Professional Documents
Culture Documents
Nature of International Law
Nature of International Law
LAW 510
The History of International Law
Ancient Worlds
Ancient Greece
Ancient Greece adopted two institutions from oriental civilization: (1) the
technique of treaties and (2) the art of diplomacy.
Added two on its own (1) international arbitration and (2) proxeny (state
hospitality) which is the origin of consular protection of foreigners.
Not considered law but they were set of rules for the proper conduct of
relations between Greek polis to describe the political organization of cities.
The European Middle Ages became the great age of natural law thought.
The idea was not specifically Christian in its inception, but rather was a
legacy of the classical Stoic and Roman legal traditions.
There continued to be, as in the ancient period, a distinction between the jus
natural and the jus gentium.
The jus gentium was much lesser than the two, being seen largely as an
application of the broader natural law to specifically human affairs.
States like private persons, were permitted lawfully to wage war for
such purposes as the punishment of wickedness or generally for the
enforcement of the law but not for vainglory or conquest or
oppression.
The tension between the universalistic and the pluralistic outlook is revolved
around the debate over the legal status of the various independent citystates of northern Italy.
Two of the most prominent medieval lawyers Bartolus and his student
Baldus concluded that 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.
Developments in State
Practice
It is from the pluralist rather than universalist side of the great medieval
conceptual divide that we must look for innovations in State practice.
Much of the state practice in the Middle Ages consisted of traditional; ways
inherited from ancient times.
The treaty established a system of balance of power which lasted until the
French Revolution and the Napoleonic Wars, and was aimed at preventing
wars.
The intellectual support for new ideas was provided by scholars, in particular
the Anglo-Dutch School represented by Hugo Grotius and Alberto Gentilli.
The 1815 Congress of Vienna codified the law on diplomatic agents and missions, prohibited
slave trading and laid the foundations for the free navigations of rivers which flow through at
least two European States.
The main features of international law during the period from 1815 to 1914 were the
principles of sovereignty, balance of power, legitimacy and equality between nations.
The acceptance of war as the ultimate instrument of enforcing law and safeguarding national
honor and interest;
The major feature of the nineteenth century was the dominant role of
positivism.
One of the most central aspect of positivism was its close attention to
questions of the sources of international law, and in particular, to the
proposition that international law was fundamentally an outgrowth or feature
of the will of the States of the world.
International law must now be seen as a law between States and not a law
above States.
The 19th century was the century of positivism which was introduced by
French philosopher Auguste Compte.
The positivist theories were developed by john Austin and Jeremy Bentham
and came to dominate jurisprudential thinking in general, including the
theory of international law.
He conceived that the law as positive creation or result of the will of the
sovereign.
Strictly speaking, every law properly so called is a positive law.
Since international law does not have a central authority, similar to
sovereign, which creates law or issues commands for obedience, Austin
argued that international law is not positive law.
Rules of international law did not qualify as rules of positive law by this
test, not being command of any sort, were placed by Austin in the
category laws improperly so called.
He regarded international law as positive morality rather than law.
The status of international law as law has been challenged at both the
theoretical by John Austin (1790-1859) and by HLA Hart (1907-1992) and
at the practical level
The main arguments against the existence of international law as law is the
international law does not have any legislature, judiciary or executive within
the ordinary understanding of these terms, responsible for creation,
interpretation and enforcement of that law.
In law, then, what are the usual general characteristics that may be
identified as basis for a definition?
Even though the details of the definition of law may vary, depending
on different theorists and what they choose as the essential
elements of law, there is general agreement that law broadly
consists of enforceable rules established by common consent or by
an authorized institution to regulate human conduct; breaches of
these rules attract sanctions.
Certain rules of law relating to individuals and non states so far as the rights
or duties of such individuals and non-state entities are the concern of the
international community.
Enforcement of International
Law
The fact that international law has no centralized process of enforcement does
not mean that international law is not obeyed. A state obeys international law
because:
The UNSC may take various measures, including the use of force, under
Chapter VII of the UN Charter to force a State to comply with international law.
THANK YOU
contacts: shahrizalzin@salam.uitm.edu.my