HISTORICAL DEVELOPMENT of INTERNATIONAL LAW

1. HISTORICAL DEVELOPMENT of INTERNATIONAL LAW

2. Why international law originated International Law originated from • 1) the establishment of peace and alliance • 2) the termination of a state of aggression • 3) state’s territorial integrity • 4) creating some political alliances to contain an over-powerful empire or forming a state of subservience between states • 5) controlling violence and enhancing friendship • 6) the need for a prospering and expanding empire and the limitedness of the jus civile gave birth and rapid growth of the jus gentium (the Roman international law).

3. The Middle Ages • The middle ages were characterized by the supreme authority of the organized Church and the strict control stemming from this religious-political mixture of command. • A new concept formulated that international communities should be constituted by secular nation-states with characters of : • Independence • Sovereignty • competition.

4. The Emergence of Modern International Law • From 15th to 18th centuries, the embryo of modern international law emerged. Many international school and famous scholars appeared. Such as Hugo Grotius. • Naturalist school & Positivist school emerged • Both the naturalist school & positivist school insisted no interference was allowed in state’s internal affairs. • Every sovereign state shall respect each other’s diplomatic immunity and equality. • A new doctrine of equality of states was introduced into international law that regardless how a state was, large or small, weak or powerful, it was equal to any other state in terms of sovereignty.

5. The 19th Century • Many Features • self-determination • Democracy • state equality and realization of international responsibility • racial superiority and desires for gaining through aggressive approaches • the Industrial Revolution and breakthroughs in science and technology propelled Western influence and idea of European supremacy throughout the world.

6. The 19th Century • positivist theories ·dominated the 19th with the rapid expansion of the rules of international law and with the gradual but progressive development of modern international system. ·according to the positivist theory, international law depended upon the will of the sovereign states. ·with the development of international agreements, customs and regulations, positivist theorists were in a position to solve the problem in international law, and as a result 2 school of thought emerged. Monists & Dualists. ·the monists claimed that there was only one fundamental principle. 个人行为 ·the dualists maintained that international law and domestic law existed on separate planes. International law should be based upon agreements between states.

7. MEANING, SUBJECTS AND DEVELOPMENT OF INTERNATIONAL LAW • Development: -Certain rules of different branches of international law have existed since time immemorial, especially with the Indian, Chinese, Roman, Greek and Arab/Islamic empires before western Europe. • In terms of the development of international law, it is true that contemporary rules of international law were fashioned out by the European nations (or the so-called 1st World) in the 19th and early part of the 20th Centuries. In the course of its development especially in the mid-20th Century/post 2nd World War when the newly independent African, Asian and Latin American states started coming on board of international life, they have no option but to start challenging some of the principles and concepts or rules of international law which never took their political, economic, social and developmental interests into consideration. This was simply because they were then colonial territories of the 1st World.

8. RELATIONSHIP BETWEEN INTERNATIONAL LAW AND MUNICIPAL LAW This relationship is of practical and theoretical significance in international law and can be appreciated from 3 perspectives: - Dualism, Monism and Nihilism. • Dualist doctrine:States belonging to the dualist school of thought hold the view that international and municipal laws are 2 different laws in character and scope. Hence international law rules and principles cannot apply directly in the municipal courts of a dualist state without first undergoing the process of specific adoption by or incorporation into national law. • All common law countries are dualist states.

9. RELATIONSHIP BETWEEN INTERNATIONAL LAW AND MUNICIPAL LAW • Monism: -Protagonists of this doctrine assert the superiority of international law over municipal law even within the sphere of national law itself. Hence upon ratification of a treaty, it becomes operative and enforceable nationally. • Largely embraced by civil law jurisdictions • E.g., all French-speaking States. • Nihilism: - Protagonists of this doctrine assert the absolute supremacy of municipal law over international law in the event of any conflict on a given subject matter. • The USA is a typical example.

10. International Law Today • The League of Nations • The United Nations Organization • The Permanent Court of International Justice • The International Court of Justice International Law developed with the development of international organizations/institutions

11. International Law Today • Some principles • non-intervention in internal affairs • territorial integrity • nonuse of force • equality of voting in the UN General Assembly • Today international law has not only expanded its jurisdictional scope to embrace newly established states, but also extended itself to include individuals, groups, multinational corporations and international organizations within its jurisdiction. • international law has been progressing to tackle new problems in a wider range, which has never been covered before.

12. INTRODUCTION OF INTERNATİONAL LAW

13. International Law • Public International Law; - is the body of rules of conduct, - which are binding the members of the international community, - in their relations with each other. • International Law; - is concerned traditionally with general principles and specific rules, - regulating relations between states. • It should be noted that; - there are other members of international community, - such as international organizations.

14. International Law • Individuals; - have become increasingly recognized as participants and subjects of international law. • International Law; - also imposes criminal responsibility, - for serious violations of humanitarian law governing armed conflicts.

15. International Law • The activities of international organizations; - cover various fields, - from culture and turism to military and economic cooperation. • Some of these organizations; - are universal, like the United Nations. - others are regional, as the Council of Europe. - Other examples include NATO, IMF, WTO.

16. International Law • In international law; - the legal procedure is quite different, - because, there is no single central supranational authority, - to make rules and enforce them, - through the use of sanctions in a systematic and continous manner. • The rules of international law; - have their own sources, - which are different from those of municipal law.

17. SOURCES OF INTERNATIONAL LAW

18. International Law • Main sources of international law; - are defined in Art.38/1 of the “Statute of the International Court of Justice.” • ICJ; - is to apply the following laws to the cases brought before it; 1. International Conventions, whether general or particular, establishing rules, recognized by the litigant states. 2. International custom, as the evidence of a general practice, 3. General principles of law, recognized by civilized nations, 4. Judicial decisions and teachings, of the most qualified various nations, as subsidiary means for the determination of rules of law.

19. 5 Traditional Sources Subsidiary (2) Principal (3) Treaty Customary Rules of International Law General Principles of Law Judicial Decisions Writings of the most highly qualified Scholars Today, there are 8 sources of international law divided into traditional and non-traditional sources.

20. SOURCES OF INTERNATIONAL LAW (Cont’d) According to Article 38(1) of the Statute of the ICJ the five traditional sources recognized under international law are as follows: - • Treaty: - means an international agreement concluded between states or parties – may be bilateral /multilateral and may be called any of the following names/types: - charter, convention, covenant, Protocol. • Effect of ratification of a treaty. • Effect of domestication of a treaty into national law

21. International Law • Written agreements; - are generally called treaties and conventions, - Other terms exist, such as pacts, covenants, charters, protocols, etc… - They are similar to the texts of the law of contracts in municipal law. • Written agreements; - are not imposed on states by some supranational legislative body. - There is no international parliament, possessing legislative powers, to impose international law on individual states.

22. International Law • Types of International agreements; - All states are parties to some agreements. (UN Charter) - Some conventions have a regional nature, and open only to a certain group of states. - Many agreements are concluded only between two states. • Agreements; - are called bilateral, if they are between just two parties. - are called multilateral, if they are between more than two parties.

23. SOURCES OF INTERNATIONAL LAW (Cont’d) • Custom: - is evidence of a general practice accepted as law. This can be established by the existence of bilateral/multilateral relations between states based on the belief of the existence of a legal obligation (i.e. opinion juris-legal belief or state practice). E.g., the 4 Geneva Conventions and the Hague Conventions (on conduct of war, treatment of prisoners of war etc) and the entire provisions of the Universal Declaration of Human Rights of 1948. • General Principles of Law: - Are principles of equity and rules emanating from justice and considerations of public policy.

24. SOURCES OF INTERNATIONAL LAW (Cont’d) • Examples of General Principles of Law • The principle of good faith (Pacta Sunt Servanda). This is found expressed in Article 26 of the 1969 Vienna Convention on the Law of Treaties (which came into force on 27 January 1980) and is to the effect that every treaty in force is binding upon the parts to it and must be performed by them in good faith. As such a party may not unilaterally free itself from the engagements of a treaty, or modify the stipulations thereof, except by the consent of the contracting parties, through a friendly understanding.

25. The principle of abuse of rights: - is to the effect that states must exercise their rights in a manner compatible with their various obligations arising either from treaties or from the general law. This principle can be illustrated in the Corfu channel case (ICJ Report, 1949, p. 22) where the ICJ concluded that: “No state may utilize its territory contrary to the rights of other states. • The latter states: - “states, have, in accordance with the UNC and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies and the responsibilities to ensure that activities within their jurisdiction or control do not cause damage to the environment of other states or of areas beyond the limits of national jurisdiction.

26. SOURCES OF INTERNATIONAL LAW (Cont’d) • Judicial Decisions: -of international courts and tribunals such as the • ICJ • ICC • ICTY • ICTR • UN Special Court for Sierra-Leone • European Court of Justice • European Court of Human Rights • African Court of Human Rights • Inter-American Court of Human Rights

27. Writings of Scholars/Jurists/Commentators: - of long standing research and experience rooted in their fields of specialization are relied upon for trustworthy evidence of what the law really is and not what it ought to be. SOURCES OF INTERNATIONAL LAW (Cont’d)

28. The three non-traditional sources of international law are: - Pre-emptory Norms: - are final/absolute/mandatory norms recognized and accepted by the international community as a whole from which no derogation is allowed by any treaty or municipal law, else void. Also known as Rules of Jus Cogens. E.g., the absolute prohibition of torture and slavery or the general norm prohibiting the use of force in the internal affairs of a sovereign state or the promotion and protection of the right to life. Resolutions of public international Organisations/ Institutions: - UN, AU, EU, ECOWAS etc resolutions on given subject matters constitute a source of international law with respect to the matters in question. SOURCES OF INTERNATIONAL LAW (Cont’d)

29. Non-binding standards (Soft law): - Are those rules of conduct, statements, principles, policies not intended to be legally binding but are expressions of intent by the international or regional community in a given topical/critical issue of interest to all. Examples of Non-Binding Standards The 1972 Stockholm Declaration on the Human Environment resulted from the UN Conference on the Environment designed to deal with questions surrounding the management and protection of the environment and its relationship with humans. 130 states participated at the conference where the recommendation for institutional arrangement resulted in the UN General Assembly’s establishment of UNEP. SOURCES OF INTERNATIONAL LAW (Cont’d)

30. SOVEREIGNTY IN INTERNATIONAL LAW • Sovereignty as a concept in international law is constitutive of the following: - • an expression of statehood: - having possessed all the characteristics and being so recognized as an independent state by others; • an indication of preservation of national identity and hard won independence; • an expression of self-determination covering 2 aspects: - internal and external; • internal self-determination is about the right of people to choose their socio-political and economic systems and the extent of their political participation in government; • it is largely against colonialism, neo-colonialism, apartheid and for sovereignty over their territory, linguistic, socio-cultural, ethnic and religious interests;

31. CONCEPT OF SOVEREIGNTY IN INTERNATIONAL LAW (Cont’d) • External self-determination is about a right against foreign economic exploitation of natural resources: - it is a right to exploit, dispose of, utilize or deal with natural resources in any way the state feels necessary for the common good of all. • The above are expressly covered by the 1960 UN Declaration on the granting of independence to colonized countries; Article 55 UN Charter, 1945 emphasises the importance of economic self-determination to remove oppression, injustice, inequity and to promote peace, stability and development; Article 1 of the same charter seeks to promote friendly relations and socio-economic and cultural development of nations; Article 1 of both the ICCPR and ICESCR of 1966 re-echoed the right to self-determination as a fundamental right of a people; Articles 2, 21-24 of the African Charter on Human and Peoples’ Rights provide for norms to eradicate all forms of colonialism and the promotion of internal and external self-determination as a developmental right of African peoples. • About assumption of state responsibility in international life because liability exists for failure to observe/discharge obligations imposed by rules of international law (especially treaty obligations). • Is about non-intervention in the internal affairs of sovereign states as generally prohibited by international law except in self-defence and on the authorization of the UN Security council for the maintenance of international peace and security.

32. CONCEPT OF SOVEREIGNTY IN INTERNATIONAL LAW (Cont’d) • However, in international law and practice today, the claim of sovereignty is not absolute due to the following acknowledged exceptions to the general rule prohibiting non-intervention in internal affairs of sovereign states; • For collective security: - doctrine that emerged in the late 1980s after the end of the cold war and when the perception of security changed from military and political issues to socio-economic, developmental, environmental, human rights and humanitarian issues as well as gender; • Hence intervention by the use of force is allowed for collective security in a sovereign state on the following grounds: - • Where a regional or ethnic or political conflict or conflict over scarce resources are deemed potentially destabilizing on a sub-regional, regional or global scale;

33. CONCEPT OF SOVEREIGNTY IN INTERNATIONAL LAW (Cont’d) • Where the conflict is capable of endangering the lives of civilians and non-combatant population; • Where the conflict results in massive displacement of civilian population either as IDPs or refugees; • Where the conflict results in gross or massive human rights violations constituting genocide or crimes against humanity; or in order to protect human rights; • Where a country’s government is universally recognized to have collapsed leading to lawlessness and possible loss or injury to human lives and property; • Intervention is also allowed on humanitarian grounds in order to assist the victims of humanitarian crises; • In order to enforce a treaty/ in defence of democracy/ in the fight against terrorism; • The Liberian, Sierra-Leonean, Rwandan, Bosnian, Kosovan conflicts and those of the Sudan-Darfur, Somalia, and Congo etc are typical examples of the above justification.

34. CONCEPT OF HUMAN RIGHTS IN INTERNATIONAL LAW The scope of this lecture is restricted to the following branches of public International Law. 1. International Human Rights Law (IHRL) Meaning and Scope: - IHRL is that branch of public international law that aims at protecting the internationally guaranteed rights of individuals and groups against violations by state etc.

35. Scope of Internationally Guaranteed Human Rights 1st Generation 2nd Generation 3rd Generation Civil & Political Rights Economic, Social & Cultural Rights Rights of Vulnerable Group Environmental, Developmental Rights Refugees & IDPs Women Persons Living with HIV-AIDS Children Minorities Disabled Persons Ethnic, Linguistic, Cultural, Political, Religious, Racial, Sexual BRANCHES OR FIELDS OF PUBLIC INTERNATIONAL LAW (Cont’d)

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