History of international law
The history of international law examines the evolution and development of public international law in both state practice and conceptual understanding. Modern international law developed out of Renaissance Europe and is strongly entwined with the development of western political organisation at that time. The development of European notions of sovereignty and nation states would necessitate the development of methods for interstate relations and standards of behaviour, and these would lay the foundations of what would become international law. However, while the origins of the modern system of international law can be traced back 400 years, the development of the concepts and practises that would underpin that system can be traced back to ancient historical politics and relationships thousands of years old. Important concepts are derived from the practice between Greek
Early history
Basic concepts of international law such as
The Roman Empire did not develop an international law, as it acted without regard to any external rules in its dealings with those territories that were not already part of the empire. The Romans did, however, form municipal laws governing the interactions between private Roman citizens and foreigners. These laws, called the jus gentium (as opposed to the jus civile governing interactions between citizens) codified some ideas of basic fairness, and attributed some rules to an objective, independent "natural law." These jus gentium ideas of fairness and natural law have survived and are reflected in modern international law.
Early
Nation-states
After the
International trade was the real catalyst for the development of objective rules of behaviour between states. Without a code of conduct, there was little to guarantee trade or protect the merchants of one state from the actions of another. Economic self-interest drove the evolution of common international trade rules, and most importantly the rules and customs of
As international trade, exploration and warfare became more involved and complex, the need for common international customs and practices became even more important. The Hanseatic League of the more than 150 entities in what is now Germany, Scandinavia, and the Baltic states developed many useful international customs, which facilitated trade and communication among other things. The Italian city-states developed diplomatic rules, as they began sending ambassadors to foreign capitals. Treaties—agreements between governments intended to be binding—became a useful tool to protect commerce. The horrors of the Thirty Years' War, meanwhile, created an outcry for rules of combat that would protect civilian communities.
Hugo Grotius
International practices, customs, rules and treaties proliferated to the point of complexity. Several scholars sought to compile them all into organized treatises. The most important of these was
This
According to the Jewish jurist and diplomat Shabtai Rosenne, the 17-century major figures of the law of nations were used to extensively refer to Jewish sources like the Codes of Law, Maimonides, Moses of Coucy, Ibn Ezra, Leon of Modena and Menasseh Ben Israel.[5] The jurists referring to them were Grotius, Selden, Ayala, Gentili, Zouch, Samuel Rachel and Pufendorf.[5]
Peace of Westphalia
The Westphalian treaties of 1648 were a turning point in establishing the principle of
Still, in the 17th and 18th centuries, the idea of natural law as a basis for international law remained influential, and were further expressed in the works of
After World War I, an attempt was made to establish such a new international law of peace, of which the League of Nations was considered to be one of the cornerstones, but this attempt failed. The Charter of the United Nations (1945) in fact reflects the fact that the traditional notion of state sovereignty remains the key concept in the law of nations. However, as recent research has shown, ius contra bellum (the outlawry of war) has its roots in 19th century legal and political discourse.[6]
In the historiography of international law, some German authors, most notably among them
The League of Nations
Following World War I, as after the Thirty Years' War, there was an outcry for rules of warfare to protect civilian populations, as well as a desire to curb invasions. The League of Nations, established after the war, attempted to curb invasions by enacting a treaty agreement providing for economic and military sanctions against member states that used "external aggression" to invade or conquer other member states. An international court was established, the Permanent Court of International Justice, to arbitrate disputes between nations without resorting to war. Meanwhile, many nations signed treaties agreeing to use international arbitration rather than warfare to settle differences. International crises, however, demonstrated that nations were not yet committed to the idea of giving external authorities a say in how nations conducted their affairs. Aggression on the part of Germany, Italy and Japan went unchecked by international law, and it took a Second World War to end it.
The postwar era
After World War II, as after the First World War and the Thirty Years' War, there was a strong desire to never again endure the horrors of war endured by the civilian populations. The League of Nations was re-attempted through another treaty organization, the United Nations.
The postwar era has been a highly successful one for international law. International cooperation has become far more commonplace, though of course not universal. Importantly, nearly two hundred nations are now members of the United Nations, and have voluntarily bound themselves to its charter. Even the most powerful nations have recognized the need for international cooperation and supports, and have routinely sought international agreement and consent before engaging in acts of war.
International law is, of course, only partly about the conduct of war. Most rules are civil, concerning the delivery of mail, trade, shipping, air travel, and the like. Most rules are obeyed routinely by most countries, because the rules make life easier for all concerned. The rules are rarely disputed. But some international law is extremely political and hotly debated. This includes not just the laws of warfare but also such matters as fishing rights.
Modern customary international law
An important development in modern international law is the concept of "consent." Before World War II, a nation would not have been considered to be bound by a rule unless it had formally agreed to be bound by it, or it was already customarily abiding by that rule. Now, however, merely consenting to an international practice is sufficient to be bound by it, without signing a treaty.
An evolution of the positivist approach of Grotius, the concept of consent is an element of customary international law. Customary international law is essentially what states actually do (state practice), plus the opinio juris of what states believe international law requires them to do.
Customary international law applies to every country, regardless of whether they have formally agreed to it. At the same time, all countries take part in forming customary international law by their practices and decisions. As new rules arise, countries accept, reject or modify them. When most countries are following a rule, everyone else will be held to it. Therefore, doing nothing is the same as consenting. Nations that did not take action may find themselves bound by an international law that is not to their advantage.
Customary international law can be overruled, however, by a treaty. For this reason, much customary international law has been agreed to formally by treaties between nations.
Modern treaty law
Treaties are essentially contracts between countries. They are agreements by which the parties intend to be bound. If treaties are broken, their effectiveness is weakened because there is no guarantee that future promises will be kept. So there is a strong incentive for nations to take treaties very seriously.
Modern nations engage in a two-step procedure for entering into treaties. The first step is signing the treaty. Being a signatory to a treaty means that a country intends to enter into the agreement. The second step is ratifying the treaty. A country that has ratified a treaty has gone beyond merely intending to enter into the agreement, and is now bound by it. This is a critical distinction, and sometimes a point of confusion. A nation may be a signatory to a treaty for many years without ever having ratified it.
Each country ratifies treaties its own way. The United States requires the two-thirds support of the Senate, the upper body of its legislature, for a treaty to be ratified; both the executive and the legislature must agree. In Canada, on the other hand, ratification is strictly an executive action, and no parliamentary approval is required before the nation is bound.
Modern treaties are interpreted according to the 1969 Vienna Convention on the Law of Treaties. This convention is so widely accepted that even nations that are not parties to the convention follow it. The convention's most important and sensible rule is that a treaty should be interpreted according to the plain meaning of its language, in the context of its purpose, and in good faith. This prevents much squabbling and unnecessary nit-picking. It also makes treaty authors spell out what they are trying to accomplish, to make interpretation easier, in a non-binding "preamble."
In the modern world, international law is contested for its inability to enforce its rulings.
See also
- Arbitration § History
- Jus gentium
- Jus naturale
- Third World Approaches to International Law (TWAIL), providing an alternative account to the Eurocentric narrative above.
- Consulate of the Sea international law, (13th century), written in Catalonia
- Cities of Refuge, a set of independent city-states in the Kingdom of Israel and the Kingdom of Judah
Important experts
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References
- ISBN 0-521-79197-9.
- ^ a b Nussbaum, Arthur (1954). A concise history of the law of nations. New York, Macmillan. pp. 1–2.
- ISBN 9789004203969.
- ISBN 9781784716585.
- ^ )
- ^ Simon, Hendrik (2018). "The Myth of Liberum Ius ad Bellum: Justifying War in 19th-Century Legal Theory and Political Practice". EJIL. 29 (1): 113-136. https://doi.org/10.1093/ejil/chy009
Bibliography
- B. Fassbender and A. Peters (eds.), S. Peter and D. Högger (assistant eds.), The Oxford Handbook of the History of International Law
- W.G. Grewe, Epochen der Völkerrechtsgeschichte, translated as The Epochs of International Law
- M. Koskenniemi, The Gentle Civilizer of Nations
- A. Nussbaum, A Concise History of the Law of Nations
- V. Genin, La laboratoire belge du droit international. Une communauté épistémique et internationale de juristes (1869-1914), Brussels, 2018 ; Incarner le droit international. Du mythe juridique au déclassement international de la Belgique (1914-1940), Brussels, 2018.
- H. Legohérel, Histoire du Droit International Public
- A. Truyol y Serra, Histoire du Droit International Public
- S. Laghmani, Histoire du droit des gens
- D. Gaurier, Histoire du droit international
- C. Focarelli, Lezioni di Storia del Diritto Internazionale
- A. Eyffinger (ed.), Compendium volkenrechtsgeschiedenis
- Journal of the History of International Law, since 1999
- Book series: Studien zur Geschichte des Völkerrechts (Max Planck Institut für europäische Rechtsgeschichte, Nomos Verslag)
- Book series: Studies in the History of International Law (Martinus Nijhoff)
External links
- A Brief Primer on International Law With cases and commentary. Nathaniel Burney, 2007.
- Official United Nations website
- Official UN website on International Law
- Official website of the International Court of Justice
- Peace Palace Library – Research Guide
- Journal of the History of International Law [1]