NATHAN RAY F.

RUDINAS
II- Arellano

A summary and reaction to the history of international law

This history In International law is a summary taken from chapter 1 of

the book by Stphen C. Neff, plus the writers short reaction and comment on
the historical developments in International law.

The Ancient World

In the ancient world, there existed a mode of trade between the

Carthogenians and an unnamed tribe in North Africa. In this mode the
Carthogenians would leave their goods on the shores then return to their
ships, while on their ships they would send smoke signals and wait for the
unknown tribe, upon seeing the smoke signal, to inspect their goods and
later leave a pile of gold and retire. If the Carthogenians are not satisfied
with the gold left by the tribe they would send another smoke signal ad this
process is repeated until they come to an agreement. This mode of trade
came to be known as the Silent Trading which shows the early means of
communication and trade between states. However, this process or mode of
communication and trade was insufficient to be labeled as the origin of
International law due to its inflexibility and very narrow subject.

The origin of international law as taken from the article would depend
on how it is defined. Thus, If by international law is meant merely the
ensemble of methods or devices which give an element of predictability to
international relations then the origin may be placed as far back as recorded
history itself. If by international law is meant as a comprehensive
substantive code of conduct applying to nations, then the late classical
period and Middle Ages was the origin. If international law is taken to mean
a set of substantive principles applying uniquely to States as such, then the
seventeenth century would be the starting time. If international law is
defined as the integration of the world at large into something like a single
community under a rule of law, then the nineteenth century would be the
earliest date. Finally, If international law is understood to mean the
enactments and judicial decisions of a world government, then its birth lies in
the future.

From the definitions above it is worth noting that in Eurasia, there was
a network of small independent states namely Mesopotania, Northern India
and Classical Greece which had a combination of political and Cultural Unity
with fair standards of practice, helping their interstate relations to be on a
stable footing. This is particularly true in Diplomatic relation, treaty making,
the conduct of war and arbitration of disputes. These practices spread across
deeper cultural lines.

Through religion, a system of world order became a possibility

particularly in the Islamic empires and the roman empire, the most
significance of his era was the universal principle of justice which first arose
in the writings of Aristotole and eventually became what we call as Natural
law or jus natural then latter paired with the term jus gentium or the laws of
the people.

The Middle Ages

During the Middle Ages, two outlooks in international law emerged; the
Universalist and the pluralist outlooks. The former, with its all encompassing
character and the latter which is based on the concept of independent states
being in conjunction as demonstrated by the Italian city states. The cities
were independent in the sense of being wholly self-governing and
independent of one another, but that, in their relations inter se, they
continued to be subject to rules of the Empire.

Much of the state policies of the middle ages were based on ancient
traditions. Some of the developments in state practice occurred in the 11h
century where the European states concluded bilateral treaties that spread
out various guarantees of fair treatment. In the 13 th century there was tee
laws of Oleron and Consolato de marte which was applied in the sphere of
maritime trading, the 14th century where the law of arms as expanded and
the law on ransoming o prisoners was effected. In short the International law
of this era was a jumble of rules beliefs and practices.

The Classical Age

 In the classical age there was a willingness to give a degree of formal
recognition to State practice as a true source of law, rather than regarding it
as merely illustrative of natural-law principles. The result was a kind of
dualistic outlook, with natural law and State practice maintaining a wary, and
rather uneasy, form of co-existence. Gotius transformed the old Jes Gentium
into what was known t be the Law of Nations which is something distinct
from natural law. Hence for the first time in history there was a clear concept
of a systematic body of law which specifically applied to the relationship
between nations. It should however be appreciated that the law of nations
was not intended to override or under mind natural law but merely to
benefits supplement when the broad principles of natural law is unfeasible.
In short the law of nations and the natural law are partners which operate
together.

The partnership of the law of nations and the natural law was
contested. Natural law was not rejected in its entirety, but it was radically
stripped-down, to the point of being reduced, in essence to two fundamental
tenets: a right of self-preservation, and a duty to perform contracts or
promises. It was this stripped-down version of natural law which, in the
opinion of Hobbes, constituted the sole body of law between independent
nation-states. Hence the only way to establish an international system was
to enter into agreements between states. This concept of Hobes was rejected
by many lawyers at the time, hence the dualistic method continued.

The 19th century was the era of Positivism, the historical school of law
and the survival of natural law; Positivism or positive law are the man-made
law of particular States, in contrast to divine law or natural law. Positivism
envisaged the emergence of a sort of technocratic utopia, in which the world
would be governed not by clerics or politicians or lawyers, but rather by
engineers and industrialists and, financiers. What was distinct about
positivism was the insistence that positive law is the only true law, rejecting
natural law as a valid binding conduct. Rules of law were created by the state
themselves through consent thus international law was therefore now seen
as the sum total, or aggregation, of agreements which the States of the
world happen to have arrived at, at any given time. In a phrase that became
proverbial amongst positivists, international law must now be seen as a law
between States and not as a law above States. States were now called as
international personalities with their own set of rights one in particular is the
right to survival that eventually led to the principle of self defense, sadly
despite the noble intention of self defense it was often abused to be a mere
excuse to engage in war.
 The Historical school, like positivism rejected natural law, arguing that
each culture, or cultural unit, or nation possessed a distinctive group
consciousness or ethos, which marked it off from other cultures or nations.
Each of these cultural units, as a consequence could only really be
understood in its own terms. In international law there are three evident
areas where the historical school made its impact. First, customary law which
was viewed as a kind of informal legislation rather than as an unwritten
treaty. This thesis marked the origin of the modern concept of opinio juris as
a key component of customary international law. Second was the concept of
nation-state which later led to the law of self determination of peoples and
lastly the Historical school influenced the area of imperialism.

Despite the rejections, natural law survived in this era through the new
science of liberal political economy which was imported from the traditional
natural law. Through natural law, harmony of interest among states and
individual persons spread and eventually gave birth to the tem globalization.
However the traditional natural law principle on self-help was still abused and
used as a weapon of the strong rather than the weak.

20th century and beyond

In the 20th century many realized the need of a permanent existing

organization dedicated to the maintenance of peace and to prevent future
wars. Then came the birth off the League of Nations which later sadly failed
to be the protector against aggressors due to civil conflicts between the
super powers. After the war period, the United Nation (UN) was formed to
replace the defunct League of Nations. One of the highlights of the UN was
the so called security council composed of the major power states, the
promotion of global economic prosperity, the International Monetary Fund
was founded to ensure currency stability, and the World Bank to protect and
promote foreign investment and economic development. Trade liberalization
would be overseen by a body to be called the International Trade
Organization (ITO). All of these was short lived again due to the conflict of
interest between the super powers nor did the new World Court, find much
effective use in its early decades. The ITO never came into being. Plans for
the establishment of a permanent international criminal court were also
quietly dropped. Nor did the UN Charters general ban against force have
much apparent effect.
 On a different side, particularly in non-political spheres the
achievements of this era are worth mentioning such as the codification of
international law, for example, made some major strides, in large part from
the activity of a UN body of technical experts called the International Law
Commission. The principal areas of law that received a high degree of
codification included the law of the sea, diplomatic and consular relations,
human rights, and the law of treaties.

Comments and Rreactions

International law as discussed had indeed flourished from the

simplicity of the smoke signals in ancient times to the complexities of war
and other self serving interests of the individual states of today particularly
in the political aspect of international law. It is in this aspect that
International law has been faced with a great challenge as it is already clear
from our history that mere submission to an International body of laws is
insufficient in the absence of strong enforcement of such laws. This is true
most especially to the less powerful states as compared to those super
powers of today who would or could easily defy and disobey international
laws with no other state to contest or challenge such defial either due to the
fear of another era of wars or simply because the other states could not
compete with their military might.

Though it is true that the political sphere is not the only branch or area
of coverage of International laws however this particular sphere greatly
affects all the rest. Whether it is in the sphere of trade, commerce, human
rights and everything else, once a super power decides to do what is
prohibited by International laws, such laws will be degraded to the level of
mere rules if not ordinary words or guidelines. For a law must be
MANDATORY and not discretionary, a recent example of this argument is the
territorial dispute between the Philippines and China, the arbitration court
ruled in favor of the Philippines but still the military might of china prevailed.

Hence for International law to progress and address the growing needs
and developments of society a teeth if not a gun should be added to its
provisions.