The nature and development of international law, 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 be large or small, powerful or weak, has created for itself a framework, of principles within which to develop. What can be done, what cannot, be done, permissible acts, forbidden acts, have all been spelt out within, the consciousness of that community. Progress, with its inexplicable leaps, and bounds, has always been based upon the group as men and women, combine to pursue commonly accepted goals, whether these be hunting, animals, growing fo0d or, king mofthe community, Law is that element which, which bind, inds the, to-, gether in their adherence to recognised values and standards. It is both, permissive in allowing individuals to establish their own legal relations, with rights and duties, as in the creation of contracts, and coercive, as, it punishes those who infringe its regulations. Law consists of a series of, rules regulating behaviour, and reflecting, to some extent, the ideas and, preoccupations of the society within which it functions., members, And so it is with what is termed international law, with the important, difference that theprincipal subjects of international law are nation-states,, not individual citizens. There are many contrasts between the law within, a country (municipal law) and the law that operates outside and between, states, international organisations and, in certain cases, individuals., International law itself is divided into conflict of laws (or private inter-, national law as it is sometimes called) and public international law (usually, just termed international law).' The former deals with those cases, within, particular legal systems, in which foreign elements obtrude, raising ques-, tions as to the application of foreign law or the role of foreign courts., Inis, a sst sed by J. Bentham: see Introduction to the Principles ofMorals an, 2 See e.g, C. Cheshire and P. North, Private International Law, 13th edn, London, 1999.
2, INTERNATIONAL LAW, For example, if two Englishmen make a contract in France to sell goods, situated in Paris, an English court would apply French law as regards the, validity of that contract. By contrast, public international law is not sim-, ply an adjunct of a legal order, but a separate system altogether,' and it is, this field that will be considered in this book., Public international law covers relations between states in all their myr-, iad forms, from war to satellites, and regulates the operations of the many, international institutions. It maybe universal or general, in which case the, stipulated rules bind all the states (or practically all depending upon the, nature ofthe rule), or regional, whereby a group ofstates linked geograph-, ically or ideologically may recognise special rules applying only to them,, for example, the practice of diplomatic asylum that has developed to its, greatest extent in Latin America.' The rules of international law must be, distinguished from what is called international comity, or practices such as, saluting the flags of foreign warships at sea, which are implemented solely, through courtesy and are not regarded as legally binding. Similarly, the, mistake of confusing international law with international morality must, be avoided. While they may meet at certain points, the former discipline, is a legal one both as regards its content and its form, while the concept of, international morality is a branch of ethics. This does not mean, however,, that international law can be divorced from its values., In this chapter and the next, the characteristics of the international, legal system and the historical and theoretical background necessary to a, proper appreciation of the part to be played by the law in international, Lase wril be examined., Law and politics in the world community, It is the legal quality of international law that is the first question to be, posed. Each side to an international dispute will doubtless claim legal, justification for its actions and within the international system there is, no independent institution able to determine the issue and give a final, decision., Virtually everybody who starts reading about international law does so, having learned or absorbed something about the principal characteristics, of ordinary or domestic law. Such identifying marks would include the, See the Serbian Loans case, PCIJ, Series A, No. 14, pp, 41-2,, North Sea Continental Shelf cases, ICJ Reports, 1969, p. 44; 41 ILR, P. 29. See also M., Akehurst, Custom as a Source of International Law, 47 BYIL, 1974-5, p. 1.
DEVELOPMENT oF INTERNATIONAL LAW, addition to those working in international institutions, versed in inter-, national law and carrying on the everyday functions of government in, a law-oriented way. Many writers have, in fact, emphasised the role of, officials in the actual functioning of law and the influence they have upon, the legal process.", Having come to the conclusion that states do observe international, law and will usually only violate it on an issue regarded as vital to their, interests, the question arises as to the basis of this sense of obligation.", The nineteenth century, with its business-oriented philosophy, stressed, the importance of the contract, as the legal basis of an agreement freely, entered into by both (or all) sides, and this influenced the theory of con-, sent in international law." States were independent, and free agents, and, accordingly they could only be bound with their own consent. There was, no authority in existence able theoretically or practically to impose rules, upon the various nation-states. This approach found its extreme expres-, sion in the theory of auto-limitation, or self-limitation, which declared, that states could only be obliged to comply with international legal rules, if they had first agreed to be so obliged.", Nevertheless, this theory is most unsatisfactory as an account of why, international law is regarded as binding or even as an explanation of the, international legal system. To give one example, there are about 100, states that have come into existence since the end of the Second World, War and by no stretch of the imagination can it be said that such states, have consented to all the rules of international law formed prior to their, establishment. It could be argued that by 'accepting independence, states, consent to all existing rules, but to take this v relegates consent to the, role of a t e fctior, 30 See e.g. M. S. McDougal, H. Lasswell and W. M. Reisman, The World Constitutive Process, of Authoritative Decision' in International Law Essays (eds. M. S. McDougal and W. M., Reisman), New York, 1981, p. 191., 3 See e.g. J. Brierly, The Basis of Obligation in International Law, Oxford, 1958., B See W. Friedmann, Legal Theory, Sth edn, London, 1967, pp. 573-6. See also the Lotus, 3 Eg. G. Jellinek, Allgemeine Rechtslehre, Berlin, 1905., View r, 3# See also Hart, Concept of Law, pp. 219-20. But see P. Weil, "Towards Relative Normativity, in International Law?, 77 AJIL, 1983, p. 413 and responses thereto, e.g. R. A. Falk, "To What, Extent are International Law and International Lawyers Ideologicaly Neutral? in Change, A Pellet. The Normative Dilemmar, Australian YIL, 1992, p. 22., 35 See further below, p. 88.
10, INTERNATIONAL LAW, This theory also fails as an adequate explanation of the international, legal system, because it does not take into account the tremendous growth, in international institutions and the network of rules and regulations that, have emerged from them within the last generation., To accept consent as the basis for obligation in international law begs, the question as to what happens when consent is withdrawn. The state's, reversal of its agreement to a rule does not render that rule optional or, remove from it its aura of legality. It merely places that state in breach of, its obligations under international law if that state proceeds to act upon, its decision. Indeed, the principle that agreements are binding (pacta sunt, servanda) upon which all treaty law must be based cannot itself be based, upon consent.", One current approach to this problem is to refer to the doctrine of con-, sensus." This reflects the influence of the majority in creating new norms, of international law and the acceptance by other states of such new rules., It attempts to put into focus the change of emphasis that is beginning to, take place from exclusive concentration upou, on the nation-state to a con., sideration of the developing forms of international co-0peraton Were, such concepts as consent and sanction are inadequate to explain what is, happening-, ion where, Of course, one cannot ignore the role of consent in international law. To, recognise its limitations is not to neglect its significance. Much of interna-, tional law is constituted by states expressly agreeing to specific normative, standards, most obviously by entering into treaties. This cannot be min-, imised. Nevertheless, it is preferable to consider consent as important not, only with regard to specific rules specifically accepted (which is not the, sum total of international law, of course) but in the light of the approach, of states generally to the totality of rules, understandings, patterns of be-, haviour and structures underpinning and constituting the international, system.* In a broad sense, states accept or consent to the general system, of international law, for in reality without that no such system could pos-, sibly operate. It is this approach which may be characterised as consensus, See e-g. J. S. Watson, 'State Consent and the Sources of International Obligation, PASIL,, 37 See blow, chapter 3., 38 See e.g, A. D'Amato, "On Consensus, 8 Canadian YIL, 1970, p. 104. Note also the 'gen-, tleman's agreement on consensus' in the Third UN Conference on the Law of the Sea:, see L. Sohn, Voting Procedures in United Nations Conference for the Codifcation of, 39 Sec e.g. J. Charney, Universal International Law, 87 AJIL, 1993, p. 529.
DEVELOPMENT OF INTERNATIONAL LAW, or the essential framework within which the demand for individual state, consent is transmuted into community acceptance., 11, It is important to note that while states from time to time object to, particular rules of international law and seek to change them, no state, has sought to maintain that it is free to object to the system as a whole., Each individual state, of course, has the right to seek to influence by, word or deed the development of specific rules of international law, but, the creation of new customary rules is not dependent upon the express, consent of each particular state., The function of politics, It is clear that there can never be a complete separation between law and, policy. No matter what theory of law or political philosophy is professed,, the inextricable bonds linking law and politics must be recognised., Within developed societies a distinction is made between the formula-, tion of policy and the method ofits enforcement. In the United Kingdom,, Parliament legislates while the courts adjudicate and a similar division is, maintained in the United States between the Congress and the courts:, tem. The purpose of such divisions, of course, is to prevent a conc, of too much power within one branch of government. Nevertheless, it is, the political branch which makes laws and in the first place creates the, legal system. Even within the hierarchy of courts, the judges have leeway, in interpreting the law and in the last resort make decisions from amongst, a number of alternatives." This position, however, should not be exag-, gerated because a number of factors operate to conceal and lessen the, impact of politics upon the legal process. Foremost amongst these is the, psychological element of tradition and the development of the so-called, law-habit:" A particular legal atmosphere has been created, which is but-, tressed by the political system and recognises the independent existence, of law institutions and methods of operation characterised as 'just' or le-, gal'. In most countries overt interference with the juridical process would, be regarded as an attack upon basic principles and hotly contested. The, use of legal language and accepted procedures together with the pride, of the legal profession reinforce the system and emphasise the degree, See e.g.R. Dworkin, Taking Rights Seriously, London, 1977., centration, l Sec e.g. K. Llewellyn, The Common Law Thadition, Boston, 1960, and gencrally D. Lloyd,, Introduction to Jurisprudence, 4th edn, London, 1979.
12, INTERNATIONAL LAW, of distance maintained between the legislative-executive organs and the, judicial structure., However, when one looks at the international legal scene the situation, changes. The arbiters of the world order are, in the last resort, the states, and they both make the rules (ignoring for the moment the secondary, if, growing, field of international organisations) and interpret and enforce, them., While it is possible to discern an 'international legal habit' amongst, governmental and international officials, the machinery necessary to en-, shrine this does not exist., Politics is much closer to the heart of the system than is perceived, within national legal orders, and power much more in evidence. The, interplay of law and politics in world affairs is much more complex and, difficult to unravel, and signals a return to the earlier discussion as to, why states comply with international rules. Power politics stresses com-, petition, conflict and supremacy and adopts as its core the struggle for, survival and influence." International law aims for harmony and the reg-, ulation of disputes. It attempts to create a framework, no matter how, rudimentary, which can act as a kind of shock-absorber clarifying and, moderating claims and endeavouring to balance interests. In addition, it, sets out a series of principles declaring how states should behave. Just as, any domestic community must have a background of ideas and hopes, to aim at, even if few can be or are ever attained, so the international, community, too, must bear in mind its ultimate values., However, these ultimate values are in a formal sense kept at arm's length, from the legal process. As the International Court noted in the South-West, Africa case," 'It is a court of law, and can take account of moral principles, only in so far as these are given a suficient expression in legal form. Law, exists, it is said, to serve a social need; but precisely for at reason it can, do so only through and within the limits of its own discipline. Otherwise,, it is not a legal service that would be rendered., International law cannot be a source of instant solutions to problems, of conflict and confrontation because of its own inherent weaknesses, 2 See P. Stein and J. Shand, Legal Values in Western Society, Edinburgh, 1974., See generally Henkin, How Nations Behave, and Schachter, International Law, pp. 5-9., 4 See G. Schwarzenberger, Power Politics, 3rd cdn, London, 1964, and Schwarzenberger,, , London, 1957, vol. I, and Morgenthau, Politics Among Nations., 45 JCI Reports, 1966, pp. 6, 34, 6 But see Higgins' criticism that such a formulation may be question-begging with regard, to the identity of such limits of its own discipline, Problems, p. 5.
DEVELOP MENT OF INTERNATIONAL LAW, in structure and content. To fail to recognise this encourages a utopian, approach which, when faced with reality, will fail." On the other hand, the, cynical attitude with its obsession with brute power is equally inaccurate,, if more depressing., It is the medium road, recognising the strength and weakness of in-, ternational law and pointing out what it can achieve and what it cannot,, which offers the best hope. Man seeks order, welfare and justice not only, within the state in which he lives, but also within the international system, in which he lives., 13, Historical development", The foundations of international law (or the law of nations) as it is under-, stood today lie firmly in the development of Western culture and political, organisation,, 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, Note, of course, the important distinction between the existence of an obligation under, rerard toentorcing dute annot affert the legal raliditr of tha dut se de, Weeramantry's Separate Opinion in the Order of 13 September 1993, in the Bosnia case,, ICJ Reports, 1993, pp. 325, 374; 95 ILR, Pp. 43, 92., See in particular A. Nusbaum, A Concise History of the Law of Nations, rev. cdn, New, vol. VII, n 127-773: L W Verzil. Juteruational Law in Historical Prspective, Ieiden., 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 of, International Law (trans. and rev. M. Byers), New York, 2000; A. Cassese, International, Law in a Dvided woria, otord, 0, a asse, Lor, n, 7th edn, Paris, 2002, p. 41; H. Thierry, "L'Evolution du Droit International, 222 HR, 1990, III, p. 9; P. Guggenheim, Contribution à 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. Gaurier, Histoire du Droit International Public, Rennes, 2005; D. Korf. 'Introduction à, Historique de Droit International, 41 HR, 1932 IIl, p. 501; 0. Yasuaki, "When was the, Law of International Society Born? An Inquiry of the History of International Law from, an Intercivilisational Perpective, 2 Journal of the History of lnternational Law, 2000, p. 1, and A. Kemmerer, "The Turning Aside: On International Law and its History' in Progress, ra general bibliography, see P. Macalister-, Smith and L. Schwietzke Literature and, Documentary Sources relating to the History of International Law, 1 Journal of the History, of International Law, 1999, p. 136.
DEVELOPMENT OF INTERNATIONAL LAw, In the daily routine of international life, large numbers of agreements, and customs are complied with. However, the need is felt in the hectic, interplay of world affairs for some kind of regulatory framework or rules, network within which the game can be played, and international law fulfils, that requirement. States feel this necessity because it imports an element, of stability and predictability into the situation., 7, Where countries are involved in a disagreement or a dispute, it is handy, to have recourse to the rules of international law even if there are conflict-, ing interpretations since at least there is a common frame of reference and, one state will be aware of how the other state will develop its argument., They will both be talking a common language and this factor of commu-, nication is vital since misunderstandings occur so easily and often with, tragic consequences. Where the antagonists dispute the understanding of, a particular rule and adopt opposing stands as regards its implementa-, tion, they are at least on the same wavelength and communicate by means, of the same phrases. That is something. It is not everything, for it is a, mistake as well as inaccurate to claim for international law more than it, can possibly deliver. It can constitute a mutually understandable vocab-, ulary book and suggest possible solutions which follow from a study of, its principles. What it cannot do is solve every problem no matter how, dangerous or complex merely by being there. International law has not, yet been developed, if it ever will, to that particular stage and one should, not exaggerate its capabilities while pointing to its positive features., But what is to stop a state from simply ignoring international law when, proceeding upon its chosen policy? Can a legal rule against aggression,, , of itself 1, example, prevail over political tempta, tations? There i, inter., There, sf, olice, noti, nationalp e force to prevent such an a, other considerations closely bound up with the character of international, law which might well cause a potential aggressor to forbear., . but the, There is the element of reciprocity at work and a powerful weapon it, can be. States quite often do not pursue one particular course of action, which might bring them short-term gains, because it could disrupt the, mesh ofreciprocal tolerance which could very well bring long-term disad-, vantages. For example, states everywhere protect the immunity of foreign, diplomats for not to do so would place their own officials abroad at risk.", This constitutes an inducement to states to act reasonably and moderate, 25 See Case Concerning United States Diplomatic and Consular Staff in Tehran, IC] Reports,, 1980, p. 3; 61 ILR, p. 502. See also the US Supreme Court decision in Boos v. Barry 99 L.., Ed. 2d 333, 345-6 (1988); 121 ILR,p. 499.
8, demands in the expectation that this will similarly encourage other states, to act reasonably and so avoid confrontations. Because the rules can ul-, timately be changed by states altering their patterns of behaviour and, causing one custom to supersede another, or by mutual agreement, a cer-, tain definite reference to political life is retained. But the point must be, made that a state, after weighing up all possible alternatives, might very, well feel that the only method to protect its vital interests would involve, a violation of international law and that responsibility would just have to, be taken. Where survival is involved international law may take second, place., INTERNATIONAL LAW, Another significant factor is the advantages, or 'rewards, that may oc-, cur in certain situations from an observance of international law. It may, encourage friendly or neutral states to side with one country involved in, a conflict rather than its opponent, and even take a more active role than, might otherwise have been the case. In many ways, it is an appeal to public, opinion for support and all states employ this tactic., In many ways, it reflects the esteem in which law is held. The Soviet, Union made considerable use of legal arguments in its effort to establish, its non-liability to contribute towards the peacekeeping operations of the, United Nations, and the Americans too, justified their activities with, regard to Cuba and Vietnam by reference to international law. In some, cases it may work and bring considerable support in its wake, in many, cases it will not, but in any event the very fact that all states do it is a, constructive sign., A further element worth mentioning in this context is the constant for-, mulation of international business in characteristically legal terms. Points, of vi, nd, View and disputes, in particular, are, are framed legally with refere, eterences to, precedent, international agreements and even the opinions, sof juristic au-, thors. Claims are pursued with regard to the rules of international law, and not in terms of, for example, morality or ethics. This has brought, into being a class of officials throughout governmental departments, in, 26 See Certain Expenses of the United Nations, ICJ Reports, 1962, p. 151; 34 ILR, p. 281, and, R. Higgins, United Nations Peace-Keeping Documents and Commentary, Oxford, 4 vols.,, 1969-81., 27 See e.g, A. Chayes, The Cuban Missile Crisis, Oxford, 1974, and Henkin, How Nations, Behave, pp. 279-302., Var and International Law (ed. R. A. Falk), Princeton, 4 vols., 1968-, 76: 1. N. Moore, Law and the Indo-China War, Charlottesville, 1972, and Henkin, How, Nations Behave, pp. 303-12., 29 See Hart, Concept of Law, p. 223.
DEVELOPMENT OF INTERNATIONAL LAW, reference for every inhabitant of the far-flung domain. The early Roman, law (the jus civile) applied only to Roman citizens. It was formalistic and, hard and reflected the status of a small, unsophisticated society rooted in, the soil., 17, It was totally unable to providea relevant background for an expanding,, developing nation. This need was served by the creation and progressive, augmentation of the jus gentium. This provided simplified rules to govern, the relations between foreigners, and between foreigners and citizens. The, instrument through which this particular system evolved was the official, known as the Praetor Peregrinus, whose function it was to oversee all legal, relationships, including bureaucratic and commercial matters, within the, empire., The progressive rules of the jus gentium gradually overrode the narrow, jus civile until the latter system ceased to exist. Thus, the jus gentium, became the common law of the Roman Empire and was deemed to be of, universal application., It is this all-embracing factor which so strongly distinguishes the Ro-, man from the Greek experience, although, of course, there was no ques-, tion of the acceptance of other nations on a basis of equality and the jus, gentium remained a 'national law' for the Roman Empire., ., One of the most influential of Greek concepts taken up by the Romans, was the idea of Natural Law." This was formulated by the Stoic philoso-, phers of the third century BC and their theory was that it constituted a, body of rules of universal relevance. Such rules were rational and logical,, and because the ideas and precepts of the law of nature' were rooted in, human intelligence, it followed that such rules could not be restricted to, any nation, orldwide relevance., but were o, ance. This element, Tany group but e, la and the, Of universality is basic to modern doctrines of international law and t, Stoic elevation of human powers of logical deduction to the supreme, pinnacle of liscovering the law foreshadows the rational philosophies, of the West. In addition to being a fundamental concept in legal theory,, Natural Law is vital to an understanding of international law, as well as, being an indispensible precursor to contemporary concern with human, rights., Certain Roman philosophers incorporated those Greek ideas of Natural, Law into their own legal theories, often as a kind of ultimate justification, 0 See e.g. Lloyd, Introduction to Jurisprudence, pp. 79-169.
18, INTERNATIONAL LAW, of the jus gentium, which was deemed to enshrine rational principles, common to all civilised nations., However, the law of nature was held to have an existence over and above, that of the jus gentium. This led to much confusion over the exact relation-, ship between the two ideas and different Roman lawyers came to different, conclusions as to their identity and characteristics. The important factors, though that need to be noted are the theories of the universality of law, and the rational origins of legal rules that were founded, theoretically at, least, not on superior force but on superior reason., The classical rules of Roman law were collated in the Corpus Juris, Civilis, a compilation of legal material by a series of Byzantine m philoso-, phers completed in AD:, din AD 534 4 CL, Such a colection, wn collanse. be-, to be invaluable when, the darkness of the early Middle Ages, follo, lowing the Roman co, gan gradually to evaporate. For here was a body of developed laws ready, made and awaiting transference to an awakening Europe., At this stage reference must be made to the growth of Islam.* Its ap-, proach to international relations and law was predicated upon a state, of hostility towards the non-Moslem world and the concept of unity,, Dar al-Islam, as between Moslem countries. Generally speaking, humane, rules of warfare were developed and the 'peoples of the book (Jews and, Christians) were treated better than non-believers, although in an inferior, position to Moslems. Once the period of conquest was over and power was, consolidated, norms governing conduct with non-Moslem states began, to develop. The law dealing with diplomats was founded upon notions of, hospitality and safety (aman), while rules governing international agree-, ments grew out of the concept of respecting promises made., 61 See generally with regard to Byzantium, M. De Taube, 'L'Apport de Byzance au, Développement du Droit International Occidental, 67 HR, 1939, p. 233, and S. Verosta,, 62 See eg. M. Al Ghunaimi. The Muslim Conception of International Law and the Western, Approach, The Hague, 1968; A. Draz, 'Le Droit International Public et I'lslam, 5 Revue, Égyptienne de Droit nternational, p. 17; C. Stumpf, Christian and Islamic Traditions of, Public International Law, 7 Journal of the History of International Law, 2005, p. 69; H., Principles of International Law in the Light of Islamic Doctrine, 117 HR, 1966, p. 205., See also 'L'Asile et les Refugiés dans la Tradition Musulmane, Report of the Sixty-Ninth, Conference, International Law Association, London, 2000,p. 305, and Y. Ben Achour Yadh,, "La Civilisation Islamique et le Droit International} RGDIP, 2006, p. 19., 63 See Bernhardt, Encyclopedia, vol. VIl, pp. 141-2, and Nussbaum, Law of Nations, pp. 514.
DEVELOPMENT OF INTERNATIONAL LAw, The Middle Ages and the Renaissance, 19, The Middle Ages were characterised by the authority of the organised, Church and the comprehensive structure of power that it commanded.", All Europe was of one religion, and the ecclesiastical law applied to all,, notwithstanding tribal or regional afiliations. For much of the period,, there were struggles between the religious authorities and the rulers of, the Holy Roman Empire., These conflicts were eventually resolved in favour ofthe Papacy, but the, victory over secularism proved of relatively short duration. Religion and a, common legacy derived from the Roman Empire were strongly unifying, influences, while political and regional rivalries were not. But before a, recognised system of international law could be created, social changes, were essential., Of particular importance during this era were the authority of the Holy, Roman Empire and the supranational character of canon law.$ Neverthe-, less, commercial and maritime law developed apace. English law estab-, lished the Law Merchant, a code of rules covering foreign traders, and this, was declared to be of universal application."", Throughout Europe, mercantile courts were set up to settle disputes, between tradesmen at the various fairs, and while it is not possible to state, that a Continental Law Merchant came into being, a network of common, regulations and practices weaved its way across the commercial fabric of, Europe and constituted an embryonic international trade law.", Similarly, maritime customs began to be accepted throughout the Con-, tinent. Founded upon the Rhodian Sea Law, a Byzantine work, many of, whose rules were enshrined in the Rolls of Oleron in the twelfth cen-, nd othe:, her m maritime textbooks, a series of comnoniy apP, cus-, relating to the sea permeated the naval powers of, Mediterranean coasts., 64 Nussbaum, Law of Nations, pp. 17-23, and Bernhardt, Encyclopedia, vol. VIl, pp. 143-9., 65 Note in particular the influence of the Church on the rules governing warfare and the, binding nature of agreements: see Nussbaum, Law of Nations, pp. 17-18, and Bernhardt, PP. 14-1. See also M. Keen, The Laws of War in the Late, 66 See G. Holdsworth, A History ofEnglish Law, London, 1924, vol. 5, pp. 60-3., 67 bid., pp. 63-129., 68 Nussbaum, Law of Nations, pp. 29-31. Note also the influence of the Consolato del Mare,, pse barcelona in the mid-tourteenth century, and the Maritime Code of Wisby, (c 1407) llowed by the Hanseatic League.
20, INTERNATIONAL LAW, Such commercial and maritime codes, while at this stage merely expres-, sions of national legal systems, were amongst the forerunners of interna-, tional law because they were created and nurtured against a backcloth of, cross-national contacts and reflected the need for rules that would cover, international situations., Such rules, growing out of the early Middle Ages, constituted the seeds, of international law, but before they could flourish, European thought, had first to be developed by that intellectual explosion known as the, Renaissance., This complex ofideas changed the face of European society and ushered, in the modern era of scientific, humanistic and individualistic thought.", The collapse of the Byzantine Empire centred on Constantinople before, the Turkish armies in 1453 drove many Greek scholars to seek sanctuary, in Italy and enliven Western Europe's cultural life. The introduction of, printing during the fifteenth century provided the means to disseminate, knowledge, and the undermining of feudalism in the wake of economic, growth and the rise of the merchant classes provided the background to, the new inquiring attitudes taking shape., Europe's developing self-confidence manifested itself in a sustained, drive overseas for wealth and luxury items. By the end of the ffteenth, century, the Arabs had been ousted from the Iberian peninsula and the, Americas reached., The rise of the nation-states of England, France and Spain in particu-, lar characterised the process of the creation of territorially consolidated, independent units, in theory and doctrine, as well as in fact. This led to, a higher degree o, gree of interaction between sovereign entities and thus the, need to regulate such activities in a generally acceptable fashion. The pur-, suit of political power and supremacy became overt and recognised, as, Machiavelli's The Prince (1513) demonstrated., The city-states of Italy struggled for supremacy and the Papacy too, became a secular power. From these hectic struggles emerged many of the, staples of modern international life: diplomacy, statesmanship, the theory, of the balance of power and the idea of a community of states., Notions such as these are immediately appreciable and one can identify, with the various manoeuvres for political supremacy. Alliances, betray-, als, manipulations of state institutions and the drive for power are not, unknown to us. We recognise the roots of our society., 69 See e.g. Friedmann, Changing Structure, pp. 114-16., 70 See e.g. G. Mattingley, Renaissance Diplomacy, London, 1955.
DEVELOPMENT OF INTERNATIONAL LAw, 21, It was the evolution of the concept of an international community, of separate, sovereign, if competing, states, that marks the beginning of, what is understood by international law. The Renaissance bequeathed the, prerequisites of independent, critical thought and a humanistic, secular, approach to life as well as the political framework for the future. But, it is the latter factor which is vital to the subsequent growth of interna-, tionallaw. The Reformation and the European religious wars that followed, emphasised this, as did the growing power of the nations. In many ways, these wars marked the decline of a continental system founded on religion, and the birth of a continental system founded on the supremacy of the, state., Throughout these countries the necessity was felt for a new conception, ofhuman as well as state relationships. This search was precipitated, as has, been intimated, by the decline of the Church and the rise of what might, be termed 'free-thinking. The theory of international law was naturally, deeply involved in this reappraisal of political life and it was tremen-, dously influenced by the rediscovery of Greco-Roman ideas. The Renais-, sance stimulated a rebirth of Hellenic studies and ideas of Natural Law,, in particular, became popular, Thus, a distinct value-system to underpin international relations was, brought into being and the law of nations was heralded as part of the, universal law of nature., With the rise of the modern state and the emancipation of international, relations, the doctrine ofsovereignty emerged. This concept, first analysed, systematically in 1576 in the Six Livres de la République by Jean Bodin, was, intended to deal with the structure of authority within the modern state., Bodin, who based his :, is study, ofthe nolitics, boan wno Dased nis stuay pon ns percepton or tne pocs or FuroP, rather than on a theoretical discussion of absolute principles, emphasised, the necessity for a sovereign power within the state that would make the, laws. While such a sovereign could not be bound by the laws he himself, instituted, he was subject to the laws of God and of nature.", The idea of the sovereign as supreme legislator was in the course of, time transmuted into the principle which gave the state supreme power, vis-à-vis other states. The state was regarded as being above the law. Such, See A. Gardot, n Bodin - Sa Place Parmi les Fondateurs du Droit International, 50 HR,, 1934, p. 549. See also, for a discussion of sovereignty and the treaty-making power in th, late middle ages, T. Meron, "The Authority to Make Treaties in the Late Middle Ages, 89, AJIL, 1995, p. 1.