INTERNATIONAL PUBLIC LAW

Raquel Blanco Águila; Group 18; LESSON 2

Historical Evolution of International Law

What does the history of international law tell us?

1- International law as a modern concept​​.

It appeared in ​modernity what is right after the Middle Ages, there were ​three
main milestones including the ​fall of Constantinople (XV century), ​the discovery of
America​ (broadening horizons) and the ​religious wars​.
There was a change in the assumption that the European States would be safe at
europe, the discovery of America showed them people with other characteristics other
than European.
The Religious Wars that changed politics in europe and allowed to move to
science and to culture and not only religious thoughts. Instead of thinking of the world
as a theocentric paradigm they changed to the ​anthropocentrism​​.
Although, the International Law History textbooks sometimes start from the
Greeks and Romans forward, International Law is a modern concept that actually dates
from the Modern times. Not only after the XIX century did the concepts of state and
sovereignty​​ as we currently know them start, not very far away from our time.

A- The concept of “ius gentium”

First International Law was ​Ius Gentium which was the law of people, common
rules between all people in the world. It was related to a catholic view of the world​. In
ancient times, the catholic religion had many importance in people’s life: what does God
want us to do? There were large changes are that stage and scholars discussed what
God wanted us to do between states in pursuance of a common right between all people
in the world.
Spanish scholars expanded their own doctrines worldwide. They
contributed with a new subject in International Law, as Spain was the pioneer in the
colonization of territories by means of the “New Land” or the “Indias”.
Those ​indigenous people who ​did not know the so-called religious law
supposed a new challenge and a great number of questions: Do indigenous people need
to know about Catholicism? Is it necessary for them to learn it and practice it? Could
that be done by the use of force? Could this be used to conquer territories?
If we assume that these people are ​morally inferior​​, what about the “ius
gentium”? Indians were not morally equal so what happened to the ius gentium: the
rules applied to all people? These reflections were headed by scholars of that time such
as: Bartolomé de las Casas(Indians), Sepúlveda(Territorial Conquest), Francisco de
Vitoria(Ocean Navigation)… In short, all these questions make a huge ​revolution and
innovation in the International Law context​. Do they have the recta ratio? Do they have
the sense of our common humanity? ​All this theory allowed for the conquest of
America. ​They denied the capacity of the indian to understand and they saw
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Raquel Blanco Águila; Group 18; LESSON 2

themselves as morally superior. They saw that they had many resources and created a
theory to act accordingly just to conquest them.
There were many discussions about the fair way of making war​​. In the middle
ages, when there was battle the victorious the ​only explanation was god’s will​, not being
faster or stronger.
Gentili​​, started to open an small bridge of the theoretical view of making war.
Another theory so as to explain why war breaks out is claimed by ​Grotius and that
focuses on the rules that make states interact: ​De Iuri Belli ac Pacis. The natural law
would still be law even though God did not exist. So god's will was no longer the reason,
the underpinning of international law was not God’s will any longer.

B - State’s sovereignty
State sovereignty is a modern concept, to define it we have to read ​Bodin who
explains in his book that understanding how the states work, the “res publica” (common
good) works, is very relevant. He claimed that there was a notion that all states will
have. All states were sovereign not regarding if it was a kingdom or a dictatorship. It
was an ​absolute and ever standing power of the Republic. It was ​absolute because
this power was not known superior. And ever standing because it would survive over
the holder of the power.
The exercising of an absolute power was legitimate, according to the author, due
to theology and the so-considered divine right of kings. ​The power belonged to the
state and not the people in charge of the state. ​The creation of the government had a
objective. In the estamental society there were the powerful ones and third state or
common people.
The state was created to hold more economic power. But the legitimacy was in
a first place given by God​​. The King has the sword and is in charge of promoting
civil/secular justice and guaranteeing peace (lack of violence), everything that is
mandated by the politics and the religion. The ​divine power of kings had a strategy,
that was ​making at the same level the religious and noble power ​so that the clergy was
not more powerful than the King.
The Legitimacy of the king and the Pope were the same. Could the pope
excommunicate a king? No, because just as the pope the ​king had divine rights ​to be the
king. The Pope was in charge of stabilizing what it was a sin and what it wasnt and then
the king would take them to justice.
Bodin claimed, the ​power was justifying sovereignty and the creation of the
powerful working administration in order to separate the religious and the noble. So the
monopoly of the legitimate use of force ​within the states was created and
administered by the state which was the king . Back in the times before the religious, the
power was not legitimate on who holded the power but on the actions. ​The sovereignty
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Raquel Blanco Águila; Group 18; LESSON 2

of states does not, however, explain the evolution of International Law, since it is a
political legal instrument.

C - Peace of Westphalia (1648)

The vision of the world under the Catholic dominance would come to an end and
also would mean that religion would not be the parameter for justice or legitimacy.
Conversely, ​legitimacy would ultimately depend on effectivity (ability to manage a
state)​​. This is based on Machiavelo’s ideas.

The Peace of Westphalia was very important milestone, historical event, in the
creation of the international law .It set the state sovereignty as a legal tool. It put an end
to religious wars (between Catholics and Protestants) and recognized their ​sovereign’s
equal status​​. It is relevant because it was a ​recognition of the sovereignty other
states law no matter where they are from. Before that doctrine was unpredictable.
When Henry the IV was going to be the King in France he was forced to abandon the
protestantism to be Catholic. Quit religion to access the crown.
States recognized as equals the rest of states. It would mean that religion will not
be the parameter for justice or legitimacy and would mean that the legitimacy would
depend on effectivity of the actions​​. We have the theory and the fact.
There was a separation between religion and the capacity of managing states.

There is a theory, legal instruments and historical events to understand IL as

we do today.

2- Great political transitions

A- From catholic law to secular law
We have ​moved towards a more sophisticated and scientific understanding
of the world, separated from the Church’s doctrine. Back to ​Grotius​​, the natural law
assumes that God does not exist or at least does not have a saying and humans have the
capacity and logic to arrive at natural law and govern themselves. The “ius gentium”
would be part of this natural law. Till this point, the conceptions of social contracts were
very much based on theological proposals. In the ​17th century, new theories about the
social contract​​ emerge.
. What social contract theories claim is an hypothesis that claims ​why the state or
the king has the legitimacy to govern people and some other actions that states are
capable to do: thing that involve reducing some liberties, expropriating goods…
Hobbes claimed that a social contract was other thing not religious. When
everyone is free, to do ​nobody is really free to do under the arbitrary power​​,
stronger would have more chances than the weakest. So a ​higher central authority
needs to be created with the capacity of establishing rules and trying to maintain the
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Raquel Blanco Águila; Group 18; LESSON 2

freedom​. The figure of the Leviathan earth authority would fight against the danger of
the sea (outside danger) to protect the subjects.
The social contract poses the divine right of kings. ​The legitimacy of the king
based in the will of the people.

Other authors like ​Locke claimed that the only reason why the people wanted to
enter a civil states was creating an ​authority to protect their natural rights quitting
the free nature. All people are entitled that all people was free and equal in rights he
believed that we were ​all born equal​. There is a limitation power: our freedom and
right to be treated equally.
The standpoint which makes the contrast with regard to the God’s will is that
now the social construct is c​onstructed on the means of people’s will instead​​. The
social contract means the transition from a nature state towards a civil state because
people aspire to have their natural rights protected. If the authority has the obligation to
protect people’s natural rights, it must be done with the condition that it respect some
aspects related to civil liberties and freedom (e.g. no imposition of religion). Moreover,
the public power does not have the right to interfere in our individual spheres
and decisions.

B- From natural law to positive law.

Back in the 16​th century, natural law was being substituted from a religious
perspective to a secular perspective, thanks to the so-called ​“recta ratio”​, which from
that moment on was the driver of the behavior.
Positive law would mean ​written law ​that is valid and applicable. Only written
law is valid from that point. Positive depended on a state to write it or not, and Natural
would be universal. But positive law is also ​arbitrary depending on the
circumstances of each state​​. So is no more fixed as the natural one: it is arbitrary
because it is fixed depending on the king who implements. Now we have a very strong
positive law paradigm. If there is no preset criminal law among states there is no crime.
Which one is the ​applicable the, the one that ​sounds logical ​or the ​one that the state is
enacting​? When we look at the sources we will see this debate. There were different
figures that deepened on this study:
a. Puffendorf: international law is known by human reason (​ex-ante)​ We
can know what is right or wrong​ beforehand in international relationship​.
b. Moser​​: international law is know (​ex-post)​ after interpretation. Interstate
rules are only acknogeable when ​they have been recognized​. States create
international law.
c. Vattel: there is no natural law at all, only judges play a role. There is ​not a
right way of reasoning​, not a common community rules but that there are
effective powers taking decisions that can find new rules at international
law and as they are the only subjects of their obligations they can decide
whether to apply it or not.
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Raquel Blanco Águila; Group 18; LESSON 2

C- Other milestones
​From 19​th century, states have created legal corpus in order to promote peace and
stability.
- Vienna Congress (1814): ​there is a right for intervention in other states
provided that the king in that state is at risk. To put it another way, this was a
mechanism to protect monarchy. Concert of europe: alliance in the 19 century
where they decided over international issues.
- World War I (1914)​​After it the League of Nations(1919) was created: it
gathered all big nations in the world and all had right to vote and unanimous
decisions where taken: creation of the International Court of Justice.
- World War II(1945): ​United Nations creation

3 - Humanization of international law.

Humanitarian Law was created after Mid XIXth century and the XXth century:
The rules between interstate action without war times.

A- Humanitarian law
Whenever there is warfare, this law establishes ​what states can and cannot do
for humanitarian reasons​​. The humanitarian law establishes how to ​undertake a war
with legitimacy and how to behave when it is taking place. All humanization of
international law occurred during the 20​th century, so it cannot be affirmed that
humanization is the most important trend in international law given that it is a
relatively recent one.

B- Contemporary system (1945-today)

Nuremberg Trials and UN. Before the ​crime of genocide (​destruction of the
cultural heritage is also a way of genocid) ​or crime against humanity was not written
law, so regarding Nuremberg there was no legislation to punish it, so what kind of
grounding could we find to punish the criminal? Crimes against peace tried over and
over had positive law, but what was not written was the crime of genocide. So the
judges of Nuremberg did not have a grounding law to punish them​​.
Should natural law be applied? That would have been anachronic (not according
to times), so they came up with ​peremptory norms of international law​​: that were
rules and provisions valid all through time and states and that no state of government
should act against its conformity.
There was not a general treaty on genocide so they could not be punished for
that. And as international law is self limited ​there was a problem the theory did not
have enough extent to solve the situation. The prosecutors were punished. The states
before this peremptory norms acted and behaved so that they created ​customary law​​.
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This put this question forward: what does it go first: theory or facts? According to recent
experience,​ facts normally have a saying when creating international law.

C- Human rights internationalization.

There is a law scope on human rights, being part of the ideology of international
law today reminds us that the international community has something in common.
There is a common ground then: every human has the same rights​. International law did
not quit the idea that all human beings belong to the same place and thus there must be
a sort of ​human law​​.

QUIZ:
What does history teach us?
a. The concept of sovereignty fully explains the development of Modern
International Law.
b. Nuremberg trials were a turning point in International Law history because of
the war crimes.
c. The factual recognition of the sovereign states creates and validates
International Law.
d. The humanization is the large and most characteristic trend of International
Law.