1. THE HISTORY AND NATURE OF INTERNATIONAL LAW
1.1 INTRODUCTION: INTERNATIONAL LAW AS LAW
International law = a legal framework to govern the relations between States (= the organized
political entities which are the primary subjects of international law
For as long as organized human groups or societies have existed, rules have developed to regulate
their relationships with one another.
1.2 THE ORIGINS OF MODERN INTERNATIONAL LAW
1.2.1 THE PEACE OF WESTPHALIA ( 1648 )
Modern international law begins with the peace of Westphalia in 1648. Its basic foundations remain
relevant today.
But different communities have interacted with each other since ‘time immemorial’
The Westphalia thesis is the conceptual basis but not for the daily activities ( treaties etc.. )
1500- 1648 – intellectual currents in international law
The Protestant reformation struck discord in the unity of Western Europe. This challenged the
authority of the Holy Roman Empire and the Catholic Church.
Protestant rulers began asserting sovereignty indepent from Church and Empire
A move away from the concept of the Christian universal law
BUT international law retained certain concepts with theological origins.
=Series of religious wars which were ended by the Peace of Westphalia
= cuius regio eius religio
= whose realm, his religion
1.2.2 THE RISE AND DECLINE OF NATURAL LAW ( 1648-1815 )
The sovereignty of each State was affirmed and the principle of non-interference in the affairs of a
State was recognized.
HUGO DE GROOT = the most famous international lawyer of the period
The freedom of the seas
The laws of war
International law = ius gentium + ius naturale
1
, Purely a human creation Universal laws that existed within nature
His theory was taken up by Pufendorf, Wolff & Kant, but rejected by Vattel, who focused only on the
relevance of ius gentium.
CHARACTERISTICS OF IUS GENTIUM (= law of nations)
Based on the sovereign equality of States
A voluntary system based on consent to obligation, non-interference, horizontally
Rejection of natural justice and other prescriptive principles ( Vattel )
17th and 18th centuries= concept of natural rights of individuals in the American & French Revolutions
Gave rise to international legal positivism
1.2.3 THE NINETEENTH CENTURY AND THE RISE OF POSITIVISM ( 1815-1914 )
The Congress of Vienna and the emergence of the ‘Concert of Europe’
Congress of Vienna (1815) = turning point in European international relations
Outcome of Napoleonic wars
Great Powers ( Austria, Great Britain, Prussia, Russia and a rehabilitated France) within the
Concert of Europe could intervene collectively where they deemed it necessary to preserve
peace
Lacked any formal institutional structure BUT the idea that certain values needed
safeguarding through international law grew !
It waned over time
The dominance of positivism
= decisive blow against natural law reasoning + it laid the foundations for the contested claim that,
despite it roots in Europe, the language of international law was in fact universal
Canonical principles, still vital today:
Sovereign equality and the requirement of consent of a State to be bound by an obligation
Freedom of a State from interference by another State in its internal affairs
The entitlement of a State to ensure its survival or self-preservation, including by acts that
might breach international law
Gave rise to the first international institutions ( = International Telegraphic Union &
Universal Postal Union )
2
, Textbooks began to proliferate in several European countries
1.3 COLIONALISM AND EMPIRE
European colonialism = dates from 1492 and earlier, international law had a two roles in this:
1) As resistant : A tool to resist European claims to expansion
Abolishing the slave trade
2) As complicit
Terra nullius and European land claims : vast and populated territories were
ownerless
‘freedom of the seas’ in the interests of trade
Justified treatment of indigenous populations
Congress of Berlin ( 1884): European powers used international legal rules to facilitate the ‘Scramble
of Africa’, in which almost all of the continent was divided between them.
The onslaught of European colonialism was virtually universal; only a few Asian and African States
were able to resist European Expansion.
1.4 THE TWENTIETH CENTURY
The dominant intellectual approach remained rooted in legal positivism, with an increased
awareness of the social foundations of law.
2 world wars
International institutions which marked the end of each war
1.4.1 WORLD WAR I AND THE LEAGUE OF NATIONS ( 1919-1945 )
WW1: marks the shift from a European-dominated international order to one in which other parts of
the world – the USA- were to gain an enhanced role.
FIRST GLOBAL INTERNATIONAL ORGANISATION = League of Nations
Organizing the international life of the family of nations
Mandate system: governance over former German and Ottoman territories.
The League was dominated by its Council = UK, France, Italy and Japan
The League represents a bridge from the informal system of the Congress of Vienna to the
institutional structures of the United Nations today
3
, Collapsed after 1930s rise of Hitler and Mussolini and the non-participation of the United States ( the
US Senate did not ratify the Covenant of the League.
1.4.2. THE UNITED NATIONS DURING THE COLD WAR ( 1945-89)
WWII = signing the Charter of the United Nations in 1945, San Francisco
The need to prevent further war and strengthen international order had seemed more
pressing
Just like the League of Nations, the United Nations aimed above all to secure international peace and
security. However, the UN’s purposes went further than that.
Respect for equal rights
Self-determination of peoples art. 1
A universal peace between the States
+ it has gone much further than the League in creating multilateral institutions to maintain security
and promote international cooperation.
3 TASKS:
1) Art 2. = prohibiton of war Security Council can order sanctions which bind all States + take
measures against a State which is a threat to international peace and security.
2) Promotion of international cooperation the World Bank, International Monetary Fund..
3) The gaining of independence of dozens of former European colonies across Africa and Asia.
The Charter also saw a change with the subjects themselves: the States. After the inception of the
UN, a rivalry characterized the relations between the capitalist USA and its allies, on the one hand
( First World) and the communist Soviet Union and its allies on the other hand ( Second World)
There was also a third world: African and Asian colonies
The Cold War would paralyse the United Nations
Would persist until 1989 the communist East European States would change to liberal,
free-market economies, culminating with the dissolution of the Soviet Union in 1991
1.5 INTERNATIONAL LAW SINCE 1989
1.5.1 THE END OF THE COLD WAR
1989: collapse of communist governments across Eastern Europe
4
1.1 INTRODUCTION: INTERNATIONAL LAW AS LAW
International law = a legal framework to govern the relations between States (= the organized
political entities which are the primary subjects of international law
For as long as organized human groups or societies have existed, rules have developed to regulate
their relationships with one another.
1.2 THE ORIGINS OF MODERN INTERNATIONAL LAW
1.2.1 THE PEACE OF WESTPHALIA ( 1648 )
Modern international law begins with the peace of Westphalia in 1648. Its basic foundations remain
relevant today.
But different communities have interacted with each other since ‘time immemorial’
The Westphalia thesis is the conceptual basis but not for the daily activities ( treaties etc.. )
1500- 1648 – intellectual currents in international law
The Protestant reformation struck discord in the unity of Western Europe. This challenged the
authority of the Holy Roman Empire and the Catholic Church.
Protestant rulers began asserting sovereignty indepent from Church and Empire
A move away from the concept of the Christian universal law
BUT international law retained certain concepts with theological origins.
=Series of religious wars which were ended by the Peace of Westphalia
= cuius regio eius religio
= whose realm, his religion
1.2.2 THE RISE AND DECLINE OF NATURAL LAW ( 1648-1815 )
The sovereignty of each State was affirmed and the principle of non-interference in the affairs of a
State was recognized.
HUGO DE GROOT = the most famous international lawyer of the period
The freedom of the seas
The laws of war
International law = ius gentium + ius naturale
1
, Purely a human creation Universal laws that existed within nature
His theory was taken up by Pufendorf, Wolff & Kant, but rejected by Vattel, who focused only on the
relevance of ius gentium.
CHARACTERISTICS OF IUS GENTIUM (= law of nations)
Based on the sovereign equality of States
A voluntary system based on consent to obligation, non-interference, horizontally
Rejection of natural justice and other prescriptive principles ( Vattel )
17th and 18th centuries= concept of natural rights of individuals in the American & French Revolutions
Gave rise to international legal positivism
1.2.3 THE NINETEENTH CENTURY AND THE RISE OF POSITIVISM ( 1815-1914 )
The Congress of Vienna and the emergence of the ‘Concert of Europe’
Congress of Vienna (1815) = turning point in European international relations
Outcome of Napoleonic wars
Great Powers ( Austria, Great Britain, Prussia, Russia and a rehabilitated France) within the
Concert of Europe could intervene collectively where they deemed it necessary to preserve
peace
Lacked any formal institutional structure BUT the idea that certain values needed
safeguarding through international law grew !
It waned over time
The dominance of positivism
= decisive blow against natural law reasoning + it laid the foundations for the contested claim that,
despite it roots in Europe, the language of international law was in fact universal
Canonical principles, still vital today:
Sovereign equality and the requirement of consent of a State to be bound by an obligation
Freedom of a State from interference by another State in its internal affairs
The entitlement of a State to ensure its survival or self-preservation, including by acts that
might breach international law
Gave rise to the first international institutions ( = International Telegraphic Union &
Universal Postal Union )
2
, Textbooks began to proliferate in several European countries
1.3 COLIONALISM AND EMPIRE
European colonialism = dates from 1492 and earlier, international law had a two roles in this:
1) As resistant : A tool to resist European claims to expansion
Abolishing the slave trade
2) As complicit
Terra nullius and European land claims : vast and populated territories were
ownerless
‘freedom of the seas’ in the interests of trade
Justified treatment of indigenous populations
Congress of Berlin ( 1884): European powers used international legal rules to facilitate the ‘Scramble
of Africa’, in which almost all of the continent was divided between them.
The onslaught of European colonialism was virtually universal; only a few Asian and African States
were able to resist European Expansion.
1.4 THE TWENTIETH CENTURY
The dominant intellectual approach remained rooted in legal positivism, with an increased
awareness of the social foundations of law.
2 world wars
International institutions which marked the end of each war
1.4.1 WORLD WAR I AND THE LEAGUE OF NATIONS ( 1919-1945 )
WW1: marks the shift from a European-dominated international order to one in which other parts of
the world – the USA- were to gain an enhanced role.
FIRST GLOBAL INTERNATIONAL ORGANISATION = League of Nations
Organizing the international life of the family of nations
Mandate system: governance over former German and Ottoman territories.
The League was dominated by its Council = UK, France, Italy and Japan
The League represents a bridge from the informal system of the Congress of Vienna to the
institutional structures of the United Nations today
3
, Collapsed after 1930s rise of Hitler and Mussolini and the non-participation of the United States ( the
US Senate did not ratify the Covenant of the League.
1.4.2. THE UNITED NATIONS DURING THE COLD WAR ( 1945-89)
WWII = signing the Charter of the United Nations in 1945, San Francisco
The need to prevent further war and strengthen international order had seemed more
pressing
Just like the League of Nations, the United Nations aimed above all to secure international peace and
security. However, the UN’s purposes went further than that.
Respect for equal rights
Self-determination of peoples art. 1
A universal peace between the States
+ it has gone much further than the League in creating multilateral institutions to maintain security
and promote international cooperation.
3 TASKS:
1) Art 2. = prohibiton of war Security Council can order sanctions which bind all States + take
measures against a State which is a threat to international peace and security.
2) Promotion of international cooperation the World Bank, International Monetary Fund..
3) The gaining of independence of dozens of former European colonies across Africa and Asia.
The Charter also saw a change with the subjects themselves: the States. After the inception of the
UN, a rivalry characterized the relations between the capitalist USA and its allies, on the one hand
( First World) and the communist Soviet Union and its allies on the other hand ( Second World)
There was also a third world: African and Asian colonies
The Cold War would paralyse the United Nations
Would persist until 1989 the communist East European States would change to liberal,
free-market economies, culminating with the dissolution of the Soviet Union in 1991
1.5 INTERNATIONAL LAW SINCE 1989
1.5.1 THE END OF THE COLD WAR
1989: collapse of communist governments across Eastern Europe
4
