PUBLIC International Law LawPubl 402 (3) PART I: HISTORY AND THEORY 2. HISTORY AND THEORY of INTERNATIONAL LAW Colour: INFUSION Images: flickr Text & recording © C Foster

. PUBLIC International Law LawPubl 402 (3) PART I: HISTORY AND THEORY 2. HISTORY AND THEORY of INTERNATIONAL LAW Colour : INFUSION Images: flickr Text & recording © C Foster.

Show a good initial working knowledge of the central characteristics of the Westphalian system of public international law. Know about the main influences on the development of international law as it is today. Adopt a critical perspective on the past evolution of international law, appreciate that it is due to certain influences that international law has developed in the way it has. Be able to comment incisively on the concept of universality in international law, the degree to which breaches of international law are significant and why nations comply with international law..

Greek Stoic philosphers ’ conceptions of law were of a natural law - rules “of universal relevance” that were rational and logical Roman Jus Gentium , enshrining rational principles common to all, which was part of the Ius Naturae.

3. Christian and natural law thinking merges for a period: e.g. St Thomas Aquinas ( Summa Theologica , written between 1265-1274 ), understood natural law as part of divine law. Incl. the Jesuit theologians: Francisco Vitoria, ( 1483-1546) Francisco Suárez (1548-1617).

. HUGO. . 4. Hugo Grotius is responsible for severing natural law from divine law. De Jure Belli ac Pacis written in 1623 and 1624. Known as the “Founding Father of international law”. His writing became the university textbook. E.g. he considered natural law to underpin the traditional theological distinction between just and unjust wars. 5. Later 1600s international law was actually becoming more positivist, moving into an era of full positivism..

6. The natural law conception of international law still remained influential in the long term. Natural law reinvigorated post Second World War/holocaust. German philosopher, Gustav Radbruch ( Introduction to Legal Philosophy, 1947) - theory of natural law requiring people to oppose unjust laws. Idea of natural rights influenced French Revolution (1789) and American Revolution (1775-1783)/ international human rights law and modern constitutional theory ..

The new thinking of the Renaissance period, 1400-1600: Secularisation : “The Renaissance bequeathed the prerequisites of independent critical thought and a humanistic, secular approach to life...” (Shaw, 15) Empiricism The doctrine of sovereignty emerges in the late Renaissance: Jean Bodin , Six Livres de la République , 1576 Thomas Hobbes, Leviathan , 1651.

Before this time… some city states (e.g. the Hansa or merchant trading cities). various communities, with feudal lords. overall power lay with the Pope as head of the Roman Catholic Church, .. and with the Emperor of the Holy Roman Empire set up when the Pope crowned Charlemagne in 800..

The Thirty Years War began in 1618. struggle between Roman Catholic and Protestant countries. became an all-European conflict. p articipants included Bavaria, Saxony, Russia, the Dutch, Denmark, Sweden, France, England, Transylvania, Spain, Poland, the Papacy, Savoy, Brandenburg, Hesse-Kassel, and the Palatinate. Peace of Westphalia of 1648 fixed territorial boundaries between the warring states… And importantly also put in place the agreement that the citizens in each state were to be subject only to their own government’s laws..

. Emerich de Vattel ( Le Droit des Gens, 1758): “introduced the doctrine of the equality of states into international law, declaring that a small republic was no less a sovereign than the most powerful kingdom” (Shaw, 26). emphasised that international law was a law between States and did not apply to citizens..

a horizontal system of sovereign equal states + intergovernmental organisations (IGOs) personification of the state (Hegel) a positivist system (law is law because it is made by the proper rules, in the case of international law because it is made by States) a voluntarist system ( ie based on consent) universally applicable.

By the 1800s a positivist international legal order has come into being. It is undeniably Eurocentric The balance of authority is with the European Christian states The Congress of Vienna , convened at end of the Napoleonic Wars in 1815, formed a second important moment Here the Holy Alliance met (leaders of Russia, Austria, Prussia) with the aim of maintaining peace between the great powers in Europe, and preventing revolutions.

First World War, 1914 - 1918 Second World War, 1939 – 1945 Post war decolonization of the empires of Britain, France, Spain, Germany, Italy, Belgium, Portugal, the Netherlands… UN provides a forum for the new States E.g. Consider the Declaration on the Granting of Independence to Colonial Countries and Peoples of 1960 & the emergence of a New International Economic Order movement in the 1970s, seeking: permanent sovereignty over natural resources, control over their own economies, the importance of rules governing multinational companies’ repatriation of capital, and their payment of tax and transfer of technology to developing countries..

. Globalisation a new universalizing force generating and responding to interdependence particularly powerful within international economic law (e.g. WTO) increasing multilateralism and central role for inter-governmental organisations (IGOs) still the Westphalian system, but diverse roles for non-governmental organisations (NGOs), private actors and individuals verging on “transnational legal ordering” (TLO).

Critical legal studies (CLS) An awareness of international law’s many inconsistencies, its incoherence, and the key part played by power David Kennedy Martti Koskenniemi Susan Marks Third World Approaches to International Law ( TWAIL) Feminist analysis of international law.

Recap of general points. .

For interest: Antony Anghie Imperialism, Sovereignty and the Making of International Law (Cambridge University Press, 2005) Terence C Halliday and Gregory Shaffer, T ransnational Legal Orders ( Cambridge University Press, 2015) 33, 40, 57. See previously P. Jessup, Transnational Law (Yale University Press 1956). Hilary Charlesworth, Christine Chinkin and Shelley Wright “Feminist Approaches to International Law” [1991] 85(4) American Journal of International Law 613.