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Public International Law I

LAW 510
The History and Nature of
International Law
Ancient Worlds
The ambiguity of the term international law leads to various different
answers to the question of when international law began.

If by international law is meant merely the ensemble of methods or devices
which give an element of predictability to international relations (as in the
silent-trading illustration), then the origin may be placed as far back as
recorded history itself.

If by international law is meant a more or less comprehensive substantive
code of conduct applying to nations, then the late classical period and
Middle Ages was the time of its birth.

If international law is taken to mean a set of substantive principles
applying uniquely to states as such, then the seventeenth century would be
the starting time.

If international law is defined as the integration of the world at large into
something like a single community under a rule of law. Then the nineteenth
century would be the earliest date.

If international law is understood to mean the enactment and judicial
decisions of a world government, then its birth lies (if at all) somewhere in
the future-and, in all likelihood, the distant future at that.

Ancient Greece

Ancient Greece adopted two institutions from oriental civilization: (1) the
technique of treaties and (2) the art of diplomacy.

Added two on its own (1) international arbitration and (2) proxeny (state
hospitality) which is the origin of consular protection of foreigners.

Religious considerations such as (1) war should be avoided (2) soldiers
killed in battle were entitled to a burial (3) prisoners were to be ransomed
and exchanged or slaved but not killed.

Not considered law but they were set of rules for the proper conduct of
relations between Greek polis to describe the political organization of cities.
Imperial Romes contribution was the development of:

Jus fatiale consisting of religious rules which governed Romes
external relations and formal declarations of war which, inter alia,
recognized the inviolability of ambassadors and was at the origin of
the distinction between just and unjust war; and

Jus gentium which governed relations between Roman citizens and
foreigners. It became an essential part of Roman law and thus
greatly influenced all European legal systems and, through them,
public international law.





The doctrine of just war by Cicero.

He said:

there is even such a thing as a law (jus bellicum) and
the terms of the oath must often be observed with an
enemyRegulus would have no right to violate by
perjury the terms and agreements made with a foreign
enemy

The doctrine of the universal law of nature known as
natural law.

The Universalist Outlook:
Medieval Natural Law
The European Middle Ages became the great age of natural law thought.

Natural law conceptions developed under the umbrella of the Catholic
Church.

The idea was not specifically Christian in its inception, but rather was a
legacy of the classical Stoic and Roman legal traditions.

The dominant tradition represented by Thomas Aquinas was rationalist in
outlook, holding the content of the natural law to be susceptible of discovery
and application by means of human reason rather than of revelation.
There continued to be, as in the ancient period, a distinction between the
jus natural and the jus gentium.

The jus gentium was much lesser than the two, being seen largely as an
application of the broader natural law to specifically human affairs.

Sometimes was regarded as comprising universal customs of purely human
creation-and therefore as a sort of supplement to natural law.

It was collection of laws common to all nations, affecting individuals in all
walks of life, from the highest to the lowest and dealing with all aspects of
human social affairs- contract, property, crime and the like.

States like private persons, were permitted lawfully to wage war for
such purposes as the punishment of wickedness or generally for the
enforcement of the law but not for vainglory or conquest or
oppression.

This in fact was the conceptual kernel of natural laws most
outstanding contribution to international law: the doctrine of the just
war.

The Pluralist Outlook: The
Italian City-States
The tension between the universalistic and the pluralistic outlook is revolved
around the debate over the legal status of the various independent city-
states of northern Italy.

These obtained substantial de facto independence from the Holy Roman
Empire in the late twelfth century, when the cities of the Lombard League
defeated the forces of Emperor Frederick I.

There was, however, considerable debate over what this independence
really meant.

Two of the most prominent medieval lawyers Bartolus and his student
Baldus concluded that the cities were independent in the sense of being
wholly self-governing and independent of one another, but that, in their
relations inter se, they continued to be subject to rules of the empire.
Developments in State
Practice
It is from the pluralist rather than universalist side of the great medieval
conceptual divide that we must look for innovations in State practice.

Much of the state practice in the Middle Ages consisted of traditional; ways
inherited from ancient times.

The area of diplomatic relations is an example, with diplomats increasingly
being accorded a broad degree of immunity from judicial process in host
states.

Beginning in about the eleventh century, European (chiefly Italian) States
began to conclude bilateral treaties that spelled out various reciprocal
guarantees of fair treatment.

These agreements, sometimes concluded with Muslim States,
granted a range of privileges to the foreign merchants based in the
contracting States, such as the right to use their own law and courts
when dealing with one another.

Certain aspects of the conduct of war witnessed a high level of
refinement in the Middle Ages-most notably the law on the
ransoming of POWs (a welcome step forward from the alternatives
of enslavement and killing).
The Middle Ages-Two sets of truly international rules developed:

(1) Lex marcatoria which consisted of rules of conduct and fair
dealing between merchants.

The commercial activities required the establishment of a common
legal framework.

(2) Maritime customary law which maritime customs and usages
were formed.

The rules of the sea based on the Rhodian Sea Law were compiled
into widely recognized collections.
From the 1648 Peace Treaty of Westphalia to the 1815 Congress of
Vienna
The period of classical international law.

The 1648 Treaty of Westphalia recognized the principles of sovereignty,
territorial integrity and the equality of States.

It legitimized the principle of non-interference in the affairs of a State and
recognized that a State was independent from the church.

The treaty established a system of balance of power which lasted until the
French Revolution and the Napoleonic Wars, and was aimed at preventing
wars.






The intellectual support for new ideas was provided by scholars, in
particular the Anglo-Dutch School represented by Hugo Grotius and Alberto
Gentilli.

At the end of eighteenth century, the enlightenment ideals supporting the
aspirations of the British colonies in North America fighting for
independence from the British monarchy and supporting the French people
and fighting the Frances monarchist tyranny, feudal aristocratic privileges
and the Catholic clergy had great influence on the development of human
rights and the principle of self determination.


From the 1815 Congress of Vienna to the outbreak of World War 1
(WWI) in 1914
The 1815 Congress of Vienna codified the law on diplomatic agents and
missions, prohibited slave trading and laid the foundations for the free
navigations of rivers which flow through at least two European States.

The main features of international law during the period from 1815 to 1914
were the principles of sovereignty, balance of power, legitimacy and equality
between nations.

The unorganized character of the international community, which was
composed of a multitude of sovereign States legally equal;

The acceptance of war as the ultimate instrument of enforcing law and
safeguarding national honor and interest;

The recognition of States as the only subjects of international law.



The Positivist Revolution
The major feature of the nineteenth century was the dominant role of
positivism.

The expression positive law refers to the man-made law of particular
States, in contrast to divine law (i.e. the command of God) or natural law.

What was distinctive about positivism as a school of jurisprudential thought
was the doctrinal insistence that positive law is the only true law, i.e., the
wholesale and principled rejection of natural law as a valid or binding guide
to conduct.

One of the most central aspect of positivism was its close attention to
questions of the sources of international law, and in particular, to the
proposition that international law was fundamentally an outgrowth or feature
of the will of the States of the world.
Rules of law were created by the States themselves, by consent, whether
express (in written treaties) or tacit (in the form of custom).

International law must now be seen as a law between States and not a law
above States.

International law, in other words, was now regarded as a corpus of rules
arising from, as it were, the bottom up as the conscious creation of the
States themselves, rather than as a pre-existing, eternal, all-enveloping
framework in the manner of the old natural law.

International law was now seen. So to speak, a world of fragments, an
accumulation of specific, agreed rules, rather than as a single coherent
picture.



The 19
th
century was the century of positivism which was introduced by
French philosopher Auguste Compte.

He posited that humanity had gone through three stages of development:
theological which focused on religious idea, the metaphysical which
concentrated on legalistic and jurisprudential ideas; and positive which
rejected the past superstitions, ideas and dogmas to focus on scientific
studies of objectively ascertainable facts.

The positivist theories were developed by john Austin and Jeremy Bentham
and came to dominate jurisprudential thinking in general, including the
theory of international law.


Is international law really law?
In The Province of Jurisprudence Determined (1954), Austin
reasoned that proper law is positive law and consists of a series
of commands or edicts issued by a sovereign who habitually
received obedience from subjects obeying such commands.

Such commands are backed by threat of sanctions for breaches or
disobedience.

He saw a sovereign as an absolute authoritative institution that was
indivisible and not subject to other entity.



He conceived that the law as positive creation or result of the will of
the sovereign.

Strictly speaking, every law properly so called is a positive law.

Since international law does not have a central authority, similar to
sovereign, which creates law or issues commands for obedience,
Austin argued that international law is not positive law.

Rules of international law did not qualify as rules of positive law by
this test, not being command of any sort, were placed by Austin in
the category laws improperly so called.

He regarded international law as positive morality rather than law.

The status of international law as law has been challenged at both the
theoretical by John Austin (1790-1859) and by HLA Hart (1907-1992) and
at the practical level

The main arguments against the existence of international law as law is the
international law does not have any legislature, judiciary or executive within
the ordinary understanding of these terms, responsible for creation,
interpretation and enforcement of that law.

The most convincing arguments in favor of the existence of international law
are that States recognize and observe international law with the
consequence that there is substantial order in international relations and the
international law is practiced on a daily basis by international lawyers,
intergovernmental organizations and other non-states actors and applied by
domestic and international courts.

In International Law and the Controversy Concerning the Word
Law Glanville Williams (1954) takes a different approach to the
definition of law.

He argues that a word such as law has multiple meanings in
multiple contexts.

Consequently, the only intelligent way to deal with the definition of a
word of multiple meaning like law is to recognize that the definition,
if intended to be of the ordinary meaning, must itself be multiple.


If Williams approach were adopted there would be no difficulty in
resolving the issue as to whether international law is law, because
the word law can be used in one sense to describe the rules in the
domestic setting, and in a different sense to describe those in the
international context.

In his view, words do not necessarily have a single true meaning
and thus the word law is used only as a label to describe certain
phenomenon or state of affairs.

So what matters is not the word used, but the existence of that idea
or phenomenon. Thus the phrase international law uses the word
law to describe the orderly arrangements in the international
sphere.
In law, then, what are the usual general characteristics that may be
identified as basis for a definition?

Even though the details of the definition of law may vary, depending
on different theorists and what they choose as the essential
elements of law, there is general agreement that law broadly
consists of enforceable rules established by common consent or by
an authorized institution to regulate human conduct; breaches of
these rules attract sanctions.

The issue is whether international law has these characteristics?
Definition of international law
Prof Shearer defined international law as body of law which is
composed for its greater part of the principles and rules of conduct
which states feel themselves bound to observe, and therefore, do
commonly observe in their relations with each other, and which
includes also:

The rules of law relating to the functioning of international institutions or
organizations, their relations with each other, and their relations with states
and individuals; and

Certain rules of law relating to individuals and non states so far as the rights
or duties of such individuals and non-state entities are the concern of the
international community.





In SS Lotus Case ( France v Turkey), the PCIJ provided the
following definitions:

International law governs relations between independent states. The
rules of law binding upon states therefore emanate from their own
will as expressed in conventions (treaties) or by usage generally
accepted as expressing principles of law established in order to
regulate the relations between these co-existing independent
communities or with a view to the achievement of common aims.
The Restatement (Third) of Foreign Relations Law of the United
States provides the following definition:

International law, as used in this Restatement, consists of rules of
general application dealing with the conduct of states and of
international organizations and with their relations inter se, as well
as with some of their relations with persons whether natural or
juridical.
Enforcement of International
Law

The fact that international law has no centralized process of enforcement
does not mean that international law is not obeyed. A state obeys
international law because:

The prospective long-term advantage of compliance prevails over any short
term advantage resulting from violation of international law;

It wants to maintain its good reputation; it fears retaliatory measures or
measures based on reciprocity that may be taken by a victim state (the
three Rs compliance)

The UNSC may take various measures, including the use of force, under
Chapter VII of the UN Charter to force a State to comply with international
law.
It is bound under many international treaties to accept
the compulsory jurisdiction and the judgments of a body
established by treaty to deal with disputes arising out of
it.

It fears public opinion both at home and abroad.
Situations to which international
law is relevant
Co-operation-States are naturally independent in many ways and
international law facilitates co-operation;

Co-existence-States have to co-exist with one another and a way of
facilitating this is to define their relationship by making treaties and other
consensual agreements; and

Conflict-Here, the role of international law is confined to two main functions,
i.e. the prescribing of technical rules of conduct and the keeping of any
conflict to a minimum.


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contacts: shahrizalzin@salam.uitm.edu.my