22, INTERNATIONAL LAW, notions as these formed the intellectual basis of the line of thought known, as positivism which will be discussed later.", The early theorists of international law were deeply involved with the, ideas of Natural Law and used them as the basis of their philosophies., Included within that complex of Natural Law principles from which they, constructed their theories was the significant merging of Christian and, Natural Law ideas that occurred in the philosophy ofSt Thomas Aquinas., He maintained that Natural Law formed part of the law of God, and was, the participation by rational creatures in the Eternal Law. It complemented, that part of the Eternal Law which had been divinely revealed. Reason,, declared Aquinas, was the essence of man and thus must be involved in, the ordering oflife according to the divine will. Natural Law was the fount, of moral behaviour as well as of social and political institutions, and it, led to a theory of conditional acceptance of authority with unjust laws, being unacceptable. Aquinas' views of the late thirteenth century can be, regarded as basic to an understanding of present Catholic attitudes, but, should not be confused with the later interpretation ofNatural Law which, stressed the concepts of natural rights., It is with such an intellectual background that Renaissance scholars, approached the question of the basis and justification of a system of, international law. Maine, a British historical lawyer, wrote that the birth of, modern international law was the grandest function of the law of nature, and while that is arguable, the point must be taken." International law, began to emerge as a separate topic to be studied within itself, although, derived from the principles of Natural Law., The founders of modern international law, The essence of the new approach to international law can be traced back, to the Spanish philosophers of that country's Golden Age. The leading, figure of this school was Francisco Vitoria, Professor of Theology at the, University of Salamanca (1480-1546). His lectures were preserved by his, students and published posthumously. He demonstrated a remarkably, progressive attitude for his time towards the Spanish conquest of the, T2 Below, p. 49. 73 Summa Theologia, English edn, 1927., H. Maine, Ancient Law, London, 1861, pp. 56 and 64-6, oblem of ir, al la, until the middle of the 17th century which was po, t nrincinalk a problem of Spain and the, allied Habsburg countries: Bernhardt, Encyclopedia, vol. VIl, p. 150. See also Nussbaum,, Law of Nations pp. 79-93.
DEVELOP MENT OF INTERNATIONAL LAW, 23, South American Indians and, contrary to the views prevalent until then,, maintained that the Indian peoples should be regarded as nations with, their own legitimate interests. War against them could only be justified on, the grounds ofa just cause. International law was founded on the universal, law of nature and this meant that non-Europeans must be included within, its ambit. However, Vitoria by no means advocated the recognition of, the Indian nations as equal to the Christian states of Europe. For him,, opposing the work of the missionaries in the territories was a just reason, for war, and he adopted a rather extensive view as to the rights of the, Spaniards in South America. Vitoria was no liberal and indeed acted on, behalf of the Spanish Inquisition, but his lectures did mark a step forward, in the right direction,", Suárez (1548-1617) was a Jesuit and Professor of Theology who was, deeply immersed in medieval culture. He noted that the obligatory charac-, ter of international law was based upon Natural Law, while its substance, derived from the Natural Law rule of carrying out agreements entered, into.7, From a totally different background but equally, if not more, influential, was Alberico Gentili (1552-1608). He was born in Northern Italy and fled, to England to avoid persecution, having converted to Protestantism. In, 1598 his De Jure Belli was published." It is a comprehensive discussion, of the law of war and contains a valuable section on the law of treaties., Gentili, who became a professor at Oxford, has been called the originator, of the secular school of thought in international law and he minimised, the hitherto significant theological theses., It is, howeves, however, Hugo Grotius, a Dutch scholar, who towers over this, period, been celebrated, if a little exaggeratedly, as the father of, ernational, l la He was born in 1583 and was the supreme Renaissance, man. A scholar of tremendous learning, he mastered history, theology,, mathematics and the law."" His primary work was the De Jure Belli ac Pacis,, 36 Nussbaum, Law of Nations, pp. 79-84, and Bernhardt, Encyclopedia, vol. VIl, pp. 151-2., see also Vitoria, De Indis et de Jure Belli Relectiones, Classics of International Law,, mematioal Law, Francisco, de Vitoria and his Law of Nations Washinetn be, 7 Nussbaum, Law of Nations, pp. 84-91. See also ibid, pp. 92-3 regarding the work of Ayala, (1548-84)., 78 Ibid., pp. 94-101. See also A. Van der Molen, Alberico Gentili and the Development of, 79 Neehaum Law of Nations nn 102-4. See also W. S. M. Knight, The Life and Works of, Hugo Grotius, London, 1925, and'Commemoration of the Fourth Century of the Birth of, Grotius' (various articles), 182 HR, 1984, pp. 371-470.
24, INTERNATIONAL LAW, written during 1623 and 1624. It is an extensive work and includes rather, more devotion to the exposition of private law notions than would seem, appropriate today. He refers both to Vitoria and Gentili, the latter being of, special influence with regard to many matters, particularly organisation, of material,, Grotius finally excised theology from international law and emphasised, the irrelevance in such a study of any conception of a divine law. He, remarked that the law of nature would be valid even if there were no God:, a statement which, although suitably dothed in religious protestation,, was extremely daring. The law of nature now reverted to being founded, exclusively on reason. Justice was part of man's social make-up and thus, not only useful but essential. Grotius conceived ofa comprehensive system, of international law and his work rapidly became a university textbook., However, in many spheres he followed well-trodden paths. He retained, the theological distinction between a just and an unjust war, a notion that, was soon to disappear from treatises on international law, but which in, some way underpins modern approaches to aggression, self-defence and, liberation., One of his most enduring opinions consists in his proclamation of the, freedom of the seas. The Dutch scholar opposed the 'closed seas' concept, of the Portuguese that was later elucidated by the English writer John, Selden and emphasised instead the principle that the nations could not, appropriate to themselves the high seas. They belonged to all. It must,, of cor, course, be mentioned, parenthetically, that this theory happened to, accord rather nicely with prevailing Dutch ideas as to free trade and the, empire., needs of an expanding comnetct not he disregarded, namely, However, this merely poins up wnat must, that concepts, ts of law as of politics and other disciplines are firmly rooted in, the world of reality, and reflect contemporary preoccupations. No theory, develops in a vacuum, but is conceived and brought to fruition in a definite, cultural and social environment. To ignore this is to distort the theory, itself., Positivism and naturalism, Following Grotius, but by no means divorced from the thought of previ-, ous scholars, a split can be detected and two different schools identified., s0 In Mare Clausum Sive de Dominio Maris 1635.
DEVELOPMENT OF INTERNATIONAL LAw, On the one hand there was the 'naturalist school, exemplified by Samuel, Pufendorf (1632-94)," who attempted to identify international law com-, pletely with the law of nature; and on the other hand there were the, exponents of 'positivism), who distinguished between international law, and Natural Law and emphasised practical problems and current state, practices. Pufendorf regarded Natural Law as a moralistic system, and, misunderstood the direction of modern international law by denying the, validity of the rules about custom. He also refused to acknowledge treaties, as in any way relevant to a discussion of the basis of international law., Other 'naturalists' echoed those sentiments in minimising or ignoring the, actual practices of states in favour of a theoretical construction ofabsolute, values that seemed slowly to drift away from the complexities of political, reality., One of the principal initiators of the positivist school was Richard, Zouche (1590-1660), who lived at the same time as Pufendorf, but in, England." While completely dismissing Natural Law, he paid scant regard, to the traditional doctrines. His concern was with specific situations and, his book contains many examples from the recent past. He elevated the law, of peace above a systematic consideration of the law of war and eschewed, theoretical expositions., In similar style Bynkershoek (1673-1743) stressed the importance of, modern practice and virtually ignored Natural Law. He made great con-, tributions to the developing theories of the rights and duties of neutrals, in war, and after careful studies of the relevant facts decided in favour of, of the seas,, the freedom or ue ike much of modern, 25, The positst rhod adopted by the Renaiss, fron, thought, was derived, ce t was co, not with an edifice of theory structured upon deductions from absolute, principles, but rather with viewing events as they occurred and discussing, actual problems that had arisen. Empiricism as formulated by Locke and, Hume denied the existence ofinnate principles and postulated that ideas, were derived from experience. The scientific method of experiment and, verification of hypotheses emphasised this approach., ncerned, From this philosophical attitude, it was a short step to reinterpreting, international law not in terms of concepts derived from reason but rather, in terms of what actually happened between the competing states. What, See Friedmann, Legal Theory, pp. 253-5., 8 On the Law of Nature and of Nations, 1672. See also Nussbaum, Law ofNations, pp. 147-50., S2 Nussbaum, Law of Nations, pp. l65-7. Ibid., pp. 167-72.
26, INTERNATIONAL LAW, states actually do was the key, not what states ought to do given basic, rules of the law of nature. Agreements and customs recognised by the, states were the essence of the law of nations., Positivism developed as the modern nation-state system emerged, after, the Peace of Westphalia in 1648, from the religious wars." It coincided,, too, with theories of sovereignty such as those propounded by Bodin and, Hobbes, which underlined the supreme power of the sovereign and led, to notions of the sovereignty of states., Elements of both positivism and naturalism appear in the works of, Vattel (1714-67), a Swiss lawyer. His Droit des Gens was based on Nat-, ural Law principles yet was practically oriented. He introduced the doc-, trine of the equality of states into international law, declaring that, small republic was no less a sovereign than the most powerful king-, dom, just as a dwarf was as much a man as a giant. By distinguishing, between laws of conscience and laws of action and stating that only the, latter were of practical concern, he minimised the importance of Natural, Law.", Ironically, at the same time that positivist thought appeared to demolish, the philosophical basis of the law of nature and relegate that theory to, history, it re-emerged in a modern guise replete with significance for the, future. Natural Law gave way to the concept of natural rights.*, It was an individualistic assertion of political supremacy. The idea of, the social contract, that an agreement between individuals pre-dated and, justified civil society, emphasised the central role of the individual, and, whether Such a theory was interpreted pessimistically to demand an ab-, solute so sovereign as Hobbes declared, or optimistically t, con-, .a achemintained it could not fail, ditional a, acceptance of authority, Ae mantalned,, to be a revolutionary doctrine. The rights of man constitute the heart, of the American and French Revolutions and the essence of modern, democratic society., mean, See L. Gros, "The Peace of Westphalia l648-1948, 42 AJIL, 1948, p. 20; Renegotiating, Leviathan, 1651., S. Beaulac, "The Westphalian Legal Orthodoxy - Myth or Reality?;, 2 Journal of the History, of International Law, 2000, p. 148,, $7 See Nussbaum, Law of Nations, pp. 156-64. See also N. Onuf, 'Civitas Maxima: Wolff,, J. Finnis, Natural Law and Natural Rights, Oxford, 1980, and R. Tuck, Natural, Rights Theories, Canmbridee. 1979, $9 See e.g. N. Onuf and 0. Onuf, Federal Unions, Modern World, Madison, 1994.
DEVELOPMENT oF INTERNATIONAL LAW, Yet, on the other hand, the doctrine of Natural Law has been employed, to preserve the absoluteness of sovereignty and the sanctity of private, possessions. The theory has a reactionary aspect because it could be argued, that what was, ought to be, since it evolved from the social contract or, was divinely ordained, depending upon how secular one construed the, law of nature to be., The nineteenth century, The eighteenth century was a ferment of intellectual ideas and ratio-, nalist philosophies that contributed to the evolution of the doctrine of, international law. The nineteenth century by contrast was a practical, ex-, pansionist and positivist era. The Congress of Vienna, which marked the, conclusion of the Napoleonic wars, enshrined the new international order, which was to be based upon the European balance of power. International, law became Eurocentric, the preserve of the civilised, Christian states, into, which overseas and foreign nations could enter only with the consent of, and on the conditions laid down by the Western powers. Paradoxically,, whilst international law became geographically internationalised through, the expansion of the European empires, it became less universalist in con-, ception and more, theoretically as well as practically, a reflection of Eu-, ropean values." This theme, the relationship between universalism and, particularism, appears time and again in international law. This century, also saw the coming to independence of Latin America and the forging, of a distinctive approach to certain elements of international law by the, states of that region, especially with regard to, for example, diplomatic, asylum and the treatment of foreign enterprises and nationals.", 27, There are many other features that mark the nineteenth century., Democracy and nationalism, both spurred on by the wars of the French, revolution and empire, spread throughout the Continent and changed, the essence of international relations. No longer the exclusive concern, See Nusbaum, Law ojNations, Pp.l86-20, and,e-g-, H.Alexandrowicz, 1he tu, tional Law. European Expansion and the Classical Standard of Civilisation, 7 Journal of the, History oflnternational Law, 2005, p. I, andC. Sylvest, International Law in Nineteenth-, Century Britain, 75 BYIL, 2004, p. S, af the History of Intena, 9 See below, chapters 3 and 14 respectively. See also H. Gros Espiell, 'La Doctrine du Droit, a rremiere Contérence Panaméricaine, 3 Journal, 1969., 92 See especially A. Cobban, The Nation State and National Self-Determination, London,
28, INTERNATIONAL LAW, of aristocratic élites, foreign policy characterised both the positive and the, negative faces of nationalism. Self-determination emerged to threaten the, multinational empires of Central and Eastern Europe, while nationalism, reached its peak in the unifications of Germany and Italy and began to, exhibit features such as expansionism and doctrines of racial superior-, ity. Democracy brought to the individual political influence and a say, in government. It also brought home the realities of responsibility, for, wars became the concern of all. Conscription was introduced throughout, the Continent and large national armies replaced the small professional, forces." The Industrial Revolution mechanised Europe, created the eco-, nomic dichotomy of capital and labour and propelled Western influence, throughout the world. All these factors created an enormous increase, in the number and variety of both public and private international in-, stitutions, and international law grew rapidly to accommodate them.", The development of trade and communications necessitated greater in-, ternational co-operation as a matter of practical need. In 1815, the Final, Act of the Congress of Vienna established the principle of freedom of, navigation with regard to international waterways and set up a Central, Commission of the Rhine to regulate its use. In 1856 a commission for the, Danube was created and a number of other European rivers also became, the subject of international agreements and arrangements. In l1865 the In-, ternational Telegraphic Union was established and in 1874 the Universal, Postal Union.", European conferences proliferated and contributed greatly to the de-, velopment of rules governing the waging of war. The International Com-, e of the Red Cross. founded in 1863, helped promot, mote the series of, ed, ventions beginning in 1864 dealing with, vith the humanisatior, isation', of conflict, and the Hague Conferences of 1899 and 1907 established the, Permanent Court of Arbitration and dealt with the treatment ofprisoners, and the control of warfare. Numerous other conferences, conventions, and congresses emphasised the expansion of the rules of international law, and the close network of international relations. In addition, the academic, study ofinternational law within higher education developed with the ap-, pointment of professors of the subject and the appearance of specialist, textbooks emphasising the practice of states., Geneva Conventi, 93 G. Best, Humanity in Warfare, London, 1980; Best, War and Law Since 1945, Oxford, 1994,, and S. Bailey, Prohibitions and Restraints in War, Oxford, 1972., 4 See e-g. Bowett's Law of International Institutions, and The Evolution of International Or-, os (ed. E. Luard), Oxford, 1966, e further below, chapter 23., Sce, ee further below, chapter 21.
, INTERNATIONAL LAW, With the decline of the Cold War and the onset of perestroika (re-, structuring) in the Soviet Union, a process of re-evaluation in the field, of international legal theory took place.0 The concept of peaceful co-, existence was modified and the notion of class warfare eliminated from, the Soviet political lexicon. Global interdependence and the necessity for, international co-operation were emphasised, as it was accepted that the, tension between capitalism and socialism no longer constituted the major, conflict in the contemporary world and that beneath the former dogmas, lay many common interests. The essence of new Soviet thinking was, stated to lie in the priority of universal human values and the resolution, of global problems, which is directly linked to the growing importance, of international law in the world community. It was also pointed out, that international law had to be universal and not artificially divided into, capitalist, socialist and Third World 'international law' systems.!2, Soviet writers and political leaders accepted that activities such as the, interventions in Czechoslovakia in 1968 and Afghanistan in 1979 were, contrary to international law, while the attempt to create a state based on, the rule oflaw was seen as requiring the strengthening of the international, legal system and the rule of law in international relations. In particular,, a renewed emphasis upon the role of the United Nations became evident, in Soviet policy.2), The dissolution of the Soviet Union in 1991 marked the end of the, Cold War and the re-emergence of a system of international relations, based upon multiple sources of power untrammelled by ideological de-, terminacy. From that point, 24 Russia as the continuation of the former, Soviet Union (albeit in different political and territorial t terms), d defnedits actions in terms, nns in ter, Into the Western political system and d, tS own, national interests free from principled hostility. The return to statehood, of the Baltic states and the independence of the other former republics of, the Soviet Union, coupled with the collapse of Yugoslavia, has constituted, See, tor example, Perestroika and International Law (eds. A. Carty and G. Danilenko),, Thinking, 83 AJIL, 1989, p. 494; V. Vereshchetin and R. Mullerson, 'International Law in, an Interdependent World, 28 Columbia Journal of Transnational Law, 1990, p. 291, and, R. Quigley, 'Perestroika and International Law, 82 AJIL, 1988, p. 78., 121 Vereshchetin and Mullerson, 'International Law. p. 292., 124 See eg. R. Mullerson, Iuternational Law, Rights and Politics, London, 1994. See also The, End of the Cold War (eds. P. Allan and K. Goldmann), Dordrecht, 1992, and W. M., Reisman, 'International Law after the Cold War, 84 AJIL, 1990, p. 859.
DEVELOPMENT oF INTERNATIONAL LAW, 37, a political upheaval of major significance. The Cold War had imposed a, dualistic superstructure upon international relations that had had impli-, cations for virtually all serious international political disputes and had, fettered the operations of the United Nations in particular. Although the, Soviet regime had been changing its approach quite significantly, the for-, mal demise both of the communist system and of the state itself altered, the nature of the international system and this has inevitably had con-, sequences for international law." The ending of inexorable superpower, confrontation has led to an increase in instability in Europe and em-, phasised paradoxically both the revitalisation and the limitations of the, United Nations., While relatively little has previously been known of Chinese attitudes,, a few points can be made. Western concepts are regarded primarily as, aimed at preserving the dominance of the bourgeois class on the inter-, national scene. Soviet views were partially accepted but since the late, 1950s and the growing estrangement between the two major commu-, nist powers, the Chinese concluded that the Russians were interested, chiefly in maintaining the status quo and Soviet-American superpower, supremacy. The Soviet concept of peaceful co-existence as the mainstayof, contemporary international law was treated with particular suspicion and, disdain.26, The Chinese conception of law was, for historical and cultural reasons,, very different from that developed in the West. Law' never attained the, important place in Chinese society that it did in European civilisation., sophisticated bureaucracy laboured to attain harmony andequilibrium,, nd a system of legal rights to protect the individual in the Western sense, did not realy develo, hat society would he kes, dectahlished morality, rather than by rules and sanctions., Dest served, by example and, This Confucian philosophy was, however, swept aside the successful, stOlieved tha, I25 See e.g. R. Bilder, 'International Law in the "New World Order": Some Preliminary Re-, flections, 1 Florida State University Journal of Transnational Law and Policy, 1992, p. 1., p. 245; J. K. Fairbank, The Chinese World Order, Cambridge, 1968; J. Cohen, China's, Practice of International Law, Princeton, 1972; Anglo-Chinese Educational Trust, China's, World View, London, 1979; J. Cohen and H. Chiu, People's China and International Law,, Princeton, 2 vols., 1974, and C. Kim, "The People's Republic of China and the Charter-, 127 Seel Lowd Iufraduction, te lurisnrudeoe. Dp. 760-3:S. Van der Sprenkel, Legal Institutions, in Northern China, New York, 1962, and R. Unger, Law in Modern Society, New York,, 1976, pp. 86-109.
38, INTERNATIONAL LAW, communist revolution, to be replaced by strict Marxism-Leninism, with, its emphasis on class warfare., The Chinese seem to have recognised several systems of international, law, for example, Western, socialist and revisionist (Soviet Union), and, to have implied that only with the ultimate spread of socialism would, a universal system be possible. International agreements are regarded, as the primary source of international law and China has entered into, many treaties and conventions and carried them out as well as other, nations. One exception, of course, is China's disavowal of the so-called, unequal treaties' whereby Chinese territory was annexed by other powers,, in particular the Tsarist Empire, in the nineteenth century., On the whole, international law has been treated as part of international, politics and subject to considerations of power and expediency, as well as, ideology. Where international rules conform with Chinese policies and, interests, then they will be observed. Where they do not, they will be, ignored., However, now that the isolationist phase of its history is over, relations, with other nations established and its entry into the United Nations se-, cured, China has adopted a more active role in international relations,, an approach more in keeping with its rapidly growing economic power., China has now become fully engaged in world politics and this has led to, a legalisation of its view of international law, as indeed occurred with the, Soviet Union., The Third World, In the evolution of international affairs since the Second World War one, of the most decisive events has been the disintegration of the colonial, empires and the birth of scores of new states in the so-called Third World., This has thrust onto the scene states which carry with them a legacy of, bitterness over their past status as well as a host of problems relating to, 1* Lloyd, Introduction to Jurisprude nce, and H. Li, "The Role of Law in Communist China,, China Quarterly, 1970, p. 66, cited in Lloyd, Introduction to Jurisprudence, pp. 801-8., See e.g. Cohen and Chiu, People's China, pp. 624., 1 Tbid., pp. 77-82, and part VIIl generally., 1974., Ual Treaties, 15 ICLQ, .1069; E. Nozari, Uneaual Treaties in International Law, Stockbolm, 1971: Chiu, Communist China's Ati-, tude, pp. 239-67, and L-F. Chen, State Succession Relating to Unequal Treaties, Hamden,
DEVELOPMENT oF INTERNATIONAL LAW, their social, economic and political development. In such circumstances, it was only natural that the structure and doctrines of international law, would come under attack. The nineteenth century development of the, law of nations founded upon Eurocentrism and imbued with the values, of Christian, urbanised and expanding Europe" did not, understandably, enough, reflect the needs and interests of the newly independent states, of the mid- and late twentieth century. It was felt that such rules had, encouraged and then reflected their subjugation, and that changes were, required., 39, It is basically those ideas of international law that came to fruition in, the nineteenth century that have been so clearly rejected, that is, those, principles that enshrined the power and domination of the West.35 The, underlying concepts of international law have not been discarded. On, the contrary. The new nations have eagerly embraced the ideas of the, sovereignty and equality of states and the principles of non-aggression, and non-intervention, in their search for security within the bounds of a, commonly accepted legal framework., 32, While this new internationalisation of international law that has oc-, curred in the last fifty years has destroyed its European-based homogene-, ity, it has emphasised its universalist scope. The composition of, for, example, both the International Court of Justice and the Security Council, of the United Nations mirrors such developments. Article 9 of the Statute, of the International Court of Justice points out that the main forms of, civilisation and the principal legal systems of the world must be rep-, resented I within the Court, and there is an arrangement that of the ten, non-permanent seats in the Security Council five should go to Afro-Asian, 133, 1980, and Higgins, Conflict of Interests, part IIL See also Hague Academy of International, Law, Colloque, The Future of International Law in a Multicultural World, especially pP-, 117-42, and Henkin, How Nations Behave, pp. 121-7., See eg. Verzijl, International Law in Historical Perspective, vol. I, pp. 435-6. See also B., I34 The converse of this has been the view of some writers that the universalisation of inter-, national law has led to a dilution of its content: see e.g. Friedmann, Changing Structure,, p. 6; J. Stone, Quest for Survival: The Role of Law and Foreign Policy, Sydney, 1961, p. 88,, and J. Brierly, The Law of Nations, 6th edn, Oxford, p. 43., 136 See EC Obove Iuteruational Law and the New African States, London, 1972; T. O., Elias, Africa and the Development of International Law, Leiden, 1972, and Bernhardt,, Encyclopedia, vol. VII, pp. 205-51.
10, states and two to Latin American states (the others going to Europe and, other states). The composition of the International Law Commission has, also recently been increased and structured upon geographic lines., INTERNATIONAL LAW, The influence of the new states has been felt most of all within the, General Assembly, where they constitute a majority of the 192 member, states.8 The content and scope ofthe various resolutions and declarations, emanating from the Assembly are proof of their impact and contain a, record of their fears, hopes and concerns., The Declaration on the Granting of Independence to Colonial Coun-, tries and Peoples of 1960, for example, enshrined the right of colonies to, obtain their sovereignty with the least possible delay and called for the, recognition of the principle of self-determination. This principle, which, is discussed elsewhere in this book,"" is regarded by most authorities as, a settled rule of international law although with undetermined borders., Nevertheless, it symbolises the rise of the post-colonial states and the, effect they are having upon the development of international law., Their concern for the recognition of the sovereignty of states is com-, plemented by their support of the United Nations and its Charter and, supplemented by their desire for 'economic self-determination' or the, right of permanent sovereignty over natural resources. This expansion, of international law into the field of economics was a major development, of the twentieth century and is evidenced in myriad ways, for example, by, the creation of the General Agreement on Tariffs and Trade, the United, Nations Conference on Trade and Development, and the establishment, of the International Monetary Fund and World Bank., The interests of the new states of the Third World are often in conflict, with, ith thoseofthe industrialised nations, witness disputes over natonasa, alised nat, tions. t has to be emphasised that, contrary to many fears, ns But it, in the early years of the decolonisation saga, international law has not, been discarded nor altered beyond recognition. Its framework has been, retained as the new states, too, wish to obtain the benefits of rules such as, those governing diplomatic relations and the controled use offorce, while, campaigning against rules which run counter to their perceived interests., While the new countries share a common history of foreign domi-, nance and underdevelopment, compounded by an awakening of national, 137 By General Assen, nationals of Afro-Asian-I ati Ayone ot the thirty-four members are to ke, 138 See above, note 105. 19 See below, chapter 5, p. 205., 10 See below, chapter 14, p. 827.
DEVELOPMENT oF INTERNATIONAL LAW, identity, it has to be recognised that they are not a homogenous group., Widely differing cultural, social and economic attitudes and stages of de-, velopment characterise thenm, and the rubric of the Third World' masks, diverse political affiliations. On many issues the interests of the new states, conflict with each other and this is reflected in the different positions, adopted. The states possessing oil and other valuable natural resources, are separated from those with few or none and the states bordering on, oceans are to be distinguished from landlocked states. The list of diversity, is endless and variety governs the make-up of the southern hemisphere, to a far greater degree than in the north., 41, It is possible that in legal terms tangible differences in approach may, emerge in the future as the passions of decolonisation die down and, the Western supremacy over international law is further eroded. This, trend will also permit a greater understanding of, and greater recourse, to, historical traditions and conceptions that pre-date colonisation and, an increasing awareness of their validity for the future development of, international law l41, In the medium term, however, it has to be recognised that with the end, of the Cold War and the rapid development of Soviet (then Russian)-, American co-operation, the axis of dispute is turning from East-West, to North--South. This is beginning to manifest itself in a variety of is-, sues ranging from economic law to the law of the sea and human rights,, while the impact of modern technology has hardly yet been appreci-, ated.' Together with such factors, the development of globalisation has, put additional stress upon the traditional tension between universalism, nd particularism." Globalisation in the sense of interdependence ofa, high order of individuals, groups and corporations, both public and į, Inri-, vate, across national boundaries, might be seen as t, s the universalisation, Western civilisation and thus the triumph of one special particularism., 142, 141 See e.g H. Sarin, "The Asian--African States and the Development of International Law,, in Hague Academy Colloque, p. 117; Bernhardt, Encyclopedia, vol. VIl, pp. 205-51, and R., Westbrook, 'Islamic International Law and Public International Law: Separate Expressions, 673, Oxford, 1958, p. 169. Note also the references by the Tribunal in the Eritrea/Yemen cases, to historic title and regional legal traditions: see the judgment in Phase One: Territorial, Sovereignty, 1998, 114 ILR, pp. I, 37 f. and Phase Two: Maritime Delimitation, 1999, 119, ILR, pp. 417, 448., M. Lachs, "Thoughts on Science, Technology and World Law, 86 AJIL, 1992, p., 13 See Koskenniemi, Gentle Civilizer of Nations. See also G. Simpson, Great Powers and, Outlaw States: Unequal Sovereigns in the International Legal Order, Cambridge, 2004.
2, INTERNATIONAL LAW, On the other hand, particularism (in the guise of cultural relativism) has, sometimes been used as a justification for human rights abuses free from, international supervision or criticism., Suggestions for further reading, I. M. Franck, The Power of Legitimacy Among Nations, Oxford, 1990, L Henkin, International Law: Politics and Values, Dordrecht, 1995, R. Higgins, Problems and Process, Oxford, 1994, 1954, A. Nussbaum, A Concise History of the Law of Nations, revised edition, New York.
2, International law today, The expanding legal scope of international concern, International law since the middle of the last century has been developing, in many directions, as the complexities of life in the modern era have, multiplied. For, as already emphasised, law reflects the conditions and, cultural traditions ofthe society within which it operates. The community, evolves a certain specific set of values – social, economic and political –, and this stamps its mark on the legal framework which orders life in that, environment. Similarly, international law is a product of its environment., It has developed in accordance with the prevailing notions ofinternational, relations and to survive it must be in harmony with the realities of the, age, Nevertheless, there is a continuing tension between those rules already, established and the constantly evolving forces that seek changes within, the system. One of the major problems of international law is to deter-, mine when and how to incorporate new standards of behaviour and new, realities of life into the already existing framework, so that, on the one, hand, the law remains relevant and, on the other, the system itself is not, too vigorously disrupted., Changes that occur within the international community can be mo-, mentous and reverberate throughout the system. For example, the advent, of nuclear arms created a status quo in Europe and a balance of terror, throughout the world. It currently constitutes a factor of unease as certain, states s, 2s seek to acquire nuclear technology, An, Another example is the techno-, logical capacity to mine the oceans and the consequent questions as to, as to the, nature and beneficiaries of exploitation.' The rise of international terror-, ism has posited new challenges to the system as states and international, organisations struggle to deal with this phenomenon while retaining, mine the, See below, chapter 11., 43
44, respect for the sovereignty of states and for human rights. There are, several instances of how modern developments demand a constant reap-, praisal of the structure of international law and its rules., The scope of international law today is immense. From the regulation, of space expeditions to the question of the division of the ocean floor, and, from the protection of human rights to the management of the interna-, tional fnancial system, its involvement has spread out from the primary, concern with the preservation of peace, to embrace all the interests of, contemporary international life., INTERNATIONAL LAW, But the raison d'ètre of international law and the determining factor in, its composition remains the needs and characteristics of the international, political system. Where more than one entity exists within a system, there, has to be some conception as to how to deal with other such entities,, whether it be on the basis of co-existence or hostility. International law, as it has developed since the seventeenth century has adopted the same, approach and has in general (though with notable exceptions) eschewed, the idea of permanent hostility and enmity. Because the state, while in-, ternally supreme, wishes to maintain its sovereignty externally and needs, to cultivate other states in an increasingly interdependent world, it must, acknowledge the rights of others. This acceptance of rights possessed by, all states, something unavoidable in a world where none can stand alone,, leads inevitably to a system to regulate and define such rights and, of, course, obligations., And so one arrives at some form of international legal order, no mat-, ter how unsophisticated and how occasionally positively disorderly. The, current system developed in the context of Furonean., od but this has chans, PrOgres, Fise of the IInis, Cnited s.on as i, Union mirChanged. The rise o, mrrored tne cline of Europe, while the process of de-, colonisation also had a considerable impact. More recently, the collapse, of the Soviet Empire and the Soviet Union, the rise of India and China, as major powers and the phenomenon of globalisation are also impact-, ing deeply upon the system. Faced with radical changes in the structure, of power, international law needs to come to terms with new ideas and, challenges., SoVet, 2 See below, chapter 20., cise definition and, the intern, al order, nd d the, or community, see G. Schwarzenberger and E. D. Brown, A Manual of International Law,, 6th edn, London, 1976, pp.9-12; H. Yalem, "The Concept of World Order, 29 YBWA, 1975,, and I. Pogany, "The Legal Foundations of World Order, 37 YBWA, 1983, p. 277.
INTERNATIONAL LAW TODAY, The Eurocentric character of international law has been gravely weak-, ened in the last sixty years or so and the opinions, hopes and needs of, other cultures and civilisations are now playing an increasing role in the, evolution of world juridical thought., International law reflects first and foremost the basic state-oriented, character of world politics and this essentially because the state became, over time the primary repository of the organised hopes of peoples,, whether for protection or for more expansive aims. Units of formal inde-, pendence benefiting from equal sovereignty in law and equal possession, of the basic attributes of statehood have succeeded in creating a system, enshrining such values. Examples that could be noted here include non-, intervention in internal affairs, territorial integrity, non-use of force and, equality of voting in the United Nations General Assembly. However, in, addition to this, many factors cut across state borders and create a tension, in world politics, such as inadequate economic relationships, interna-, tional concern for human rights and the rise in new technological forces., State policies and balances of power, both international and regional, are, a necessary framework within which international law operates, as indeed, are domestic political conditions and tensions. Law mirrors the concern, of forces within states and between states., It is also important to realise that states need law in order to seek, and attain certain goals, whether these be economic well-being, survival, and security or ideological advancement. The system therefore has to be, certain enough for such goals to be ascertainable, and flexible enough, to permit change when this becomes necessary due to the confluence of, forces demanding it.?, detand, rnational law, however, has not just e, brace the new states w, which hae L, Since the end of, deen established ezontally to em-, Second World War; it has extended itself to include individuals, groups, and international organisations, both private and public, within its scope., It has also moved into new fields covering such issues as international, trade, problems of environmental protection, human rights and outer, space exploration., See below, chapter 5, p. 211., 45, nave, See c-g. L. C. Green, 'Is There a Universal International Law Today?, 23 Canadian YIL, 1985,, p. 3., p. 205., ded h, tof the la, Territory in Africa: nternatiomal Ieenl le, etoy, see M. N. Shaw, Title to, See S. Hoffman, 'International Systems and International Law, 14 World Politics, 1961-7
46, The growth of positivism in the nineteenth century had the effect of, focusing the concerns of international law upon sovereign states. They, alone were the 'subjects' of international law and were to be contrasted, with the status of non-independent states and individuals as 'objects' of, international law. They alone created the law and restrictions upon their, independence could not be presumed.' But the gradual sophistication of, positivist doctrine, combined with the advent of new approaches to the, whole system of international relations, has broken down this exclusive, emphasis and extended the roles played by non-state entities, such as, individuals, multinational firms and international institutions.' It was, of, course, long recognised that individuals were entitled to the benefits of, international law, but it is only recently that they have been able to act, directly rather than rely upon their national states., INTERNATIONAL LAW, The Nuremberg and Tokyo Tribunals set up by the victorious Allies after, the close of the Second World War were a vital part of this process. Many, of those, accused were found guilty of crimes againstnuaal, peace and were punished accordingly. It was a recognition of, responsibility under international law without the usual interposition of, the state and has been reinforced with the establishment of the Yugoslav, and Rwanda War Crimes Tribunals in the mid-1990s and the Interna-, tional Criminal Court in 1998." Similarly the 1948 Genocide Convention, provided for the punishment of offenders after conviction by national, courts or by an international criminal tribunal." The developing concern, with human rights is another aspect of this move towards increasing the, role of the individual in international law. The Universal Declaration of, Human Rights adopted by the United Nations in 1948 lists a series of, political and social rights, although it is only a guideline and not legally, binding as such. The European Convention for the Protection of Human, Rights and Fundamental Freedoms signed in 1950 and the International, Covenants on Human Rights of 1966 are ofa different nature and binding, upon the signatories. In an effort to function satisfactorily various bodies, of a supervisory and implementational nature were established. Within, the European Union, individuals and corporations have certain rights of, direct appeal to the European Court of Justice against decisions of the, various Union institutions. In addition, individuals may appear before, certain international tribunals. Nevertheless, the whole subject has been, highly controversial, with some writers (for example Soviet theorists prior, See the Lot, PCIJ, Series A, No. 10, p. 18., 10 See bclow, chanter &, 9 See further below, chapter 5.
INTERNATIONAL LAW TODAY, to perestroika) denying that individuals may have rights as distinct from, duties under international law, but it is indicative of the trend away from, the exclusivity of the state., 47, Together with the evolution of individual human rights, the rise of, international organisations marks perhaps the key distinguishing feature, of modern international law. In fact, international law cannot in the con-, temporary era be understood without reference to the growth in number, and influence of such intergovernmental institutions, and of these the, most important by far is the United Nations." The UN comprises the, vast majority of states (there are currently 192 member states) and that, alone constitutes a political factor of high importance in the process of, diplomatic relations and negotiations and indeed facilitates international, co-operation and norm creation. Further, of course, the existence of the, Security Council as an executive organ with powers to adopt resolutions, in certain circumstances that are binding upon all member states is unique, in the history of international relations., International organisations have now been accepted as possessing, rights and duties of their own and a distinctive legal personality. The, International Court of Justice in 1949 delivered an Advisory Opinion" in, which it stated that the United Nations was a subject of international law, and could enforce its rights by bringing international claims, in this case, against Israel following the assassination of Count Bernadotte, a United, Nations official. Such a ruling can be applied to embrace other inter-, national institutions, like the International Labour Organisation and the, Food and Agriculture Organisation, which each have a judicial character of, their own. Thus, while states remain the pr, primary subjects ofinternational, ,they are now joined by other non-state entities, whose importance is, likely to grow even further in the future., The growth of regional organisations should also be noted at this stage., Many of these were created for reasons of military security, for example, NATO and the opposing Warsaw Pact organisations, others as an expres-, sion of regional and cultural identity such as the Organisation of African, Unity (now the African Union) and the Organisation of American States., In a class of its own is the European Union which has gone far down the, road of economic co-ordination and standardisation and has a range of, 12 See further below, chapters 6 and 7., 13 See further below, chapter 22., 4 Reparation for Injuries Suffered in the Service of the United Nations, IC] Reports, 1949,, p. 174; 16 AD, p. 318.
48, INTERNATIONAL LAW, common institutions serviced by a growing bureaucracy stationed pri-, marily at Brussels., Such regional organisations have added to the developing sophistica-, tion of international law by the insertion of 'regional-international law, sub-systems' within the universal framework and the consequent evolu-, tion of rules that bind only member states., The range of topics covered by international law has expanded hand, in hand with the upsurge in dificulties faced and the proliferation in the, number of participants within the system. It is no longer exclusively con-, cerned with issues relating to the territoryor jurisdiction ofstates narrowly, understood, but is beginning to take into account the specialised prob-, lems of contemporary society. Many of these have already been referred, to, such as the vital feld of human rights, the growth of an international, economic law covering financial and development matters, concern with, environmental despoliation, the space exploration effort and the exploita-, tion of the resources of the oceans and deep seabed. One can mention, also provisions relating to the bureaucracy of international institutions, (international administrative law), international labour standards, health, regulations and communications controls. Many of these trends may be, seen as falling within, or rather reflecting, the phenomenon of globali-, sation, a term which encompasses the inexorable movement to greater, interdependence founded upon economic, communications and cultural, bases and operating quite independently of national regulation." This in, 5 See generally below, chapter 23., 6 See e.g. A. Giddens, The Consequences of Modernity, Stanford, 1990; S. Sur, "The State, Between Fragmentation and Globalisation, 8 EJIL, 1997, p. 421; B. Simma and A. Paulus,, "The "International Community": Facing the Challenge of Globalisation. General Conclu-, SOns, yEJL, 98 Poo,anar. .Dupuy intenatona, lorn Between C, Declaration of Judge Bedjaoui in the Advisory Opinion on The Legality of the Threat or, Use of Nuclear Woapons, icj Reports, 1996, pp. 226, 270-1. Note that Philip Bobbitt has, described five developments challenging the nation-state system, and thus in essence char-, acterising the globalisation challenge, as follows: the recognition ofhuman rights as norms, ment of weapons of mass destruction rendering the defence of state borders ineffectual for, the protection of the society within; the proliferation of global and transnational threats, transcending state boundaries such as those that damage the environment or threaten, states through migration, population expansion, disease or famine; the growth of a world, thatcftftitals statein the manavment of theirconomic afiaire and thecretinn, of a global communications network that penetrates borders electronically and threatens, national languages, customs and cultures, The Shield ofAchilles, London, 2002, p. xxii.
INTERNATIONAL LAW TODAY, turn stimulates disputes of an almost ideological nature concerning, for, example, the relationship between free trade and environmental protec-, tion." To this may be added the pressures of democracy and human rights,, both operating to some extent as countervailing influences to the classical, emphasis upon the territorial sovereignty and jurisdiction of states., Modern theories and interpretations, 49, At this point some modern theories as to the nature and role of interna-, tional law will be briefly noted., Positive Law and Natural Law, Throughout the history of thought there has been a complex relationship, between idealism and realism, between the way things ought to be and, the way things are, and the debate as to whether legal philosophy should, incorporate ethical standards or confine itself to an analysis of the law as, t stands is a vital one that continues today,."", The positivist school, which developed so rapidly in the pragmatic,, optimistic world of the nineteenth century, declared that law as it ex-, ists should be analysed empirically, shorn of all ethical elements. Moral, aspirations were all well and good but had no part in legal science. Man-, made law must be examined as such and the metaphysical speculations, Ptical reali-, of Natural Law rejected because what counted were the practical, ties, not general principles which were imprecise and vague, not to say, ambiguous.", This kind of approach to law in society reached its climax with Kelsen's, Pure Theory of Law. Kelsen defined law solely in terms of itself and, eschewed any element of justice, which was rather to be considered within, the discipline of political science. Politics, sociology and history were all, 7 See e.g. Myers v. Canada 121 ILR, pp. 72, 110., See e.g. D. Lyons, Ethics and the Rule of Law, London, 1984; R. Dworkin, Taking Rights, J. Shand, Legal Values in Western Society, Edinburgh, 1974. See also R. Dias, Jurisprudence,, Sth edn, London, 1985., 19 See Hart, Concept of Law, and Hart, 'Positivism and the Separation of Law and Morals, 71, Harvard Law Review, 1958, p. 593. Ct. L. Fuller, Positivism and Fidelity to Law - Reply, Droit nternational. Paris, 1929, and B. Kingsbury Lecal Positivism as Normative Politics:, International Society, Balance of Power and Lassa Oppenheim's Positive International Law, 13 EJIL, 2002, p. 401.
