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  • Armstrong, Farrell and Lambert - Evolution of International Law

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    14 vues20 pages

    Armstrong, Farrell and Lambert - Evolution of International Law

    Transféré par

    Lorraine Lacuesta
    International law

    Droits d'auteur :

    © All Rights Reserved
    Téléchargez comme PDF ou lisez en ligne sur Scribd
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    Dawid Anmshons Theo farvell Lélbne Lambe "The envolubon 9 whevrahsneal law! In \nlevnahonal Law and |ntewnahonal Lolafons, 2007 Cambredge Unuensty Press ek 2 OC Fee: a0 MO hag ee : etree validly U MUU Hicransofsfnational aw fr over Mons er over Monistquiews observation in the Spi of Laws tha al countries have tw of atone eae sae the iequot thomas, though hey devourtce poe eee and rssve ambassadors sind endcrtend te sighs ste eh eee net of oven agus nanan 0 Monte Set es onal levi essentially aieopean nahin, altoughnoe cote eanphases within ht school a whats iteneteeal nee a eee — ae thc Romans,? with medieval Christen cn wth early moder” or with the Pose of Wenchons inane Others who cbject the Burocontinn impick or aphare eh assert hat a taly universal system of international aw = not apparent ‘until the late nineteenth century.” Yet another thesis, with the. same start~ ing polo ising Bron nero, hat face teas univeralinterncnna legal ender soughly few We ioe "und the lt eighteenth century, bu the nineteen seer enintomndcenrry doce it ety *H. Brougham Leech, dn Bisay on Ancient Ion at Lae Dubin Ua Pets 1877) pC. Plo, The Iueratnal Lew and Canonief ee One k ‘Ee ee iteciine ma re Rt ce wrt ero i Soe ge Bitar of tremacina. Low 5 (2003), 193, sane ee ee ee ctat nme ha aya minis nen +See pennant ese sm Maa ne Sera ts et ir ry tet See Beiaminer anne = SRO ats Tees ihn, ec nue gnome, yp bry fim iw tom oer pea eae ci sf cranks 2 2000, p63, See thotoe Sesfosian pewhe Metaeee, a a 4 Sous Hisar of th Lae of Nations, er, eition New 34 . Ving, 200F isan i i k Pare eg ‘The evolution of international lew 35 exceiguy an lel pest, ogier with Europea esis, involved a shift eway ffom the broad_moral principles of natural law {thar underpinned the universal order towat ving distinction ‘between ‘civilised? states, which could have legal obligations towards ‘cach other, and the rest, who were outside the legal system.” Additional Se SraTSaT ave wr BEGUN TE cats Ut the rue on of itera tional Jaw are to be found in the ancient Middle East,” or China," or India." "The picture of almost complete confuston that is presented by these ‘contradictions becomes a litte clearer if we bear in mind that those cired are not necessarily aways talking about the same thing, In practi, four key distinctions chat ate implicitly or explicitiy made >y the analysts need to be taken into account when considering the history of international Taw. The first concerns the precise status of the rules and norms under sovlew. As we argued in Chapter 1, all social interaction is governed to some degree by rules and norms, but not all of these qualify as bind ing obligations; the principal characteristic of law, The relations among, ancient soeieties before the Romans (who had by far the most fully devel- ‘oped legal system) tended to have two kinds of normative underpinnings: religious or moral injunctions and proto-legat rules. Neither, 10 some authors, quite qualifies as Jaw’,!? Second, to assert that a rule or norm of either kind existed in any ancient society is not the same as estab- Tishing the existence ofa clear, continuoys line of development between itand later international law, This, of course, is crucial ifthe aim is to ‘identify ehe origins of the contemporary legal order, Third, some reserve the term ‘international Jaw’, strictly speaking, for rules and norms gov- cerning the relations between siatas, defined as unitary politcal entities ° this agumenes neoited pecially wih the work of C.K, Alsenoi, but ser ‘Meo Agoy Praia and the cgi of he intention consnuniy lion Yearbook (nena! ay te in George A SaaenaonT aw andi nteatinal ‘omumuniy she log road to universal’ in Ronald 8 Jha Masdonald (i), Baye Si owns Wag Tio (Desarclte Martinus Nit, 1999.2. 9G. Caio, Le Drs lero Taonga ot Prange, Libra nowele de Dit ede Jesoprofence, Pas 1806, pp. 2-3 Ammon Altman, “Tracag te caaest recorded fences Of eras nw he ety Dyas Ped in Souen Mngt’ ourna of te Hicry of ln nxionl Lew 6 2008) 153-72 1» ce Yougoong Lee, Easy development of moser international fn in Bau Ata — ‘th spel efeenoe 19 Chins, Jepan aud Kes, Joa of he Hier of neon Law § 2002), (3. " 1 Jerome A Thom Histry anderson awa As uf review’ jn Macdon- “ig Bac in Hour ug Tews p. 814-15, See alo VP. Nanda, erraonal Iw in ancient Hind Ina fn ace We Janis (), The Tees of Rago oe Despont ofintranonal Lew (Dordrecht Maris Njpot, J99)) 9.38 1 elu Stone, Lage Comal narvarinal CofA Thao te Danis of Dips ‘nd Ww Cyan: Maitand Poblentons 1950), p30. | 4 | 3 36 ‘Thefoundations sone sovercigmty over a clearly demarcated territorial ares: @ phe- creoue, NY date om no earlier than the ate Middle Ages. There ar, fern sate-centic ‘ise transnational forces,’ ¢ setvecal ees sans ScS> | “intersecting networks of social interaction’,!5 hay defined as overtpping and interacting pobtical authosiiees® ional arrangements"!’. Bach of these. ‘pes of political organ- tive norma fous ad nes, bar aa dessa lofi ‘international lew in amore seo, ‘ems long thats een. Fly some anaines acne it usc ofthe term interastionl lan’ ewe tha ‘some of the characteristics of a legal | system or or ferebipivencoe samecfie chant es as agit me as © normative eines ea be ‘in international social int ‘ i a teraction. As Wilhelm oe tion. As Withelm Greve defines ity «ley As these dint 3 ons suggest, Sncermatina ay? term, eapecily where we se taling abo we = However, as the next section shows, various Tules may be discerned in the relations amo We will now consider fee : ine 2 somewhat elastic re and ancient so Various kinds of norms and ng almost all such societies, Without losing sight of the four distinctions ” Sete Deri ray et AE haemo nagarenmnns ri a ee ra Ares 188 (©4.}, Bringing Tanonsional Relations Back fy (Cambgisnn, _ Seer eine onc Ses Oe ne co Hie er Ge ee Oc i escent SSI wae ma ene rt “The evolution ofnternational law 3 ancient times “International law" ‘Strangers have been regarded with some suspicior, from the eatiest times tothe present day, asthe contemporary European debates about immigra- tion demonatrate. Indeed the ancient Greek and Latin terms for ‘stranger’ and ‘enemy’ ave the same."® Its lear that some ancient societies, nowably the Assyrians, maintained a generally fierce attiude towards strangers, secing them primacily as legitimate targets for theft, enslavement and killing. In other cases, societies developed elemsntary “sel-other’ dis- tinctions, according to which tribes and, Inter, city states accepted more ‘comprehensive sets of norms and rales for their interactions with mem- ‘bere of their own cultural or linguistic group than their relations with ‘aliens’. The laraclites, for example, distinguished between three types of relationships: those among the Hebrew tribes, where numerous con- straints applied, those with most other tribes and cities, which, in the event of war, were to be allowed the opportunity to surrender peacefully and become tributaries, filing which their women and children would ‘be enslaved, and a small group of sworn enemies, such as the Fires and other polytheistic tribes, towards whom no mercy should be shown” It is possible that some pre-literate societies in the Pacific and else~ ‘where enjoyed relatively peaceful inter-tribal relations,” but in general the earliest Mediterranean and Middle Eastern societies of which we have record (as well asthe Aztec and other Mesoamerican societies somewhat later) were able to enjoy, at best, an uneasy coexistence, at worst mex ciless mutual brutality. This, however, did noc preclude the possibilty of their relations having at least a minimal normative foundation, par- sieularly wich regard 0 two of the most basic «spects of international law: diplomacy and treaties, Although diplomacy today isa highly devel- ‘oped institution, its origins le in the need for seperate communities to be able co communicate about a ange of ssues~ crude, boundaries, peaceful transit, intermatriage, war and peace — with someaseurance that the lives, property and freedom of their envoys would not be placed in jeopardy.** ° ency Wheaton Hy of he La of Nv Brep an! Aaron (New York: Gould, Bani and Co, 1845), 9.1 20 TIA, Walken io of he Lass of Neon (Cambridge: Cambslige Ualveriy Pest, 1999), wot Isp Bar eeguee Bex, Ese alow du Dro cs Ges (Pais Libre Ae elences plques toes 1910) pp. 67. 2 Ragner Mumeln, The Berininge of ipa” A Sail Stay of Brribal ond Incase! Rais Looeon: Oxford Univer Press 1950), 72-4 1 Ute the eotemporary insurusen of cplomade immu, however dinlomassin he Stvint world could be ned tay volte el oa rt, oven eld bosage Sr sacey agent bad faith Oy ter ows governeents David, Boden, fnervtonl ‘enn opi (Cable! Cambridge University Pret, 2001), p. 91-3 38 The foundations Simllaly, treaties, like contracts, their equivalents in domestic law, oriai- {ate in the simple requirement (end moral norm) thai promises, whether between individuals, wibes, cities or states, needed to be honoured if and warfane In the case ofthe last ofthese, both Greek and especially Roman discowrse shows evidence of numerous norms relating to the necessity for wer to hhave a just cause, for cleat rituals to be undergone i the commence. ‘ment and conclusion of war and for the right of neutrality and certain % Bex, He p 1256, H. Alwandrovica ‘Kantian Principles co the Law of Nas’, Eri Yearbook of Iara Lay 1965-06 (Onfond: Oxford Unter Paes ee, 2025 Nande“interaioal aw % Sic Pak Vinogeadot, Hiercl Tips of manana Law (Lien: Leste at Leiden Universi, 1923). 24 % Leech, Bey 22, ‘The evolution of internation law a i oof these constants tobe observed inthe conduct of wat. Ie la ‘vere honoured more inthe breach tun the obsersance, that reflected the inca poi that wartng partes avec er mary interest her sens whee te ineroaonal relation of bath Grek and Romana were career co some etnt tet by norm td ree, incladed boundary delineation, marme tanspact wide neem tage esween indi fom ‘wo county, the potton of lens (where an elomentary version of consulates operated"), coinage and Indeod any ara where pu intercourse would have been imposible vidhou some setded and widely underetod rales The ‘ource of thee “aus obligation ee wo be fund isn long vated re Drveustom’ eopecilly where this as atocred with base moral ot religious nove, Spec teases contuted the second source, and though thee bound only the signaroti, a bod of eommon jaapr dence omerged evr time a to the pre nasa Torn that ee Sblenons shoud asune in ss casas There wer oven « few eiempes to ctl the generalised principles tat emerge rom ate wth the Rho eu ae : The dessce to which any of this constituted # egal order’ is: ee to qutiton. st both Grete an, before thy aeqused supremacy a aly, inane disinglhed prwomn clon wating thd wit tno oe hin wa cmos hee wat no absolute assumption of equality (the Romans formalyrdaguishe Decent and una cet), Pilly ce was ol hes Sediment aoe roe outer an acca othe Gress, thi consined ofthe Amphyetonie Coun and the use of ei Seon see ern dap The Counc, howe or cml provide some protection for raigiow iettaton, whose concer wat CoP i ssh eae Dip ah eae Cask ce +s of war.® They occasionally played & feigious rituals even during dimes of as role in helping to bring wars to an end but were highly constrained _ ard.” Resort to third-party arbitration to settle disputes, especially terval one wae more common but ths practice shold be tee a Scruyingamipint bcwen nan pli rr thn ply toga insttin, since the aritators tended to hase thet deciiont 0 et este notion ca cement 3 ci ar a yo en ce SES EAMES St Sit Beat ri ns Eecuatertie die 2 Whe p15 ser, ail ai 9. 18-7 2 walker, tory, p38 42 The foundations ent cnn ed cet a a ar Seay seg i of rh oy ey alone fa meng and Imperial periods.” During the first Period, Rome's international: cn acento Sars cet eee i rrr cane tere epee al cms ih ke nme SEs Ble aati Clo oe Gr ns Siiennnee ans su eer an min a tone coc Segond me * a rte ee i 2 ae Sa las eee re Son as “decureve norm of procedure, ee Cittan Reve Sot — onan ganarapearony oa = Begnonal Oronsation 51 (1997), 555-89, ee (Aldershot: haste 2001),pp Lies, Mn amd TeweyIerrerion See ae vy, tx et Dein i faite iter Lane (Aessterdans: Elsevier, 1995), vol. Tl, pp. 726-7. ‘oer sina ali eth he en, me es “The evolution of incernational law a significance for international law that ie not alvays justified. This is particularly rue of what is perhaps the most louishing period of inter- ‘ational legal Iitereture: the work of the ‘Publicist’ of the sixteenth and seventeenth centuries. The Publics, as we discus late, were searching {or new legal formulations to define and, hopefully order to some degree ‘the new international system that was emerging ia the wake of the col Tepte ofthe medieval order and the discovery of tke New World, Roman legel language offered framework of norms, rales and procedures that cold be used for this purpose. However, mach ofthis framework applied in Roman times to municipal law, rather than to international relations, If we may borrow a more modern theoretiel pespective, some of the Publicist, in effect, ‘constructed international lav from principles that ‘were certainly derived from Roman law but were often employed by the Romans for much narrower purposes that were domestic, not interna- sional This is, of course, a much larger, and indeed more controversial and hotly debsted, topic than we can develop here, but the point may be lustrated by two of the most general terms borrcwed by the Publicis "The frst i ie gentvn, nocmally translated ‘law of nations’. The Romans used this in two senses, both deriving from the more accurate present- day rendering of ‘ents ‘people’ oF “ace’, rather than ‘nation’, which tends today tobe associated withthe concept of astte. Inthe fist, and narrowest, usage, the Romans used the term to fer tothe legal rights of foreigners ving in Roman tersitory. Inthe second, they had in mind legal norms that ace universal in the sense that they are to be found in every community’ egal ystera, While such norms would certainly have inchuded principles like diplomatic imaunity, and while the Romans did occasionally use ia gent inthe modern sense oflaw betoen nations, their understanding ofthe term was significantly diferent from the incer~ pretation given by some of the Publicist.” ‘A related point may be made of the Publicis use of the concept of nacaral law, which they derived from Greek and Roman Stoic thought, as formulated notably by Cicero, for whom natural lew was ‘ight reason, neyepsi of Publ huernaional Law, p. 728. Tt shoul Ye added tthe Pubes ‘rere norunswar of ew distinctions ind tended to cp ofa gestion san al-porpose Espeeson munly cut of conrenenes, We shold leo remember at he expresion ‘Feerntiona ln? wae an weed unt che 1780s, sir waecoined by Jey Bessa + further confi tems from the at hat any Haxopeaslangwepe have wo distinct terms that are ncemaly both wanlted as Taw in Eas: nome ad shen in Grech, evan iin Latin bee doin Fee ea and oes iGreen Thelater of tse two words normaly denotes something Coste fo the Engieh es “righ” ce use’ See Wheaton, His pp. 16,18 8.7 44 The foundations ser tae eg hes i i tho seg on beh of sats wee sutras Siete ene tc atl aereecace ces stanly ot © cere cent eo eee He el ines ote pag mo mae ee Ronanicadaoparye marie scope Remon ters dc Wl ca acne Sa ea aya ees ma ea society as consisting of fully sovereign states entering into legal obliga- ebegy oon ln a by Se ee ont ene min aan n case of wars, While most ey societies ad sen wares soln andee sheet in no uchmimersnon a iad tr ene The Middle Ages ‘The end of Roman dominance was followed by vas followed by complex and multi- faceted international order. We confine ourselves here to Europe and the S A.RDUEontns, he Noo te Se Oxf: Cann Prey 198 Ge Mate septa son othe tice ane ot mes ea ee iy pation Man, eta | Sl ee ea “The evolution of international law 5 Islamic world since these are of the greatest importance for the mod- cern international legal system, but this is not to argue that developments tlsewhere, such as those in the Chinese eribure system or the maritime relations of South-east Asian nations, are without interest or significance in areas like the la ofthe sea and treaty law. However, itwas the sovereign state system thar emerged in Europe that largely determined the charactor and content of modern international sw. “The years between the formal division of the Roman Empire into east- cern and western parts in 395 AD and the discovery of the New World in 1492 defy easy classification o generalisation, especially in a section a8 brief as this. Actors enjoying or claiming different kinds of legal author ity were far moze varied than they were to become in the modern era, when relations among unitary states exercising sovereignty over a fixed, ‘territorial domain beceme the main focus of international law. In West- tem Christendom alone, the papacy, the Emperor (after 800 AD"), the Hanseatic League and other leagues of mercantle cities, the Knights TTempler, the Teutonic Knights and other chivalric orders, togetier with ‘numerous bishops, barons, dukes, princes and kings all possessed some ‘measure of independent railitary power and legal authority, as well ‘being enmeshed in an intricate mosaic of feudal, eligious and other obli- gations and entidements. Other important international actors, notably ‘Byzantium and the rising forces of Tslam, served further to complicate the legal picture, Furthermore, clear distinctions need to be made between theory and practice. The Pope's claim to exercise universal euthoricy was always challenged by the similar claims advancec by the Emperor and the increasing assections of independence on the purty of secular author- ities. Moral injunctions regarding the necessicy for war to be founded fon principles of justice, as advanced by Augustine (354-430), Isidore of Seville (560-636) and Thomas Aquinas (1225-1274), were generally ignored in practice. Similarly, chivalric codes of righteous conduct in war were discegarded not just in the brutality shown towards Muslims uring the crusades (ofien in contrast to the more merciful treatment accorded by Seladin and other Muslim leaders) but even against fellow ‘Christians, as in the brutal sack of Constantinople x 1204." Papal probi- bitions ageinst dealing with Muslim staves were disregarded in the intex- ests of trade, while the Islamic doctrine thet all Muslims formed a single tuna, oF community of believers, did not prevent intra-Tslamic conficts Te Hey Raman eexceston ‘Holy Roman Emp’ wet nee ed os 157}. 2 Epis Ganson: Mecrlan sno, 1907), p. 196 2 G15 Dy Draper The Intraesan of Chin and Chiery fa de Dewlopmeat Sab Law cee: Ivar Reie fh Ral rs ry (963), pp 9-2. 46 The fonndations cor alliances between a Muslim and Christian state agsinsc another Mus- lim (or indeed Christian) state.2® ‘There was no universal or coherent body of rules and institutions dur- ing this period, but in the following subsections, we look at some of the factors that influenced later development of international law. Moral and ethical doctrines Both Christendom and the Islamic world developed cleborate doctrines {© lay dowa a normative framework for the conduct of their relations with both co-religioniscs and infidels. These codes of conduct were most fully developed in the case of war, with, in the case of Christendom, ‘broad conceptualisations of just war together with host of moce narrow injunctions, such as the assertion that Christian prisoners of war should ‘not be enslaved.” ‘The Islamic world during this period elso hed a version ‘of Sust war” theory in its concept of had, At first it also maintained that permanent state of war existed with unbelievers, although traces of ‘Up to ten yeers were permissible. In addition, the “people of the book? Ges and Christians) were to be given more favourable treatment than pagans, and a defeated people could continue to practise the religion 50 long as they paid a poll tax. Islam slso adopted a stronger position than Christendom on the necessity of honouring treaty commitments > As with Christendom, although such norms were not without influence, they were disregarded at least as often as they were observed, State practice Of rather greater significance was the increasing tendency of the more Powerful states to base their commercial snd meritime relations with other states on legal principles, Sticly speaking, as with much of Roman Imperial law, this was not ‘international’ but national (or even, some times, sub-national or local law) since the rules bound only their polity of: origin. However; any state anxious to enjoy the benefits of trade soon found ieneeded to drew up rules guaranteeing merchants various rights and freedoms. Often these rules were also expressed in bilateral treaties, to such a degree chat itis possible to talkin terms of the developmen of ‘customary international law" daring this period in the sense of the B Broopia of Pubic Internationa Ls, p 811 2 Rober: Wass Engr ne he Forno Hirth Lao Naini ioe ‘fa he Ti ofthe Grats out Romans Ag af Gris Condon, 89h ek, % Encpedi of Pale brernavonal Lars. * Nessun, Conc Hite, 9p. 27-8 ‘Tue evolution ofinternational aw a freq hough the Church some- rent repetition of similer legal formulae. Although the C times artempted to argue that a bilateral resty witha Muslim regime, for ‘example agreeing to safe passage, was invalid and therefore did not need to be honoured, such interventions were zelacvely rare and uswally ver- ridden by considerations of commercial interest. ‘The Church's eanceptof an international legal order jon over Chis- In support of ite claim to exercise a universal jurisdic teedoms the papacy constructed an elaborate lg onde, comprising « system of sanctions, the employment of arbicration, formal legal hear~ ings and the enunciation of specific rules of law in the shape of eanon aT, a times, exercised considerable influence, The Cire’ ain sanction ~ the threat or imposition of excommunicition ~ was taken seri- ‘ously, as, for example, when King John of England was eventually obliged to submit to the Pope's authority in 1213.2" The Church also claimed the tight to appoint and depose kings.>® Although there were probably as many occasions when such papal edicts were ignored as when they were obeyed, the notion of some externally administered system of sanctions lingered on to the present day, Much the same poiat may be made of the other institutional underpinnings ofthe Church's legal system such as its tse of law-making councils and of arbitration to sete disputes berween Christian princes. Diplomacy seen, diplomatic envoy between rakes have enjoyed sme ret of retin rst povee se ances Besos Ine Middle Age, diplomacy became fstintdonlied an nthe DEO ens, acqizcds meh scones legal foundation, The Byanins were theft to focus upon diplomacy, whch they sa a eral both to the mmnipulion af te balance of pow for scityparpses ane topo tect and further develop valuable trade." ‘To this end they set up an early tection of an external Mais department. Hower, diplomacy reached i ameat filly developed form inde Taian cyan sytem, wt Venice aun the for seteales specially ang oditomacy i the thie toon cantar anda este of Fesient amber throughout Tain sone nh te SORIA i aa gn oe ee eta en. ue econ $8 The foundations existence from the middle ofthe fifteenth century. ath century.® The medieval period tbo witnessed a related development under wich Chien ee eee also permitted to set up settlements with some exratetritaial privileges in Muslim counties. The heads of these settlements were called ‘con ‘The origins of sovsreigney ‘The omering spt of esien amb ambassador maybe an ne Sn tne rope wa moving om he snpcn seus afoeaaginy fuori that wos caraserinico te medeelpentonseae ee cepton finial alts a ipl ndepenen lay soe he Benes of diplomatic immunity and oxatenran ek sly conerredwhat would cmeto be een ss soctegans ee ambassador ia dear intcaton oi nd indeed vss nas such ee French ing and te Pope, who sil clined fee eg over these saints to lndependent sans, mained te nah tes bad no ht wo engage sepa ilomsey Hote an ous cher desepmens wre Pong ine ate doctor aed a assbleoeicem te emergence ofa rudimentary nen or states alongside the residual remnants of the feudal order. Princes were ineresng string thieathontynonlyoverlene oe ewe Gomains bus agin cxeral caiman sucht Pore ea tenes Whats sometimes dase athe fc teatin te meters ate, fo ager eee no eal egw teary oo es 1 the first king of Saxony, Henry I, and the Emperor Charles 111, Fancy, when thefouneeneciury in fegal eamacet toes, Lid down one ofthe funding dvtina ef he omen een ‘Bax in ena st inp reget (The King @ Pages eo ingdom) hewas merely confting harhad long eerahccae es sees Thee were crn afer suchas Vance when ae San lected, shied oii could nee eens heiogl ceoee Sonethis sa, a was cence danse manana cee ae Scents ctu, othe modern whoo cf ihe Wane en ‘being given a legal personality, g itotet legal contoversy that may be sen anti modern oeines of insraaonal lew occur a he Couns of Gorton 2 Rcokon, Hrokon 24. 6 Nebnum, Cone % Neclion, totus n 29.9 Buaeonda a/b hee coaches dopa of Pali rao La, p73, | Th Hanae of Sea (Sew Yak: no Pras, 1970), p. 65D. 8, Chambery ep ge 80-150 London Tana edeon Se Be ‘The evolution of international law 49 (1414-16). The issue concerned Poland’s alliance with the non-Christian state of Lithuania against the Teutonic Order, which had been authorised to spread Christianity by force. The alliance contradicted the prevailing ocisine that pagan communities had no legal rights and war against ‘them was, therefore, justified. The Polish defence of their alliance, led by Peulus Viedimiri, argued that the question whether a community had rights under the law of nations depended entirely on whether they exer cised effective jurisdiction over 2 given territory, aot om their religious beliot. ‘The legal culture ‘The later Middle Ages were marked by a growing “mphasis on law, with the law of nations simply one beneficiary of this process. Fits, the many claimants to power and authority sought various means of legitimating their claims, including placing them on some kind of legal foundation, ‘whether this was grounded in natural, Roman, ecclesiastical ot local la. ‘Legal justifications and explanations were sought not just for the source of a ruler’s power but for its purported consequences, inthe form of a well- ‘governed polity: an early version of contractarian and ‘rule-of-law” theo res ofthe stare.” Second, the revival of Roman law from thelate eleventh century was also important, not least because it provided a sophisticated vocabulary for the on-going legal discourse. The c=ntral Roman concept of dominiwm (losdship), implying, as it did, what J. H. Burns terms ‘an Absolute and exclusive tight of ownership and centro!’ ran counter to the medieval conception of overlapping authority and helped to provide 1 legal rationalisation for the emergence of monarchical power. * Inter- national lew was never a central element in this volving legal culture, but itis possible to discera in numerous writings an implicit if vaguely formulated, assumption that international relations were also subject to legal considerations. The widespread use of treaties is one indication of this, elthough it should be noted that most treaties inthis period still © 6.H, Alexandrowie, ‘Pauls Vieni and the Derelopmuat af the Doctrine of Coes- ‘Sate ef Chetan snd Non-Chvsten counties Bri artot of Buernsinal Lao (496s), ates. 0 $1 Soups, On the Madi Origin of the Madr Stu incon, NI Pins ‘nies Pret 1970) ep. 23-4 66 Burns Leh, Rip od Brpine The x of Mary 1400-152 (Onto: {cerendon Pres, 1902, 9p. 18-39 © Daamnigue Brey, The portance of media son lay pd the sate aon fp crcged of teeny sen ttre ert Randal Lear (4), ‘Rue Thea an Inconel Lb Boop Hor. Prom tu Late Mie Ags fo Tord Wr On (Carordge’ Cambridge Unters Prep. 198-22 50 The foundations tk te fin of eal ont ern nes cated ntgred sea he sae Noe an iseaond rac that wee soe ae ee ES ious kinds of legal procedure, becwten indiidtal, coronas sn ‘subjects of law or between ‘private’ matters. of law, such as inheritanc 7 ‘Matriage and ‘public’ matvers, such as war, ae backed by religious rs unless exprosely ras made in the vast range of ‘The emergence of positive international law 1500-1800 The ideo tr ir tae ter gm aeons aso ea rules nplying to the lations between el Soca hese ee Lhe ee pinay sou cf ah a ee Sree nsone moat mamacios oa ae Gs eat om Sl far 306, pe at sty wine an xno nin ee a a shouldbe noted that che Publicist ofthis period id nt erate Pace sonal ded as doen Soe ec Pavone wha vw ponding end epee Swit he onuatng ws of Geter ea ks ee ai ths: Monae ter tndcbng tears chee anes en ay ages dsm dng cals oe om Hono te snbiaon fe ce nae ean siesta depeten sie pedot sso dae Renee, ‘sey "Thee et np ced 9 the re ingen inten tonal law fo the end of the fifteenth century Pate he dae thew Wer ea heb urs chores en net ote ers conde gen al canon ee Sie ounsed te cain ane Rah Sehotteundaiyng note ottncng mca eee it inertial ay mite cd eee hae guere (aera sng comsnune etn international law on the grounds that itis based on unjust: foundations).”* (Crucially, law may be seen as helping to formulate and give a particular * Randall Lesa, Peace Teas fom Randall Lea, ‘Peace Trois fom Lod co Weil in Lester, (6), ee 1 Th conto wie request ie be accompanied bys nots whos duty wast read 2320 be Tatas © Spans Prcamacon tring ot feel taco oe Sn any fhe an hl schooled pl na lca say a ‘ec (Lemon: Sevens an Sons 1988). 53. tT Mew of Frain “The evatution of internationst law st shape to a further consequence of the discovery of the Americas: a new spatial swareness lending to a much stronger emphasis on territory and strictly defined boundaries. The Pope’s famous division of the New World ‘between Spain and Portugal had litle legal force but it was « harbinger ‘of a growing interest in matters cartographical and of the ways in which lines on maps might determine political identities. “The now spatial order that began to emerge a: this time helped to undermine international actors whose legal authority rested on something ‘other than a clearly defined cerritorial base. These included the papacy, city Ieagues such as the Hanseatic League and the chivalric orders." “The Pope’s authoricy, which in reality had already declined consider ably during the Middle Ages, was farther damagec by the two other key {developments of this period: the rise of Protestantism and the increasing assertions of monarchical sovereignty against other contenders to power. Although the notion of a Cristian republic heeded by the Pope lingered ‘on through the sixteenth and seventeenth centuries, particularly in rela tio to the continuing Ottoman threat, the political reality was onc of increasingly acrimonious divisions within Christendom and of a strug- {le for power amongst monarchs nov able to command the ever-growing resources of te emergent modera states. The positivist understanding of international aw as the voluntary regulatory structure accepted by states that were sovereign equals did not, of course, emerge overnight. Here we consider briefly the evolving conception which wes at the heart of pos- itivism eogether with some of the treaties that gave formal shape to the ‘now legal order. ‘Law is always both the product and the servant of a specific political association among human beings. One of the primary concerns, chere- fore, of the explosion of international legal scholarship inthis period was, to define the ‘society’ to which international law belonged, since this had profound implications for the subjects, sources, content, applicability, ‘and efficacy of that law. Broadly speaking, three different conceptualisa~ tions of ‘international society" may be discerned, although as we shall see, some of the Publicists believed that wo or moce types of society could coexist. The frst wo, which may be characterised as the ‘universal society’ and the ‘great community", each derive ulimatey from the long shadow of Romie, in both its secular and religious forms. The thitd, the 7 cat Schmit Te Noor of te Bah ithe Inereronl Law ofthe us Puce ‘Bean ons and ac, Ge Lz Uhnen, (aw Yorks Tos Pres, 2008 (cig. publ 50). 1 See ato Spat Source St. 200.34 52 The foundations ‘society of staes’, has provided the doctrin fe Law to this dagun’ 8s Povided the doctrinal! oundation of international Seldao egal nght,etheindicaiyoreltertes ieee ee eel cr ts ea hoe ‘and also by invoking the 2menkin concept the idea tat eta SS 8 single communigy governed by fname including monarchs, were obliged ro steer Suarez (1548-1617), stout mot formulation ofthe “eat om community fa ene famous ates ‘argues that ‘the human race, into he peop : ito however many diferene penis ae gos icy be divided, alway preserve eri uns 8 a species, but als a moral and poltcal unig (a kag ina the natura precept of mutual ove and mere, pecepe sade ni a moral norms hat al me, such as Francisco started from a religious conception of natural lev, tematically by Aquines, in elaborating ther particule: 7 hte spument are developed in more nie: The Rewtionary Sars bases op DAL 3 Sine fe Nonny 103 isin WOM, Fur Goto Bods Sco, 1 Sagrado Sit mm Date Ont omeses rather eecentiy ty of the claton of nara ‘xpnnded Uy Aguiar eration Mig, Te Nona fat Segunda by Agus) wo eteatoa soc RH Mao teh Sh Thor of Ierueiona Rela (Landen, Pat Bice Loy ui in David Armstrong, Reson an Midd rua Sect (Onfont: Cetendon Press 1999), “The evolution of international law 33 ally even to strangers of every nation’.”® However, although he believed ‘atural lar to have divine origina, he argued thats sprend could be due to-custom ~ ‘the habitual conduct of nations’ or ‘simply as the result of ‘esage and tradition ,.. without any special and simultaneous compact or ‘consent on the part ofall peoples’.”® Other natural lew thinkers, such as ‘Pufendorf, utilised the earlier, secular version of narural aw as claborated by the Greck Stoics and taken up by Cicero and oner Romans." ‘The most famous of the Publicisis, Hugo Grotius, (1583-1645), although himself deeply religious, ergued that natural law's precepts ‘would be valid even if there were no God.*" hig, among other things, enabled him to advance an inclusive view of international society. Indeed, the principle that promises should be kept should apply even. to such as robbers and pirates. The tile that used to be accorded t0 Grotius of ‘father of international aw is unwarrarted, partly because he ‘owed much to other writers, such as Gentili, but ajo because is concep tion of international society was still closer to the ‘zreat community” idea than to modern international law’s emphesis on the ‘society of states. However; he went beyond the understanding of many of his predeces- sors of international law as essentially narural law oy offering what today ‘would be termed a ‘cosmopolitan’ formulation of international society that incorporates not just states and their rulers but individuals and non state groups.®* Moreover, he widened the ‘sources’ of international law beyond ‘nature and divine command’ to include ‘custom and tacit com- ‘mand’ ®? He even, in discussing the res applicable to diplomatic immmu- nity came close to g consent-based conception of international law by arguing “this law of nations is not like Natural Law, which flows in a ssure way from certain reasons; bur this takes its measure from the will of nations? In the eighteenth century, Emerich de Vattel (1714-67) came closest to the fist systematic presentation of modern intemational law. Although he claimed to be working from principles of natural lav, his staring point 7 rancieo Soares, Sato rr The Ts (fond: Oxford Univers Press, 1948, woh Th p 348 2, Bot, po. 348, 351, © BE’ Corbet a exd Seyi the Relation of Stans (New York: Harcourt, Brae and Gay 1951), pp. 1-12, 1 Naabatrmy Coie Hier, p 108 5: Hedley Bul “Pie mpportancs of Gross inthe stay ofinterntiona lation’ in Hed ley Bal, Renedie Ringtrs and Aden Roberts (2), go Crain Iara atts (Oxo: Cintendon Pres, 1992) p80. © Hugo Gros, De fart Bal Pac ed. Willan Wheel, (Ca ‘Unlvrsy Pres, 1653), no, p 306. 21 Bull “Tas importance of Grotne 7p 82-7. © Groton, Dokgomena te Dejion pose. Pid ridge: Cambie 206 54 The foundations was the fact shat, while individuals of he te uals of neceaity bad to surrender some of he leon 0 superioe autor, ‘otng of is Ket cane sie or sapped 0 subst between mato Sach soe ine lnins, and sereally possesses an absolute independenct onl sheet ‘is independence, he emphasised, was nor something to be aed buns beneficial Because ie enable each seats to gore heed arnt ae ‘Suited to her own circumstances’.® States were, therefore, {kin to individuals living in the complete freedom of a tate of rast 7 wheres individ could be ruled by emoton, nates wesc fet with ‘more deliberation and eieumapection an fo mae eed jurangements to promote onder within tet on soceiy™ Beare Bo he es appa the soy of sates coul dada oa natural liberty of nations, from the atenion due wo he ee safe from the naute oftheir moval conespondence, the eget tet and the dictions of thes various righty Ieee oes Hat cane ee This meant, especiaily, that international ced of ‘voluntary’ maxims as wala te injunctions of tal lea thee word while te dnple tre lea Sonera tte em ay brow eres Stes were cua i ee a mS ee ‘withoutinterference from other states." Thi vrincipic of nan-intervention in a state’s internal affairs ‘was rey y Bressed by Vatel, who gave ita very broad interperdon eee ingnot juste sates feedom to choot i ow soresunens sed rie bust tbe fe om ‘manoeuvees' by our states tending to een a tues «ste oman did i ee ea test nn: enna eh gran mt s ‘natural advantages’.’> A determination to avoid further religious Me was obvi vasly a major motivating factor for Vattel, apparent also in i caphats misao maven te ane ae stn Chestns: ica pleat eae Sey and ova t common satay regu er ene ftaee tld be a WEB Gt thes and ating wth nuiy™ Hs ely ecepdon toe cre advoctes of igen waned pe ron ee thin cae,“ common sey oftankin reeds mee Enmsich de Vat, The Law of Nao or Princip of he Las of Nata Apps wo he Geet i ca Si ot A fy tt ee ie Ne 2 ee asap eae Sy ane 1, Bid, 9.191. Seealso pp. 154-6.” app. 195-6 35 ‘The ecotution of international law alliance against such a people ~ to repress such outrageous fanatics, who disturb the public repose and threaten all nations’ in view of his emphasis on the freedom of state, Vattel rejected “uni versal society’ ideas, such as Wolff's civizas maxina. He argued instead thatthe only permissible institutional underpinnings to maintain order in ‘a society of states were diplomacy and the balance of power. The former should be seen as an obligation on all states since, without it states would rot be able to ‘cultivate the society that nature has established among them, to keep up a munual correspondence, to teat of thei affaixs or to adjust theiz differences’. Given this, ambassadors needed to “be held cred and inviolable’, with violence agsinst them regarded as an attack against ‘the common safety and well being of nations)” ‘What Vattel dacs here is to enshrine diplomacy more completely in international law: to make it an obligatory and prozected practice. He achieved this end through his conception of international society as one tunited not by moral obligations but by one essential common interest shared by al states: preserving their sovereign status. Much the same is true ofhis discussion ofthe balance of power, which, in a notable passage, he made the central instivation of his international society: arope farms a poial eetn, an inter body cloay connected bythe ele tions ad ice inert of the nuns ibiing th part ofthe worl. Te toc ss former a conised heap of decaced pies ach of which tought Dersler de coacered inte ie of the ter, and selon eprded hinge hich dd notinmedely concen her. The enna ate of sores 0 exp cceurene, te conttant residence of sinker, wd the prpetua eget ‘my mate modem roe Hd af eae, oh eee eh incepoedent bu linked fogeer bythe ts Of common interest unite {Se utnence of dr and ers once aos he nove sche of te pita balance the equim of power by whith understood such positon of hingh estar no one powers beable asatlyt predominate, fd prescribe Inve tothe ober? Vac’ enormously nftental book didnot ‘est” international aw bur essnally set out systematically what was emerging asthe prevailing {derstanding of post medieval ternational elagons, Diferentaopects of the new onder may be diaceraed in numerous trates during ths petod: a shift aay from religious to more legal language, an increas Ing emphasis on sovereign equality and the principe ofnorinterventon, references to the impoetance ofthe balance of power asin bestand most solid basis of mutual friendship and durable harmony’, agreements to PF sik, "9 Bod, p 470. "id, pa." Did pp 311-32. Trea of Deehe 1713, cited in EV Gate, Bpe Cal Ral of Per ica, NY: Comell Unters Pr, 1955),p. 35 56 The foundations accept permanent embassies together with a continual development of the rules and procedures zelating to diplomacy"? and a growing conccen fo ensure, if necessary by underwriting them with great-power gustan. tees, the stability of existing territorial possessions."! The most famous of these treaties were the two that made up the Peace of Westphalia, which ended Europe's lst great religious war in 1648. In fact, although these hac crucial clauses ensuring the ‘exact and reciprocal equality’ of the members ofthe Empice,"? explicitly referred to as thet ‘droit de sone ‘verainit® by the French delegation, ® Westphalia does not really deserve the reputation ithas acquired in the Tnteenational Relations community as the virtual ‘constitution’ of the new international systemn.!"" Much catlier sreaties, such ag Augsberg in 1555, had lain down the principle that it was the right of the rulers of a given tervitory to determine the official religion of thar territory, while key principles such as the bale ance of power were not formally introduced until later treaties, notably Utrecht in 1713, Nonetheless, Westphalia may still be seen as marking the symbolic origin of dhe modern European international society a the sense that ic crystallised and gave legal weight to developments chat had been taking place in a random and unfocused way over many years. It ‘was the first major congress ofits kind, atended by almost all European states, and it assumed a collective right to confer various entitloments on individual rulers, os in the case of Alsace, to insist that states adhere to certain general practices of religious toleration and, moat important of all, formally to admit new members to the society of states (the United Provinces and the Swiss Confederation)."* Although the many months of wrangling over precedence that took place showed that the delegates had not entirely abandoned medieval notions of a hierarchical interne. tonal order, the reality of Westphalia was that a decisive shift had been ‘made towards the positivist principle that international law was what 2 society of sovereign states consented to, ""° G Batis and S. Mascoby, The Dewsopnen of inrstional Lew (Landon: Longmans, ‘Green std Co, 1928) pp 76-108, ‘© Laurent Winkel, ‘The proce cates of Wesphaa a an instanceof the section of z Roman win Lester (ed), Pesos pp. 229-30, '@ Teaty of Ossabruck 24 Ocinber 1648, n Cie Party ), Gold ray Serie, {Sew York: Oceans, Dobbs Ferry 1980), pp. 198.5, 1 Ronald G. Asch, “The adr r-esaminet he Peace of Weaphalia sd te const ‘soa ofthe Holy Roma Emir’ in Lena (ed) Pune Jraten Pt '™* Astron, Roto, pp, 32-3; se alo Anscas Ores, Soretegor tteratonal ‘pltdont andthe Wesphalian meh, Iannone Opunctin 3 GeO ost oat Stephen Kroner “Westphal and al cher nut Golden ant Reber, Keston (Ged, Meas and Foren Pigs Bly tities onl Pole! Chane: eon Gorne Unvesty Prev, 1993), pp 395-6 "8 Acmsuang, Rawbeon, 73, “The evolution of international law 3 From the French Revolution to the League of Nations Reavis oe ligated ea era Gost a ti a Sa ni ace people gee ee are beers Se ence ate ipa anna seen zbeoe ote es teat aera, sn rt ieee Seen a ec atae nea sea Se Se a tm re ine seenen yp agiemeemneeee ioc period 1814-1924." Second, since treaties, formally, bound only Gaal Sere ioe aoe Se crs eee eee ie ian Etna ti neato i ard teneceme agree Serge nineteenth century, many ‘public ernie unions’ ues Saar Eeabtemys amine tee Scovintninsigien ares oaenioose Seton as mma Se hrf Sheen eerie sie nneen 166 Nsom, Conca Him, p. 196. Bude and Macoby, Dewlopmins 30% 58 The foundations Permanent Court of Arbitration (in reality little more than alist of possible arbitrators). Four further developments that impinged upon international taw in ‘tucia] ways may be noted. First, by the end of the Napoleonic Wars distinct category of ‘great powers’ had emezged who, on the occasions when they were broadly in agreement, were able, in effec, to lay down the {aw to the smaller states. This privileged position was instieutionalised in the League of Nations and United Nations in the form of perme- ‘pent membership of the main decision-making bodies, the Council end Security Council, although the principle was somewhat diluted from its Concert of Europe origins by the inclusion of non-permanent members, Second, che society of states gradually became mote universal, For mach ‘ofthe nineteenth century, world polities were dominated by the frequentiy selfish interests of the major Buropean powers. Where once ‘intesnational law? in reality comprised coexisting Buropean, Islamic, Indian, Chinese and other systems, now the only significant non-European power was the "United Staces, which had unilaterally excluded Burope ftom the Americas in the 1823 Monroc Doctrine, This state of affairs began to change after the Crimean War, whea the (now seriously weakened) Ottoman Empire ‘was admitted to the Concert and when Japan began the rapid rise to greet Power status that culminated in the defeat of Russia in the war of 1904-5, One sign of these changing circumstances was the fact that the second Hague Conference of 1907 was attended by delegates from North and South America and Asia as well as Europe. ‘The third development is more complex and revolves around a partial shift away from a strict application of the principle of non-intervention in states’ internal affairs, In a sense, this process had begun with the French Revolution.’ The most basic principle of the Revolution was that sovereignty was vested in the nation not the ruler. This, in essence, advanced @ novel principle of international legitimacy based upon national self- determination rather than dynastic rights, which meant that 2 people not happy with its lot within one sovereignty could join another, ‘The principle was used to support the French ennexations of Alsace, Avignon and Savoy, which were et the time under the auspices of the Empite, the Holy See and Sardinia respectively. The ideological basis for suck policies included a belief that all. peoples were part of one great society governed by natural law, which justified Freneh interven, ‘Hons to ‘overthrow all chrones, crush all kings and rendet universal the "SS David Armationgs Lorna Loyd sn ohn Redinond Fam Veils ty aoc ltr op Aitonal Oration in the Tena Caer ound Nacmflan 1950 8 Te follows secon deave upon Armatons, Rettig SEIT, 264 90 re erent authority’'!? and therefore that non-intervention remained the true: _ Riga org ene leepest charity can make it right.""!? However, the large “aween eee ale nie rire sg ialiy clerrer ear ne ef Pub ay to Mino Fon Afi ced in MSDE hon do ota ois pode owe TASS Cas, es ueeeeeeeereenaaes 1 SITAR Me coma if en Fer Cane, A Hal Ua Gintbessh speattven bey peoposed Peorocol ofthe Congress of Trop 2 Ghateeagespstgon te ropesod incense Peso oe fasguaedia 8 Wool, Inset! Gouna, Landaa: Alen end Usa, 1816, pa 1 Been Plage Der vl 442 Se °c goer ancouneo these develepneis eotiy Be, Homa Wife The hot Hzor of te Duarte ans of sad Caf (Landon: Mets, 1983), 60 The foundations Covenant nor the more stringent conditions of the UN Charter had much

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