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2018-20890

Legal History Final Paper

EVOLUTION OF INTERNATIONAL LAW IN RESPONSE TO


THE CHANGING LANDSCAPE OF WARFARE
Rosanna Faye O. Ongpin

ABSTRACT: International law, which is created as a response to the conflicts and signs of the
times, can be traced back as far as thousands of years. Despite the presence of international law,
violence and brutality has consistently broken out around the world; be it in Latin America,
Europe or the Arabian Peninsula. This called for the need to reform existing standards and
regulation. Because of this, through the years, international law has evolved to conform to the
needs of the international community. This paper discusses the development of the legal
remedies that the international legal community creates to regulate War Crimes and violations of
Human Rights in response to the historical antecedents that occurred around the world, such as
small scale wars that crossed borders, and large scale wars like the World Wars.

I. Introduction
A. Basics of International Law
International Law is composed of the rules and principles that regulate the conduct
between and among States, as well as international organizations, in their relations with one
another and with individuals, minority groups and juridical entities1. As stipulated by the State of
the International Court of Justice, there are 4 sources of international law which are 1)
international conventions, 2) international custom, 3) general principles of law, and 4) judicial
decisions and teachings of highly qualified persons2.

There are certain principles that affect international law, such as the Principle of
Jurisdiction of States. This concept refers to the powers of a State to exercise jurisdiction and

1
James Brown Scott. Law, the State, and the International Community (1939).
2
Howard L. Bevis. Public Law (1939).

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discretion over activities that are done within its own territory3. Related to this is the Nationality
Principle, which is an extended form of a state’s jurisdiction. It merely extends the jurisdiction
beyond the scope of its territory, and even over its nationals when they are outside their territory.
There also exists the Universality Principle, which gives all states the power and jurisdiction
over persons who commit genocide and other war crimes, regardless of the place of the
commission of the crime. All three of these principles coexist to give rise to the theories of
International Law4.

1. Divisions of International Law


There are 2 divisions of International Law; Private International Law and Public
International Law. They differ mainly in the parties that the law governs. Private International
Law addresses relations between private individuals and parties that are engaged in international
or cross-border transactions. On the other hand, Public International Law mainly deals with the
relations between States as well as international organizations. It is also a system that coordinates
the different laws of different countries5. Though in certain situations, the distinction between the
two has become blurred, it is essential to know the difference, especially in defining the liability
of different actors and in commercial transactions. The former is known as the “conflict of laws”,
while the latter is known as the “law of nations”, which will be later discussed6.

To give a clearer picture: in the eyes of warfare, if war was declared between States, and
the respective sources of sovereignty in each nation makes decisions on the conduct of such, then
they shall be held liable under Public International Law, as it is a relation between states. When
the state hires a private contractor to conduct war against other nations, then it is not technically
a war between nations, but becomes a private transaction. This would then be heard on the
grounds of Private International Law7. The level of liability under both divisions of International
Law is distinct and different.

3
Travers Twiss. Law of Nations Considered as Independent Political Communities(1861).
4
James Brown Scott. Law, the State, and the International Community (1939).
5
Boldizsar Nagy, International Law - Private International Law, 23 Annales U. Sci. Budapestinensis Rolando
Eotvos Nominatae 191, 214 (1981)
6
Howard L. Bevis. Public Law (1939).
7
James Brown Scott. Law, the State, and the International Community (1939).

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B. Nature of War
War is defined as a contention between at least 2 different nations wherein armed force is
employed with the intent to overwhelm the other. With the existence of war also comes the
existence of law, which serves to prevent or to control the conduct of war, Jus ad Bellum for the
former and, Jus in Bello for the latter. The very purpose of the law of war is to integrate
humanity into war and to serve as a tactical combat multiplier8.

The concept of Jus Gentium traced its roots from the Greek concept of justice. The Greek
Mythology goddess Dike, daughter of Zeus, was said to the one to pass the gods’ mandates that
need to be followed to prosecute injustice by prescribing penalties. The Greeks recognized the
limitations to be placed on the free will of persons through custom, reason, religion and law. This
philosophy has evolved throughout the years until such time that it came to influence Roman
philosophy as well. Marcus Tullius Cicero then developed on the Greek philosophy to
conceptualize a law that is eternal and controlling, “existing independently of human permission
or enactment.” He referred to this as the Jus Gentium, or a law that governs human relations.
This covers everything from commerce, to human rights, etc. In effect, it became synonymous
with jus civile. It was developed to become a system of law to promote a sense of equity9.

Cicero mentioned in one of his works that there are some things that necessarily need to
be forbidden and punished by law because of the degradation of social norms and mores. This is
the general concept of Jus Gentium under the Greek philosophy. On the other hand, Livy, a
roman philosopher talks and Jus Gentium in light of the relationship between Rome and other
nation states. This gave rise to the philosophy of Aurelius Hermogenian that Jus Gentium has
grown to be a law of nations10.

C. Laws of War
Some of the earliest expressions of international law are the laws on war and diplomatic
relations. Through the years, and as will be shown in the following parts of this paper, the law of

8
James Brown Scott. Law, the State, and the International Community (1939).
9
Heinrich von Treitschke. Politics (1916).
10
Heinrich von Treitschke. Politics (1916).

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war grew out of necessity; as international engagements and relations grew, so did the
international law and law of war11. The Law of War refers to the laws applicable to the conduct
of warfare on land, as well as the laws applicable to the relations between those waging the war,
and even with neutral states. It requires that the nations in a state of war must not employ any
kind of violence which is unnecessary for military service.

There has been a thorough evolution of international law; from merely being an
instrument to regulate the conduct between states to being an instrument to regulate human
affairs, such as human rights, commercial transactions and even the environment12. With this,
there has been a corresponding evolution in the landscape of international regulation on violence
and warfare. International organizations play a large role in the development of the Law of War
and such will be seen in the following sections tracing the exact history of the law on
international warfare.

The Law of War is generally divided into 2 major categories, as pointed out earlier, Jus
ad Bellum and Jus in Bello. The former is the law that deals with conflict management and how
states shall initiate armed conflict. It seeks to define and limit the circumstance when the use of
military power may be legally justified. The latter refers to the law governing the conduct of
states once the conflict has already started; to limit the conduct of waging war on other states13.

II. History of War vis-à-vis Development of International Law


In this section of the paper, the researcher will discuss how International Law has
evolved through the years given the developments as well in the landscape of warfare. This will
give a thorough background as to which events in history are pivotal in the growth of
International Law, as well as which events gave rise to the era of International Organizations.

11
J. J. Burlamaqui. Principles of Natural and Politic Law (1823).
12
Aloysius P. Llamzon, “The Generally Accepted Principles of International Law” as Philippine Law: Towards a
Structurally Consistent Use of Customary International Law in Philippine Courts. 47 Ateneo Law Journal 243
(2002).
13
J. J. Burlamaqui. Principles of Natural and Politic Law (1823).

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A. Classical Age (1600 – 1815)


This era is when a number of civilization’s most long-lived and salient features were
born. In the general understanding of this concept, the Classical Age is understood as the
creation of empires, such as the Roman Empire, the creation of social class distinction, as well as
the creation of flourished forms of art. The Classical Age also served as the breeding ground for
what is known today as International Law.

1. Hugo Grotius’ Law of War and Peace (1625)


- Jus Gentium as a Law of Nations
A number of scholars consider the beginning of International Law to be the Treaty of
Westphalia, literally because it is the first legislation that served such purpose. They failed to
consider the moving force for all international laws, which was the book written by Hugo
Grotius entitled, “Law of War and Peace”, which he wrote in 1625.

Hugo Grotius, known as Hugo de Groot as a young boy, is one of the most eminent 19th
century Supreme Court justices, and considered as the Father of Modern International Law. He
introduced the idea that the codification of the law of nations was important and essential to the
recognition of nations14. Throughout his lifetime, he has continuously expressed the need to
create a uniformed international law, thus, the Law of War and Peace was created.

From the original meaning of the term Jus Gentium to being a law governing human
relations, Grotius transformed the same into one that governs the conduct of states. He begins his
piece by stating that man has a natural desire to live in society, and for this to be so, there are
certain rules of conduct that he is expected to follow15. Following this natural desire of man, he
states that “there is no state so powerful that it may not sometime need the help of others outside
itself, either for purposes of trade, or even to ward off the forces of many foreign nations united
against it16.”

14
Meyer Bernard Barr. Studies in Social and Legal Theories - An Historical Account of the Social, Ethical, Political
and Legal Doctrines of the Foremost Ancient and Medieval Philosophers (1932).
15
Meyer Bernard Barr. Studies in Social and Legal Theories - An Historical Account of the Social, Ethical, Political
and Legal Doctrines of the Foremost Ancient and Medieval Philosophers (1932).
16
George Grafton Wilson, Grotius: Law of War and Peace, 35 Am. J. Int'l L. 205, 226 (1941).

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His book mentions that there is a common law of rights among nations in force with
regard to war. His original intention was to give birth to a law valid between nations, and not a
law of nations17. There is at thorough discussion on the conduct of war and the rights and
obligations each nation in a state of ware. His writing serves as a foundational stone for the
development of the international law of war.

2. End of Thirty Years War (1618 – 1648)


Hugo Grotius wrote his book in the middle of the Thirty Years War, which was
conducted between1618 to 1648. At the end of the said war, the Treat of Westphalia was created.
Also known as the Peace of Westphalia, it served as a marker of the end of the most destructive
war in European history. The war began when the Austrian Habsburgs attempted to impose
Roman Catholicism on the Protestants in Bohemia. This gave rise to conflict between the two, as
well as between the Holy Roman Empire and France and Spain. The actors in this war were the
Swedes, the Danes, the Poles, the Russians, the Dutch and the Swiss. The war was mainly due to
religion and politics, but commercial rivalry also played a part in the conflict18.

The Thirty Years War was mostly fought in Germany, and left the country a wasteland. It
was dominated by rapine, pillage and famine. The starvation reached a point where there was
increasing cannibalism. People in the countryside lived savagely, with their livelihood essentially
taken away. The effects of the war extended beyond physical destruction; it affected even
country morale and individual relations19.

The peace conference was opened in December of 1644, four years before the end of the
war. There were a total of 194 states that were involved. The first few months of the conference
was spent in vain, with conflict regarding even the smallest things such as the correct protocol
for meetings and communications. The further delay resulted from the parties’ desire to continue
waging war. Despite this, the nation states powered through and signed the Treaty of Westphalia
in the afternoon of October 24, 1648. Upon its signing, it served as the common law of Europe.

17
John (Editor); Manson MacDonell, Edward (Editor). Great Jurists of the World (1914).
18
John Hosack. On the Rise and Growth of the Law of Nations, as Established by General Usage and by Treaties,
from the Earliest Time to the Treaty of Utrecht(1882).
19
Edgar Sanderson. World's History and Its Makers (1902).

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Scholars say that the Peace of Westphalia was the correct tool used in ending a religious
war, as it is the only treaty in history to do so. It was drafted with such precision of language, due
to the large number of trained lawyers among its drafters. The treaty stated that all hostilities
were to be forgotten and neither party was to neither molest nor injure the other for any purpose.
It also stipulated complete equality among the signing parties, and any kind of violence was
forever forbidden20.

3. End of War of Spanish Succession (1701 – 1714)


Almost 60 years after the peace that was obtained through the Treaty of Westphalia, war
was raged across Europe once again, brought about by the death of Charles II, who was the last
of the Spanish monarchs. There arose the disputes over the natural succession over the throne of
Spain. The closest relatives of Charles II were members of Austrian Habsburg and French
Bourbon families, thus, the claimants of the Spanish throne were the Dutch Republic, France and
England.

In an effort to regulate the succession, the three nations signed the First Treat of Partition
in 1698, to which they agreed that upon the death of Charles II, Prince Joseph Ferdinand, the son
of the Bavarian elector, shall inherit Spain as well as its colonies. Some other colonies of Spain
were agreed to be given to both Austria and France21. Despite the peaceful plans of succession,
Joseph Ferdinand died in 1699. To rectify this, the parties again signed a second treaty in June
1699, which awarded Spain to Archduke Charles, who was the second son of the Holy Roman
Emperor Leopold I. Other colonies shall be awarded to France. However, Leopold refused to
sign the said treaty and demanded that his son receive Spain and all its colonies, without
division; then began the War of Spanish Succession22.

20
Arthur MacDonald, Suggestions of the Peace Treaty of Westphalia for the Peace Conference in France, 88 Cent.
L.J. 302, 309 (1919)
21
W. M. Flinders, et al. Petrie. Book of History. A History of All Nations from the Earliest Times to the
Present (1915).
22
A. J. Grant. French Monarchy (1483-1789)(1483-1789).

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The War of Spanish Succession ended with the Treaty of Utrecht in 1713, followed by
the Treaties of Rastatt and Baden in 1714. This is not only one treaty, but a series of treaties
between different nations involved in the war, settling their divisions in the Spanish colonies and
territories. Through the treaties, the issue on the Spanish Succession was resolve in favor of the
Bourbon Philip V23. In the settlement, Britain received the largest portion of colonial and
commercial spoils, and became the leader in world trade24.

The treaties that were settled in Utrecht became a role model in terms of international
politics. A transition is clearly seen from making a general common law for all European
nations, to a more nation-centric settlement among states.

4. French Revolution and Napoleonic Wars (1789 – 1799)


In 1789, the French have expressed widespread discontent with the monarchy and the
poor economic policies of King Louis XVI, who was sentenced to death together with Marie
Antoinette. This sparked the beginning of the French Revolution, which became the landmark
for the redesign of the country’s political landscape, thus uprooting the feudal system and
absolute monarchy in France25. The French Revolution played an important role in shaping
world politics and making known the power of the people.

Before the French Revolution begun, King Louis XVI lived very extravagant lives,
together with his wife Marie Antoinette, and had left France on the brink of bankruptcy. As the
monarchs in the Versailles celebrated and lived extravagantly, the people of France lived in
poverty and famine26. There was a sudden wave of violence, followed by Parisian
insurrectionists who massacred counterrevolutionaries27. The National Convention then replaced
the existing Legislative Assembly, and it sent King Louis XVI to the guillotine for crimes against
the state. The death of the monarchs brought about the Reign of Terror due to the division in the

23
William (Editor) MacDonald. Select Charters and Other Documents Illustrative of American History 1606-
1775 (1906).
24
Francis Taylor Piggott. Freedom of the Seas, Historically Treated (1920).
25
W. M. Flinders, et al. Petrie. Book of History. A History of All Nations from the Earliest Times to the
Present (1915).
26
Carlton J. H. Hayes. Political and Social History of Modern Europe (1925).
27
W. M. Flinders, et al. Petrie. Book of History. A History of All Nations from the Earliest Times to the
Present (1915).

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various European powers. It was a 10-month period where thousands of suspected enemies of the
revolution were guillotined.

The French Revolution officially ended as Napoleon Bonaparte came to power. In order
to abolish the National Assembly, he staged a coup d’etat and appointed himself as France’s
“first consul.” Under his leadership, France came to dominate majority of continental Europe28.

The Napoleonic Wars followed the French Revolution; these were a series of conflicts
whereby the French Empire and its allies putted against various European powers, financed and
led by the United Kingdom. This stemmed from some disputes that have been left unresolved
from the French Revolution. In May 1814, Emperor Napoleon Bonaparte was finally defeated29.
Following the end of the Napoleonic Wars, there was an immediate call for reform.

The victorious powers in the Napoleonic Wars (Russia, Austria, Great Britain and
Prussia) called for a peace conference in Vienna, together with other states30. The Congress of
Vienna sought to deal with the territorial issues, which has been a common denominator in the
past wars; they sought a reconfiguration of the German states and central Europe. Other matters
discussed in the conference were the rights of German Jews, the abolition of slave trade, as well
as the restoration of the Bourbon royal families in France, Spain and Naples31.

There was a need to reform what was previously done by the Treaty of Utrecht because
Napoleon had managed to break the equilibrium that they spent years to create; he created a
continental empire with a powerful army and shattered borders and political institutions32.
Because of Napoleon Bonaparte, the priorities of the Vienna Conference were to ensure that the
continent will be saved and preserved from hegemonic adventures and internecine wars. Much
like the Treaty of Utrecht, the Vienna Congress also focused on matters beyond the scope of the

28
Carlton J. H. Hayes. Political and Social History of Modern Europe (1925).
29
John Spencer Bassett. Lost Fruits of Waterloo: Views on a League of Nations(2).
30
F. H. Cheetham. Louis Napoleon and the Genesis of the Second Empire (1909).
31
Ruth Putnam. Luxemburg and Her Neighbours: A Record of the Political Fortunes of the Present Grand Duchy
from the Eve of the French Revolution to the Great War, with a Preliminary Sketch of Events from 963 to
1780 (1918).
32
Georg Herbert Munster-Ledenburg. Political Sketches of the State of Europe from 1814-1867, Containing Count
Ernst Munster's Despatches to the Prince Regent, From the Congress of Vienna(1868).

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conduct of war and peace. It had touched upon issues on commerce and trade. The value added
by the Congress of Vienna is that it also establishes the standards for diplomatic relations
between European powers33.

5. First Geneva Convention (1864)


In 1864, a series of international treaties began for the purpose of delineating the conduct
and effects of war on both soldiers and civilians. This convention served as an important marker
in the Law of War because it provided 4 specific things:
1) Immunity from capture and destruction of all establishments for the treatment of
wounded and sick soldiers,
2) The impartial reception and treatment of all combatants,
3) The protection of civilians providing aid to the wounded and
4) The recognition of the Red Cross as a means of identifying persons and equipment
covered by the agreement34.

The First Geneva Convention was ratified by all the major European powers. While the
first convention focused on the neutrality of the sick and wounded, a second convention which
was ratified in 1906 discusses the maritime warfare and a third convention in 1929 talks of the
treatment of prisoners of war35.

It is very evident that the Geneva Convention is a large step towards a different direction,
compared to past Laws on War. Previously, nation states sought to make discussions and treaties
to end wars and to apply measures to ensure that it does not repeat itself. The Geneva
Convention does exactly the opposite. It ensures safer warfare by merely putting limits to the
conduct during war.

6. Hague Conventions (1899)


33
Ruth Putnam. Luxemburg and Her Neighbours: A Record of the Political Fortunes of the Present Grand Duchy
from the Eve of the French Revolution to the Great War, with a Preliminary Sketch of Events from 963 to
1780 (1918).
34
Sergey Sayapin, The Invocation of International Human Rights Law by the International Committee of the Red
Cross, 3 APYIHL 56, 102 (2007)
35
Louise Sarsfield Collins, Sheltering the Displaced: The Protected Status of Internally Displaced Persons (IDPs)
under International Humanitarian Law, 4 APYIHL 183, 209 (2008-2011)

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Much like the Geneva Conventions, the Hague Convention was one of the first official
statements of the Laws of War, as well as a codification of War Crimes in the body of
international law. The Hague Conventions were the first multilateral treaties that addressed the
conduct of warfare. The convention mostly discussed disarmament, laws of war and war crimes.

One of the more important features of the Hague Convention in 1899 is the creation of
the Permanent Court of Arbitration. It is an intergovernmental organization which provides
services of an arbitral tribunal, to resolve matters arising from international agreements between
parties. This tribunal covers matters ranging from territoriality issues, maritime boundaries,
sovereignty, human rights and even trade. It is readily available to serve as an international
arbitrator36.

Throughout the years, this was the first time that the international community opened up
to the concept of having an arbitral tribunal to resolve international disputes. This pulls the
direction of the Geneva Convention in the opposite direction, and looks toward conflict
resolution again.

B. World Wars
To date, there has been a total of 2 Great World Wars, the first and the second. Both wars
saw unprecedented levels of destruction, especially with the advent of technology and warfare.

1. World War I (1914 – 1918)


The First World War began in June 1914, with the assassination of Archduke Franz
Ferdinand, the heir to the Austro-Hungarian Empire, to end the Austro-Hungarian reign over
Bosnia. Naturally, Austria-Hungary blamed the Serbian government for the killing of Franz
Ferdinand, and eventually the war began, collapsing the equilibrium that was already established
within the European powers37.

36
Chin Kim. Selected Writings on Comparative and Private International Law(1995).
37
Richard Carlton; Wilson, H. Hubert Snyder. Roots of Political Behavior: Introduction to Government and
Politics (1949).

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There evolved 2 factions; the first called the Central Powers composed of Germany,
Austria-Hungary, Bulgaria and the Ottoman Empire and the second called the Allied Powers,
composed of Great Britain, France, Russia, Italy, Romania, Japan and the United States of
America. Initially, USA adopted a policy of neutrality, but eventually took part in the war
because Germany had been showing unlawful aggression towards neutral ships and vessels38.

World War I is composed of many smaller wars that have been fought on different fronts
across the world, by the different involved countries. By the fall of 1918, the Central Powers’
efforts were beginning to fail. The first to concede to the Allies were the Turks, who signed a
treaty with them in October 1918. Eventually Austria-Hungary and Germany were forced to seek
an armistice due to their lack of resources39.

To this end, the parties to the WWI arranged the Paris Peace Conference in 1919, led by
the Allied leaders who expressed their desire to rebuild the world and to safeguard it against
future conflicts that will cause such level of destruction. Officially, the war ended in June 1919,
when the Treaty of Versailles was signed40.

The Treaty of Versailles was mostly created with negotiations among the Allied powers
for the reassignment of German boundaries, despite the minimum participation by Germany. The
major flaw in this treaty is that there was a division between the French and the British &
Americans, the former wishing to dismember Germany completely to disenable them to institute
another war, and the latter with no desire to create pretexts for a new war. The Treaty included
provisions on the new boundaries of Germany and the stripping of Germany of its colonies, as
well as the reduction of their armed forces. Through the Treaty, the Allied Powers also placed
liability on Germany and imposed numerous financial obligations for the losses and damages of
the former41.

38
Emery Reves. Democratic Manifesto(1942).
39
Robert M. MacIver. Web of Government(1947).
40
Chin Kim. Selected Writings on Comparative and Private International Law(1995).
41
Mark, Editor Tushnet. Constitution in Wartime: Beyond Alarmism and Complacency (2005).

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One important feature of the Treaty is the creation of the League of Nations, which did
not include Germany. It served as a forum to resolve international dispute, created by President
Woodrow Wilson of the United States42. This was to address the need for a standing international
organization dedicated solely to fostering international cooperation and ensuring long-lasting
peace. Despite it being proposed by the President of the US, he had left office before he was able
to convince the rest of the country to take part in the League of Nations43.

2. World War II (1939 – 1945)


In 1935, Adolf Hitler completely denounced the Treaty of Versailles due to its plentiful
unfair provisions towards Germany. The Treaty of Versailles eventually became one of the
causes of World War II44. The Treaty of Versailles left the whole of Europe destabilized, and
created more unresolved issues than it did resolving them.

The Nazi Occupation, led by Adolf Hitler, rose to power in an economically unstable
Germany. In 1934, he declared himself as the Supreme Leader of Germany. He carried the
ideology of superiority of the Aryan race. He believed that a war was needed to ensure the
cleansing of the world of non-Aryan races. In his thirst for such cleansing, Nazi Germany then
signed a treated with Italy and Japan to further his ambition of world domination. Britain and
France took up arms against Germany, Italy and Japan in September 1939, which then started the
Second World War45.

In August 1941, the Atlantic Charter was signed by the US President Franklin D.
Roosevelt and British Prime Minister Winston Churchill. This served as a joint declaration on
the broad statement of their war aims. This defined the goals of the Allied Forced for the post-
war world46. This was a pivotal step away from the controversial Treaty of Versailles, where
they announced that the ideal goal of war is the absence of territorial aggrandizement and global
cooperation for better economic and social conditions, which was unfortunately lacking in the
42
Emery Reves. Democratic Manifesto(1942).
43
Richard Carlton; Wilson, H. Hubert Snyder. Roots of Political Behavior: Introduction to Government and
Politics (1949).
44
Everett Lee Millard. Freedom in a Federal World: How We Can Learn to Live in Peace and Liberty by Means of
World Law (1959).
45
Eugene K., Editor Keefe. East Germany, a Country Study (2).
46
Karl Loewenstein. Political Reconstruction(1946).

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previous Treaty. In the Atlantic Charter, the two leaders expressed the need for an international
organization to help resolve issues and global affairs.

After the rounds and rounds of world destruction, depleting of resources, and killing of
civilians, Germany finally surrendered in May of 1945, following the suicide of Hitler in April 47.
In October 24, 1945, the United Nations (UN) was established. It served as a “new and improved
League of Nations”, created to maintain peace and security across the world. Much like the
League, the UN served as an avenue for nations to discuss disputes, to be decided by a neutral
third party. Its main goal is the “maintenance of international peace and security, and the
promotion of economic and social development48.”The UN was created as a response to the call
of the American and British leaders for a global organization.

C. Modern Age
In the Modern Age, and following the wake of the world wars, the United Nations had played an
important role in the succeeding years. It is through UN efforts that most, if not all, armed
conflict had been resolved.

1. Cold War (1947-1991)


One of the more notable legacies of the World War II is the spread of communism from
the Soviet Union to parts of Europe and China, creating a global shift in power from centralized
Europe to the United States and Soviet Union. This set off the Cold War, which ran from 1947 to
1991. Though both countries fought on the same side in WWII, their relationship was still tense
due to America’s concern about the Soviet communism and Stalin’s rule over his own country.
On the other hand, the Soviets had resented the Americans’ refusal to include their country as a
part of the international community. Eventually these grievances evolved into a sense to mutual
distrust49.

47
Eugene K., Editor Keefe. East Germany, a Country Study (2).
48
Alf Ross. Constitution of the United Nations; Analysis of Structure and Function(1950).
49
Walter Lippmann, The Cold War, 65 Foreign Aff. 869, 884 (1986-1987)

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The Cold War was a “weapon stand-off”, whereby neither of the involved parties ever
actually used the weapons at one another. There was no military engagement whatsoever
involved. Instead, the fighting took place in proxy wars conducted in third world countries50.

The Universal Declaration of Human Rights was signed in 1948, which defined the rights
of persons around the world, such as the right to life, right to be free from discrimination, slavery
and torture, right to trial and privacy, etc. Through the efforts of the United Nations, international
legislation began becoming more specific, with the Convention on the Prevention and
Punishment of the Crime of Genocide (1948) and the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (1984)51.

2. War on Terrorism
Often, and as seen from the above history, it is States going into war with one another
over territory and sovereignty issues. In today’s society, wars such as those have become less
rampant. The War on Terrorism has become more prevalent especially with the rise of the
terrorist groups such as ISIS, and terrorist leaders such as Bin Laden52.

Because of this, The Rome Statute was created. It is an international treaty which has
been ratified by over 122 countries. The Statute essentially established the 4 core international
crimes: genocide, crimes against humanity, war crimes and crimes of aggression. It states that
such crimes shall “not be subject to any statute of limitations53.” The Rome Statute also created
the International Criminal Court, which has the jurisdiction to prosecute any crime involving any
of the 4 international crimes. They are limited to trying the crimes which have been committed in
the territory of their member states54.

50
Walter Lippmann, The Cold War, 65 Foreign Aff. 869, 884 (1986-1987)
51
Richard B. Lillich. International Human Rights Instruments: A Compilation of Treaties, Agreements, and
Declarations of Especial Interest to the United States (2).
52
Eric Yat-Chung Tsoi, War on Terrorism Legislations, 4 H.K. J. Legal Stud. 187, 210 (2010)
53
Aaron Kuperman, War on Terrorism, 2001-2009, 35 Technical Services L. Libr. 23, 23 (2010)
54
David Ennis, Preemption, Assissination, and the War on Terrorism, 27 Campbell L. Rev. 253, 278 (2005)

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Legal History Final Paper

III. Conclusion
In conclusion, it can be said that it is not actually history that shapes international legislation; it is
international law that has decided the course of world history. International Legislation not only
affects how history will play out, but also how the actors and nation states react to one another.

There has been a thorough evolution from the first few international laws on wars, which were
very much centered on the keeping of peace and the like. Throughout the years, international
organizations have come to realize that there is no stopping to coming of wars; it is in the nature
of man to seek out warfare. It is the duty of legislation to merely regulate the conduct of the
battles, and not to limit the occurrence of such.

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