The ghost of international law (published in Obiter Dicta, Law Journal)
Shortly after the Second World War, international law has been developing in many directions. International legal rules have been subject to extensive and even radical criticisms throughout its evolving childhood. However, it was not until this generation that the debate of whether international exists gained momentum. There is a continuing tension between those rules already established and the constantly evolving forces that seek changes within the international system. One of the major problems of international law is to determine 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. This is indeed what any legal system endeavours. However, international law (and bearing in mind its international character) poses many unanswered questions. Is international law just a set of documented treaties and agreements? Does it have any binding force? How should it be enforced? Or ultimately, who should enforce it? Virtually everybody who starts reading about international law today does so having learned or absorbed something about the principal characteristics of ordinary or domestic law. Such identifying marks would include the existence of a recognised body to legislate or create laws, a hierarchy of courts with compulsory jurisdiction to settle disputes over such laws and an accepted system of enforcing those laws. Without mentioning a legislature, judiciary and executive, it would seem that one does possess the right vocabulary to start talking about a legal order. Indeed, international law does not fit this model. International law has no legislature. For instance, the General Assembly of the United Nations comprising delegates from 191 member states exists, but its resolutions are not legally binding save for certain of the organs of the United Nations for certain purposes. Moreover, there is no adjudication system. The International Court of Justice does exist at The Hague but it can only decide cases when both sides agree and it cannot ensure that its decisions are complied with! Above all, there is no executive or governing entity. The Security Council of the United Nations, which was intended to have such a role in a sense, has at times been effectively constrained by the veto power of the five permanent members. Thus if there is no identifiable institution either to establish rules, or to clarify them or see that those who do no comply with them are punished accordingly, how can what is called international be in any way or form, law? However begging for elaboration and further discussion, this question we will leave to omit, inasmuch as it is foreign to the present inquiry. The principal purpose of this article is to inquire into the historical development of ‘international law’, because it is by understanding its history that perhaps the reader may contemplate about its present and eventually wonder into its uncertain and promising future.
It is generally accepted that the foundations of international law as it is perceived today lie firmly in the development of Western culture and political thought. While the modern international system can be traced back some 500 years in the writings of Francisco Vitoria, Alberico Gentili and Hugo Grotius, certain of the basic concepts of international law can be discerned in political relationship thousands of years ago, around 2100 BC. At that specific point in time a solemn treaty was signed between the rulers of Lagash and Umma, the city-states situated in the area commonly known as Mesopotamia. It was inscribed on a stone block and concerned the establishment of a defined boundary to be respected by both sides under pain of alienating a number of Sumeria gods. Next on the agenda was an international treaty concluded between Ramses II of Egypt and the Kink of the Hitties for the establishment of eternal peace and brotherhood. Since then, many agreements between the rival Middle Eastern powers were concluded, usually aimed at embodying in a ritual form a state of subservience between the parties or attempting to create a political alliance to contain the influence of an over-powerful empire.
Following the chronological bar, the next main achievements worth noting were materialised by the Greek and the Romans. The era of classical Greece, from about 6th century BC and onwards for a couple of hundred years has been of overwhelming significance for European thought, with the writings of Socrates, Aristotle and Plato. However, Greek awareness was limited to their own competitive city-states and colonies. Those of different origin were barbarians not deemed worthy of association. The value of Greece in a study of international law lies partly in the philosophical, scientific and political analyses bequeathed to mankind and partly in the fascinating state of inter-relationship built up within the Hellenistic world. Numerous treaties linked the city-states together in a network of commercial and political associations. Rights were often granted to the citizens of the states in each other’s territories and rules regarding the sanctity and protection of diplomatic envoys developed. Certain practices were essential before the declaration of war, and the horrors of war were somewhat ameliorated by the exercise, for example, of religious customs regarding sanctuaries. The Greeks, however, had no sense of world community in spite of the growth Greek colonies throughout the Mediterranean area. However, this Greek handicap was not associated to the able administrators of the Roman Empire.
The Romans had a profound respect for organisation and the law. The law knitted together their empire and constituted a vital source of 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 reflected the status of a tiny, unsophisticated society rooted in a unfertile soil. It was unable to provide a relevant background for an expanding, developing nation. This need was served by the creation and progressive augmentation of the jus gentium. The jus gentium was the common universal law based on the doctrine of the universal law of nature (otherwise referred to as the Natural Law) and thus overrode the narrow jus civile until the latter system ceased to exist. It provided simplified rules to govern the relations between foreigners, and between foreigners and citizens. One of the most influential of Greek concepts taken by the Romans was the idea of Natural Law. This was formulated by the Stoic philosophers of the 3rd 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 and discoverable by reason, it followed that such rules could not be restricted to any nation or any group but were of international relevance and application. 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 indispensable precursor to contemporary concern with human rights. The classical rules of Roman law were collated in the Corpus Juris Civilis, a compilation of legal material by a series of Byzantine philosophers completed in AD 534. Such a collection was to be invaluable when the darkness of the Middle Ages, following the collapse of the Roman Empire, began gradually to evaporate.
At this period in time, Islam also played an important role in the international legal system. Its approach 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. 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 agreements grew out of the concept of respecting promises made.
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 affiliations. For much of the period, there were struggle between the religious authorities and the rulers of the Holy Roman Empire. These conflicts were eventually resolved in favour of the Papacy, but the victory over secularism proved of relatively short duration. Of particular importance during this era were the authority of the Holy Roman Empire and the supranational character of canon law. Nevertheless, commercial and maritime law developed apace. English law established 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 Continent. Founded upon the Rhodian Sea Law, a series of commonly applied customs relating to the sea permeated the naval powers of the Atlantic and Mediterranean coasts. Such commercial and maritime codes, while at this stage merely expressions of national legal systems, were amongst the forerunners of international 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.
During the Renaissance period, we could observe that the rise of nation-sates of Enlgand, Spain and France in particular 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 of interaction between sovereign entities and thus the need to regulate such activities in a generally accepted manner. 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 Reformation and the European religious 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. Natural Law continued to have a profound effect on the creation of international legal rules but the subject was somehow distinct and underived from any other, and it was with such an intellectual background that Renaissance scholars approached the question of the basis and justification of a system of international law. The British historical lawyer Maine characterised the birth of modern international law as the ‘grandest function of the law of nature’.
Following a number of Spanish and Italian scholars in the 16th century, such as Vitoria and Gentili, it was Hugo Grotius, a Dutch scholar born in 1583, who towered over this period and has been celebrated as the father of international law. His primary work De Jure Belli ac Pacis, excised theology from international law and emphasises the irrelevance in such a study of any conception of a divine law. Grotius conceived of a 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 the treaties 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. Grotius 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 belong to all’.
Moving along the chronological bar, it appears that the eighteenth century was a ferment of intellectual ideas and rationalist philosophies that contributed to the evolution of the doctrine of international law. The nineteenth century by contrast was a practical, expansionist 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. The Industrial Revolution mechanised Europe, created the economic 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 institutions, and international law grew rapidly to accommodate them. The development of trade and communications necessitated greater international 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. European conferences proliferated and contributed greatly to the development of rules governing the waging of war. The International Committee of the Red Cross, founded in 1863, helped promote the series of Geneva Conventions beginning in 1864 dealing with the ‘humanisation’ of conflict, and the Hague Conference of 1899 and 1907 established the Permanent Court of Arbitration and dealt with the treatment of prisoners and the control of warfare. The nineteenth century also saw the publication of numerous works on international law, which emphasised state practice and the importance of the behaviour of countries to the development of rules of international law.
In the twentieth century, the First World War marked the close of a dynamic and optimistic century. European empires ruled the world and European ideologies reigned supreme, but the Great War undermined the foundations of European civilisation. The most important legacy of the 1919 Peace Treaty from the point of view of international relations was the creation of the League of Nations. The League consisted of an Assembly and an executive Council, but was crippled from the start by the absence of the United States and the Soviet Union for most of its life and remained a basically European organisation. Nevertheless much useful groundwork was achieved by the League in its short existence and this helped to consolidate the United Nations later on in 1946. The Permanent Court of International Justice was set up in 1921 at The Hague and was succeeded in 1946 by the International Court of Justice. The International Labour Organisation was established soon after the end of the First World War and still exists today, and many other international institutions were inaugurated or increased their work during this ‘institutionalist’ period.
In 1946 the League was succeeded by the United Nations Organisation, which tried to remedy many of the defects of its predecessor. It established its site in New York, reflecting the realities of the shift of power away from Europe, and determined to become a truly universal institution. The advent of decolonisation fulfilled this expectation and the General Assembly of the UN currently holds 191 member states.
Many trends which first came to prominence in the nineteenth century have continued to this day. The vast increase in the number of international agreements and customs, the strengthening of the system of arbitration and the development of international organisations have established the essence of international law as it exists today.
What is next for the international law? This question we will leave open to interpretation. However, it is difficult to plan an answer. This is because international law has developed an ambiguous, and to a certain extent, ‘ghostly’, character. On the one hand it is perceived and acknowledged as ‘law’, reflecting a body of rules governing certain types of behaviour or activities. On the other hand, closer analysis demonstrates how ‘international law’ does not encompass a legal definition, let alone a legal character. As we have explored at the very beginning of this article, international law has no legislature and no adjudication system. The modern international system necessitates powerful changes if greater respect for international law is to materialise. As George Bernard Shaw put it ‘we learn from history that we learn nothing from history’. History is, in fact, the only laboratory we have in which to test the consequences of thought. By analysing the historical development of international law, we learn that international law is, to a certain extent, merely an embodiment of the strong’s policies to rule the world and enforce their ‘rights’ by disregarding their duties. We learn that modern international law will not survive the rebellious future if changes do not materialise. The world as we see it today lacks the strength of a truly representative and respectable governing body which would enforce decisions in order to secure and promote peace, justice and global prosperity. Until this concretises, the world will remain a dynamic arena where the rich rule the poor while the weak serve the strong.