“International law as we find today as the product of the experience of the civilized countries and the continuous growth of many centuries.” Discuss your answer in the context to the history and development of international law.
Introduction
In the long march of mankind from the cave to the computer a central role has always been played by the idea of law – the idea that order is necessary and chaos inimical to a just and stable existence. Every society, whether it is large or small, powerful or weak, has created for itself a framework of principles within which to develop. Law is that element which binds the members of the community to-gather in their adherence to recognized values and standards. Law consists of a series of rules regulating behavior, and reflecting, to some extent, the ideas and preoccupations of the society within which it functions. International law is required to govern human activities and relationships at the international level. The major actors in the international arena are states and international organizations. So traditionally international law is primarily concerned with the conduct of states and international organizations. But in the recent decade’s individuals, transnational corporations and non-governmental organizations are becoming increasingly active in international affairs, and their activities are also relevant to international law. What would the world be like without international law? We cannot really answer this question but we do know that the world relies on this body of law to deal with important and difficult issues that require cooperation among the States or nations of the world. Such problems include terrorism, the increasing spread of HIV/AIDS, countries expanding their nuclear arsenals, reducing the ?ow of refugees and asylum seekers into neighboring countries, and mitigating the potential of climate change.
Definition of International Law
International law is the set of rules generally regarded and accepted as binding in relations between states and nations. International Law consists of the rules and principles of general application dealing with the conduct of States and of international organizations in their international relations with one another and with private individuals, minority groups and transnational companies. International law is consent-based governance. This means that a state member of the international community is not obliged to abide by international law unless it has expressly consented to a particular course of conduct. This is an issue of state sovereignty.
In other words, International Law, unlike most other areas of law, has no defined area or governing body, but instead refers to the many and varied laws, rules and customs which govern, impact and deal with the legal interactions between different nations, their governments, businesses and organizations, to include their rights and responsibilities in these dealings.
The immense body that makes up international law encompasses a piecemeal collection of international customs; agreements; treaties; accords, charters (i.e. the United Nations Charter); protocols; tribunals; memorandums; legal precedents of the International Court of Justice (aka World Court) and more. Without a unique governing, enforcing entity, international law is a largely voluntary endeavor, wherein the power of enforcement only exists when the parties consent to adhere to and abide by an agreement.
Due to the diverse legal systems and applicable histories of different countries, laws addressing international law include both common law (case law) and civil law (statutes created by governing bodies). Their application covers all the facets of national law, to include substantive law, procedure, and remedies.
International Law vs. National Law
International law differs from national legal systems in that it primarily concerns nations rather than private citizens. National law may become international law when treaties delegate national jurisdiction to supranational tribunals such as the European Court of Human Rights or the International Criminal Court. Treaties such as the Geneva Conventions may require national law to conform.
Sources of International Law
The International Court of Justice (ICJ) was established in 1945 as the successor to the Permanent International Court of Justice (PICJ), which was created in 1920 under the supervision of the League of Nations (the precursor to the United Nations). The PICJ ceased to function during World War II and was officially dissolved in 1946. The ICJ is a permanent international court located in The Hague, Netherlands, and it is the principal judicial organ of the United Nations (UN). It consists of 15 judges, each from a different state. The judges are elected by the UN General Assembly and the UN Security Council and must receive an absolute majority from both in order to take office.
Article 38(1) of the ICJ Statute enumerates the sources of international law and provides that international law has its basis in international custom, international conventions or treaties, and general principles of law. A rule must derive from one of these three sources in order to be considered international law.
Custom: Customary international law is defined as a general Practice of Law under article 38(1)(b). States follow such a practice out of a sense of legal obligation. Rules or principles must be accepted by the states as legally binding in order to be considered rules of international law. Some criticism against customary international law is directed at its subjective character and its inconsistency. States vary greatly in their opinions and interpretations of issues regarding international law. Thus, it is almost impossible to find enough consistency among states to draw a customary international rule from general practice. In addition, even if one state or judge finds that a practice is a rule of customary international law, another decision maker might reach a different conclusion. Altogether, the process of establishing rules of customary international law is lengthy and impeded by today’s fast-changing world.
Conventions and Treaties: Conventional international law includes international agreements and legislative treaties that establish rules expressly recognized by consenting states. Only states that are parties to a treaty are bound by it. However, a very large number of states voluntarily adhere to treaties and accept their provisions as law, even without becoming parties to them. The most important treaties in this regard are the Genocide Convention, the Vienna conventions, and the provisions of the UN Charter.
The term “international law” can refer to three distinct legal disciplines:
- Public international law, which governs the relationship between provinces and international entities. It includes these legal fields: treaty law, law of sea, international criminal law, the laws of war or international humanitarian law and international human rights law.
- Private international law or conflict of laws, which addresses the questions of (1) which jurisdiction may hear a case, and (2) the law concerning which jurisdiction applies to the issues in the case.
- Supranational law or the law of supranational organizations, which concerns regional agreements where the laws of nation states may be held inapplicable when conflicting with a supranational legal system when that nation has a treaty obligation to a supranational collective.
Historical development of International Law
The foundations of international law (or the law of nations) as it is understood today lie primly in the development of Western culture and political organization.
The growth of European notions of sovereignty and the independent nation-state required an acceptable method whereby inter-state relations could be conducted in accordance with commonly accepted standards of behavior, and international law ?lled the gap. But although the law of nations took root and powered with the sophistication of Renaissance Europe, the seeds of this particular hybrid plant are of far older lineage. They reach far back into history.
Early Origins: While the modern international system can be traced back some 400 years, certain of the basic concepts of international law can be discerned in political relationships thousands of years ago. International law has its origins in- Mesopotamia, Ancient Egypt, Indian Civilization, Chinese Civilization, Ancient Greece, The Roman Empire (jus gentium).
The middle Ages and the Renaissance: The middle Ages were characterized by the authority of the organized Church and the comprehensive structure of power that it commanded.[1] All Europe was of one religion, and the ecclesiastical law applied to all, notwithstanding tribal or regional affiliations. For much of the period, there were struggles between the religious authorities and the rulers of the Holy Roman Empire. The international law has its origins in Middle Ages through International community-The Church (canon law), Natural law, the collapse of the Byzantine Empire, Great geographical discoveries, the rise of nation states.
Modern International Law: The international legal system which defines the rights and obligations of States today began in the seventeenth century. The rise of sovereign nation States at that time marks the beginning of modern international relations and modern international law. As interactions between States expanded, so did international law.
The Congress of Vienna: The Congress of Vienna (1814-1815) attempted to reconstruct Europe upon permanent lines after the crash of the French Revolution and the downfall of Napoleon. The great powers agreed among themselves and legislated for the rest of Europe. The Congress was predominantly a war conference but it established peace and a sort of an institutional framework (“The Concert of Europe”) which lasted for many years. The Congress deliberations led to the adoption of rules concerning the rank of ambassadors (diplomatic precedence), navigation on rivers and slave trade.
The Hague Peace Conferences: The Hague Peace Conferences of 1899 and 1907, drawing upon the work and experience of preceding conferences on the laws of war and upon the previous practice of some Governments regarding the pacific settlement of international disputes, reached agreement on several important conventions and thus greatly stimulated the movement in favor of codifying international law.
The League of Nations: The League of Nations was created in an effort to prevent conflicts on a mass scale such as the First World War (1914-1919). An international court was established, the Permanent Court of International Justice, to arbitrate disputes between nations without resorting to war.
The United Nations: Determination to set up a more efficient international organization to safeguard global peace and security resulted in the establishment of the United Nations Organization in 1945. The Charter of the United Nations was signed in San Francisco on June and the Charter entered into force on October 24, 1945. The primary function of the United Nations is maintenance of international peace and security.
International Law Today (Customary and Treaty Law): An important development in modern international law is the concept of “consent. Now, however, merely consenting to an international practice is sufficient to be bound by it, without signing a treaty.
An evolution of the positivist approach of Grotius, the concept of consent is an element of customary international law. Customary international law is essentially what states actually do, plus the opinio juris of what states believe international law requires them to do.
Customary international law applies to every country, regardless of whether they have formally agreed to it. At the same time, all countries take part in forming customary international law by their practices and decisions.
Treaties are essentially contracts between countries. They are agreements by which the parties intend to be bound. If treaties are broken, their effectiveness is weakened because there is no guarantee that future promises will be kept. So there is a strong incentive for nations to take treaties very seriously. Modern treaties are interpreted according to the 1969 Vienna Convention on the Law of Treaties.
In the modern world, international law is more important than ever. Even the most powerful countries rely on it, and seek to comply with it—and suffer consequences if they ignore it.
Conclusion
The scope and authority of international law have thus expanded dramatically during the era of globalization. Historically, international law addressed only relations between states in certain limited areas (such as war and diplomacy) and was dependent on the sovereignty and territorial boundaries of distinct countries.[2] Then after the passage of time, international law has become a vehicle for states to cooperate regarding new areas of international relations (such as the environment and human rights), many of them requiring states to rethink the previous notions of the inviolable sovereign state. The continued growth of international law is even more remarkable in this sense, since states, having undoubtedly weighed the costs and benefits of the loss of this valuable sovereignty, have still chosen to continue the growth of international law.
Bibliography
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2. Donald R. Rothwell, Stuart Kaye, Afshin Akhtarkhavari and Ruth Davis
Excerpt, Cambridge University Press
3. “The Free Dictionary Definition of Human Rights”. The American Heritage® Dictionary of the English Language, Fourth Edition copyright ©2000 by Houghton Mifflin Company. Updated in 2009.. Retrieved 13 September 2011.
4. The term was invented by Jeremy Bentham and used for the first time in his “Introduction to the Principles of Morals and Legislation” in 1780. See Bentham, Jeremy (1789), An Introduction to the Principles of Morals and Legislation, London: T. Payne, pp. 6, retrieved 2012-12-05
5. Robert Beckman and Dagmar Butte, Introduction to International Law
6. Slomanson, William (2011). Fundamental Perspectives on International Law. Boston, USA: Wadsworth. pp. 4.
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9. See in particular A. Nussbaum, AConcise History of the Law of Nations,rev.edn, New York, 1954; Encyclopedia of Public International Law (ed. R. Bernhardt), Amsterdam, 1984, vol. VII, pp. 127–273; J. W. Verzijl, International Law in Historical Perspective,Leiden, 10 vols., 1968–79, and M. Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law, 1870–1960,Cambridge, 2001. See also W. Grewe, The Epochs ofInternational Law,(trans. and rev. M. Byers), New York, 2000; A. Cassese, International Law in a Divided World,Oxford, 1986, and Cassese, International Law,Oxford, 2001, p. 19; Nguyen Quoc Dinh, P. Daillier and A. Pellet, Droit International Public,7thedn, Paris, 2002, p. 41; H. Thierry, ‘L’Evolution du Droit International’, 222 HR, 1990 III, p. 9; P. Guggenheim, ‘Contribution a l’Histoire des Sources du Droit des Gens’, 94 HR, 1958 II, p. 5; A. Truyol y Serra, Histoire de Droit International Public,Paris, 1995; D. Korff, ‘Introduction al’Histoire de Droit International Public’, 1 HR, 1923 I, p. 1; P. Le Fur, ‘Le D
´ eveloppement Historique de Droit International’, 41 HR, 1932 III, p. 501, and O. Yasuaki, ‘When was the Law of International Society Born? An Inquiry of the His- tory of International Law from an Intercivilisational Perpective’, 2 Journal of the History of International Law, 2000, p. 1. For a general bibliography, see P. Macalister-Smith and
J. Schwietzke, ‘Literature and Documentary Sources relating to the History of International
Law’, 1 Journal of the History of International Law, 1999, p. 136
10. See D. J. Bederman, International Law in Antiquity, Cambridge, 2001.
11. Nussbaum, Law of Nations, pp. 17–23, and Encyclopedia, pp. 143–9.
12. http://www.globalization101.org/is-international-law-really-law/
[1] Nussbaum, Law of Nations, pp. 17–23, and Encyclopedia, pp. 143–9.
[2] http://www.globalization101.org/is-international-law-really-law/