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International lawyers like to glory in the antiquity of their discipline. They point, in particular, to the rules governing the relations of the ancient Greek city-States and the rules applicable in the Roman empire. Neither of these phenomena applied to entities outside the circle of the city-States and the Roman empire. Such as
on the inviolability of envoys and the sanctity of treaties – were founded on enlightened self-interest and reciprocity. -
Hugo de Groot (1583–1645), better known as Grotius, was a Dutch prodigy who, in 1625, published his De Jure Belli ac Pacis (On the Laws of War and Peace). Grotius has come to be regarded as the father of international law.
His major contribution was that he systematised international law, breaking international law as it existed in his lifetime down into its component parts and applying appropriate rules to these parts. -
International law, in the form we know it today, emerged in the 17th century. If we are seeking a date for this beginning of “modern” international law, we can select either 1625 or 1648.
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At the end of the bloody Thirty Years War, the Peace of Westphalia was negotiated through two diplomatic congresses and resulted in the new political order based upon sovereign States. Thereafter, States, sovereign in themselves and led by a sovereign, became the building blocks of international society and international law.
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Francico de Vitoria and Francisco Suarez, viewed the regulation of international affairs through the lens of natural law. Later adherents to natural law, such as Samuel von Pufendorf and Christian Wolff, came to view natural law as law rationally determined, derived from the nature of humankind as rational beings.
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The works of Emer de
Vattel and Immanuel Kant focused on State practice to the exclusion of natural law. States mattered – and it is what States did that mattered. That concentration on States and their practice as the basis of international law prevailed into the 20th century, when there was a renaissance of
natural law. -
The term “international law” was first coined by Jeremy Benthamin 1789. Came to replace the earlier appellation of “law of nations”.
Both are, in a sense, misnomers, as international law is not concerned
with nations, but rather with States
International law falls to be contrasted with municipal or domestic law, the law applicable in each State. -
The influential John Austin defined law in 1832 as commands of a sovereign who is habitually obeyed accompanied by sanctions in the event of any breach. As international law does not consist of commands from a sovereign and of clear sanctions in the event of any breach, it does not, therefore, qualify as law. To Austin, international law was not law properly so called, but rather “law by close analogy” or “positive morality”
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The Permanent Court of International Justice, established in 1920, was replaced by the International Court of Justice but, name aside, the ICJ is essentially the same body, with the same Statute governing its activities and the same location at the Peace Palace in The Hague.
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International law establishes norms which States regard as binding on them in their dealings with one another. What international law most clearly lacks is enforcement of its rules through the standard mechanism available in municipal law, namely courts. The World Court was created nature and history of international law 3 only in 1920 and is restricted to deciding cases where both disputant States have consented to jurisdiction.
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The international protection of human rights for all and increasing concern for the environment are the supreme expressions of natural law in the period after 1945. Ironically, the protection of human rights and the environment has been effected through positivistic means, mainly treaties and, to a lesser extent, custom.
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Even before the end of World War II, the Allies had plans for the creation of a new global international organisation to replace the League of Nations. Fifty States met in San Francisco for 2 months in 1945, at the end of which they signed the UN Charter, which came into force on 24 October of that year. Apart from Taiwan, and the problematic cases of the Holy See, Kosovo and Palestine, the UN has universality of membership
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Since 1945, there has been an enormous extension of international law. That extension has been horizontal in the dual sense that more States have emerged on to the international arena and international law has developed to embrace areas previously regarded as within the exclusive purview of States. That extension has also been vertical in the sense that a substantial corpus of international law is now intended to affect individuals within States.
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These new areas of international concern and regulation have resulted in a vertical penetration of international law into States, conferring rights and sometimes duties on individuals within States. This is in marked contrast to earlier international law which regulated the activities of States inter se and regarded the internal affairs of States as completely
off-limits. -
In the years since 1945, international law has expanded horizontally into areas such as human rights, international criminal law, international economic law and international environmental law. In 1947, the General Assembly established the International Law Commission
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There are now more than 300 intergovernmental organisations. Aside from global organisations, there has been a huge rise in the number of regional intergovernmental organisations. Their work contributes to international law; the Council of Europe, for example, is the organisation responsible for the sophisticated European Convention on Human Rights of 1950.
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All law is heavily influenced by politics. By and large, municipal law emerges from a legislature in which politics are dominant. International law emerges from a process in which politics are predominant. In the context of international law, the term “politics” means something more than the party politics that dominates municipal affairs; it means the politics of the State which will, of course, be affected by party politics
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Those who create international law through their agreements and practices (States), being limited in number and well set in the belief in their sovereign independence, are loathe to surrender anything towards any compromise that is not in their clear interests. Negotiating multilateral treaties can, as a consequence, be a long and laborious business; the UN Convention on the Law of the Sea of 1982 took 9 years of intensive negotiation.
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The 1999 NATO airstrikes against Serb targets to relieve
the humanitarian catastrophe in Kosovo were undertaken without any legal justification. -
In 2003, a coalition led by the United States invaded
Iraq, ostensibly to force Iraqi compliance with earlier Security Council resolutions. In both these situations, the politics of the major powers –their foreign policy imperatives – differed; and, as a consequence, the Security Council was unable to discharge the functions envisaged for it in the UN Charter.