History of International Law Research Paper (2022)

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International law has been evolving for centuries to provide a framework for international and transnational activities. Like other areas of the law, its purpose is to allow participants to deal with each other with some level of predictability and thus to reduce misunderstandings and to avoid conflicts and confrontations.

International law, with its primary goal of providing a structure for dealings among international and transnational governments, is a more primitive system of law than the domestic legal systems found in advanced nations. It does not have a legislative body with the capacity to enact laws binding on all nations, an executive branch or a military or police force that can enforce the laws that do exist, or judicial tribunals that have broad jurisdiction or the power to issue binding and enforceable decrees in many circumstances. Although early versions of such bodies can be found in the United Nations and in emerging regional organizations, the process of constructing institutions that enjoy widespread support and can meet the challenges presented by a deeply divided world is just beginning.

Some have argued that international law is not really law because a superior body cannot enforce it. But most commentators contend that because most countries follow international law most of the time, and because those countries that violate its norms do frequently suffer consequences, it should be viewed as a system of law.

International law is less developed than other systems of law because the larger and more powerful nations do not always accept that it is in their interest to subordinate their self-interest to an international or multinational rule. Although smaller nations will see the benefit of an international structure that protects the weak against the powerful, the stronger nations do not always agree that such a structure is beneficial. The foundations of international law have always been reciprocity and enlightened self-interest.

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Sources of International Law

The primary sources of international law are treaties— bilateral and multilateral—and “customary international law,” which emerges from the actual practices of states and is undertaken with an understanding that these practices are required by law (opinio juris sive necessitatis). The “practices” of states are usually found in actions taken by a country, but they can sometimes be discovered in the statements their diplomats or leaders issue or in their votes at international organizations or diplomatic conferences. To become “custom,” a practice must have the widespread (but not necessarily universal) support of countries concerned with the issue and must usually have continued for a period of time long enough to signify understanding and acquiescence. Occasionally a regional custom can emerge, if the countries of a certain part of the world order their affairs in a certain manner.

In recent years, it has become accepted that some principles of customary international law are so important that they are called “peremptory norms” or “jus cogens” (commanding law) and that no country is permitted to depart from these principles. Among these norms are the prohibitions on aggression, genocide, crimes against humanity, slavery, extrajudicial murder, prolonged arbitrary detention, torture, and racial discrimination.

Although most historical summaries of the development of international law focus on its growth in Europe and the West, the reality is more complex. Practices governing interactions among nations and peoples also developed in Asia and elsewhere, and these norms have been merging with those that came to be accepted in the West. The growing recognition that groups, as well as individuals, have human rights protected under international law is an example of a non-Western contribution to international law.

Emergence of Modern International Law

Most scholars explain that “modern” international law emerged in Europe at the time of the Renaissance and Enlightenment through the Peace of Westphalia, which ended the Thirty Years War (1618–1648) and gave formal recognition to the sovereign state system. This treaty-based system was designed, in part, to allow Catholic and Protestant states to coexist in Europe. International law became necessary to confirm the boundaries among these states and to bring some order to their dealings with each other. Countries accepted the doctrine of pacta sunt servanda (treaties are to be observed), now a fundamental principle of international law, and established some machinery for the settlement of disputes. During the years that followed, citizen participation in government grew in England and then in France through the French Revolution. As monarchies crumbled, individuals, corporations, nongovernmental organizations, and international organizations emerged as part of the international legal system.

The Final Act of the Congress of Vienna (1815), signed by Austria, France, Great Britain, Portugal, Prussia, Russia, and Sweden, which formally ended the Napoleonic Wars, was another significant event, because it created a system of political and economic cooperation in Europe and also articulated governing norms of international law. Among the principles that emerged from this Congress was a set of rules governing diplomatic protocol, a condemnation of the slave trade, the principle of free navigation (not only for the riparian states but for all states) on the major rivers of Europe, and the neutrality of Switzerland. Treaties, both bilateral and multilateral, began to cover a wide range of topics, supplementing and sometimes replacing custom as a source of law.

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During the period of colonial expansion that took place in the last half of the nineteenth century, the concepts of international law that had been utilized in Europe and the West were introduced into Asia by the Western powers. Western international law was then even more primitive than it is today. No global institutions existed, and only a few specialpurpose regional organizations had been created. Some topics—such as diplomatic immunity—were fairly well defined, and consensus had also been reached on the important goals of stopping piracy and slavery.

Laws of Armed Conflict

War was still viewed by many as an acceptable instrument of foreign policy, but the dramatic increase in destructive weaponry resulting from the industrial revolution caused many to realize that some constraints were needed on the use of force. Major international meetings were called, the most significant being the 1899 and 1907 Hague Conferences, which were designed to codify the laws of armed conflict and establish limits on certain types of military activities. The growth of daily newspapers in the industrialized countries had the effect of allowing common citizens to participate more fully in policy decisions, and led, in many countries, to a democratization of international politics.

Twenty-five nations attended the 1899 Hague Conference, which was convened by Czar Nicholas II of Russia, and a larger number ratified the documents produced by the meeting, which included conventions governing the conduct of warfare and the peaceful settlement of disputes. Although European nations dominated these negotiations, nineteen Latin American nations signed or ratified one or more of the documents, as did China, Japan, Korea, Persia, Siam, and Turkey.

The 1907 Hague Conference, called again by the Russian Czar Nicholas II upon the urging of Theodore Roosevelt, produced additional conventions designed to limit the scourge of warfare. The European nations again dominated the negotiations, but eighteen Latin American nations signed or ratified one or more of the conventions (Honduras was missing), as did China, Japan, Persia, Siam, and Turkey (with Korea missing because it had become a protectorate of Japan). Liberia also adhered to many of the conventions.

Natural Law vs. Positive Law

The nature of the evolving international legal system was described by many as one of consent—or “positivism”—wherein only those norms agreed upon by states could be enforced against them. But perhaps because of the theocracies that had governed many parts of Europe in previous centuries, the Canon law that had developed during that period, and the religious fervor that still burned brightly for many others, contended that certain inherent principles also governed nations. Tension emerged between this “natural law” formula as the basis of international law and the perspective of “positivism” promoted by others, and this tension still exists today.

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The Dutch diplomat Hugo de Groot, who wrote four hundred years ago under the Latin name Grotius, is often called the father or founder of international law because he tried to reconcile natural and positive law. His analysis of the laws of war, the law of the sea, and the protection owed to diplomats laid the framework for modern thinking on these topics. He believed that a “law of nature” could be deduced by logical reasoning, rather than by resort to divine sources, and thus tried to formulate a law that could be acceptable to all, conceivably even to “infidels.”

Another continuing issue has been whether international law is incorporated into national legal systems, and is thus part of the law applied by national courts (“monism”), or whether it is a separate and distinct legal system governing nations but not accessible by normal citizens in disputes in domestic courts (“dualism”).

Continuing Challenges of a Divided World

After World War I, the League of Nations was established and served to promote dialogue and negotiations, but its efforts to stop the continuing imperialistic activities of some nations were unsuccessful and the world again engaged in massive slaughters in World War II. The 1928 Kellogg- Briand Pact, which outlawed the recourse to war, did not stop warfare, but it at least has required countries to come up with some justification for armed conflict, with “self-defense” being the most common excuse.

The United Nations was established in 1945, and the nations of the world have entered into numerous additional bilateral and multilateral treaties since then on subjects ranging from economic affairs to the law of the sea to human rights to arms control. The U.N. Security Council, with 15 members, including 5 permanent members (China, France, Russia, the United Kingdom, and the United States) that can veto any resolution, has the responsibility to deal with threats to the peace and breaches of the peace. The General Assembly, now with 190 members, serves as a forum for discussion and annually enacts a wide range of resolutions addressing global problems. The International Court of Justice sits in The Hague, the Netherlands, and decides cases brought to it by governments. Numerous more specialized tribunals have also been created.

Regional organizations have been created in almost all areas of the world, with the European Union and other European organizations being particularly effective in addressing regional issues and reducing tensions among nations. Many in the developing and non-Eurocentric parts of the world still view international law as dominated by the West and by the rich and powerful countries, and efforts are continuing to find ways to restructure the United Nations to reflect the world’s diversity more fairly and to allow it to operate more efficiently.

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The international legal system is still a work in progress. As the world becomes increasingly interdependent, international law will become more important and more complex. Countries remain reluctant to give up essential elements of sovereignty and autonomy. But as transnational problems present themselves, transnational solutions will continue to be devised. Through this incremental process, international law will continue to grow.

Bibliography:

  1. Anand, R. P. (1982). Origin and development of the law of the sea—History of international law revisited. The Hague: Martinus Nijhoff.
  2. Buergenthal, T., & Murphy, S. D. (2002). Public international law. St. Paul, MN: West Group.
  3. Henkin, L. (1979). How nations behave. New York: Columbia University Press.
  4. Janis, M. W. (2003). An introduction to international law. New York: Aspen Publishers.
  5. Lawrence, T. J. (1895). The principles of international law. London: MacMillan.
  6. Levi, W. (1991). Contemporary international law: A concise introduction. Boulder, CO: Westview Press.
  7. Moore, J. B. (1924). International law and other current illusions and other essays. New York: MacMillan.
  8. Nussbaum, A. (1954). A concise history of the law of nations. New York: MacMillan.
  9. Paust, J. J., Fitzpatrick, J. M., & Van Dyke, J. M. (2000). International law and litigation in the U.S. St. Paul: West Group.
  10. Woolsey, T. D. (1874). Introduction to the study of international law. New York: Scribner, Armstrong & Co.

See also:

  • History Research Paper Topics
  • History Research Paper Examples

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FAQs

Who is the father of international law? ›

Thanks to his work On the law of war and peace Grotius is considered to be the founding father of modern international law.

What was the first international law? ›

The origins of international law can be traced back to antiquity. Among the earliest examples are peace treaties between the Mesopotamian city-states of Lagash and Umma (approximately 2100 BCE), and an agreement between the Egyptian pharaoh Ramses II and the Hittite king, Hattusilis III, concluded in 1258 BCE.

What are the 4 sources of international law? ›

Sources of International Law
  • Treaties.
  • Customary International Law.
  • Principles of International Law.
  • Writings of Publicists.
  • Judicial Decisions.
  • Non-Legally Binding Instruments.
Jul 31, 2022

What led to the development of international law? ›

The growth of international law came largely through treaties concluded among states accepted as members of the family of nations, which first included the states of Western Europe, then the states of the New World, and, finally, the states of Asia and other parts of the world.

Who sets international law? ›

Since most international law is governed by treaties, it's usually up to the individual nations to enforce the law. However, there are a few international organizations that enforce certain treaties. The most notable example is the United Nations, which has 192 member states.

What is the role of international law? ›

International law consists of rules and principles governing the relations and dealings of nations with each other, as well as the relations between states and individuals, and relations between international organizations.

Where did international law historically begin? ›

The history of international law examines the evolution and development of public international law in both state practice and conceptual understanding. Modern international law developed out of Renaissance Europe and is strongly entwined with the development of western political organisation at that time.

What is the history of law? ›

Legal history or the history of law is the study of how law has evolved and why it has changed. Legal history is closely connected to the development of civilisations and operates in the wider context of social history.

What are the theories of international law? ›

The three major theories that are included in international law are a Realist Theory, Fictional Theory, and Functional Theory.

What are the three types of international law? ›

International law is a collection of laws that are accepted as governing the relations between states. There are three types of international law: public international law, private international law, and supranational law. There are also two branches of international law: jus gentium and jus inter gentes.

What is the most important source of international law? ›

While treaties and custom are the most important sources of international law, the others mentioned in Article 38 of the ICJ Statute of the ICJ should not be ignored. General principles of law recognized by civilised nations – the third source – are seldom mentioned in judgments.

What are the 5 source of international law? ›

Sources of international law include treaties, international customs, general widely recognized principles of law, the decisions of national and lower courts, and scholarly writings. They are the materials and processes out of which the rules and principles regulating the international community are developed.

What are the key pillars of international law? ›

Protection and promotion of human rights; Electoral assistance; Support for the restoration and extension of State authority; Promotion of social and economic recovery and development.

Which source has contributed to the development of international law? ›

International law is not just a result of few treaties of 19th and 20th centuries but its origin can be traced back to ancient times. Peace treaties between the Mesopotamian city of Lagash and Umma are considered as beginning of international law.

What are the characteristics of international law? ›

It must be endorsed and obeyed by the citizens, subject to penalties or legal consequences. It depicts the will of the supreme power of the state. The basic purpose of law is to regulate the society, to safeguard and shield the rights of people and to resolve conflicts.

How international laws are formed? ›

International law is formed by the mutual consent of nations, given either by international practice or by treaty agreement. Such practices and agreements may involve only two nations (bilateral agreements) or they may extend to many nations (multilateral agreements).

Why is the history of law important? ›

Legal history enriches our understanding of the law, enhancing our grasp of current problems and empowering us to imagine new alternatives. Scholars examine how legal ideas, doctrines, and institutions change over time, exploring how they shape and are shaped by social, cultural, political, and economic contexts.

Who is the founder of law? ›

By the 22nd century BC, the ancient Sumerian ruler Ur-Nammu had formulated the first law code, which consisted of casuistic statements ("if … then ..."). Around 1760 BC, King Hammurabi further developed Babylonian law, by codifying and inscribing it in stone.

What is meant by international law? ›

international law, also called public international law or law of nations, the body of legal rules, norms, and standards that apply between sovereign states and other entities that are legally recognized as international actors.

Who invented law? ›

By the 22nd century BC, the ancient Sumerian ruler Ur-Nammu had formulated the first law code, which consisted of casuistic statements ("if … then ..."). Around 1760 BC, King Hammurabi further developed Babylonian law, by codifying and inscribing it in stone.

What is Hugo Grotius famous for? ›

Hugo Grotius was a Dutch humanist and jurist whose philosophy of natural law had a major impact on the development of seventeenth century political thought and on the moral theories of the Enlightenment.

Who is known as father of jurisprudence? ›

-Bentham is known as Father of Jurisprudence.

What is meant by international law? ›

international law, also called public international law or law of nations, the body of legal rules, norms, and standards that apply between sovereign states and other entities that are legally recognized as international actors.

Videos

1. CIL eAcademy: Writing and Researching on International Law Topics
(CIL NUS)
2. Essex Public International Law Lecture: International Law and the Politics of History
(Essex Law School)
3. History & Development of International Law Part -1
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4. Debuting the Internal Legal Report Archive:Historical Legal Reports from the Law Library of Congress
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5. CCTL seminar on ‘History of International Law and China’
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6. TWAIL and the Decolonisation of International Law: Part 1
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