DEVELOPMENT OF INTERNATIONAL LAW

Development of international law. 
By : Abdallah Sekibembe

QUESTION               :
Discus the development of international law from the 19th Century.
According to Rebecca Wallace in her book (Rebecca Wallace & Olga Martin-Ortega, International law, 8th edn, London, 2016), she defines international law or the law of Nations to mean those rules and norms that regulate the conduct of states and other entities which at any given time are recognized as possessing international personality. This literally means that it is a body of rules and principles of action which are binding upon civilized states with their relations with one another. Such rules, norms and principles may be found in the history of both ancient and medieval worlds.
Shaw, 2003, pg.01 avers that Law in a society (municipal law) unifies and binds its people and this is through adherence to recognized values and standards, it also consists of a series of rules regulating their behavior through reflecting their  ideas and preoccupations within which it functions. It is both permissive and coercive in nature since it allows individuals to establish their own legal relations with rights and duties, as in the creation of contracts whereas punishes those who infringe its regulations. The same position is observed under international law with the major distinction being that nation states are subjects to this law.
International law is divided into two that is to say; Public international law which covers relations between states in all their myriad forms, from war to satellites, and regulates the operations of the many international institutions whereas Private international law (also known as Conflict of laws) which is majorly concerned with cases within particular legal systems in which foreign elements obtrude, raising questions as to the application of foreign law or the role of foreign court.
The origins of international law reach far back in history and can be traced back to some 400 years were solemn treaties were signed between states to reach an agreement on defined boundaries between them and also treaties that assisted in securing eternal peace and brotherhood between such states. Such treaties set parameters between these states and this established domestic competence with in which such states enjoyed freedom of action.
International law also derives its origin from Western Europe and this stemmed from the growth of political organisation, culture and sovereignty of western powers which made it necessary for them to establish an acceptable method where interstate relations could be regulated in accordance with commonly accepted standards of behavior. This acceptable method was regarded as international law and the rules of war and those on diplomatic relations were the earliest expressions of this law.
The age of discovery cannot be ignored in the foundation of International law since it majorly witnessed setting up of guidelines of territorial acquisition and such rules were adhered to such sovereign states. This essay shall however restrict its discussion on the development of international law from the 19th century up to present date.
According to Malcolm Shaw, the 19th century period was a practical, expansionist and positivist era and this was due to the fact that European public law had been transformed into international law with a global potential, in which rationalism was challenged by historicism and in which natural law was pushed aside by positivism.
The 19th century observed a settlement at the 1916 Vienna conference which marked the end of the French revolution (Napoleonic wars) hence establishing a new international order which was to be based upon European balance of power. This led to international law becoming geographically internationalized and entirely centered on Europe and the preserve of the civilized. Foreign states that intended to subscribe to it would do so subject to conditions laid down and consent of the majority of the existing western powers. This however diminished and threatened the survival of international law since it became less universalist in concept and nature.  
The period between 1807-1824 which happens to be in the 19th century  witnessed the end of Spanish and Portuguese rule over Mexico, Central America, South America hence creating independent Latin American nations. Revolutions that led to this independence derived inspiration from the American and French revolutions which had profound effects on the British, Spanish, Portuguese and French colonies. These wars had profound effects on international law in way that there emerged a distinctive approach to this law by these states that is to say; awarding asylum and treatment of foreign enterprises and nationals, growth in trade of goods with the rest of the world, etcetera.
This period also observed the emergence of Democracy and nationalism in Europe and this was spurred by the advent of the French revolution. Revolutionary ideas attained from this revolution spread across Europe and as a result, monarchies in all conquests were damaged by conquest and Nationalism became a powerful force in all European countries since the French revolution gave a great stimulus to its growth. This in the long run changed the status of international relations between states and also had a hand in the emergence of the industrial revolution which will also be discussed later. As a result of this ideology, self-determination emerged to threaten the multinational empires of central and Eastern Europe by states which intended to form their own statehood, allegiances and government, nationalism reached its peak in the unifications of Germany and Italy and began to exhibit features such as expansionism and doctrines of racial superiority, democracy, as noted by Malcolm Shaw not only brought to the individual political influence and a say in government but also brought home the realities of responsibility, for wars became the concern of all.
Compulsory enrollment of people in military service (Conscription) was also observed during this time and this was first instituted by the French Republic through Napoleon Bonaparte in the wars following the French revolution, this system was later adopted by other European nations and the procedure herein was that men at a certain age would serve one to eight years on active duty and then would be transferred to the reserve force. This system was however discontinued after Napoleon’s defeat in 1815 but was later on reinstituted but with major restrictions.
The 19th century also observed the emergence of the industrial revolution. This was a transition of the new manufacturing processes from hand production methods to machines and the like. This new development created the economic dichotomy of capital and labour hence boosting Western influence throught Europe. This as explained by Malcolm Shaw influenced a rise in the number and variety of both public and private international institutions, and international law grew rapidly to accommodate them. It also had a hand in the scramble and partition of territories in Africa for market due to the over produce by these industries as well as raw materials for these industries due to the scarcity of adequate raw materials needed for production and progress in these industries.
Development in trade and communication was observed as well and this was evident through the freedom of navigation with regard to waterways as was provided for by the final Act of the Congress of Vienna, 1815. Other developments included the establishment of Telegraphic and postal Unions in 1874, set-up of a commission of the Rhine River and that of Danube in 1856 and this was possible through international agreements. This observed adherence to International law.
The role of conferences in Europe in the development of international law in this century cannot be undermined. Such conferences greatly assisted in determining the rules governing the waging of war between states. Malcolm Shaw in his book recognized the role of the Geneva conventions that began in 1864. Equally important were the Hague conferences of 1899 and 1907 which established the Permanent Court of Arbitration and also assisted in the dealing with the treatment of prisoners and the control of warfare. These conferences emphasized the expansion of the rules of international law and also encouraged close network of inter-state relations.
This period also witnessed development in the study of international law and was evident in the writing and publishing of international law books, appointment of professors of the subject etcetera.
The dominance of the positivism in this era cannot be ignored. Although the early development of international law owes considerable debt to natural law, it outlived its implication and was set aside by the emergence of legal positivism and this was due to the increased legislation of municipal law which literally gave the idea that laws were basically commands from the sovereign person or body who was not hypothesized as was the case under natural law. Positivism in this era was a system that confined itself to the data of experience (empiricism) and excluded metaphysical speculations. It therefore first assumed its first distinctive features in work of Auguste Comte. Man-made laws were a more preferred mode of reference as opposed to morality and ethics which were associated to Natural law. The principal of municipal legislation was applied internationally and according to Malcolm Shaw, since law was ultimately dependent upon the will of the sovereign in national systems, it seemed to follow that international law depended upon the will of the sovereign states but this dependency in the long run resulted into challenges since there arose confusion and uncertainty as to the supreme legislator within a state with the state itself and thus positivism had to accept the metaphysical identity of the state as was the case under natural law. The metaphysical identity of the state did not appear in all positivist theories and was therefore a late development. It should also be noted that interpretation of international law by these states derived not from reason (natural law) but rather terms of what actually happened between them and this was achieved through agreements and customs signed between these states.
This century also recognized the role of Monists and Dualists. These two were applied in describing the relationship between international law and national law. The former accepted that the municipal and international legal systems form a unity and both national legal rules and international rules that a state has accepted (for example through treaty) determine whether actions are illegal or not. This arose from the maxim Pacta sunt servanda which literally meant “that every treaty in force is binding upon the parties to it and must be performed by them in good faith”. States would therefore be obliged to show solidarity that such agreements must be carried out. The latter (Dualists) on the other hand emphasized the difference between national and international law and required the translation of the latter into the former and without such translation international law would not exist as law. If a state accepts a treaty but does not adapt its national law in order to conform to the treaty or does not create a national law explicitly incorporating the treaty, then it violates international law. According to the dualists, national judges never apply international law, only international law has been translated into national law and this was exercised through consent. The emergence of these two schools of thought had resulted from the growth of international agreements, customs and regulations which had been entered to solve the problem of increased surbodinacy of the individual to the state since the state had enshrined the wills of all citizens and had evolved into a higher will.
In the 20th century, Positivism whose influence had reached its peak in the 19th century was undermined by the impact of the impact of the two great wars that is to say; World war one and two (WWI & II)  hence resulting into international organizations as will be discussed herein. 
On 28th June 1914, Archduke Franz Ferdinand and his wife Sophie, Duchess of Hohenburg were assassinated in Sarajevo setting off a six week diplomatic battle that resulted in the start of the First World War. This war according to Malcolm Shaw undermined European civilization and weakened its structures as well as squandering very many lives He furthermore says that self-confidence faded and universally accepted assumptions of progress were increasingly doubted whereas self-questioning was the order of the day and law as well as art reflected this.
The effect of this war led to the foundation the League of Nations which was intended to provide a forum for resolving international disputes and create a permanent court of international justice created to settle disputes between nations. This league was proposed by President Wilson of the United States of America as part of his fourteen points plan for an equitable peace in Europe. The onset of the Second World War demonstrated that the league had failed in its primary purpose, the prevention of another world war. Other failures included failure of the United States and the Soviet Union to join, poor organisation and structure in the assembly and executive council, limited global representation since it remained a European organisation, it also failed to maintain order in Europe since there arose constant invasions and attacks that is to say; Invasion of China by Japan in 1931, Italo-ethiopian war where Italy lost miserably, Soviet Union attacks on Finland. Despite the shortcomings, a permanent Court of International Justice was set up at the Hague in 1921 as initiated by the League, the international labour organisation was also set up and many other international organisations that contributed to the survival of international law and still exist today.
The League of Nations was replaced by the United Nations Organisation. It was the second multipurpose international organisation established in the 20th century that was worldwide in scope and membership. Its headquarters were based in New York and it reflected the realities of the shift of power away from Europe, and determined to become a truly universal institution
In summary, most of the development made in the 19th and 20th century has lasted and still exists today and this is attributed to their strength in structure. This includes international agreements and customs, international organisations like the United Nations organisation etcetera and these have assisted the sustenance of international law for this matter.
The role of Marxism in the development of international law should also be given utmost consideration. According to the Merriam Webster dictionary, Marxism is defined as a methodology of philosophical, sociological, political and economic analysis that explores class relations and societal conflict between the capitalists “bourgeoisie” and the laborers “proletariat”. The Marxist theory according to Malcolm Shaw described law and politics in this era as the means whereby the ruling classes maintained their domination of society. This meant that the ruling class (bourgeoisie) used the law to retain themselves in power and exploit the proletariat. This therefore influenced him to critique the development of Capitalism and class struggle in this era. This class conflict arose from the intensifying contradictions between the highly productive and mechanized production performed by the proletariat and the private ownership and appropriation of the surplus product (profit) by a small minority of the private owners called the bourgeoisie. Capital and labour were the opposing theses and their mutual antagonism would eventually lead to a revolution out of which a new, non-exploitive form of society would emerge. This revolution would in the long run replace the capitalist class with socialism and communism later on. The reality of this process was questionable due to the dominance of capitalist states in Europe especially those that surrounded USSR states which practiced socialism. More to this, the international system of states could not be changed overnight into a socialist order, so a period of transition was inevitable.
In relation to the above, the Russian October revolution led by the Bolsheviks led by Vladimir Lenin also contributed to the development of international law. According to Professor Grigory Tunkin, this revolution yielded new ideas and doctrines related to international law. These included; principles of socialist internationalism in relations between socialist states; principles of equality and self-determination of nations and peoples, primarily aimed against colonialism;    principles of peaceful co-existence aimed at relations between states with different social systems
Recourse should be made to the history especially the post-revolutionary period. Malcolm Shaw alludes to the fact that during this immediate post-revolution period, a transitional phase had commenced and during this time, international law despite being criticized by the socialist state was still recognized as a valid system. This period witnessed the rise of two theorists that is to say; Evgeny Bronislavovich Pashukanis and Konstantin Korovin. Malcolm Shaw avers that for the success and victory of the Russian revolution, the people had to forge a form of economic and technical cooperation since this was fundamental for the survival and existence of international social order. This was accurately seen in the words of Pashukanis where he stated that international law was an interclass law within which two antagonistic class systems would seek accommodation until the victory of the socialist system hence socialism and the Soviet Union could still use the legal institutions developed by and reflective of the capitalist system. The existence of Stalinism in the same country however threatened this cause. This later influenced Pashukanis to withdraw his position on the matter. In this case, international law was resolved to be a means of conducting a class war and not a form of temporary compromise between capitalist states and the USSR since the Soviet Union was bound only by those rules of international law which accorded with its purposes.
The influence of Audrey Vyshinsky should also be given utmost consideration. He was the Soviet Foreign minister from 949 to 1953 after having served as deputy minister. His influence and ideas assisted Russia’s successful attempt to join the League of Nations and wooing of European powers. Malcolm Shaw states that Vyshinsky embraced a more legalistic view of international law and emphasized the Soviet acceptance of such principles as national self-determination, state sovereignty and the equality of states, but not others.
Eventually, after the death of Joseph Stalin, the international law of peaceful co-existence in Russia and Europe as a whole took effect and this meant that war was no longer regarded as inevitable between capitalist and socialist countries and a period of mutual tolerance and co-operation was observed. This was due to the fact that there was a single system of international law of universal scope rather than different branches covering socialist and capitalist countries, and that international law was founded upon agreements between states which are binding upon them.
He (Professor Tunkin) defined contemporary general international law as:
“the aggregate of norms which are created by agreement between states of different social systems, reflect the concordant wills of states and have a generally democratic character, regulate relations between them in the process of struggle and co-operation in the direction of ensuring peace and peaceful co-existence and freedom and independence of peoples, and are secured when necessary by coercion effectuated by states individually or collectively”
Peaceful co-existence during this time basically involved non-inference in the internal affairs of other states and the sovereignty of states. It also laid down guidelines that influenced good neighborliness, international co-operation and observance in good faith in international relations. It was therefore an attempt intended to give implementation to the basic concepts of international law. Equally important was the role of custom which became accepted as a kind of implied agreement from the society. The concept of peaceful co- existence was also modified and the notion of class warfare eliminated from the Soviet political lexicon.
This period also witnessed advocacy for territorial integrity by the Soviet Union which was intended to protect the socialist states from being dominated by Capitalist sovereign powers especially in the third world developing countries. It also observed the process of re-evaluation in the field of international legal theory
Global interdependence after the cold war as well as international cooperation was also emphasized during this period. Global interdependence basically involved one country depending on another country and that country may depend on another. This was through exchange of goods and reciprocal enrichment of material cultures between these countries. This received support from both Socialists and capitalists which in the long run created a sense of unity between them and also solved the major conflict in the contemporary world. In this regard, Malcolm Shaw notes that it assisted in the development of international law since it assisted in uplifting of human values and the resolution of global problems in Europe and this was due to the nature of international law
The role of the Cold war in the development of international law cannot be ignored as well. This was a state of Geopolitical tension after World War II between powers in the Eastern bloc (the Soviet Union and its satellite states) and powers in the Western bloc (the United States, its NATO allies and others). The cold war influenced the dissolution of the Soviet Union which led to adoption of a system of international relations based on multiple sources of power free from ideological determinacy. Russia and other sovereign powers entered into a Western political system defined in actions and free from principled hostility.
This period also saw the recognition of China at the international stage. Malcolm Shaw states that the Chinese conception of law was entirely different from that of the West world and therefore law in Chinese societal structure had a lower footing as compared to that in Europe where it was determinant. In China, it was contended that society would be best served by example and established morality, rather than by rules and sanctions, this philosophy was however set aside by the virtue of the successful communist revolution, which later enabled China to experience international law ideologies like Communist, socialism etcetera
Third world. The third world, in the late 1950’s gave birth to a host of newly independent nations who were faced with a series of dilemmas related to their entry into and participation in the community of then existing sovereign states. After overcoming entry barriers and receiving recognition as sovereigns, the new states experienced dissatisfaction with the existing international law legal systems and this was due to past bitterness over their past status in the international community as well as a host problems relating to their social, economic and political development. Malcolm Shaw avers that during this time, international law was majorly founded on euro centrism and imbued on Christianity which was alien to African culture as well as expansion of Europe. This didn’t reflect the interests of the newly independent states since they felt; international law encouraged increased dominance of the Western world at their expense. They therefore advocated for change. Charles Henry Alexandrowicz in his book The European African confrontation noted that the international law ideas that fronted western domination were clearly rejected by third world states who advocated for territorial sovereignty, equality, non-aggression and intervention from these powers in their search for security within the bounds of a commonly accepted legal framework. This has been achieved today and is clearly evident in for example appointment on International Court of Justice and the Security Council of the United Nations. Article 9 of the Statute of the International Court of Justice provides for appointment of five Afro-Asian states and two to Latin American states on the committee, twenty-one of the thirty-four members are to be nationals of Afro-Asian-Latin American states on the general assembly. These new developments signify the rise of the post-colonial states and the effect they are having upon the development of international law. In the struggle for sovereignty of these third world countries on the international scene, they have pledged support of the United Nations and its Charter and supplemented by their desire for economic self-determination (economic independence) or the right of permanent sovereignty over natural resources.
Present law day international law. According to Malcolm Shaw, international law has over the years been developing in many directions as complexities of life in the modern era have multiplied and this is based on the fact that it operates the conditions and cultural traditions of the society within which it operates.
International law today has developed in accordance with existing inter-state relations and this has been through harmony with the realities of the age. This has secured its survival till present day. Similar to this is seen under municipal law where social economic and political values stamp their mark on the legal framework of society. There have however existed clash points between international law and already existing law in municipal states which has affected its progress and one of its major challenges would be in relation to incorporating over changing standards of behavior of society within already existing international law for example the advent of nuclear arms which created a factor of unease as certain states seek to acquire nuclear technology, the rise of terrorism which has posed as a challenge to the international system among other challenges.
The idea of more than one state existing within a system was adopted by international law with an aim of avoiding permanent hostility and enmity of some states claiming to be more supreme than the others. This was intended to secure acknowledgement of rights between states. This move was influenced by the rise the Soviet Union and the united states which advocated of decolonization to this effect. The collapse of Eurocentric nature of international law also led to recognition of other cultures and civilizations which began play an increasing role under international law.
In relation to the above, Malcolm Shaw avers that this law reflects the basic oriented character of world politics and units of formal independence benefiting from equal sovereignty in law and equal possession of the basic attributes of statehood which have succeeded in creating a system enshrining such values.This is based on the view that law reflects the concerns within a state and between states and also the fact that states need law in order to seek and attain certain goals, whether these be economic well-being, survival and security or ideological advancement.
Malcolm Shaw avers that the earlier sovereignty of states was greatly influenced by positivism and they alone were considered the 'subjects' of international law and were to be contrasted with the status of non-independent states and individuals as 'objects' of international law. These sovereign states created the law and restrictions upon their independence could not be presumed. These privileges and roles have in the present day been broken down and extended to non-state entities, such as individuals, multinational firms and international organisations which also possess personality.
Recognition of individual responsibility for crimes and atrocities committed has been evident in this era and this has been reflected from the Nuremberg Trials for crimes committed in the Second World War, Tokyo Trials for crimes committed in Japan and the recent Yugoslav and Rwanda War Crimes Tribunals in the mid-1990s for crimes committed in Rwanda and the International Criminal Court in 1998. The accused persons herein were tried individually for crimes committed without influence or attachment of their respective states.
International law in present has made efforts in protecting in protection of human rights and freedoms and this has been declared binding on signatories of the relevant states to such a treaty through ratification. An immediate example is seen under the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in 1950 and the International Covenants on Human Rights of 1966.
In an effort to function satisfactorily, various bodies of a supervisory nature were established. Within the European Union, individuals and corporations have certain rights of direct appeal to the European Court of Justice against decisions of the various Union institutions. In addition, individuals may appear before certain international tribunals.
In conclusion, despite the new challenges, international law has been founded on a solid ground from the beginning of the 20th century and this therefore makes it hard to wound up like before as was discussed earlier in this essay.

Bibliography:

Malcolm Shaw, International law, Leicester: Cambridge University Press, 2003
Rebecca MM Wallace, Olga Martin-Ortega, International law, Aberdeen: Sweet & Maxwell, 2016

References

Merriam Webster Dictionary
Stephen C. Neff, A short history of international law
Charles Henry Alexandrowicz, The European African confrontation

By :
Abdallah Sekibembe
sabdallahkhan.ak@gmail.com

The writer is a student of Law at Uganda Christian University School of Law.