Harriet T.

Virtudazo 4th Year- Teehankee February 9,

2017
Public International Law

A Synopsis
of Stephen Neffs Short History of International Law

Just like other fields of law the foundation of the existence

international law has its unique history and genesis. It all started from
Herodutoss concept of silent trading between the Carthaginians and
North African tribe in about sixteenth century BC. The concept is
performed by one tribe through unloading a pile of goods from the
vessel, leaving them on the beach of the other tribe and returning back
to their boats and then sending smoke signal that the goods are placed
in their area. While waiting, the other tribe is going to inspect the
goods and after having satisfied with the same, they are going to leave
a pile of gold, as a fair price of the goods. Accordingly, with this kind of
activity, there is always honestly on both sides, with no crime of theft
or other conflicts. Although, this arrangement has been successful, but
the problem was on the process on interaction was very limited and
ritualistic in a sense that there was less communication to the political
aspect between tribes which called for a more elaborate requirement
in dealing with others to come up with we call the restricted definition
of international law- the integration of the world at large into
something like a a single community under a rule of law.
Evidently, the restricted concept of international law was done in
the three areas of ancient Eurasia, characterized by dense network of
small, independent States sharing a more or less common religion and
cultural value system. These areas are Mesopotamia, Northern India
and classical Greece. Because of their culture and shared religion the
practice of diplomatic relations, treaty-making including dealings of
war and arbitration practices led to another development of the
concept of international law. In Egypt, the concept of extradition of
fugitives was introduced with the Histite Empire in 13th century which is
basically formed out of their culture and religion. Since religion has a
great influence on the development of international law, one great
universal religion- the Islam- also contributed to the foundation of
international law especially on relations with outside world, such as
truces or self- conducts issued to individuals in terms of relating with
other nations. In the Western part, particularly in Rome, one significant
concept originated from them was the principle of justice posited by
Aristotle - the belief, that amidst the welter varying laws of different
States, certain rules of conduct were present in all human societies.
The philosophers of Stoic School, like the writings of Cicero, also
sprung up the concept of law of nature which has---------. The concept
of universal and natural law formed by the influences of these two
known philosophers, gave way to lawyers of ancient time to distinguish
the concept between Jus Naturale (natural law) and Jus Gentium (law of
people). The Jus Naturale was the broader concept, which is a body of
scientific laws, applicable not just to human beings but to the whole
kingdom. The Jus Gentium, was the human concept, or sub-category,
which is universal in human world, as against the universal in the
natural world.
In Middle Age, the view of natural law was impressively prevailed
but with complexity and variety, philosophically and jurisprudentially.
We divided them as the Universalist outlook and Pluralist view of
natural law. The universal outlook was presented by Tomas Aquinas
holding the concept of natural law to be susceptible of discovery and
application by means of human reason rather than revelation. These
outlook is all- embracing character, which involved regulations for both
natural and social life of the universe, from the thoughts and deeds of
all creatures - animals, human beings and angels. One important
achievement of this view, between the thin line concept of jus gentium
and jus naturale, was the doctrine of just wars which allowed the
taking of arms, as last resort, for the vindication of legal rights. Also,
some rules from this outlook were applied to rules of international law
are dealings with all aspects of human social affairs such contracts,
property, crime, and others with emphasis on rulers not only private
individuals are all subject of the strictures of natural and jus gentium in
relating with other states. The Pluralist outlook gave greater
importance to the concept of independence. Bartolus and his student
Baldus defined the concept of independent state as being wholly self-
governing and independent of one another, however, in terms of
dealings with other nations per se, they continued to be subject to
rules of the Empire. This view is basically applied to periods were most
areas of the Roman Empire, especially in Italy, had constant debates
over their legal status of independence. Other state practices in the
middle age were also influenced by universalist and pluralist view. But
there were few major improvements such as the degree of immunity in
diplomatic relations, bilateral treaties that gives reciprocal guarantees
of fair treatment, privileges to the foreign merchants such as the right
to use their own law and court in dealing with one another, maritime
trading and activities including neutral traders during war times and
the most high level refinement of all is the law on ransoming of
prisoners of war- as an alternative of enslavement and summary
killings that this period has offered. Moreover, the rule on the law on
arms was expounded which was tested and subject to legal debates
when Spaniards justly conquered the Indians because the latter
unlawfully attempted to exclude Spanish traders from their kingdoms,
which is contrary to natural law rules. Briefly, the international law
under the Middle Age is a combination of beliefs, religions and culture
from the concept of Jus Naturale imposed on the actual everyday
business of people, focusing on warfare, diplomacy and trade.
The Classical Age of international law is sometimes termed as the
secularization of natural law. One of the significant development at
this age was the making of clear and sharp distinction of jus naturale
and jus gentium. According to Suarez, a Spanish Jesuit writer, the law
of nature is universal, eternal and based on reason. Unlike jus gentium,
natural law is made out of gift of rationality to discern. On the other
hand, jus gentium is purely human creation, a product of human will
and initiative. At this time, the modern concept of law of nations, is
basically the concept of what we call international law today. This
innovation was expressed by a Dutch writer Hugo Grotius whose work
was applied to the principles of natural law to international law.
Grotianss approach is dualistic in nature. It insists on international law
as a combination of the law of nature and the law of nations. A rival
school named the naturalists rejected this dual stand. According to
Thomas Hobbes, natural law is in effect a single fundamental right and
single fundamental duty since they regarded the pre-political state of
nature as chaotic. Example of this right is the right of self-preservation
and the duty is to carry out contracts voluntary entered into. As a
result, Hobbesians, denied customary practices of States and only
those explicitly arranged consciously and voluntarily assumed by
States are legally binding in the field of international law. Going back to
the dualistic method, one best example of this is natural law is the
allowance of just wars as a final resort to vindicate a legal right that
could actually been violated. The jus gentium was not concerned over
whose the stronger party, but instead simply treated each side as of it
had lawfully resorted to war. With this concept, the natural law saw war
in terms of law enforcement and as sanction for wrongdoing. The
voluntary law (jus gentium) saw war as a duel. At this period, there was
an emergence of strong central government in Western Europe,
consequently, there were permanent innovations in terms of defense
and centralization of states, or commonly called as community of
states. The Westphalia in 1648 was the first peace settlement that
ended the Thirty Years War is the by product of this new innovation.
Further, economic relations had improved because of high degree of
cooperation such as treaties, navigation, commerce and friendships;
and competition in terms of mercantilism and trade advantage among
foreign countries.
In nineteenth century, a new kind of peace settlement was crafted
based on balance of material power and set of general principle of
substantive character. The goal was to formed a continent- wide set of
political arrangements that would keep the scourge of revolution to
happen again. This legal order was based on faithful adherence to
treaty commitments. Part of this legal order is the duty on the part of
the ruler to earn legitimacy and cooperate with movements of other
nations for orderly and peaceful change. Military interventions to
subdue revolutions and wars was one of the apparent practice of this
legal order. Humanitarian considerations played important role at this
period since there was a relief of Christian populations held to be
victims of oppression in the Ottoman Empire. Communcal -violence
crisis in Lebanon, humanitarian actions in Crete, atrocities and counter
atrocities between Greeks and Turks were the events that contributed
a lot to the development of modern international law. Apparently, the
19th Century is the revolution of positive philosophy. Positive, means
scientific, empirical contrary to speculative or religious modes of
thought. Positivists believed that this is the true and final deliberation
of the human mind from the superstitions and dogmas of the past.
Positivism is a melange of 3 approaches, not a single school of thought.
The empiricist, common will variant and voluntarist approaches. For
them, international law is the sum total or aggregation, of agreements
which the States themselves have created, by consent whether
express or tacit. At this point, international law was seen as a law
between states, not as a law above states. Positivist also looked
international law as an instrument to work for rather than as roadmap
to salvation. Like in emergency situations, States are entitled to take
action that would protect their right of survival, that otherwise be
contrary to law, but under the principle of necessity rather than self-
defense. The huge impact of positivism has led to professionalism of
international law. It became the subject of university studies. Also, a
more systematic treaties began to be written in various languages.
International law books were published and were translated to different
languages such as French, Spanish and Italian.
Another perspective arrived in 19th Century was liberalism. It
centered on the private individuals rather than of states. Few of the
development of liberalism put emphasis on freedom of trade in goods,
free movement of the people and of capital and later on the human
rights violations. Then, the nationality approach was pioneered
distinguishing states from nation. Their contention was a kind of
natural- law right on the part of nations to form themselves into states
which resulted to the later law of self-determination of people. Lastly,
solidarism approach existed based on the interdependence of peoples
rather than on the independence of states. This approach led to the
willingness of some lawyers to countenance intervention in the internal
affairs of other states, like humanitarian grounds to protect vulnerable
groups from slavery and oppression.
To sum up the major achievements of 19 th century it was
appreciated for its valuable services that it performed in this time. It
was described as the functional cooperation of States, notably for
international communication and transportation- such as but not
limited to opening of rivers and canals for international trading; the
age of globalization where states are more closely integrated
economically; multilateral treaties were legislated relating to armed
conflicts; an to slave trading when the General Act of the Brussels
Conference was established; the arrival of parliamentary style of
diplomacy; the establishment of a Permanent Court of Arbitration and
finally the peaceful settlement of disputes by putting arbitration
commissions and ad hoc inter- state arbitrations to end wars between
major power countries.
In the 20th and 21st centuries the League of Nations was established
out from the covenant set out in the Versailles Treaty of 1919. This is a
new public order that is open, parliamentary, democratic character
contrary to the Concert of Europe in 19 th Century. This order did not
prohibit to resort to war as a last resort however, it set procedural
requirements- specifically that either a judicial or political dispute
settlement process must be exhausted before there could be war
between League member nations. Otherwise, economic sanctions by
all members shall be enforced, just like what happen to Italy who
invaded Ethiopia in 1935- 1936. Though, sanctions imposed somehow
failed, this failure led to period of profound searching of peaceful
settlements. Traditional neutrality policies were used, ad hoc great
power management was resorted to, and many other ways. Despite its
failure to protect aggressors, the inter- war period of 20 th century is
marked the establishment of World Court which gave lawyers
opportunity to appear in international court and brought volumes of
cases far than what they had expected. Another essential and
ambitious contribution from this period was the codification of
international law that gave emphasis on maritime neutrality, civil wars,
asylum and extradition. Components of human rights violations were
accorded greater discussions which led bilateral conventions for the
protection of minorities were concluded and heroic labors for the relief
of refugees. The aftermath of 1945 Second World War starred
international lawyers as herioc crusaders for the prosecution of
German and Japanese leaders for international crimes they committed.
The League of Nations was replaced by United Nations (UN) in 1945
that instituted new world order. With this foundation, new courts and
international organization were established to aid nations and make
this international organization available to all members states, not only
for the major ones but reaching throughout minority states. The
agencies are the International Court of Justice, the International Trade
Organization, International Monetary Fund, World Back, etc. The
foundation of UN has its own gray moments when it became paralysed
by Cold War rivalry between major states. And most of its agencies
were dropped. But sometime in 1980s, there was apparent change in
international law which continues to strengthen and straighten the
foundation of what international law today. The upturn in the judicial
business of international court that heard cases from high political
profile, the creation of World trade Organization for globalization,
human rights assumed a higher profile that extended to global
campaign agaisnt South African apartheid and active participation of
non-government organizations. The rebirth of international criminal
court that led to expulsion of Iraq from Kuwait. International lawyers
were more promising and active to bring international disputes to
international courts and demanded changes in terms of traditional
practices of treatment of people and governance, democracy,
corruption and environmental concerns to preserve and protect the
planet from modernization and human activities.
Basically, for me, the concept of international law goes with time
and it is the product of complex and diverse culture, religion, customs
of people; an evolution of different perspectives or approaches out
from the events that each nations had experience and the outcome of
inevitable changes happening around the world in past. Complex or
not, international law is a bridge to foreign interaction and peaceful
relation with others; and vital tool to national progress.