INTERNATIONAL LAW NOTES; by Dr. Kabumba Busingye
HISTORICAL ORIGINS OF INTERNATIONAL LAW
Traditionally international law referred to the corpus of rules that governed inter-state
relations. Contemporary international law however governs not only states but other entities
such as international organisations and in certain cases individuals.
What is usually referred to as international law, however, is in fact a body of rules developed
by a group of European jurists based on their observations of the practice of European states.
Modern day international law can be traced to the practices of ancient societies such as the
Egyptians, the Jews, the Greeks and the Romans.
International law further gained momentum in the renaissance and reformation period. The
articulation of international law was mainly undertaken by a number of early writers from
such nations as Spain (Vittoria and Suarez) and Italy (Gentilis).
Francisco Vitoria, was Professor of Theology at the University of Salamanca (1480-1546).
He demonstrated a remarkably progressive attitude for his time towards the Spanish conquest
of the
South American Indians and, contrary to the views prevalent until then, maintained that the
Indian peoples should be regarded as nations with their own legitimate interests. War against
them could only be justified on the grounds of a just cause. International law was founded on
the universal
law of nature and this meant that non-Europeans must be included within its ambit.
Suarez (1548-1617) was a Jesuit and Professor of Theology who was
deeply immersed in medieval culture. He noted that the obligatory character of international
law was based upon Natural Law, while its substance derived from the Natural Law rule of
carrying out agreements entered into.
From a totally different background but equally,i f not more, influential was Alberico Gentili
(1552-1608). In 1598 his De Jure Belli was published. It is a comprehensive discussion of the
law of war and contains a valuable section on the law of treaties. Gentili, who became a
professor at Oxford, has been called the originator of the secular school of thought in
international law and he minimised the hitherto significant theological theses.
It is, however, Hugo Grotius, a Dutch scholar, who towers over this period and has been
celebrated, if a little exaggeratedly, as the father of international law. He was born in 1583
and was the supreme Renaissance man. A scholar of tremendous learning, he mastered
history, theology, mathematics and the law. His primary work was the De Jure Belli ac Pacis,
written during 1623 and 1624. Grotius finally excised theology from international law and
emphasised the irrelevance in such a study of any conception of a divine law. He remarked
that the law of nature would be valid even if there were no God: a statement which, although
suitably clothed in religious protestation, was extremely daring. The law of nature now
reverted to being founded exclusively on reason. Justice was part of man's social make-up
and thus not only useful but essential. Grotius conceived of a comprehensive system of
international law and his work rapidly became a university textbook.
However, in many spheres he followed well-trodden paths. He retained the theological
distinction between a just and an unjust war, a notion that was soon to disappear from
treatises on international law, but which in some way underpins modern approaches to
ad majorem dei gloriam viva christo rey
,aggression, self-defence and liberation. One of his most enduring opinions consists in his
proclamation of the freedom of the seas. The Dutch scholar opposed the 'closed seas' concept
of the Portuguese that was later elucidated by the English writer John Selden" and
emphasised instead the principle that the nations could not appropriate to themselves the high
seas. They belonged to all. It must, of course, be mentioned, parenthetically, that this theory
happened to accord rather nicely with prevailing Dutch ideas as to free trade and the needs of
an expanding commercial empire.
However, this merely points up what must not be disregarded, namely that concepts of law as
of politics and other disciplines are firmly rooted in the world of reality, and reflect
contemporary preoccupations. No theory develops in a vacuum, but is conceived and brought
to fruition in a definite cultural and social environment. To ignore this is to distort the theory
itself.
Samuel Pufendorf (1632-94), attempted to identify international law completely with the law
of nature; and on the other hand there were the exponents of 'positivism', who distinguished
between international law and Natural Law and emphasised practical problems and current
state practices. Pufendorf regarded Natural Law as a moralistic system, and misunderstood
the direction of modern international law by denying the validity of the rules about custom.
He also refused to acknowledge treaties as in any way relevant to a discussion of the basis of
international
law.
On the other hand Bynkershoek (1673-1743) stressed the importance of modern practice and
virtually ignored Natural Law. He made great contributions to the developing theories of the
rights and duties of neutrals in war, and after careful studies of the relevant facts decided in
favour of the freedom of the seas
Grotius‟ work was strongly founded in natural law. For his part Bynkershoek proceeded from
a positivist basis in which international law could only derive its validity from the consent of
states at whom its obligations were directed. In reality international law at this time could be
referred to as the law of Christian Europe.
This would remain the case until the late 18th century when the USA and a number of
independent South American countries were accepted in the fold. A second web of
participants would emerge in the 19th century with the inclusions of Turkey, Japan, China,
Iran and Thailand. Later in the period of the League of Nations even more nations would be
added such as South Africa and Ethiopia.
The system would experience a dramatic change in the decolonisation period following the
second world war with a number of new states suddenly becoming actors in the international
plane. There are currently about 192 states in the international community.
There is some debate as to whether international law was meant for these other states who
joined later. Scholars don‟t accept that international law is fine as it is. They accept that they
are outside international law for it wasn‟t meant for them. They need to look back, scrutinize
whether the rules are good for everyone. This has resulted into certain theories such as Third
World Approaches to international law, The feminist critique of international law and there is
also the Muslim critique.
Refer to Hillary Charlesworth and Christine Chinkin; The Boundaries of International Law,
The Feminist Approach ;2000. Jasmin Elias; Africa and the Development of International
Law; 1988
ad majorem dei gloriam viva christo rey
, International law is about restricting the actions of states but this could be rooted in private
motivation as already noted about Grotius.
THE NATURE OF INTERNATIONAL LAW
International law is a set of rules and regulations permissive in allowing states to establish
their own legal relations with rights and values but also with a series of rules regulating
behaviour and reflecting the ideas and pre-occupations of the states within which they
function. ( Shaw; International Law 5th edition).
Public international law covers relations between states in all their myriad forms, from war to
satellites, and regulates the operations of the many international institutions.
Is international law really law?
The answer depends on what is meant by law. Whereas the binding nature of domestic law is
not questioned, new students of international law are confronted with the issue: is
international law merely a collection of principles that a state is free to ignore when it suits it?
International law is different from domestic law in various ways which poses a challenge as
to whether it is law. ;
International law has no legislature. The General Assembly of the United Nations comprising
delegates from all the member states exists, but its resolutions are not legally binding save for
certain of the organs of the United Nations for certain purpose. International law has no ready
sanction for its breach. There is no international police force or army that can immediately
step in There is no system of courts. The International Court of Justice does exist at The
Hague but it can only decide cases when both sides agree and it cannot ensure that its
decisions are complied with. Above all there is no executive or governing entity. The
Security Council of the United Nations, which was intended to have such a role in a sense,
has at times been effectively constrained by the veto power of the five permanent members
(USA; USSR, now the Russian Federation; China; France; and the United kingdom ) . Thus,
if there is no identifiable institution either to establish rules, or to clarify them or see that
those who break them are punished, how can what is called international law be law?
However, the major challenge of international law is how to achieve law among equals, how
to impose obligations on sovereigns. This is expressed in the latin maxim; par in parem non
habet imperium (an equal has no power over an equal). In international law there are many
sovereigns; how can you obligate sovereigns?
The case of SS Lotus (France v Turkey) 1927 PICJ Reports series A no. 10 Sept 7. The court
stated on paragraph 44;
“ International law governs relations between independent states. The rules of law
binding upon states therefore emanate from their own free will as expressed in
conventions or by usages generally accepted as expressing principles of law and
established in order to regulate the relations between these co-existing independent
communities or with a view to the achievement of common aims. Restrictions upon
the independence of states cannot therefore be presumed.”
In this case therefore, validity of international law is essentially determined by consent.
Argeuments in favour of international law;
On existence,
ad majorem dei gloriam viva christo rey
HISTORICAL ORIGINS OF INTERNATIONAL LAW
Traditionally international law referred to the corpus of rules that governed inter-state
relations. Contemporary international law however governs not only states but other entities
such as international organisations and in certain cases individuals.
What is usually referred to as international law, however, is in fact a body of rules developed
by a group of European jurists based on their observations of the practice of European states.
Modern day international law can be traced to the practices of ancient societies such as the
Egyptians, the Jews, the Greeks and the Romans.
International law further gained momentum in the renaissance and reformation period. The
articulation of international law was mainly undertaken by a number of early writers from
such nations as Spain (Vittoria and Suarez) and Italy (Gentilis).
Francisco Vitoria, was Professor of Theology at the University of Salamanca (1480-1546).
He demonstrated a remarkably progressive attitude for his time towards the Spanish conquest
of the
South American Indians and, contrary to the views prevalent until then, maintained that the
Indian peoples should be regarded as nations with their own legitimate interests. War against
them could only be justified on the grounds of a just cause. International law was founded on
the universal
law of nature and this meant that non-Europeans must be included within its ambit.
Suarez (1548-1617) was a Jesuit and Professor of Theology who was
deeply immersed in medieval culture. He noted that the obligatory character of international
law was based upon Natural Law, while its substance derived from the Natural Law rule of
carrying out agreements entered into.
From a totally different background but equally,i f not more, influential was Alberico Gentili
(1552-1608). In 1598 his De Jure Belli was published. It is a comprehensive discussion of the
law of war and contains a valuable section on the law of treaties. Gentili, who became a
professor at Oxford, has been called the originator of the secular school of thought in
international law and he minimised the hitherto significant theological theses.
It is, however, Hugo Grotius, a Dutch scholar, who towers over this period and has been
celebrated, if a little exaggeratedly, as the father of international law. He was born in 1583
and was the supreme Renaissance man. A scholar of tremendous learning, he mastered
history, theology, mathematics and the law. His primary work was the De Jure Belli ac Pacis,
written during 1623 and 1624. Grotius finally excised theology from international law and
emphasised the irrelevance in such a study of any conception of a divine law. He remarked
that the law of nature would be valid even if there were no God: a statement which, although
suitably clothed in religious protestation, was extremely daring. The law of nature now
reverted to being founded exclusively on reason. Justice was part of man's social make-up
and thus not only useful but essential. Grotius conceived of a comprehensive system of
international law and his work rapidly became a university textbook.
However, in many spheres he followed well-trodden paths. He retained the theological
distinction between a just and an unjust war, a notion that was soon to disappear from
treatises on international law, but which in some way underpins modern approaches to
ad majorem dei gloriam viva christo rey
,aggression, self-defence and liberation. One of his most enduring opinions consists in his
proclamation of the freedom of the seas. The Dutch scholar opposed the 'closed seas' concept
of the Portuguese that was later elucidated by the English writer John Selden" and
emphasised instead the principle that the nations could not appropriate to themselves the high
seas. They belonged to all. It must, of course, be mentioned, parenthetically, that this theory
happened to accord rather nicely with prevailing Dutch ideas as to free trade and the needs of
an expanding commercial empire.
However, this merely points up what must not be disregarded, namely that concepts of law as
of politics and other disciplines are firmly rooted in the world of reality, and reflect
contemporary preoccupations. No theory develops in a vacuum, but is conceived and brought
to fruition in a definite cultural and social environment. To ignore this is to distort the theory
itself.
Samuel Pufendorf (1632-94), attempted to identify international law completely with the law
of nature; and on the other hand there were the exponents of 'positivism', who distinguished
between international law and Natural Law and emphasised practical problems and current
state practices. Pufendorf regarded Natural Law as a moralistic system, and misunderstood
the direction of modern international law by denying the validity of the rules about custom.
He also refused to acknowledge treaties as in any way relevant to a discussion of the basis of
international
law.
On the other hand Bynkershoek (1673-1743) stressed the importance of modern practice and
virtually ignored Natural Law. He made great contributions to the developing theories of the
rights and duties of neutrals in war, and after careful studies of the relevant facts decided in
favour of the freedom of the seas
Grotius‟ work was strongly founded in natural law. For his part Bynkershoek proceeded from
a positivist basis in which international law could only derive its validity from the consent of
states at whom its obligations were directed. In reality international law at this time could be
referred to as the law of Christian Europe.
This would remain the case until the late 18th century when the USA and a number of
independent South American countries were accepted in the fold. A second web of
participants would emerge in the 19th century with the inclusions of Turkey, Japan, China,
Iran and Thailand. Later in the period of the League of Nations even more nations would be
added such as South Africa and Ethiopia.
The system would experience a dramatic change in the decolonisation period following the
second world war with a number of new states suddenly becoming actors in the international
plane. There are currently about 192 states in the international community.
There is some debate as to whether international law was meant for these other states who
joined later. Scholars don‟t accept that international law is fine as it is. They accept that they
are outside international law for it wasn‟t meant for them. They need to look back, scrutinize
whether the rules are good for everyone. This has resulted into certain theories such as Third
World Approaches to international law, The feminist critique of international law and there is
also the Muslim critique.
Refer to Hillary Charlesworth and Christine Chinkin; The Boundaries of International Law,
The Feminist Approach ;2000. Jasmin Elias; Africa and the Development of International
Law; 1988
ad majorem dei gloriam viva christo rey
, International law is about restricting the actions of states but this could be rooted in private
motivation as already noted about Grotius.
THE NATURE OF INTERNATIONAL LAW
International law is a set of rules and regulations permissive in allowing states to establish
their own legal relations with rights and values but also with a series of rules regulating
behaviour and reflecting the ideas and pre-occupations of the states within which they
function. ( Shaw; International Law 5th edition).
Public international law covers relations between states in all their myriad forms, from war to
satellites, and regulates the operations of the many international institutions.
Is international law really law?
The answer depends on what is meant by law. Whereas the binding nature of domestic law is
not questioned, new students of international law are confronted with the issue: is
international law merely a collection of principles that a state is free to ignore when it suits it?
International law is different from domestic law in various ways which poses a challenge as
to whether it is law. ;
International law has no legislature. The General Assembly of the United Nations comprising
delegates from all the member states exists, but its resolutions are not legally binding save for
certain of the organs of the United Nations for certain purpose. International law has no ready
sanction for its breach. There is no international police force or army that can immediately
step in There is no system of courts. The International Court of Justice does exist at The
Hague but it can only decide cases when both sides agree and it cannot ensure that its
decisions are complied with. Above all there is no executive or governing entity. The
Security Council of the United Nations, which was intended to have such a role in a sense,
has at times been effectively constrained by the veto power of the five permanent members
(USA; USSR, now the Russian Federation; China; France; and the United kingdom ) . Thus,
if there is no identifiable institution either to establish rules, or to clarify them or see that
those who break them are punished, how can what is called international law be law?
However, the major challenge of international law is how to achieve law among equals, how
to impose obligations on sovereigns. This is expressed in the latin maxim; par in parem non
habet imperium (an equal has no power over an equal). In international law there are many
sovereigns; how can you obligate sovereigns?
The case of SS Lotus (France v Turkey) 1927 PICJ Reports series A no. 10 Sept 7. The court
stated on paragraph 44;
“ International law governs relations between independent states. The rules of law
binding upon states therefore emanate from their own free will as expressed in
conventions or by usages generally accepted as expressing principles of law and
established in order to regulate the relations between these co-existing independent
communities or with a view to the achievement of common aims. Restrictions upon
the independence of states cannot therefore be presumed.”
In this case therefore, validity of international law is essentially determined by consent.
Argeuments in favour of international law;
On existence,
ad majorem dei gloriam viva christo rey
