International Law 35
  • Part 2 - International Law and the Application of Power *
  • 4 - The Principle of Jurisdiction 53
  • 5 - The Principle of Personality 75
  • 6 - The Principle of Reciprocity 88
  • 7 - The Principle of Legitimate Expectation 106
  • Part 3 - The Process of Customary International Law *
  • 8 - Fundamental Problems of Customary International Law 129
  • 9 - International Relations and the Process of Customary International Law 147
  • 10 - Related Issues 166
  • 11 - Conclusions 204
  • Bibliography 222
  • Index 247
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