International Law Classics: An Introduction
In a forthcoming series called ‘International Law Classics’, I will be discussing some of the rich stories behind seminal law cases, and the intriguing characters involved in them. Because much of international law relies on case law. In law in general, words are insufficient to cover all situations that arise after these words have been put on paper, so words must be interpreted in practice and by the courts. More importantly, relative to national legal systems international law can be viewed as underdeveloped and fundamental questions have first been answered in case law rather than treaties – international law’s equivalent of legislation or contracts.
Its all starts with a story
Similar to common law systems, international law has a set of fundamental or constitutional, classic legal cases. Think Marbury v. Madison in the United States, or Costa/ENEL in the European Union. But I will not discuss much of the substance of the decisions themselves. That is for another time. Even in international law cases from which I have taught abstract legal principles, it all started with a story. Cases before the International Court of Justice, also known as the World Court, may start as a more or less benign border dispute, a dispute about fishing grounds, or a Cold War proxy conflicts. But these stories also include a real-time hostage situation, the fate of individuals on death row, international crimes like genocide, and the protection of wildlife. These stories show that international law is not just about abstract notions, principle or entities. Telling these stories is another way of showing the relevance and impact of the law on our everyday lives. And besides: they are great stories.
First of the classics: Lotus
The cases discussed in this series preface as much as possible the other, soon to be launched series ’International Law 1000’ in which I try to explain fundamental topics in a maximum of 1000 words per topic. The 1000 series starts with my all-time favorite case for a host of reasons: The Case of the S.S. Lotus from 1927. Going back to my days in law school, this judgement of the Permanent Court of International Justice (PCIJ) has greatly influenced my view of international law and I have not seen any convincing argument that refutes the Court’s holding. Only a few years ago did I get interested in the details of the case before it got to the PCIJ. The facts of the case are compelling, as is its historical context. So stay tuned for the first installment of ‘International Law Classics’.