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Development of international law
• ‘Law of Nations or International Law (Droit des gens, Völkerrecht) is the name for the body of customary and conventional rules which are considered legally binding by civilised States in their intercourse with each other.’ – Lassa Francis Lawrence Oppenheim (1858–1919)67 • ‘[T]he norms designated as “international law” are really “law” in the same sense as national law.’ – Hans Kelsen68 • ‘Public international law covers relations between states in all their myriad forms, from war to satellites and from trade to human rights, and regulates the operations of the many international and regional institutions.’ – Malcolm N. Shaw (born 1947)69
676869DEVELOPMENT OF INTERNATIONAL LAW
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Renaissance multi-centric state system Peace of Westphalia universalism law of nations Francisco de Vitoria Francisco Suárez Alberico Gentili Hugo Grotius De Jure Belli ac Pacis Samuel von Pufendorf Richard Zouche Emer de Vattel Reformation first wave of international law Hague Peace Conferences First World War second wave of international law League of Nations Kellogg-Briand Pact Second World War third wave of international law United Nations Organisation non-state actors
67 L. Oppenheim, International Law: A Treatise, Vol. I: Peace (1st edn, Longmans, Green and Co 1905) 3. 68 Hans Kelsen, General Theory of Law & State, A. Javier Trevino (intro) (Transaction Publishers 2006) 328. 69 Malcolm N. Shaw, International Law (8th edn, Cambridge University Press 2017) 2.
Cold War Decolonisation web of international governmental organisations human rights United Nations Conference on the Human Environment globalisation information revolution cybersecurity COVID-19 global problems
To the basics
The basics of the law prescribing the relations among nations were designed during the European Renaissance. 70 However, many scholars travel further back in history to trace the roots of this law. For example, scholars concentrate on the co-operative agreements between peoples of the ancient Middle East; the profound cultural traditions of ancient Israel, the Indian subcontinent, and China; the prominent political philosophy of ancient Greece and the relations between the Greek city-states; and the rich political and legal legacy of the Roman Empire.
The modern sense of international law
However, in the modern understanding, international law cannot arise in a space without a multi-centric state system and the interaction of more or less equal actors.
Consequently, for example, the Roman Empire’s jus gentium71 and modern international law cannot in a proper sense be viewed as being analogous because the Roman era in the broad European space in this context was largely monocentric (i.e. Rome-centric – ‘All roads lead to Rome’).
70 ‘In 15th-century Italy, a revival of interest in classical learning and secular studies, along with a f owering of artistic production, gave rise to the Renaissance (meaning “rebirth”). The movement soon spread to northern Europe, reshaping the continent’s cultural landscape.’ History of the World Map by Map,
Rob Houston (Lead Senior ed) (DK Publishing 2018) 160. 71 ‘Ius gentium. yūs gān´tē-ūm. jus jen´tē-um. n. “Law of peoples.” (1) In Roman law, ius gentium was originally the law applicable to persons lacking Roman citizenship, but, in Imperial Rome, its scope expanded to denote natural law rules supposedly applicable to all persons of any nationality, including
Roman citizens. Ius gentium thus engulfed the ius civile applicable to Roman citizens in Justinian’s Code. (2) In more modern usage, a body of law that is universally accepted by the international community as a whole (usually, though not always, based on a theory of natural law). The term is not synonymous with “international law.”’ Aaron X. Fellmeth and Maurice Horwitz, Guide to Latin in International Law (Oxford University Press 2009) 155.
The same can be said about the period before the Peace of Westphalia of 1648 concerning most of Europe and the large parts of the world under the rule of Europeans, when the Roman Catholic Church’s authority, the Holy Roman Empire’s unique position, and, therefore, the prevalence of so-called universalism (which was embodied in the papacy and the Holy Roman Empire and, to some degree, stipulated the hierarchical political arrangement between certain European countries) as a core systemic principle prevented the creation of the essentially multi-centric interrelationships. Hence, in that era, Europe was not divided into sovereign states in the modern sense.72 Meanwhile, according to a contemporary understanding, states are considered organisational entities ruled by an effective government, entitled with centralised political power over their own territory and permanent population, being independent of external political control.
The issue of terminology
Starting from the eighteenth and nineteenth centuries in the English-speaking world, the term ‘international law’, which frst was coined by Jeremy Bentham in 1780, was applied.73 Before and after, for a certain period of time, the English term for this particular legal system was ‘law of nations’.
New European approach to international law
In general, the road to the new European approach to international law can be more directly traced back to:
• the prominent theoretical thinkers of the sixteenth through eighteenth centuries; and • the Peace of Westphalia and the political processes which took place during that era.74
In this respect, as a theoretical legacy, we shall pay dues to the works of:
• Francisco de Vitoria (1486–1546), the Spanish philosopher, theologian, and jurist who is best known for his scientif c attempt to safeguard the rights of the indigenous peoples of South America against Spanish colonists and for his ideas on putting limits on the right of justifable warfare. Like the other thinkers of that era listed here, he
72 ‘Medieval kings were not in this position; internally, they shared power with their barons, each of whom had a private army; externally, they acknowledged some sort of allegiance to the Pope and to the Holy
Roman Emperor.’ Peter Malanczuk, Akehurst’s Modern Introduction to International Law (7th revised edn, Routledge 1997) 10. 73 ‘The word international, it must be acknowledged, is a new one; though, it is hoped, suff ciently analogous and intelligible. It is calculated to express, in a more signifcant way, the branch of law which goes commonly under the name of the law of nations.’ Jeremy Bentham, An Introduction to the Principles of
Morals and Legislation (Clarendon Press 1907) 326. 74 ‘Modern international law has its origins in the Europe of the sixteenth and seventeenth centuries.’
David Harris and Sandesh Sivakumaran, Cases and Materials on International Law (8th edn, Sweet &
Maxwell 2015) 10.
recognised the importance of the law of nature for the development of the foundations of the law of nations, stressing that this legal system must be based on the universal law of nature and, therefore, non-Europeans should also be subjected to its reign. • Francisco Suárez (1548–1617), the Spanish philosopher, theologian, and jurist, one of the greatest medieval scholastic philosophers, whose writings include treatises on law, the relationship between church and state, metaphysics, and theology. Francisco
Suárez is often regarded as a ‘philosopher’75 of international law. At the same time, he was convinced that the ‘[s]upranational unity is the source of the law of nations which . . . is not that part of natural law which governs the association of peoples, but a positive law, primarily of a customary and consensual nature, accepted by all peoples as the basis for their mutual relations.’76 • Alberico Gentili (1552–1608), Italian jurist who concluded that the law of nations should ref ect the actual practices of civilised nations, limited by moral but not necessarily by religious considerations. He argued in favour of transforming the law of nature from a theological concept into a concept of secular philosophy and, due to his works, is often called ‘the originator of the secular school of thought in international law’.77 • Hugo Grotius (1583–1645), the Dutch jurist who is widely considered to be a founding father of international law in its modern understanding since he was the most consistent in organising the knowledge of his predecessors and his unique scientif c approach into a comprehensive system. The cornerstone of his system was the secularist and rationalist rethinking of the law of nature78 and its role in the law of nations.
His well-known work De Jure Belli ac Pacis (On the Law of War and Peace) was f rst published in 1625 and became one of the leading works on international law. • Other prominent scientists made essential contributions to the development of international law, such as:
• The German naturalist writer and jurist Samuel von Pufendorf (1632–1694). • The English positivist writer and legal scholar Richard Zouche (1590–1661). • The Swiss jurist Emer de Vattel, who combined the arguments of naturalists and positivists, and so forth.
As regards the second signifcant basis which contributed to the foundation of the new international order under the law of nations, the Peace of Westphalia was a series of peace treaties. These treaties largely resulted in the ending of the so-called European wars
75 ‘The American internationalist James Brown Scott, in an endearing analogy, considered Francisco de Vitória to be the founder, Francisco Suárez the philosopher and Hugo Grotius the organizer of
International Law.’ Paulo Emílio Vauthier Borges de Macedo, ‘The Law of War in Francisco Suárez: The
Civilizing Project of Spanish Scholasticism’ (2012) 2(22), jul./dez. Revista da Faculdade de Direito da
UERJ 1, 2. 76 Sergio Moratiel Villa, ‘The Philosophy of International Law: Suarez, Grotius and Epigones’ (1997) (320), September–October International Review of the Red Cross, 543–544. 77 Shaw (n 69) 17. 78 ‘In his infuential work, De Jure Belli ac Pacis, he asserts that, even if God did not exist, natural law would have the same content.’ Wacks (n 19) 6.
of religion, as well as the protracted Dutch War of Independence (the Eighty-Years War) against the Spanish Monarchy and the Thirty Years’ War (1618–1648) in the Holy Roman Empire.79
The fi rst wave of modern international law
Certainly, the formation of modern international law was facilitated by many political, religious, and cultural processes which developed in Europe over the centuries (for example, in 1517, Martin Luther published 95 theses, initiating to a considerable degree the so-called Reformation, which ultimately led to the decline of the political power of the Roman Catholic Church and the idea of universalism).
At the same time, undoubtedly, the international relations based on the Peace of Westphalia did not receive their contemporary form from the beginning, nor was the way ahead on the developmental trajectory without signifcant setbacks and hurdles to overcome. However, the foundation has been laid by the system-forming principles, which were strengthened by the Peace of Westphalia, and has led to the development of the new interstate model in Europe and, hence, the respective legal system (international law).80 The two core principles underpinning the new system were as follows:
• Rex est imperator in regno suo, which meant that the ruler was sovereign within his or her own domain. • Cuius regio, eius religio, which meant that the religion of the ruler was to dictate the religion of those ruled, a principle that prohibited interference in the internal affairs of other states on religious grounds.81
79 ‘[T]he treaty between Spain and Holland entered into Jan. 30, 1648, at Münster, which forms no diplomatic part of what is called the treaty of Westphalia, although it is an important prelude to it; the treaty between Sweden, the emperor, and the states of the empire, Oct. 24, 1648, at Osnabrück, being the frst part of the treaty of Westphalia; fnally, a treaty between France, the emperor and the states of the empire, Oct. 24, 1648, at Münster, being the second part of the treaty of Westphalia. This peace was not even general. France and Spain continued in a state of war until the peace of the Pyrenees, (Nov 1659), which was thus a complement to the treaties of Westphalia. The former brought peace to
Germany and the north, the latter to the south.’ Cyclopaedia of Political Science, Political Economy, and the Political History of the United States by the Best American and European Writers, John J. Lalor (ed),
Volume 1 (Maynard, Merrill, and Co. 1899) 189. 80 ‘Consequently the treaty of Westphalia has been justly considered as the foundation of positive international law in Europe, and this treaty has been taken as the point of departure of this law.’ ibid 189. 81 ‘Not all scholars agree on this. Some see the modern state emerging much earlier, others much later. But there is no doubt that the Peace of Westphalia is an important turning point in European politics and in world history. The Treaty established two core principles. The f rst was rex est imperator in regno suo.
Literally, it means that the king is sovereign within his own domain and not subject to the political will of anyone else. . . . The second principle was cuius regio, eius religio. This principle confers upon the king the power to determine which religion is practised in his realm.’ Martin Griff ths, Terry O’Callaghan and Steven C. Roach, International Relations the Key Concepts (2nd edn, Routledge 2008) 246–247.
Therefore, the Peace of Westphalia was without a doubt a signifcant political-legal foundation for the fi rst wave of modern international law (the classical system of international law [1648–1918]), which was based on the recognition of sovereign states as the subjects of international law and on the essentially unlimited right to wage wars for the protection of national interests. Nevertheless, the system-maintaining principles mentioned here were initially limited to only certain European superpowers. Hence, the new world order was established for these superpowers in the predominantly Eurocentric world.
The last decades of this wave indicated the inclusion of certain non-European nations (for example, the United States and Japan) in the international power relations and the promulgation of a new humanitarian approach to interstate relations when, by the humanisation of warfare, the beginning of a new era of international law was announced. In this respect, the highly impressive new rules were approved during the Hague Peace Conferences of 1899 and 1907.
The second wave of modern international law
The second wave of international law (1919–1945) was formally inaugurated after the First World War when signif cant steps were taken in the direction of:
• spreading the system-maintaining principles beyond superpowers; • attempting to institutionalise the international community against war; and • limiting the use of force.
Consequently, the major developments during the second wave include granting independence to an extensive list of nations, the creation of the League of Nations, and the equipping of the international legal system with the general restriction of the use of force under the Kellogg-Briand Pact of 1928.
The third wave of modern international law
After the Second World War, the main challenge for the interstate system became the avoidance of a third world war. At this stage, the notable developments in science and technology led to the unparalleled improvements in the means of warfare, which had the potential to lead the humankind to the perpetual peace attained ‘in the great graveyard of the human race’.82 To avoid such deplorable events, the states began to reform the existing system of international relations.
• They formed the new collective security system under the auspices of the United
Nations Organisation (UN) and placed the ultimate restriction on the threat or use of force at the heart of that very system. • The other focus during the development of the third wave of international law was the process of Decolonisation, which resulted in the establishment of dozens of newly
82 The words of Immanuel Kant in his noble work Perpetual Peace: A Philosophical Essay.
independent states.The different political and economic interests of these newly independent states, along with their diverse cultural backgrounds, enriched international law with new perspectives. • The recognition of the main challenge (avoidance of a third world war) also led to the need for more complex institutionalisation of interstate interaction. More interlinked co-operation was considered the crucial precondition for maintaining international peace, which stipulated the creation of the web of international governmental organisations. • The processes mentioned here also led to an increase in the importance of the nonstate actors in international relations, with some of them even being entitled to become the subjects of international law. • Meanwhile, the development of humankind fuelled the progress in thinking with respect to human rights, which were identifed as the signifcant focus of international law.83 • The process of Decolonisation ‘was followed in the 1960s by a focus on economic development to provide the basic necessities for the poorest two thirds of the world and higher standards of living for all. In the 1970s, global values for nature and the environment emerged, as illustrated by the United Nations Conference on the
Human Environment held in Stockholm in 1972.’84
On the whole, the third wave of development of international law was inf uenced and given its shape by the bipolar confguration of the interstate system and the power relations of the Cold War.
New challenges
The collapse of the Soviet Union and the end of the Cold War in the early 1990s led to systemic turbulences in interstate affairs, which has yet to transform into a new and protracted equilibrium.
At the same time, since the 1970s and 1980s, globalisation as a process of interaction and integration of individuals and legal entities, as well as governments around the world, has dramatically accelerated due to advances in transportation and communication technology. Many authors designated ‘the rapid technological advances in computers, communications, and software that have led to dramatic decreases in the cost of processing and
83 ‘A State-sovereignty-oriented approach has been gradually supplanted by a human-being-oriented approach.’ Prosecutor v Dusko Tadić a/k/a ‘DULE’, Decision on the Defence Motion for Interlocutory
Appeal on Jurisdiction of 2 October 1995, Tadić (IT-94–1). All cases of the International Criminal
Tribunal for the Former Yugoslavia are available at the offcial website of the Tribunal < www.icty.org/ en/cases >. In this book, materials from the website are used, taking into account the disclaimer and applicable legal rules. 84 United Nations, Prototype Global Sustainable Development Report (New York: United Nations Department of Economic and Social Affairs, Division for Sustainable Development 2014) < http://sustainabledevelopment.un.org/globalsdreport/ > accessed 16 March 2021.
transmitting information’ as the ‘information revolution’.85 However, the process of the globalisation in itself has autonomously become a new challenge for the interstate system and international law as well. For example, during the so-called information revolution, the problem of cybersecurity and its regulation by legal norms emerged.
The latest developments have also brought up at the core of the agenda such large-scale challenges as, for example, the terrorism, migration, and so on, which signifcantly alter the boundaries that existed during the Cold War.
Finally, the COVID-19 pandemic clearly demonstrated to humanity how vulnerable it is, even with all the latest technological advancement, and the rethinking of international law along the lines of the new crisis is once again back on the agenda for the interstate system. Many commentators argue that international law must solve all the problems which threaten the very existence of life; therefore, all global problems (which ‘possess a large-scale risk potential, and present a high level of threat in the event that they are not resolved’)86 should be the focus of attention for the interstate legal system, i.e. international law. The problems of that type usually include the threat of unleashing of a third world war; environmental degradation; pandemic; demographic problems (uncontrolled population growth in the poorest countries and birth-rate decrease in developed countries); food crises and famine; resource and energy crises; international terrorist threats; national, socio-cultural, and religious conf icts; conficts of civilisations; and so on.87
Consequently, like the interstate system, international law is now in the process of being rethought in order to fnd a model that will be consistent with and will fundamentally refect new realities.
Nonetheless, until now, contemporary international law has essentially retained the core framework it inherited from the early post–World War II period (targeting the avoidance of war and institution of peace in the interstate system), on which, in order to address the new challenges and objectives in the contemporary world, new principles and norms are gradually grafted. Furthermore, the new global threats are still perceived through the lenses of a more complex understanding of the concept of peace, which includes all aspects confronting the establishment of international peace. For example, in his remarks to the Security Council on the COVID-19 pandemic, UN Secretary-General António Guterres articulated that ‘the pandemic also poses a signifcant threat to the maintenance of international peace and security – potentially leading to an increase in social unrest and
85 Robert O. Keohane and Joseph S. Nye, Power & Interdependence (4th edn, Pearson 2012) 213. At the same time, Robert O. Keohane and Joseph S. Nye, the prominent thinkers of the ‘neoliberal institutionalism’ (the theory on international relations, also referred to as the theory of ‘complex interdependence’), outlined: ‘Traditionally, political activity has focused frst at the local level, only extending to national and international spheres as the activity being regulated escaped jurisdictional boundaries.
The contemporary information revolution, however, is inherently global, since “cyberplace” is divided on a nongeographical basis. The suff xes “edu,” “org,” and “com” are not geographical; and even where a country suffx appears in an address, there is no guarantee that the person being reached actually resides in that jurisdiction.’ ibid 212. 86 See ‘Global Problems’ < http://planetaryproject.com/global_problems/ > accessed 16 March 2021. 87 ibid.
