THE EVOLUTION OF INTERNATIONAL LAW LECTURE 1 TRANSCRIPT
International law is the set of
rules generally regarded and accepted as binding in relations between states. It
serves as a framework for the practice of stable and organized international relations.
International law differs from state-based legal systems in that it is
primarily applicable to countries rather than to private citizens.
Branches
The two traditional branches of international
law are:
Types of international law
Public international law
Public international law concerns the treaty relationships
between the nations and persons which are considered the subjects of
international law. Norms of international law have their source in either:
Private international law
Conflict of laws, often called "private
international law" in civil law jurisdictions,
is distinguished from public international law because it governs conflicts
between private persons rather than states. It concerns the questions of which
jurisdiction should be permitted to hear a legal dispute between private
parties, and which
jurisdiction's law should be applied, therefore raising issues of international
law. Today corporations are
increasingly capable of shifting capital and labor chains across borders, as well as trading with overseas
corporations. This increases the number of disputes of an inter-state nature
outside a unified legal framework, and raises issues of the enforceability of
standard practices. Increasing numbers of businesses use commercial arbitration under the New York Convention 1958.
Supranational law
Systems of "supranational law" arise
when nations explicitly cede their right to make certain judicial decisions to
a common tribunal. The decisions
of the common tribunal are directly effective in each party nation, and have
priority over decisions taken by national courts. The European
Union is an example of an international treaty
organization which implements a supranational legal framework, with the European having supremacy over all member-nation courts
in matter of European
Union law.
HISTORY OF PUBLIC INTERNATIONAL LAW
The history of Public
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 changed
with the development of western political organization at that time. The
development of European notions sovereignty and nation states would necessitate
the development of methods for interstate relations and standards of behavior,
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 practices 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 city and the Roman law concept of jus gentium (which
regulated contacts between Roman citizens and non-Roman people).
Early history
Basic concepts of international law such as treaties can be traced
back thousands of years. Early
examples of treaties include around 2100BC an agreement between the rulers of
the city-states of Lagash and
Umma in Mesopotamia, inscribed on a stone block, setting a
proscribed boundary between their two states. Around 1000BC, an agreement was
signed between Ramses II of Egypt and the king of the Hittites establishing
"eternal peace and brotherhood" between their two nations: dealing
with respect for each other’s territory and establishing a form of defensive
alliance. The ancient
Greeks before Alexander
the Great formed many small states that constantly
interacted. In peace and in war, an inter-state culture evolved that prescribed
certain rules for how these states would interact. These rules did not apply to
interactions with non-Greek states, but among themselves the Greek inter-state
community resembled in some respects the modern international community.
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, 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.
Nation-states
After the fall of the Roman Empire into independent cities, kingdoms and
nations, for the first time there was a real need for rules of conduct between
a large international communities. Without an empire or a dominant religious
leadership to moderate and direct international dealings, most of Europe looked
to Justinian's code of law from the Roman Empire, and the Canon Law of the Catholic
Church for inspiration.
International trade was the real catalyst for
the development of objective rules of behavior 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 Maritime Law.
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.
Hugo Grotius
International practices, customs, rules and
treaties flourished to the point of complexity. Several scholars sought to
compile them all into organized treatises. The most important of these was Hugo Grotius, whose treatise De Jure
Belli Ac Pacis Libri Tres is considered
the starting point for modern international law. Before Hugo Grotius, most European thinkers treated law as
something independent of mankind, with its own existence. Some laws were
invented by men, but ultimately they reflected the essential natural law.
Grotius was no different, except in one important respect: Unlike the earlier
thinkers, who believed that the natural law was imposed by a God, Grotius
believed that the natural law came from an essential universal reason, common
to all men.
Treaty of Westphalia
The Westphalia treaties of 1648 were a turning
point in establishing the principle of state
sovereignty as a cornerstone of the international order.
Following World War I, 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.
United Nations
After World War II, 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.
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. Now, however, merely consenting to an
international practice is sufficient to be bound by it, without signing a
treaty.
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.
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.
International courts
There are numerous international bodies
created by treaties adjudicating on legal issues where they may have
jurisdiction. The only one claiming universal
jurisdiction is the United
Nations Security Council. Others are: the United Nations International
Court of Justice, and the International
Criminal Court and the Court of
Arbitration for Sport.
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. In the modern world,
international law is more important than ever. Even the most powerful countries
rely on it, and seek to comply with it—and suffer consequences if they ignore
it.
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