HISTORY OF INTERNATIONAL LAW
As to what concerns the state reference as a framing to the international law, it can be quilted to the Western culture.
However, the Renaissance itself have roots back to older non Western societies.
International system can be traced back to around 400 years.
PREVIOUS EXPERIENCES OF LAW WITHOUT THE STATE SYSTEM ITSELF:
2100 B.C. - Solemn Treaty signed between the Lagash and Unma in the Mesopotamia
Around 1000 years latter Rameses II of Egipt stablished eternal peace with the King of the Hititites.
Ancient Israel formulated a universal ethical instance relating to warfare rules of procedure.
Many of the Hindu rules displayed a growing sense of morality and generosity.
Chinese developed mechanisms of harmony among its constituint parts.
Greece was the first to resemble the Western comunity of soverign states, but still it was not states but only a restricted group of City-States (from the 6th century B.C onwards).
Some germ of Treaties coming regarding the Helenistic world.
Rome gave a bigger role to law but in the beggining it was restricted to the Jus civile (laws restricted to their citzens) further including the Jus gentium (rules of how to deal with foreigners).
The greek concept of Natural Law, developed by the Stoic philosophers in the 3rd century, was largely inherited by the Romans.
Corpus Juris Civilis – a compilation of legal material by a series of Byzantine philosophers (AD 534).
Muslim rule followed the Muslim expansion and it was particularly meaning to what refer to their treatment regarding non-muslims, of which a particular care was payed to the other people of the book (jews and christians).
The diplomatic imunity owns much to the aman concept
Canonic Law ruled during middle ages, but there was also a gradual development of Law Merchant (through a non centralized collection of diffeent regulatory structures)
Byzantine first emerged as a pole, than the Atlantic and Mediterranean coasts, and English maritime expansion and control at last.
The struggles for secularization of the Papacy and the principalities struggles lead to some major concepts to rule modern times: Diplomacy; statesmanship; the theory of the balance of power; and the idea of community of states.
Renaissance launched humanism; secularism and political framework.
Renaissance promoted the reborn of Hellenism and Natural Law.
THE STATE SYSTEM AND BEYOND
Sovereignty first emerged in 1576 in the six livres de la République by Jean Bodin, and was subjected to the Laws of God and Nature.
The merging of the idea of Natural Law to the Law of God was inspired in Thomas Aquinas philosophy.
Founding Fathers of international law:
Francisco Vitória (1480 - 1546) – advocated the nationhood of American tribes and defended the idea of Just Cause impeding attacks, but didn't consider equality, therefore, a just cause would include the refuse to be dominated.
Suárez (1548 - 1617) – Natural Law of carrying out agreements entered into.
Alberrico Gentili (1552 - 1608) – De Jure Belli debates Law of War and Law of Treaties and is considered the father of secular law.
Hugo Grotius (1583) – most popular father of international law, wrote De Jure Belli ac Paris about private law notions and organization of material and pointed out the irrelevance of Divine Law. Since reason had the exclusivity of the approach to law.
Presented a comprehensive system of international law
Still preserved the idea of just and unjust war, a notion which would soon disapear
opposed the Iberic concept of 'closed seas', in accordance with the Dutch ideas of free trade and the needs to expand commercial empire.
Positivism and Naturalism;
Pufendorf (1632 – 94) – Founding father of naturalism, identified international law completely with the law of nature.
Zouche (1590 – 1660) Founding father of positivism, completelly dismissed Natural Law and payed attention only to specific situations
Bynkershoek (1673 – 1743) '' ''
Vattel (1714 – 67) brought a mix. His Droit des gens was based on Natural Law but practically oriented.
Equality of states in international law
Distinguishing between laws of concience and laws of action (more important)... increasing the importance of positivism.
Positivism derived from empirical approach of Hume and Locke, scientific method of verification.
It emerged most clearly after the Westphalian Peace (1648) and included the solidified emerging concept of sovereignty as earlier presented by Bodin and Hobbes.
The XIX Century was massively positivist while the XX Century saw a re-emerging of Natural Law which give way to Natural Rights (moving from the national to the individual sphere in a re-reading of Hobbes and the proper evaluation of the individual in the state process)
The rights of man constitute the heart of the U.S.A and French Revolutions and the essence of modern democratic state.
An always present aspect of Natural Law could be seen in the sancticity of private possessions and the sovereignty rights.
THE 19th CENTURY
Congress of Vienna (1815) after the Napoleonic defeat and the launching of an European Balance of Power.
Set up freedom of navigation of international waterways and created the Central Commission of Rhine to regulate it
1856 Commission for Danube
1865 International Telegraph Union
1874 Universal Postal Union
Eurocentric International Law
Latin American Independences brought the issues of diplomatic asylum and the treatment of foreign enterprises and nationals.
1863 International Commission of Red Cross
1864 Geneva Cnventions to humanize conflicts
1899 and 1907 Hague Conferences established the Permanent Court of Arbitration and dealt with the treatment of prisioners and warfare practces
Great predominance of pacta sunt servanda (madatoriness of following agreements) as a base for positivist preeminence
More radical adhesion among monists (see no limit paradigmatic distance between domestic and international law) and a dualist (those who see a clarcut between domestic and international law) recognition as long as the element of consent was present
THE 20th CENTURY
The most important outcome of the 1919 Peace Agreement (refering to the 1st World War) was the establishment of the League of Nations.
The League consisted of an Assembly and an Executive Counsel but was crippled since the beginning by the absence of U.S. and URSS (which would only join very late)
Failed when confronted with determined agressors like: Japan invasion of China (1931); Italy attacked Ethiopia; German early aggressions; and URSS was expeled after invading Finland (1939).
Succeeded by the UN in 1946
Permanent Court of International Justice (1921) succeeded in 1946 by the International Court of Justice.
International Labor Association soon after the WW – I.
System of mandates emerged between the wars, refering to colonies of the defeated states to be put under care of the winers and not to become their colonies.
Emerging of Human Rights and several approaches to International Law than the traditional Positivist-Natural Law opposition.
There was a gradual sophistication of the positivist doctrine to include individual rights, quilted in examples such as:
Nuremberg and Tokyo Tribunals
Rwanda War Crimes tribunals
International Criminal Court 1998
1948 Genocide Convention
1948 Universal Declaration of Human Rights
1950 European onvention for the Protection of Human Rights and Fundamental Critiques
1966 International Covenants on Human Rights
The sophistication also included other 'emerging' and new subjects of international law, such as International Organizations, enterprises, NGO's, regional organizations and individuals. All this however, with big controversy.
1949 ICJ Advisory Opinion in the Count Berandotte murder in Israel pointed out that UN was a subject of international law.
Historical uniqueness of the UNSC binding power and the General Assembly democratic coverage
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