Development of International Law

Development of International Law

  • Early Origin
  1. Transformation of the jus gentium into the ‘law of nations’.
  2. Hugo Grotius, On the Law of War and Peace (1625):

But just as the laws of each state have in view the advantage of that state, so by mutual consent its has become possible that certain laws should originate as between all states, or a great many states; and it is apparent that the laws thus originating had in view the advantage not of particular states, but of the great society of states. And that is was it called the law of nations, whenever we distinguish that term from the law of nature.

  1. The rise of the modern state.
  2. Peace of Westphalia of 1648 ending the Thirty Years War.
  3. Can the concept of universal norms applicable to a global human society survive the construction of the modern state?
    • The Nineteenth Century (1815-1919)
  4. Treaty of Paris of 1815 concluded by Austria, Prussia, Russia, and Great Britain (France in 1818). (Congress of Vienna – Multilateral Treaties)
  5. Emergence of USA as a leading power. The Monroe Doctrine.
  6. The rise of positivism and the death (?) of natural law.
  7. Is international law really law in the positivist sense? J. Austin’s ‘command theory’ of law (no). H. Kelsen’s ‘pure theory of law’ (yes).
  8. Oppenheim, International Law: A Treatise (1905):

Since the Law of Nations is based on the common consent of states as sovereign communities, the member States of the Family of Nations are equal to each other as subjects of International Law.  States are by their nature certainly not equal as regards power, extent, constitution, and the like.  But as members of the community of nations they are equals, whatever differences between them may otherwise exist.  This is a consequence of their sovereignty and of the fact that the Law of Nations is a law between, not above, the States.

  1. The principles of sovereign equality and non-intervention in the internal affairs of other states.
  2. The Hague Peace Conferences of 1899 and 1907.
  3. The First World War of 1914-18 and the end of the Concert of Europe.
    • The Twentieth Century
  4. Establishment of League of Nations and the Permanent Court of Justice.
  5. The Second World War. The construction of a new international order.
  6. The United Nations System.
  7. Declaration on Principles of International Law Concerning Friendly Relations and Co-Operation Among States in Accordance with the Charter of the United Nations, adopted by the UN General Assembly in 1970 as Resolution 2625 (XXV):

The principle that States shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations;

The principle that States shall settle their international disputes by peaceful means in such a manner that international peace and security and justice are not endangered;

The duty not to intervene in matters within the domestic jurisdiction of any State, in accordance with the Charter;

The duty of States to co-operate with one another in accordance with the Charter;

The principle of equal rights and self-determination of peoples;

The principle of sovereign equality of States;

The principle that State shall fulfil in good faith the obligations assumed by them in accordance with the Charter, so as to secure their more effective application within the international community.

  1. Establishment of the International Court of Justice.
  2. The development of an international system of protection for human rights: Universal Declaration of Human Rights (1948); European Convention on Human Rights (1950).
  3. The development of international economic law: World Bank, International Monetary Fund, General Agreement on Tariffs and Trade (GATT), World Trade Organisation (WTO).
  4. The development of international environmental law.
  5. The development of international criminal law.
  6. The emergence of intergovernmental organisations.
  7. The emergence of new international actors: individuals, companies, non-governmental organisations.
    • The Twenty-First Century
  8. Globalisation and the reshaping of international law.
  9. Ambassador R. Haass, Sovereignty: Existing Rights, Evolving Responsibilities (Speech at Georgetown University, 2003):

Historically, sovereignty has been associated with four main characteristics: First, a sovereign state is one that enjoys supreme political authority and monopoly over the legitimate use of force within its territory.  Second, it is capable of regulating movements across its borders.  Third, it can make its foreign policy choices freely.  Finally, it is recognised by other governments as an independent entity entitled to freedom from external intervention.  These components of sovereignty were never absolute, but together they offered a predictable foundation for world order.  What is significant today is that each of these components – internal authority, border control, policy autonomy, and non-intervention – is being challenged in unprecedented ways.

  1. Former Secretary-General of the UN, Kofi Annan: ‘Our post-war institutions were built for an inter-national world, but we now live in a global
  2. Allott, Eunomia: New Order for a New World (1990):

The state (public realm under the authority of a government) having developed as a way of internally organising a certain sort of society… came to be conceived also as the external manifestation of the given societies. The state was turned inside out, like a glove.  The governments of the statally organising societies recognise in each other that which is a state, not that which is society.

  1. Are we returning to ideas of a ‘universal’ law for a global human society that transcends state sovereignty?
  2. Former Secretary-General of the UN, Kofi Annan:

If the collective conscience of humanity – a conscience which abhors cruelty, renounces injustice and seeks peace for all peoples — cannot find in the United Nations its greatest tribune, there is a grave danger that it will look elsewhere for peace and for justice…  Any such evolution in our understanding of State sovereignty and individual sovereignty will, in some quarters, be met with distrust, even hostility.  But it is an evolution that we should welcome.

  1. The concept of peremptory norms of international law.
  2. The rise of constitutionalism.