International law

1- A SHORT HISTORY OF INTERNATIONAL LAW

Why international law?

Look at the press of these days: Brexit, the coronavirus, the Soleimani case, the number of

femicides occurring in all countries in the world, Greta grassroot’s movement matter for

international law. We can mention hundreds of situations in which international law really matters.

International law ≠ international relations international law is different from international

relations because international law is LAW, a corpus of rules – binding and not binding –

regulating different aspects of States’ relations. This corpus of rules are the object of study.

What is this course about?

• Why international law matters these days? complexities and challenges.

• Theory, structure, sources of international law

• Case studies, taken from recent international jurisprudence international court of justice

cases like Ukraine vs. Russia and other cases from the European Court of Human Rights

• Human rights law (European, African and American system) and refugee law (evolving

piece of international law)

• International criminal law international criminal court, it concerns the responsibility of

crimes (genocide ecc)

• Climate change litigation and environmental law evolving pillar of international law.

There are conventions and declarations, it is not a corpus of established law (ex: Paris

agreement COP21)

From the community of States to a globalized world

• When was the community of State created?

• What is a State in “traditional” international law? How has this concept evolved over the

years?

• Is “community” the correct word? Or would it be better “society”?

• Are there new actors in the international community? Are they changing the realm of the

international community?

new actors in international community states are the main subject of international law but

there are others subjects like NGOs, multinational corporations. Multinational corporations must

respect human rights law.

When did international law begin?

• Always existed? The general answer to this question is that international relations started in

1648 after the peace of Westphalia. This is partially correct, but we have to consider a more

globalized approach. International law has always existed because it is inevitable to have

relations between states. It is inevitable having relations in any time.

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• Middle Ages? Start and birth of modern states and Christianity that is a part of international

law mainly with the contribution of some scholars like saints: Saint Agustin or Saint

Thomas, started to theorize international law.

• 17 century evolution of middle ages and starting point of nation state.

• 19. century? The world started to be globalized

• In the future? No

See pag 4 of the book

The community of States

• In ancient times: Roman times, The Roman empire had its own rules aimed at regulating

the relations with foreign States (law of war and law of peace) and achieved the first

international treaties.

• In medieval times contradictory effects, but it confirmed the existence of international

treaties, international arbitration to solve international disputes, the «humanization» of the

war: first basic rules

• First international treaties in history

In Syria… the most ancient treaty ever discovered

• Political and commercial agreement between Ebla (South of Aleppo) and Arbasal the

most ancient international treaty in the history of humanity, it mentions trade by riverboat

and overland. So international law started as early as states started to cooperate and find

common grounds to solve problems.

• Cuneiform tablet c. 2400 B.C. : This is the text of the most ancient treaty in the history

of humanity. It governs relations between the States of Ebla and Abarsal, situated along a

river in Upper Mesopotamia. It mentions transporting goods, including olive oil and wine,

by riverboat and overland on donkeys.

• Hittite empire, 13. century B.C.

• In Syria the most ancient treaty ever discovered political and commercial agreement,

considered to be the most ancient treaty in the history of humanity. As early states started to

cooperate and solve problems and how to trade goods (international law started).

Different ‘areas of the world’: the regionalisation of international law in pre-modern times

1- Sino-centric system in East Asia Grotius said that the international society began and

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developed through the development of European international law to global international society. In

premodern times we had different systems of rules which are the sino-centric system in East Asia,

so with absolute authority of the emperor. Chinese customs and rules in that area usually prevail.

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2- Islamo-centric system in South Asia and North Africa Islam empire of the 7. century AD

on, it had some rules regulating external relations, they are bit like the roman empire. The Roman

Empire infact had some rules that were regulating what happened within the borders and about the

relations with barbarians (the others basically).

3- Roman empire and later the Christian church plus Greek philosophy – especially in Middle



Ages, natural law in this Christian war there were some theories on just war, actually ssome

saints like Thomas aquinos and saint Agustin theorized this theory of just war. Can we ever theorize

a war as just? Is it an adjective that we can use in law? you can find the terms justice, just but

actually just war was a legal matter to justify also the crusades and justify the use of force. It was

theorized in Middle Ages during Christianity that happened overtime.

4- Westphalian system (1648) starting point of states being independent and sovereign, Nation

States and the laicisation of international law. Westphalia is the treaty that concluded the war of

thirty years and this treaty marked according to some scholars (that it is partially true) that this was

the starting point of international law. Is this system really responding in the challenges to the

modern world or not? Is it composed of states being sovereign and independent reproducing the

structure of international community or not? Is it only a partial view? There is not a correct answer,

you can say that this system is still the system of the international community or you can say no,

this system is not acceptable anymore mainly because there are new subjects of international law.

It is true that European international law started to be imposed to other areas of the world. By the

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hand of 19 century the order of the world was overdetermined by European countries through

colonization and we have an example: lawyers at that time were justifying the actions of their own

state. Francisco de Vitoria in 1539 gave a lecture recognizing and justifying from a legal point of

view the Spanish conquest of the Americans and Indios. At that time Francisco de Vitoria, because

was asked to gave this lecture saying that Spanish authorities have the right to impose themselves

on the Indios of America because they did not respect a sort of trade but he wrote after words that

blood flows in his veins when he knew what was actually committed by Spanish authorities in the

America so actually he theorized and became aware that the methods produced by the Spanish to

colonize this part of the world were particularly cruel.

Even thought it was true that at the beginning European international law was imposed to other

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countries what happened is that gradually, especially 19 century and 20 century, there was a

mutual recognition between Europeans and non-Europeans. We cannot deny that the structure of

international law has a european origin (also human rights law) but according to this, Japanese

scholars started as an imposition of a formal european international law but then evolved as a

mutual recognition between European and non-european states. In particular he said that there was a

transformation from European to global international law this global international law was

made through imposition of colonisation but also acceptance because some ideas and concepts that

were elaborated by those father of international law (like Grotius that was mentioned by several

Asian scholars regarding this) attracted also other states of the international community.

When european scholars in the middle ages were talking about universal principles (like natural

principles with Grotius and others) that were called universal principles of natural law. But

universal for whom? The theory was based on the European Greek philosophy and then it was

extend in the world. 3

International community or international society?

Speaking about the international community or international society then it is also a part of what has

been said about the transformation because:

Community it gives the idea of a neutral dependence which is something beyond the mere sum

of actors and it has common values. The community is something more than the society

≠

Society it is a factual interdependence among actors. Ex: you are sitting in a room, you behave in

a certain way: this is a factual interdependence because you are together or you are together waiting

for your bus and you behave in a way because in that moment you are a society.

Ubi societas, ibi jus it means where there is a society, there is the law. So basically a society

needs law or better a society naturally produces law. When we say international law always existed

because when we have communities, cities, regions or states that is a sort of interdependence

necessary and inevitable interdependence. So ubi societas, ibi ius help us to say where there is a

society of states there is the law.

But… what was the first to be born? The international community or the law? Overtime

international community states developed common values that are shared by all countries. The

safety helps security and cooperation which is necessary. In some cases, is difficult to promote these

values (which had controversial responses) from countries but some common values are part of the

international community of these days

What has emerged is the notion of community interest. Simma: «the international community

seems to be more frequently invoked to denote the repository of interests that transcend those of

individual States».

The emergence of ‘community interests’ (notion of community interests attributed to Simma

and Trinidade)

Judge Simma (former judge of the International court of justice) said: ‘International law has

undoubtedly entered a stage at which it does not exhaust itself in correlative rights and obligations

running between States, but also incorporates common interests of the international community as a

whole’ international law is no longer a matter of bilateral relations but there are some common

interest of international community.

Judge Cançado Trindade (today judge of the international court of justice): ‘The growing

consciousness of the need to bear in mind common values in pursuance of common interests has

brought about a fundamental change in the outlook of international law in the last decade’.

International law has a clearly universal character, international law is not only when something bad

happens or when some countries just kill someone like a very important organum of the state and

suddenly everybody talk about international law and the prevision of the use of force. International

law is when you take a plane and you buy something that is produced in China or Russia, not

standing at this universal character. According to the Chinese scholar:

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Is international law really «international» or «universal»?

A Scholar from Shanghai (Xue Hanqin – she wrote a book on Chinese perspectives on

international law) said: «Notwithstanding its universal character, international law in practice is

nonetheless not identically interpreted and applied among States. Different from domestic legal

systems, where laws are adopted through legislative process, international law, either treaties or

customary law, is not imposed on States, but accepted mainly through voluntary acts. The fact that

States adopt different positions on various issues of international law cannot always be explained by

legal reasoning, as the answer often lies elsewhere. Therefore, it is always important and necessary

to study international law from the perspectives of individual States in order to better appreciate

how international law operates in each specific political, economic and social context»

international law has obviously a international character because treaties exist for states that ratify

them but it is also true that international law is not identically interpreted and applied.

International law is not imposed on states but states accept international law. It is accepted

mainly through voluntary acts. The fact that states adopt different positions on various issues of

international law cannot always explain by legal reasoning that is true. But why a treaty on climate

change has been ratified by Italy and not by US? Sometimes the legal reasoning is not useful. You

can explain that from an international relation point of view from a political point of view but not

from a legal one. It is important to study international law from the perspectives of individual states

in order to better appreciate our international law overrates in its specific economic, political and

social context.

In her book, Xue first highlights the continuing importance for China’s approach to international

law of the inviolability of sovereignty and the principle of non-interference. Sovereignty is ‘‘a claim

about the way in which how different political and social systems, different forms of civilization

and culture should correlate and treat each other in international relations’’. For China, these

principles and the idea of nationhood remain important, notwithstanding the influence of natural

law in international human rights, environmental, criminal, and humanitarian law.

She emphasizes the need to consider human rights from a Chinese perspective, notably the

importance of the right to development, and the belief that collective and communal interests may at

times prevail over those of the individual.

ASEAN

More curiosity on the history of international law? http://www.tiki-

toki.com/timeline/entry/459289/The-History-of-International-Law/

Some fathers of international law

 Hugo Grotius – on the law of war and peace 17. century (1625) Pre modern times:



despite what some scholars write, international law was European international law, when

Grotius wrote in 1625, is one of the fathers of international law. He was speaking about

European international law, he theorized in the first book of De Iure Belli ac pacis, he

theorized the supremacy of the Dutch commerce in the oceans (law of the sea).

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 Jean Bodin – he elaborated the notion of State 16. Century

 Hobbes, Kant, Locke and Rousseau

Some mothers of international law

 Christine de Pizane Cristina da Pizzano 1410 Livre des faits d’armes et de chevalerie (The

Book of Deeds of Arms and of Chivalry) is one of the first known texts on the law of war.

This is why a legal historian specializing in the status of women once presented Pizan not

without emphasis as the “mother of international law”.

 Jane Addams who presided the first peace conference in 1915, American feminist, in 1915

there was the international conference of women that theorized the peaceful resolution of

disputes.

Some famous philosophers (Greek, later european philosphers) talked about international law

through different perspectives:

1- Natural law or law of nature (ius naturae) is more an universalistic approach, it is the law

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that has always existed and also Grotius was in favour of law of nature claiming that the law of

nature is something that pre-exist any creation of law. So it is something that it has always existed.

Particularly scholars in middle ages theorized that the just war well imposed natural law because

just war is natural so war is natural.

2- Law of the nations starting with some seeds already in the roman empire they used sogestium



that is the law of the nations. The law of the nations is what it is international law today so it is the

product of the will of the state, according to Grotius international law was both natural law and the

law of the nations because states created rules either because they exist or because they want to

create law. They exist because of ubi societas, ubi ius so where is the society state actors create the

law.

3- Hobbes he theorized the state of nature, he was convinced that states were not in a society but

they live in a state of nature where everything was admitted and justified: war, peace ecc because

according to him there was anarchy in the system of relations of states.

4- Locke and Rousseau in favour of natural law as something that pre-existed

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5- Kant german philosopher always mentioned in international law, the one who went beyond a

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system of states and theorized like the law of the nations that was something shared and common

values on perpetual peace. He had an idea about what international community should be.

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5- Positivist law or positivism theory developed over 20 century, positive law is a system of

rules, when we speak about law, we refer to a system of rules not a single document, positive law is

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the law of a country. Positivism in the 20 century met in particular the fact that law was objective

something more scientific and empirical. According to positivist revolution try to get rid of all

moral, religious or other issues where law is something objective and strictly scientific.

It is true that a treaty is considered as a positive law because is made between states and mainly

because it is interpreted interpretation is guided by the background of people that interpreted the

law. interpretation is something that cannot be scientific. Positivism is strictly related to the science

of the law, law of a country and law of international community cannot be influenced by a certain

moment of history. 6

Some treaties/conventions were elaborate