History of International Law

History and nature of
International Law
KDR/IIT KGP/RGSOIPL/Labour-2008 1
Nature of International Law
Nation states not individuals.
Law within the country – municipal law
Law deals with nations – international law
No particular legislature to legislate.
International Court of Justice – voluntary jurisdiction.
No enforceability.
Theories
John Austin – command of the sovereign backed by a
sanction or punishment.
There is no unified system of enforcement.
 use of force is justified in some circumstances.
There is no international force to implement any
decision of the ICJ.
Consent theory.
Theory of self limitation.
Early
Closely related to western culture
European notion of sovereignty
Modern system – 400 years back
Solemn treaty between the rulers of Lagosh and
Umma – city states situated in the area known to
historians as Mesopotamia – 2100 BC.
Rameses 11 of Egypt and the King of Hittites – peace
and brotherhood.
Many agreements by middle eastern powers.
Early
The notion of universal community.
Greek awareness.
Roman’s respect for law and organisations.
Jus civile to jus gentium – Roman law.
Roman Law – corpus juris civilis – compilation of legal
materials by byzantine philosophers 534 AD.
Growth of Islam.
Middle ages
Organised church
Development of ecclesiastical law
Canon law
Commercial and maritime law developments
Law merchants
Francisco Votoria – Professor of Theology – University
of Theology – (1480-1546).
Suarez (1548-1617) – jesuit and Professor of Theology
Alberico Gentili (1552 – 1608) – Northern Italy.
Early developments
Professor Vinogradoff – inter municipal law
Costmary rules developed on diplomatic envoys.
Working principles developed on the basis of
reasoning and analogy.
Development of canon law and later law of nature.
Grotius – 1583-1645 published
De jure Nelli ac Pacis (The Law of War and Peace)
He accepted the law of nature.
Who is considered as the father of modern
international law.
Hugo Grotius, 1583 -1645
Father of International law
worked as a jurist in the Dutch Republic and laid the
foundations with Francisco de Vitoria for
international law, based on natural law.
Treatise De Jure Belli, Ac Pacis Libri Tres – 1623-24.
Considered as the starting point for modern
international law.
He opposed the ‘closed sea’ concept of Portuguese.
High seas belong to all.
Page written in
Grotius' hand from
the manuscript of
De Indis (circa
1604-05).
Treatise De Jure
Belli, Ac Pacis Libri
Tres
Treaty of Westphalia
The Westphalian treaties of 1648 were a turning point
in establishing the principle of state sovereignty as a
cornerstone of the international order. However the
first attempts at formulating autonomous theories of
international law occurred before this, in Spain, in the
16th century.
Roman Catholic theologians Francisco de Vitoria and
Francisco Suárez. Suárez is especially notable in this
regard in that he treatise on international law, de iure
belli ac pacis, which dealt with the laws of war and
peace.
TREATY OF WESTPHALIA - 1648
Treaty between Roman Emperor and the King of
France.
Alabama claims Arbitration – 1872.
Permanent court of Arbitration – 1899 – 1907.
Permanent Court of International Justice – 1921.
International Court of Justice – 1946.
Positivist approach
Locke and Hume – developed after the Treaty of
Westphalia.
Theory of sovereignty by Bodin and Hobbes.
Supreme power of states and sovereignty of states.
Both theories appear in the work of Vattel – (1714-67).
He introduced equality of states in the international
law.
Dualist and monist theories
Monist claimed there is no difference between the
international law and municipal law.
Dualist – supports the consent theory
History
Still, in the 17th and 18th centuries, the idea of natural
law as a basis for international law remained
influential, and were further expressed in the works of
Samuel von Pufendorf and Christian Wolff.
in the second half of the 18th century, a shift occurs
towards positivism in international law. In addition,
the idea of international law as a means for
maintaining international peace is challenged due to
the increasing tensions between the European great
powers (France, Prussia, Great-Britain, Russia and
Austria).
History
At the end of the century, Immanuel Kant believes
that international law as a law that can justify war does
not serve the purpose of peace anymore, and therefore
argues in Perpetual Peace .
After World War I, an attempt was made to establish
such a new international law of peace, of which the
League of Nations was considered to be one of the
cornerstones, but this attempt failed unfortunately.
History
The Charter of the United Nations (1945) in fact
reflects the fact that the traditional notion of state
sovereignty remains the key concept in the law of
nations.
Modern customary law
Consent theory.
consenting to an international practice is sufficient to
be bound by it, without signing a treaty.
Treaty law
A customary law can be overturn by a treaty law.
Contracts between countries.
Definition
The rules of law that relating to the functioning of
international institutions or organisations, their
relation with each other, their relation with states and
individuals.
The rules of law relating to individuals and non-state
entities, concern of international community.
Rules governing relations between states.
Columbian – Pruvian Asylum Case( ICJ 1950).
Regional rules are not necessarily subordinate to
international law but may be complementary or
correlated to.
RGSOIPL, IIT Kharagpur
Thank you

History of International Law

Diunggah oleh

Informasi Dokumen

Deskripsi Asli:

Hak Cipta

Format Tersedia

Bagikan dokumen Ini

Bagikan atau Tanam Dokumen

Opsi Berbagi

Apakah menurut Anda dokumen ini bermanfaat?

Apakah konten ini tidak pantas?

Hak Cipta:

Format Tersedia

History of International Law

Diunggah oleh

Hak Cipta:

Format Tersedia

History and nature of

Anda mungkin juga menyukai