INTRODUCTION
International law is a distinctive
part of the general structure of international relations. In contemplating
responses to a particular international situation, states usually consider
relevant international laws. Although considerable attention is invariably
focused on violations of international law, states generally are careful to
ensure that their actions conform to the rules and principles of international
law, because acting otherwise would be regarded negatively by the international
community. The rules of international law are rarely enforced by military means
or even by the use of economic sanctions. Instead, the system is sustained by
reciprocity or a sense of enlightened self-interest. States that breach
international rules suffer a decline in credibility that may prejudice them in
future relations with other states. Thus, a violation of a treaty by one state
to its advantage may induce other states to breach other treaties and thereby
cause harm to the original violator. Furthermore, it is generally realized that
consistent rule violations would jeopardize the value that the system brings to
the community of states, international organizations, and other actors.
The UN Security Council may authorize
the use of force to compel states to comply with its decisions, but only in
specific and limited circumstances; essentially, there must be a prior act of
aggression or the threat of such an act. Moreover, any such enforcement action
can be vetoed by any of the council’s five permanent members (China, France,
Russia, the United Kingdom, and the United States). Because there is no
standing UN military, the forces involved must be assembled from member states
on an ad hoc basis. (Shaw, 2014)
Definition of terms
International law is distinct from
international comity, which comprises legally nonbinding practices adopted by
states for reasons of courtesy (e.g., the saluting of the flags of foreign
warships at sea). In addition, the study of international law, or public
international law, is distinguished from the field of conflict of laws, or
private international law, which is concerned with the rules of municipal law as
international lawyers term the domestic law of states of different countries
where foreign elements are involved. (Byers (2001)
.
EVOLUTION OF INTERNATIONAL LAW
Beginnings
There was little scope for an
international law in the period of ancient and medieval empires, and its modern
beginnings coincide, therefore, with the rise of national states after the
Middle Ages. Rules of maritime intercourse and rules respecting diplomatic
agents (see diplomatic service) soon came into existence. At the beginning of
the 17th cent., the great multitude of small independent states, which were
finding international lawlessness intolerable, prepared the way for the
favorable reception given to the De jure belli ac pacis [concerning the law of
war and peace] (1625) of Hugo Grotius, the first comprehensive formulation of
international law. Though not formally accepted by any nation, his opinions and
observations were afterward regularly consulted, and they often served as a
basis for reaching agreement in international disputes. The most significant
principle he enunciated was the notion of sovereignty and legal equality of all
states. Other important writers on international law were Cornelius van
Bynkershoek, Georg F. von Martens, Christian von Wolff, and Emerich Vattel.
Historical development
International law reflects the
establishment and subsequent modification of a world system founded almost
exclusively on the notion that independent sovereign states are the only
relevant actors in the international system. The essential structure of
international law was mapped out during the European Renaissance, though its
origins lay deep in history and can be traced to cooperative agreements between
peoples in the ancient Middle East. Among the earliest of these agreements were
a treaty between the rulers of Lagash and Umma (in the area of Mesopotamia) in
approximately 2100 bce and an agreement between the Egyptian pharaoh Ramses II
and Hattusilis III, the king of the Hittites, concluded in 1258 bce. A number
of pacts were subsequently negotiated by various Middle Eastern empires. The
long and rich cultural traditions of ancient Israel, the Indian subcontinent, and
China were also vital in the development of international law. In addition,
basic notions of governance, of political relations, and of the interaction of
independent units provided by ancient Greek political philosophy and the
relations between the Greek city-states constituted important sources for the
evolution of the international legal system.
Many of the concepts that today
underpin the international legal order were established during the Roman
Empire. The jus gentium (Latin: “law of nations”), for example, was invented by
the Romans to govern the status of foreigners and the relations between
foreigners and Roman citizens. In accord with the Greek concept of natural law,
which they adopted, the Romans conceived of the jus gentium as having universal
application. In the Middle Ages, the concept of natural law, infused with
religious principles through the writings of the Jewish philosopher Moses
Maimonides (1135–1204) and the theologian St. Thomas Aquinas (1224/25–1274),
became the intellectual foundation of the new discipline of the law of nations,
regarded as that part of natural law that applied to the relations between
sovereign states. (Byers (2001)
After the collapse of the western
Roman Empire in the 5th century ce, Europe suffered from frequent warring for
nearly 500 years. Eventually, a group of nation-states emerged, and a number of
supranational sets of rules were developed to govern interstate relations,
including canon law, the law merchant (which governed trade), and various codes
of maritime law—e.g., the 12th-century Rolls of Oléron, named for an island off
the west coast of France, and the Laws of Wisby (Visby), the seat of the
Hanseatic League until 1361. In the 15th century the arrival of Greek scholars
in Europe from the collapsing Byzantine Empire and the introduction of the
printing press spurred the development of scientific, humanistic, and
individualist thought, while the expansion of ocean navigation by European
explorers spread European norms throughout the world and broadened the
intellectual and geographic horizons of western Europe. The subsequent
consolidation of European states with increasing wealth and ambitions, coupled
with the growth in trade, necessitated the establishment of a set of rules to
regulate their relations. In the 16th century the concept of sovereignty
provided a basis for the entrenchment of power in the person of the king and
was later transformed into a principle of collective sovereignty as the divine
right of kings gave way constitutionally to parliamentary or representative
forms of government. Sovereignty also acquired an external meaning, referring
to independence within a system of competing nation-states. (Shaw, 2014)
Early writers who dealt with
questions of governance and relations between nations included the Italian
lawyers Bartolo da Sassoferrato (1313/14–1357), regarded as the founder of the
modern study of private international law, and Baldo degli Ubaldi (1327–1400),
a famed teacher, papal adviser, and authority on Roman and feudal law. The
essence of the new approach, however, can be more directly traced to the
philosophers of the Spanish Golden Age of the 16th and 17th centuries. Both
Francisco de Vitoria (1486–1546), who was particularly concerned with the
treatment of the indigenous peoples of South America by the conquering Spanish
forces, and Francisco Suárez (1548–1617) emphasized that international law was
founded upon the law of nature. In 1598 Italian jurist Alberico Gentili
(1552–1608), considered the originator of the secular school of thought in
international law, published De jure belli libri tres (1598; Three Books on the
Law of War), which contained a comprehensive discussion of the laws of war and
treaties. Gentili’s work initiated a transformation of the law of nature from a
theological concept to a concept of secular philosophy founded on reason. The
Dutch jurist Hugo Grotius (1583–1645) has influenced the development of the
field to an extent unequaled by any other theorist, though his reputation as
the father of international law has perhaps been exaggerated. Grotius excised
theology from international law and organized it into a comprehensive system,
especially in De Jure Belli ac Pacis (1625; On the Law of War and Peace).
Grotius emphasized the freedom of the high seas, a notion that rapidly gained
acceptance among the northern European powers that were embarking upon
extensive missions of exploration and colonization around the world. (Shaw,
2014)
The scholars who followed Grotius can
be grouped into two schools, the naturalists and the positivists. The former
camp included the German jurist Samuel von Pufendorf (1632–94), who stressed
the supremacy of the law of nature. In contrast, positivist writers, such as
Richard Zouche (1590–1661) in England and Cornelis van Bynkershoek (1673–1743)
in the Netherlands, emphasized the actual practice of contemporary states over
concepts derived from biblical sources, Greek thought, or Roman law. These new
writings also focused greater attention on the law of peace and the conduct of
interstate relations than on the law of war, as the focus of international law
shifted away from the conditions necessary to justify the resort to force in
order to deal with increasingly sophisticated interstate relations in areas
such as the law of the sea and commercial treaties. The positivist school made
use of the new scientific method and was in that respect consistent with the
empiricist and inductive approach to philosophy that was then gaining
acceptance in Europe. Elements of both positivism and natural law appear in the
works of the German philosopher Christian Wolff (1679–1754) and the Swiss
jurist Emerich de Vattel (1714–67), both of whom attempted to develop an
approach that avoided the extremes of each school. During the 18th century, the
naturalist school was gradually eclipsed by the positivist tradition, though,
at the same time, the concept of natural rights which played a prominent role
in the American and French revolutions was becoming a vital element in
international politics. In international law, however, the concept of natural
rights had only marginal significance until the 20th century.
Positivism’s influence peaked during
the expansionist and industrial 19th century, when the notion of state
sovereignty was buttressed by the ideas of exclusive domestic jurisdiction and
nonintervention in the affairs of other states ideas that had been spread
throughout the world by the European imperial powers. In the 20th century,
however, positivism’s dominance in international law was undermined by the
impact of two world wars, the resulting growth of international organizations e.g.,
the League of Nations, founded in 1919, and the UN, founded in 1945 and the
increasing importance of human rights. Having become geographically
international through the colonial expansion of the European powers,
international law became truly international in the first decades after World
War II, when decolonization resulted in the establishment of scores of newly
independent states. The varying political and economic interests and needs of
these states, along with their diverse cultural backgrounds, infused the
hitherto European-dominated principles and practices of international law with
new influences. (Shaw, 2014)
The development of international law both
its rules and its institutions is inevitably shaped by international political
events. From the end of World War II until the 1990s, most events that
threatened international peace and security were connected to the Cold War
between the Soviet Union and its allies and the U.S.-led Western alliance. The
UN Security Council was unable to function as intended, because resolutions
proposed by one side were likely to be vetoed by the other. The bipolar system
of alliances prompted the development of regional organizations e.g., the
Warsaw Pact organized by the Soviet Union and the North Atlantic Treaty
Organization (NATO) established by the United States and encouraged the
proliferation of conflicts on the peripheries of the two blocs, including in
Korea, Vietnam, and Berlin. Furthermore, the development of norms for
protecting human rights proceeded unevenly, slowed by sharp ideological
divisions. (Byers (2001)
The Cold War also gave rise to the
coalescence of a group of nonaligned and often newly decolonized states, the
so-called “Third World,” whose support was eagerly sought by both the United
States and the Soviet Union. The developing world’s increased prominence
focused attention upon the interests of those states, particularly as they
related to decolonization, racial discrimination, and economic aid. It also
fostered greater universalism in international politics and international law.
The ICJ’s statute, for example, declared that the organization of the court
must reflect the main forms of civilization and the principal legal systems of
the world. Similarly, an informal agreement among members of the UN requires
that nonpermanent seats on the Security Council be apportioned to ensure equitable
regional representation; 5 of the 10 seats have regularly gone to Africa or
Asia, two to Latin America, and the remainder to Europe or other states. Other
UN organs are structured in a similar fashion.
The collapse of the Soviet Union and
the end of the Cold War in the early 1990s increased political cooperation
between the United States and Russia and their allies across the Northern
Hemisphere, but tensions also increased between states of the north and those
of the south, especially on issues such as trade, human rights, and the law of
the sea. Technology and globalization—the rapidly escalating growth in the
international movement in goods, services, currency, information, and
persons—also became significant forces, spurring international cooperation and
somewhat reducing the ideological barriers that divided the world, though
globalization also led to increasing trade tensions between allies such as the
United States and the European Union (EU).
Since the 1980s, globalization has
increased the number and sphere of influence of international and regional
organizations and required the expansion of international law to cover the
rights and obligations of these actors. Because of its complexity and the sheer
number of actors it affects, new international law is now frequently created
through processes that require near-universal consensus. In the area of the
environment, for example, bilateral negotiations have been supplemented and in
some cases replaced by multilateral ones, transmuting the process of individual
state consent into community acceptance. Various environmental agreements and
the Law of the Sea treaty (1982) have been negotiated through this
consensus-building process. International law as a system is complex. Although
in principle it is “horizontal,” in the sense of being founded upon the concept
of the equality of states one of the basic principles of international law in
reality some states continue to be more important than others in creating and
maintaining international law. (Shaw, 2014)
Development to World War I
The growth of international law came
largely through treaties concluded among states accepted as members of the
"family of nations," which first included the states of Western
Europe, then the states of the New World, and, finally, the states of Asia and
other parts of the world. The United States contributed much to the laws of
neutrality and aided in securing recognition of the doctrine of freedom of the
seas (see seas, freedom of the). The provisions of international law were
ignored in the Napoleonic period, but the Congress of Vienna (see Vienna,
Congress of) reestablished and added much, particularly in respect to
international rivers and the classification and treatment of diplomatic agents.
The Declaration of Paris (see Paris, Declaration of) abolished privateering,
drew up rules of contraband, and stipulated rules of blockade. The Geneva
Convention (1864) provided for more humane treatment of the wounded. The last
quarter of the 19th century saw many international conventions concerning
prisoners of war, communication, collision and salvage at sea, protection of
migrating bird and sea life, and suppression of prostitution. Resort to
arbitration of disputes became more frequent. The lawmaking conventions of the Hague
Conferences represent the chief development of international law before World
War I. The Declaration of London (see London, Declaration of) contained a
convention of prize law, which, although not ratified, is usually followed. At
the Pan-American Congresses, many lawmaking agreements affecting the Western
Hemisphere have been signed.
Effect of the World Wars
In World War I, no strong nations
remained on the sidelines to give effective backing to international law, and
the concept of third party arbitration was again endangered; many of the
standing provisions of international law were violated. New modes of warfare
presented new problems in the laws of war, but attempts after the war to effect
disarmament and to prohibit certain types of weapons (see war, laws of) failed,
as the outbreak and course of World War II showed. The end of hostilities in
1945 saw the world again faced with grave international problems, including
rectification of boundaries, care of refugees, and administration of the
territory of the defeated enemy (see trusteeship, territorial). The inadequacy
of the League of Nations and of such idealistic renunciations of war as the
Kellogg-Briand Pact led to the formation of the United Nations as a body
capable of compelling obedience to international law and maintaining peace.
After World War II, a notable advance in international law was the definition
and punishment of war crimes. Attempts at a general codification of
international law, however, proceeded slowly under the International Law
Commission established in 1947 by the United Nations.
CONCLUSION
The nuclear age and the space age
have led to new developments in international law. The basis of space law was
developed in the 1960s under United Nations auspices. Treaties have been signed
mandating the internationalization of outer space (1967) and other celestial
bodies (1979). The 1963 limited test ban treaty (see disarmament, nuclear)
prohibited nuclear tests in the atmosphere, in outer space, and underwater. The
nuclear nonproliferation treaty (1968) attempted to limit the spread of nuclear
weapons. The agreements of the Strategic Arms Limitation Talks, signed by the
United States and the USSR in 1972, limited defensive and offensive weapon
systems. This was first of many international arms treaties signed between the
two nations until the dissolution of the Soviet Union. Other treaties have
covered the internationalization of Antarctica (1959), narcotic interdiction
(1961), satellite communications (1963), and terrorism (1973). The Law of the
Sea treaty (1982, in force from 1994) clarified the status of territorial
waters and the exploitation of the seabed. Environmental issues have led to a
number of international treaties, including agreements covering fisheries
(1958), endangered species (1973), global warming and biodiversity (1992).
Since the signing of the General Agreement on Tariffs and Trade (GATT) in 1947,
there have been numerous international trade agreements. The European Union
(prior to 1993, the European Community) has made moves toward the establishment
of a regional legal system; in 1988 a Court of First Instance was established
to serve as a court of original jurisdiction on certain economic matters. The
establishment of the International Criminal Court (2002), with jurisdiction
over war crimes, crimes against humanity, and related matters, marked a major
step forward in international law despite the United States' repudiation of the
treaty under President George W. Bush.
REFERENCES
Malcolm Shaw,
(2014) International law Alternate
title: public international law ;Courtesy of the National Portrait Gallery,
London
Michael Byers (2001)The
Role of Law in International Politics: Essays in International Relations and
International Law Published to Oxford Scholarship Online: January 2010
very nice. Thanks
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ReplyDeleteOrigin and Development of International Law
ReplyDeleteNo man is self-Sufficient, he has to depend upon other. and is this is true with the individual this is also true with the state because all the states in the world have to depend upon other states in order to fulfill its needs.
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