History of International Law Research Paper

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International law has been evolving for centuries to provide a framework for international and transnational activities. Like other areas of the law, its purpose is to allow participants to deal with each other with some level of predictability and thus to reduce misunderstandings and to avoid conflicts and confrontations.

International law, with its primary goal of providing a structure for dealings among international and transnational governments, is a more primitive system of law than the domestic legal systems found in advanced nations. It does not have a legislative body with the capacity to enact laws binding on all nations, an executive branch or a military or police force that can enforce the laws that do exist, or judicial tribunals that have broad jurisdiction or the power to issue binding and enforceable decrees in many circumstances. Although early versions of such bodies can be found in the United Nations and in emerging regional organizations, the process of constructing institutions that enjoy widespread support and can meet the challenges presented by a deeply divided world is just beginning.

Some have argued that international law is not really law because a superior body cannot enforce it. But most commentators contend that because most countries follow international law most of the time, and because those countries that violate its norms do frequently suffer consequences, it should be viewed as a system of law.

International law is less developed than other systems of law because the larger and more powerful nations do not always accept that it is in their interest to subordinate their self-interest to an international or multinational rule. Although smaller nations will see the benefit of an international structure that protects the weak against the powerful, the stronger nations do not always agree that such a structure is beneficial. The foundations of international law have always been reciprocity and enlightened self-interest.

Sources of International Law

The primary sources of international law are treaties— bilateral and multilateral—and “customary international law,” which emerges from the actual practices of states and is undertaken with an understanding that these practices are required by law (opinio juris sive necessitatis). The “practices” of states are usually found in actions taken by a country, but they can sometimes be discovered in the statements their diplomats or leaders issue or in their votes at international organizations or diplomatic conferences. To become “custom,” a practice must have the widespread (but not necessarily universal) support of countries concerned with the issue and must usually have continued for a period of time long enough to signify understanding and acquiescence. Occasionally a regional custom can emerge, if the countries of a certain part of the world order their affairs in a certain manner.

In recent years, it has become accepted that some principles of customary international law are so important that they are called “peremptory norms” or “jus cogens” (commanding law) and that no country is permitted to depart from these principles. Among these norms are the prohibitions on aggression, genocide, crimes against humanity, slavery, extrajudicial murder, prolonged arbitrary detention, torture, and racial discrimination.

Although most historical summaries of the development of international law focus on its growth in Europe and the West, the reality is more complex. Practices governing interactions among nations and peoples also developed in Asia and elsewhere, and these norms have been merging with those that came to be accepted in the West. The growing recognition that groups, as well as individuals, have human rights protected under international law is an example of a non-Western contribution to international law.

Emergence of Modern International Law

Most scholars explain that “modern” international law emerged in Europe at the time of the Renaissance and Enlightenment through the Peace of Westphalia, which ended the Thirty Years War (1618–1648) and gave formal recognition to the sovereign state system. This treaty-based system was designed, in part, to allow Catholic and Protestant states to coexist in Europe. International law became necessary to confirm the boundaries among these states and to bring some order to their dealings with each other. Countries accepted the doctrine of pacta sunt servanda (treaties are to be observed), now a fundamental principle of international law, and established some machinery for the settlement of disputes. During the years that followed, citizen participation in government grew in England and then in France through the French Revolution. As monarchies crumbled, individuals, corporations, nongovernmental organizations, and international organizations emerged as part of the international legal system.

The Final Act of the Congress of Vienna (1815), signed by Austria, France, Great Britain, Portugal, Prussia, Russia, and Sweden, which formally ended the Napoleonic Wars, was another significant event, because it created a system of political and economic cooperation in Europe and also articulated governing norms of international law. Among the principles that emerged from this Congress was a set of rules governing diplomatic protocol, a condemnation of the slave trade, the principle of free navigation (not only for the riparian states but for all states) on the major rivers of Europe, and the neutrality of Switzerland. Treaties, both bilateral and multilateral, began to cover a wide range of topics, supplementing and sometimes replacing custom as a source of law.

During the period of colonial expansion that took place in the last half of the nineteenth century, the concepts of international law that had been utilized in Europe and the West were introduced into Asia by the Western powers. Western international law was then even more primitive than it is today. No global institutions existed, and only a few specialpurpose regional organizations had been created. Some topics—such as diplomatic immunity—were fairly well defined, and consensus had also been reached on the important goals of stopping piracy and slavery.

Laws of Armed Conflict

War was still viewed by many as an acceptable instrument of foreign policy, but the dramatic increase in destructive weaponry resulting from the industrial revolution caused many to realize that some constraints were needed on the use of force. Major international meetings were called, the most significant being the 1899 and 1907 Hague Conferences, which were designed to codify the laws of armed conflict and establish limits on certain types of military activities. The growth of daily newspapers in the industrialized countries had the effect of allowing common citizens to participate more fully in policy decisions, and led, in many countries, to a democratization of international politics.

Twenty-five nations attended the 1899 Hague Conference, which was convened by Czar Nicholas II of Russia, and a larger number ratified the documents produced by the meeting, which included conventions governing the conduct of warfare and the peaceful settlement of disputes. Although European nations dominated these negotiations, nineteen Latin American nations signed or ratified one or more of the documents, as did China, Japan, Korea, Persia, Siam, and Turkey.

The 1907 Hague Conference, called again by the Russian Czar Nicholas II upon the urging of Theodore Roosevelt, produced additional conventions designed to limit the scourge of warfare. The European nations again dominated the negotiations, but eighteen Latin American nations signed or ratified one or more of the conventions (Honduras was missing), as did China, Japan, Persia, Siam, and Turkey (with Korea missing because it had become a protectorate of Japan). Liberia also adhered to many of the conventions.

Natural Law vs. Positive Law

The nature of the evolving international legal system was described by many as one of consent—or “positivism”—wherein only those norms agreed upon by states could be enforced against them. But perhaps because of the theocracies that had governed many parts of Europe in previous centuries, the Canon law that had developed during that period, and the religious fervor that still burned brightly for many others, contended that certain inherent principles also governed nations. Tension emerged between this “natural law” formula as the basis of international law and the perspective of “positivism” promoted by others, and this tension still exists today.

The Dutch diplomat Hugo de Groot, who wrote four hundred years ago under the Latin name Grotius, is often called the father or founder of international law because he tried to reconcile natural and positive law. His analysis of the laws of war, the law of the sea, and the protection owed to diplomats laid the framework for modern thinking on these topics. He believed that a “law of nature” could be deduced by logical reasoning, rather than by resort to divine sources, and thus tried to formulate a law that could be acceptable to all, conceivably even to “infidels.”

Another continuing issue has been whether international law is incorporated into national legal systems, and is thus part of the law applied by national courts (“monism”), or whether it is a separate and distinct legal system governing nations but not accessible by normal citizens in disputes in domestic courts (“dualism”).

Continuing Challenges of a Divided World

After World War I, the League of Nations was established and served to promote dialogue and negotiations, but its efforts to stop the continuing imperialistic activities of some nations were unsuccessful and the world again engaged in massive slaughters in World War II. The 1928 Kellogg- Briand Pact, which outlawed the recourse to war, did not stop warfare, but it at least has required countries to come up with some justification for armed conflict, with “self-defense” being the most common excuse.

The United Nations was established in 1945, and the nations of the world have entered into numerous additional bilateral and multilateral treaties since then on subjects ranging from economic affairs to the law of the sea to human rights to arms control. The U.N. Security Council, with 15 members, including 5 permanent members (China, France, Russia, the United Kingdom, and the United States) that can veto any resolution, has the responsibility to deal with threats to the peace and breaches of the peace. The General Assembly, now with 190 members, serves as a forum for discussion and annually enacts a wide range of resolutions addressing global problems. The International Court of Justice sits in The Hague, the Netherlands, and decides cases brought to it by governments. Numerous more specialized tribunals have also been created.

Regional organizations have been created in almost all areas of the world, with the European Union and other European organizations being particularly effective in addressing regional issues and reducing tensions among nations. Many in the developing and non-Eurocentric parts of the world still view international law as dominated by the West and by the rich and powerful countries, and efforts are continuing to find ways to restructure the United Nations to reflect the world’s diversity more fairly and to allow it to operate more efficiently.

The international legal system is still a work in progress. As the world becomes increasingly interdependent, international law will become more important and more complex. Countries remain reluctant to give up essential elements of sovereignty and autonomy. But as transnational problems present themselves, transnational solutions will continue to be devised. Through this incremental process, international law will continue to grow.


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