International Law - History

International Law - History


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International law - laws that govern the interactions and relations between nations, resulting from officials rules, treaties, agreements and customs.

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International Environmental Law: History and milestones

International Environmental Law (IEL) is a discipline that involves the whole world in the protection of a common good: our environment. At AIDA, we apply it every day to help individuals and communities defend the environment and the fundamental human rights that depend on it.

But where did this global discipline come from and how has it evolved? Its rules have not been dictated by a national institution or an international authority. Rather, it is a compendium of declarations, treaties and rules—some binding, some voluntary—that have developed alongside scientific knowledge and awareness of the current state of our natural world.

The history of IEL can be divided into three stages, separated by two of the most relevant international conferences held so far: the Stockholm Conference (1972) and the Rio de Janeiro Earth Summit (1992). And in 2016, with the signing of the Paris Agreement, a new stage began to confront humanity's most important natural challenge: the current climate emergency.


International law: Evolution of International Law

There was little scope for an international law in the period of ancient and medieval empires, and its modern beginnings coincide, therefore, with the rise of national states after the Middle Ages. Rules of maritime intercourse and rules respecting diplomatic agents (see diplomatic service) soon came into existence. At the beginning of the 17th cent., the great multitude of small independent states, which were finding international lawlessness intolerable, prepared the way for the favorable reception given to the De jure belli ac pacis [concerning the law of war and peace] (1625) of Hugo Grotius, the first comprehensive formulation of international law. Though not formally accepted by any nation, his opinions and observations were afterward regularly consulted, and they often served as a basis for reaching agreement in international disputes. The most significant principle he enunciated was the notion of sovereignty and legal equality of all states. Other important writers on international law were Cornelius van Bynkershoek, Georg F. von Martens, Christian von Wolff, and Emerich Vattel.

The growth of international law came largely through treaties concluded among states accepted as members of the family of nations, which first included the states of Western Europe, then the states of the New World, and, finally, the states of Asia and other parts of the world. The United States contributed much to the laws of neutrality and aided in securing recognition of the doctrine of freedom of the seas (see seas, freedom of the). The provisions of international law were ignored in the Napoleonic period, but the Congress of Vienna (see Vienna, Congress of) reestablished and added much, particularly in respect to international rivers and the classification and treatment of diplomatic agents. The Declaration of Paris (see Paris, Declaration of) abolished privateering, drew up rules of contraband, and stipulated rules of blockade. The Geneva Convention (1864) provided for more humane treatment of the wounded. The last quarter of the 19th cent. saw many international conventions concerning prisoners of war, communication, collision and salvage at sea, protection of migrating bird and sea life, and suppression of prostitution. Resort to arbitration of disputes became more frequent. The lawmaking conventions of the Hague Conferences represent the chief development of international law before World War I. The Declaration of London (see London, Declaration of) contained a convention of prize law, which, although not ratified, is usually followed. At the Pan-American Congresses, many lawmaking agreements affecting the Western Hemisphere have been signed.

In World War I, no strong nations remained on the sidelines to give effective backing to international law, and the concept of third party arbitration was again endangered many of the standing provisions of international law were violated. New modes of warfare presented new problems in the laws of war, but attempts after the war to effect disarmament and to prohibit certain types of weapons (see war, laws of) failed, as the outbreak and course of World War II showed. The end of hostilities in 1945 saw the world again faced with grave international problems, including rectification of boundaries, care of refugees, and administration of the territory of the defeated enemy (see trusteeship, territorial). The inadequacy of the League of Nations and of such idealistic renunciations of war as the Kellogg-Briand Pact led to the formation of the United Nations as a body capable of compelling obedience to international law and maintaining peace. After World War II, a notable advance in international law was the definition and punishment of war crimes . Attempts at a general codification of international law, however, proceeded slowly under the International Law Commission established in 1947 by the United Nations.

The nuclear age and the space age have led to new developments in international law. The basis of space law was developed in the 1960s under United Nations auspices. Treaties have been signed mandating the internationalization of outer space (1967) and other celestial bodies (1979). The 1963 limited test ban treaty (see disarmament, nuclear) prohibited nuclear tests in the atmosphere, in outer space, and underwater. The nuclear nonproliferation treaty (1968) attempted to limit the spread of nuclear weapons. The agreements of the Strategic Arms Limitation Talks, signed by the United States and the USSR in 1972, limited defensive and offensive weapon systems. This was first of many international arms treaties signed between the two nations until the dissolution of the Soviet Union. Other treaties have covered the internationalization of Antarctica (1959), narcotic interdiction (1961), satellite communications (1963), and terrorism (1973). The Law of the Sea treaty (1982, in force from 1994) clarified the status of territorial waters and the exploitation of the seabed. Environmental issues have led to a number of international treaties, including agreements covering fisheries (1958), endangered species (1973), the ozone layer (1987 and 1992), biodiversity (1992), and global warming (1992 and several subsequent years). Since the signing of the General Agreement on Tariffs and Trade (GATT) in 1947, there have been numerous international trade agreements. The European Union (prior to 1993, the European Community) has made moves toward the establishment of a regional legal system in 1988 a Court of First Instance was established to serve as a court of original jurisdiction on certain economic matters. The establishment of the International Criminal Court (2002), with jurisdiction over war crimes, crimes against humanity, and related matters, marked a major step forward in international law despite the United States' repudiation of the treaty under President George W. Bush.

The Columbia Electronic Encyclopedia, 6th ed. Copyright © 2012, Columbia University Press. All rights reserved.


Contents

Attempts to define and regulate the conduct of individuals, nations, and other agents in war and to mitigate the worst effects of war have a long history. The earliest known instances are found in the Mahabharata and the Old Testament (Torah).

In the Indian subcontinent, the Mahabharata describes a discussion between ruling brothers concerning what constitutes acceptable behavior on a battlefield, an early example of the rule of proportionality:

One should not attack chariots with cavalry chariot warriors should attack chariots. One should not assail someone in distress, neither to scare him nor to defeat him . War should be waged for the sake of conquest one should not be enraged toward an enemy who is not trying to kill him.

An example from the Book of Deuteronomy 20:19–20 limits the amount of environmental damage, allowing only the cutting down of non-fruitful trees for use in the siege operation, while fruitful trees should be preserved for use as a food source:

19 When you besiege a city for a long time, making war against it in order to take it, you shall not destroy its trees by wielding an axe against them. You may eat from them, but you shall not cut them down. Are the trees in the field human, that they should be besieged by you? 20 Only the trees that you know are not trees for food you may destroy and cut down, that you may build siegeworks against the city that makes war with you, until it falls. [3]

Also, Deuteronomy 20:10–12 requires the Israelites to make an offer of conditioned peace to the opposing party before laying siege to their city, taking the population as servants and forced-laborers instead, shall they accept the offer.

10 When you draw near to a city to fight against it, offer terms of peace to it. 11 And if it responds to you peaceably and it opens to you, then all the people who are found in it shall do forced labour for you and shall serve you. 12 But if it makes no peace with you, but makes war against you, then you shall besiege it. [4]

Similarly, Deuteronomy 21:10–14 requires that female captives who were forced to marry the victors of a war, then not desired anymore, be let go wherever they want, and requires them not to be treated as slaves nor be sold for money:

10 When you go out to war against your enemies, and the Lord your God gives them into your hand and you take them captive, 11 and you see among the captives a beautiful woman, and you desire to take her to be your wife, 12 and you bring her home to your house, she shall shave her head and pare her nails. After that you may go in to her and be her husband, and she shall be your wife. 14 But if you no longer delight in her, you shall let her go where she wants. But you shall not sell her for money, nor shall you treat her as a slave, since you have humiliated her." [5]

In the early 7th century, the first Muslim caliph, Abu Bakr, whilst instructing his Muslim army, laid down rules against the mutilation of corpses, killing children, females and the elderly. He also laid down rules against environmental harm to trees and slaying of the enemy's animals:

Stop, O people, that I may give you ten rules for your guidance in the battlefield. Do not commit treachery or deviate from the right path. You must not mutilate dead bodies. Neither kill a child, nor a woman, nor an aged man. Bring no harm to the trees, nor burn them with fire, especially those which are fruitful. Slay not any of the enemy's flock, save for your food. You are likely to pass by people who have devoted their lives to monastic services leave them alone. [6] [7]

Furthermore, Sura Al-Baqara 2:190–193 of the Quran requires that in combat Muslims are only allowed to strike back in self-defense against those who strike against them, but, on the other hand, once the enemies cease to attack, Muslims are then commanded to stop attacking: [8]

And fight with them until there is no persecution, and religion should be only for Allah, but if they desist, then there should be no hostility except against the oppressors.

In the history of the early Christian church, many Christian writers considered that Christians could not be soldiers or fight wars. Augustine of Hippo contradicted this and wrote about 'just war' doctrine, in which he explained the circumstances when war could or could not be morally justified.

In 697, Adomnan of Iona gathered Kings and church leaders from around Ireland and Scotland to Birr, where he gave them the 'Law of the Innocents', which banned killing women and children in war, and the destruction of churches. [9]

In medieval Europe, the Roman Catholic Church also began promulgating teachings on just war, reflected to some extent in movements such as the Peace and Truce of God. The impulse to restrict the extent of warfare, and especially protect the lives and property of non-combatants continued with Hugo Grotius and his attempts to write laws of war.

One of the grievances enumerated in the American Declaration of Independence was that King George III "has endeavoured to bring on the inhabitants of our frontiers the merciless Indian Savages whose known rule of warfare is an undistinguished destruction of all ages, sexes and conditions".

The modern law of war is made up from three principal sources: [1]

  • Lawmaking treaties (or conventions)—see § International treaties on the laws of war below.
  • Custom. Not all the law of war derives from or has been incorporated in such treaties, which can refer to the continuing importance of customary law as articulated by the Martens Clause. Such customary international law is established by the general practice of nations together with their acceptance that such practice is required by law.
  • General Principles. "Certain fundamental principles provide basic guidance. For instance, the principles of distinction, proportionality, and necessity, all of which are part of customary international law, always apply to the use of armed force". [1]

Positive international humanitarian law consists of treaties (international agreements) that directly affect the laws of war by binding consenting nations and achieving widespread consent.

The opposite of positive laws of war is customary laws of war, [1] many of which were explored at the Nuremberg War Trials. These laws define both the permissive rights of states as well as prohibitions on their conduct when dealing with irregular forces and non-signatories.

The Treaty of Armistice and Regularization of War signed on November 25 and 26, 1820 between the president of the Republic of Colombia, Simón Bolívar and the Chief of the Military Forces of the Spanish Kingdom, Pablo Morillo, is the precursor of the International Humanitarian Law. [10] The Treaty of Guadalupe Hidalgo, signed and ratified by the United States and Mexico in 1848, articulates rules for any future wars, including protection of civilians and treatment of prisoners of war. [11] The Lieber Code, promulgated by the Union during the American Civil War, was critical in the development of the laws of land warfare. [12] Historian Geoffrey Best called the period from 1856 to 1909 the law of war's "epoch of highest repute." [13] The defining aspect of this period was the establishment, by states, of a positive legal or legislative foundation (i.e., written) superseding a regime based primarily on religion, chivalry, and customs. [14] It is during this "modern" era that the international conference became the forum for debate and agreement between states and the "multilateral treaty" served as the positive mechanism for codification.

In addition, the Nuremberg War Trial judgment on "The Law Relating to War Crimes and Crimes Against Humanity" [15] held, under the guidelines Nuremberg Principles, that treaties like the Hague Convention of 1907, having been widely accepted by "all civilised nations" for about half a century, were by then part of the customary laws of war and binding on all parties whether the party was a signatory to the specific treaty or not.

Interpretations of international humanitarian law change over time and this also affects the laws of war. For example, Carla Del Ponte, the chief prosecutor for the International Criminal Tribunal for the former Yugoslavia pointed out in 2001 that although there is no specific treaty ban on the use of depleted uranium projectiles, there is a developing scientific debate and concern expressed regarding the effect of the use of such projectiles and it is possible that, in future, there may be a consensus view in international legal circles that use of such projectiles violates general principles of the law applicable to use of weapons in armed conflict. [16] This is because in the future it may be the consensus view that depleted uranium projectiles breach one or more of the following treaties: The Universal Declaration of Human Rights the Charter of the United Nations the Genocide Convention the United Nations Convention Against Torture the Geneva Conventions including Protocol I the Convention on Conventional Weapons of 1980 the Chemical Weapons Convention and the Convention on the Physical Protection of Nuclear Material. [17]

It has often been commented that creating laws for something as inherently lawless as war seems like a lesson in absurdity. But based on the adherence to what amounted to customary international law by warring parties through the ages, it was believed [ by whom? ] that codifying laws of war would be beneficial. [ citation needed ]

Some of the central principles underlying laws of war are: [ citation needed ]

  • Wars should be limited to achieving the political goals that started the war (e.g., territorial control) and should not include unnecessary destruction.
  • Wars should be brought to an end as quickly as possible.
  • People and property that do not contribute to the war effort should be protected against unnecessary destruction and hardship.

To this end, laws of war are intended to mitigate the hardships of war by:

  • Protecting both combatants and non-combatants from unnecessary suffering.
  • Safeguarding certain fundamental human rights of persons who fall into the hands of the enemy, particularly prisoners of war, the wounded and sick, children, and civilians.
  • Facilitating the restoration of peace.

Military necessity, along with distinction, proportionality, humanity (sometimes called unnecessary suffering), and honor (sometimes called chivalry) are the five most commonly cited principles of international humanitarian law governing the legal use of force in an armed conflict.

Military necessity is governed by several constraints: an attack or action must be intended to help in the defeat of the enemy it must be an attack on a legitimate military objective, [18] and the harm caused to civilians or civilian property must be proportional and not excessive in relation to the concrete and direct military advantage anticipated. [19]

Distinction is a principle under international humanitarian law governing the legal use of force in an armed conflict, whereby belligerents must distinguish between combatants and civilians. [a] [20]

Proportionality is a principle under international humanitarian law governing the legal use of force in an armed conflict, whereby belligerents must make sure that the harm caused to civilians or civilian property is not excessive in relation to the concrete and direct military advantage expected by an attack on a legitimate military objective. [19]

Humanity. This principle is based in the Hague Conventions restrictions against using arms, projectiles, or materials calculated to cause suffering or injury manifestly disproportionate to the military advantage realized by the use of the weapon for legitimate military purposes. In some countries, like the United States, weapons are reviewed prior to their use in combat to determine if they comply with the law of war and are not designed to cause unnecessary suffering when used in their intended manner. This principle also prohibits using an otherwise lawful weapon in a manner that causes unnecessary suffering. [21]

Honor is a principle that demands a certain amount of fairness and mutual respect between adversaries. Parties to a conflict must accept that their right to adopt means of injuring each other is not unlimited, they must refrain from taking advantage of the adversary’s adherence to the law by falsely claiming the law’s protections, and they must recognize that they are members of a common profession that fights not out of personal hostility but on behalf of their respective States. [21]

To fulfill the purposes noted above, the laws of war place substantive limits on the lawful exercise of a belligerent's power. Generally speaking, the laws require that belligerents refrain from employing violence that is not reasonably necessary for military purposes and that belligerents conduct hostilities with regard for the principles of humanity and chivalry.

However, because the laws of war are based on consensus [ clarification needed ] , the content and interpretation of such laws are extensive, contested, and ever-changing.

[22] The following are particular examples of some of the substance of the laws of war, as those laws are interpreted today.

Declaration of war Edit

Section III of the Hague Convention of 1907 required hostilities to be preceded by a reasoned declaration of war or by an ultimatum with a conditional declaration of war.

Some treaties, notably the United Nations Charter (1945) Article 2, [23] and other articles in the Charter, seek to curtail the right of member states to declare war as does the older Kellogg–Briand Pact of 1928 for those nations who ratified it. [24] Formal declarations of war have been uncommon since 1945 outside the Middle East and East Africa.

Lawful conduct of belligerent actors Edit

Modern laws of war regarding conduct during war (jus in bello), such as the 1949 Geneva Conventions, provide that it is unlawful for belligerents to engage in combat without meeting certain requirements, such as wearing distinctive uniform or other distinctive signs visible at a distance, carrying weapons openly, and conducting operations in accordance with the laws and customs of war. Impersonating enemy combatants by wearing the enemy's uniform is allowed, though fighting in that uniform is unlawful perfidy, as is the taking of hostages.

Combatants also must be commanded by a responsible officer. That is, a commander can be held liable in a court of law for the improper actions of their subordinates. There is an exception to this if the war came on so suddenly that there was no time to organize a resistance, e.g. as a result of a foreign occupation. [ citation needed ]

People parachuting from an aircraft in distress Edit

Modern laws of war, specifically within Protocol I additional to the 1949 Geneva Conventions, prohibits attacking people parachuting from an aircraft in distress regardless of what territory they are over. Once they land in territory controlled by the enemy, they must be given an opportunity to surrender before being attacked unless it is apparent that they are engaging in a hostile act or attempting to escape. This prohibition does not apply to the dropping of airborne troops, special forces, commandos, spies, saboteurs, liaison officers, and intelligence agents. Thus, such personnel descending by parachutes are legitimate targets and, therefore, may be attacked, even if their aircraft is in distress.

Red Cross, Red Crescent, Magen David Adom, and the white flag Edit

Modern laws of war, such as the 1949 Geneva Conventions, also include prohibitions on attacking doctors, ambulances or hospital ships displaying a Red Cross, a Red Crescent, Magen David Adom, The Red Crystal, or other emblem related to the International Red Cross and Red Crescent Movement. It is also prohibited to fire at a person or vehicle bearing a white flag, since that indicates an intent to surrender or a desire to communicate. [ citation needed ]

In either case, people protected by the Red Cross/Crescent/Star or white flag are expected to maintain neutrality, and may not engage in warlike acts. In fact, engaging in war activities under a protected symbol is itself a violation of the laws of war known as perfidy. Failure to follow these requirements can result in the loss of protected status and make the individual violating the requirements a lawful target. [ citation needed ]

The law of war is binding not only upon States as such but also upon individuals and, in particular, the members of their armed forces. Parties are bound by the laws of war to the extent that such compliance does not interfere with achieving legitimate military goals. For example, they are obliged to make every effort to avoid damaging people and property not involved in combat or the war effort, but they are not guilty of a war crime if a bomb mistakenly or incidentally hits a residential area.

By the same token, combatants that intentionally use protected people or property as human shields or camouflage are guilty of violations of the laws of war and are responsible for damage to those that should be protected.

The use of contracted combatants in warfare has been an especially tricky situation for the laws of war. Some scholars claim that private security contractors appear so similar to state forces that it is unclear if acts of war are taking place by private or public agents. [25] International law has yet to come to a consensus on this issue.

During conflict, punishment for violating the laws of war may consist of a specific, deliberate and limited violation of the laws of war in reprisal.

After a conflict ends, persons who have committed or ordered any breach of the laws of war, especially atrocities, may be held individually accountable for war crimes through process of law. Also, nations that signed the Geneva Conventions are required to search for, then try and punish, anyone who has committed or ordered certain "grave breaches" of the laws of war. (Third Geneva Convention, Article 129 and Article 130.)

Combatants who break specific provisions of the laws of war are termed unlawful combatants. Unlawful combatants who have been captured may lose the status and protections that would otherwise be afforded to them as prisoners of war, but only after a "competent tribunal" has determined that they are not eligible for POW status (e.g., Third Geneva Convention, Article 5.) At that point, an unlawful combatant may be interrogated, tried, imprisoned, and even executed for their violation of the laws of war pursuant to the domestic law of their captor, but they are still entitled to certain additional protections, including that they be "treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial." (Fourth Geneva Convention Article 5.)

List of declarations, conventions, treaties, and judgments on the laws of war: [26] [27] [28]


International Human Rights Law: A Short History

The phrase "human rights" may be used in an abstract and philosophical sense, either as denoting a special category of moral claim that all humans may invoke or, more pragmatically, as the manifestation of these claims in positive law, for example, as constitutional guarantees to hold Governments accountable under national legal processes. While the first understanding of the phrase may be referred to as "human rights", the second is described herein as "human rights law".

While the origin of "human rights" lies in the nature of the human being itself, as articulated in all the world's major religions and moral philosophy, "human rights law" is a more recent phenomenon that is closely associated with the rise of the liberal democratic State. In such States, majoritarianism legitimizes legislation and the increasingly bureaucratized functioning of the executive. However, majorities sometimes may have little regard for "numerical" minorities, such as sentenced criminals, linguistic or religious groups, non-nationals, indigenous peoples and the socially stigmatized. It therefore becomes necessary to guarantee the existence and rights of numerical minorities, the vulnerable and the powerless. This is done by agreeing on the rules governing society in the form of a constitutionally entrenched and justiciable bill of rights containing basic human rights for all. Through this bill of rights, "human rights law" is created, becoming integral to the legal system and superior to ordinary law and executive action.

In this article, some aspects of the history of human rights law at the global, regional and subregional levels are traced. The focus falls on the recent, rather than the more remote, past. To start with, some observations are made about the "three generations" of human rights law.

Three generations of international human rights law
Human rights activism can be described as a struggle to ensure that the gap between human rights and human rights law is narrowed down in order to ensure the full legal recognition and actual realization of human rights. History shows that governments do not generally grant rights willingly but that rights gains are only secured through a successful challenge to absolutist authority. Following on the Magna Carta, which set limits on the powers of royal Government in thirteenth century England, the 1776 American Declaration of Independence and the 1789 French Declaration des droits de l'Homme et de du citoyen (Declaration of the Rights of Man and Citizen) were landmarks of how revolutionary visions could be transformed into national law and made into justiciable guarantees against future abuse.

The traditional categorization of three generations of human rights, used in both national and international human rights discourse, traces the chronological evolution of human rights as an echo to the cry of the French revolution: Liberté (freedoms, "civil and political" or "first generation" rights), Egalité (equality, "socio-economic" or "second generation" rights), and Fraternité (solidarity, "collective" or "third generation" rights). In the eighteenth and nineteenth centuries, the struggle for rights focused on the liberation from authoritarian oppression and the corresponding rights of free speech, association and religion and the right to vote. With the changed view of the State role in an industrializing world, and against the background of growing inequalities, the importance of socio-economic rights became more clearly articulated. With growing globalization and a heightened awareness of overlapping global concerns, especially due to extreme poverty in some parts of the world, "third generation" rights, such as the rights to a healthy environment, to self-determination and to development, have been adopted.

During the period of the cold war, "first generation" rights were prioritized in Western democracies, while second generation rights were resisted as socialist notions. In the developing world, economic growth and development were often regarded as goals able to trump "civil and political" rights. The discrepancy between the two sets of rights was also emphasized: "civil and political" rights were said to be of immediate application, while "second generation" rights were understood to be implemented only in the long term or progressively. Another axis of division was the supposed notion that "first generation" rights place negative obligations on States while "second generation" rights place positive obligations on States. After the fall of the Berlin Wall, it became generally accepted that such a dichotomy does not do justice to the extent to which these rights are interrelated and interdependent. The dichotomy of positive/negative obligations no longer holds water. It seems much more useful to regard all rights as interdependent and indivisible, and as potentially entailing a variety of obligations on the State. These obligations may be categorized as the duty to respect, protect, promote and fulfil.

Global level
For many centuries, there was no international human rights law regime in place. In fact, international law supported and colluded in many of the worst human rights atrocities, including the Atlantic Slave Trade and colonialism. It was only in the nineteenth century that the international community adopted a treaty abolishing slavery. The first international legal standards were adopted under the auspices of the International Labour Organization (ILO), which was founded in 1919 as part of the Peace Treaty of Versailles. ILO is meant to protect the rights of workers in an ever-industrializing world.

After the First World War, tentative attempts were made to establish a human rights system under the League of Nations. For example, a Minority Committee was established to hear complaints from minorities, and a Mandates Commission was put in place to deal with individual petitions of persons living in mandate territories. However, these attempts had not been very successful and came to an abrupt end when the Second World War erupted. It took the trauma of that war, and in particular Hitler's crude racially-motivated atrocities in the name of national socialism, to cement international consensus in the form of the United Nations as a bulwark against war and for the preservation of peace.

The core system of human rights promotion and protection under the United Nations has a dual basis: the UN Charter, adopted in 1945, and a network of treaties subsequently adopted by UN members. The Charter-based system applies to all 192 UN Member States, while only those States that have ratified or acceded to particular treaties are bound to observe that part of the treaty-based (or conventional) system to which they have explicitly agreed.

Charter-based system
This system evolved under the UN Economic and Social Council, which set up the Commission on Human Rights, as mandated by article 68 of the UN Charter. The Commission did not consist of independent experts, but was made up of 54 governmental representatives elected by the Council, irrespective of the human rights record of the States concerned. As a consequence, States earmarked as some of the worst human rights violators served as members of the Commission. The main accomplishment of the Commission was the elaboration and near-universal acceptance of the three major international human rights instruments: the Universal Declaration of Human Rights, adopted in 1948, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), the latter two adopted in 1966. As the adoption of those two separate documents indicates, the initial idea of transforming the Universal Declaration into a single binding instrument was not accomplished, mainly due to a lack of agreement about the justiciability of socio-economic rights. As a result, individual complaints could be lodged, alleging violations by certain States of ICCPR, but not so with ICESCR.

The normative basis of the UN Charter system is the Universal Declaration of Human Rights, adopted on 10 December 1948, which has given authoritative content to the vague reference to human rights in the UN Charter. Although it was adopted as a mere declaration, without a binding force, it has subsequently come to be recognized as a universal yardstick of State conduct. Many of its provisions have acquired the status of customary international law.

Faced with allegations of human rights violations, particularly in apartheid South Africa, the Commission had to devise a system for the consideration of complaints. Two mechanisms emerged, the "1235" and "1503" procedures, adopted in 1959 and 1970, respectively, each named after the Economic and Social Council resolution establishing them. Both mechanisms dealt only with situations of gross human rights violations. The difference was that the "1235" procedure entailed a public discussion while "1503" remained confidential. In order to fill the gap in effective implementation of human rights, a number of special procedures were established by the Commission. Unique procedures take the form of special rapporteurs, independent experts or working groups looking at a particular country (country-specific mandate) or focusing on a thematic issue (thematic mandate).

Leapfrogging a few decades to 2005, in his report In Larger Freedom: Towards Development, Security and Human Rights for All, the former UN Secretary-General, Kofi Annan, called for the replacement of the Commission by a smaller, permanent and human rights-compliant Council, able to fill the credibility gap left by States that used their Commission membership "to protect themselves against criticism and to criticize others". 1 The major reason for replacing the Commission was the very selective way in which it exercised its country-specific mandate, due mainly to the political bias of representatives and the ability of more powerful countries to deflect the attention away from themselves and those enjoying their support. In 2006, the General Assembly decided to follow the Secretary-General's recommendation, creating the Human Rights Council as a replacement to the Commission on Human Rights. 2

There are some important differences between the former Commission on Human Rights and the current Human Rights Council. As a subsidiary organ of the General Assembly, the Council enjoys an elevated status compared to the Commission, which was a functional body of the Economic and Social Council. It has a slightly smaller membership (47 States) and its members are elected by an absolute majority of the Assembly (97 States). To avoid prolonged dominance by a few States, members may be elected only for two consecutive three-year terms. The Council serves as a standing or permanent body, which meets regularly, not only for annual "politically charged six-week sessions" as the Commission did. Following the more human rights-sensitive selection criteria, the list of States elected by the Assembly contrasts with countries which, in 2006, served on the Commission. The Assembly may, by a two-thirds majority vote, suspend a member that engages in gross and systematic human rights violations.

The Human Rights Council retained most of the special procedures, including the confidential "1503" (now called the "compliant procedure"), and introduced the Universal Peer Review (UPR). Starting in April 2008, one third of UN Member States has undergone this process. The UPR sUPR hows similarities with the African Peer Review Mechanism which has been set up under the New Partnership for Africa's Development (NEPAD). Apart from the Universal Declaration on Human Rights, the General Assembly adopted numerous other declarations. When sufficient consensus emerges between States, declarations may be transformed into binding agreements. It is revealing that the required level of agreement is lacking on crucial issues, such as the protection of non-hegemonic citizenship. The two relevant declarations -- the Declaration on the Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities, adopted in 1992, and the Declaration on the Rights of Indigenous Peoples, adopted in 2007, have not been translated into binding instruments. The same is true of the Declaration on the Right to Development, which was adopted in 1986.

Treaty-based system
The treaty-based system developed even more rapidly than the Charter-based system. The first treaty, adopted in 1948, was the Convention on the Prevention and Punishment of the Crime of Genocide, which addressed the most immediate past experience of the Nazi Holocaust. Since then, a huge number of treaties have been adopted, covering a wide array of subjects, eight of them on human rights -- each comprising a treaty monitoring body -- under the auspices of the United Nations.

The first, adopted in 1965, is the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), followed by ICCPR and ICESCR in 1966. The international human rights regime then started to move away from a generic focus, shifting its attention instead to particularly marginalized and oppressed groups or themes: the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) adopted in 1979 the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) the Convention on the Rights of the Child (1989) the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990) and the Convention on the Rights of Persons with Disabilities (2006). The latest treaty is the International Convention for the Protection of All Persons from Enforced Disappearances (ICED), also adopted in 2006 but yet to enter into force. With the adoption of an Optional Protocol to ICESCR in 2008, allowing for individual complaints regarding alleged violations of socio-economic rights, the UN treaty system now also embodies the principle that all rights are justiciable. Office of the UN High Commissioner
Twenty years after the adoption of the Universal Declaration, the first International Conference on Human Rights was held in 1968 in Teheran. As the world was at that stage caught in the grip of the cold war, little consensus emerged and not much was achieved. The scene was very different when the second world conference took place in Vienna in 1993. The cold war had come to an end, but the genocide in Bosnia and Herzegovina was unfolding. Against this background, 171 Heads of State and Government met and adopted the Vienna Declaration and Programme of Action. It reaffirmed that all rights are universal, indivisible and interdependent. Several resolutions adopted there were subsequently implemented, including the adoption of an Optional Protocol to CEDAW and the establishment of the Office of the United Nations High Commissioner for Human Rights, with the first High Commissioner (José Ayala Lasso) elected in 1994. The High Commissioner has the major responsibility for human rights in the United Nations. The increasingly important human rights field presence in ratcheted countries also falls under this Office.

Other conferences have also highlighted important issues, such as racism and xenophobia, which were discussed at the 2001 World Conference Against Racism, held in Durban, South Africa. This culminated in the adoption of the Durban Declaration and Programme of Action. A review conference to assess progress in the implementation of the Declaration took place in April 2009.

Regional level
Since the Second World War, three regional human rights regimes -- norms and institutions that are accepted as binding by States -- have been established. Each of these systems operates under the auspices of an intergovernmental organization or an international political body. In the case of the European system -- the best of the three -- it is the Council of Europe, which was founded in 1949 by 10 Western European States to promote human rights and the rule of law in post-Second World War Europe, avoided a regression into totalitarianism and served as a bulwark against Communism. The Organization of American States (OAS) was founded in 1948 to promote regional peace, security and development. In Africa, a human rights system was adopted under the auspices of the Organization for African Unity (OAU), which was formed in 1963 and transformed in 2002 into the African Union (AU).

In each of the three systems, the substantive norms are set out in one principal treaty. The Council of Europe adopted its primary human rights treaty in 1950: the European Convention of Human Rights and Fundamental Freedoms. Incorporating the protocols adopted thereto, it includes mainly "civil and political" rights, but also provides for the right to property. All 47 Council of Europe members have become party to the European Convention. OAS adopted the American Convention on Human Rights in 1969, which has been ratified by 24 States. The American Convention contains rights similar to those in the European Convention but goes further by providing for a minimum of "socio-economic" rights. In contrast to these two treaties, the African Charter, adopted by OAU in 1981, contains justiciable "socio-economic" rights and elaborates on the duties of individuals and the rights of peoples. All AU members are parties to the African Charter.

The way in which the principal treaty is implemented or enforced differs in each region. In an evolution spanning many decades, the European system of implementation, operating out of Strasbourg, France, developed from a system where a Commission and a Court co-existed to form a single judicial institution. The European Court of Human Rights deals with individual cases. A dual model is in place in the Americas, consisting of the Inter-American Commission, based in Washington, D.C., and the Inter-American Court of Human Rights, based in San José, Costa Rica. Individual complainants have to submit their grievances to the Inter-American Commission first thereafter, the case may proceed to the Inter-American Court of Human Rights. The Commission also has the function of conducting on-site visits. After some recent institutional reforms, the African system now resembles the Inter-American system.

Fledgling Arab and Muslim regional systems have also emerged under the League of Arab States and the Organization of the Islamic Conference (OIC). According to the Islamic world view, the Koran and other religious sources play a dominant role in the regulation of social life.

The League of Arab States was founded in terms of the Pact of the League of Arab States of 1945. Its overriding aim is to strengthen unity among Arab States by developing closer links between its members. The Pact emphasizes the independence and sovereignty of its members, but no mention is made in its founding document of either the contents or principles of human rights.

At the Teheran World Conference in 1968, some Arab States managed to have the position of Arabs in the territories occupied by Israel included in the agenda and successfully articulated it as a human rights issue. This created awareness of human rights among the Arab States in the aftermath of a number of defeats at the hands of Israel in 1967. However, at the Teheran Conference and thereafter, the commitment of the Arab League to human rights was primarily on directing criticism against Israel over its treatment of the inhabitants in Palestine and other occupied areas. In 1968, a regional conference on human rights was held in Beirut, where the Permanent Arab Commission on Human Rights (ACHR) was established. Since inception, the ACHR has been a highly politicized body, with its political nature accentuated by the method of appointment. The Commission does not consist of independent experts, as in many other international human rights bodies, but of government representatives. On 15 September 1994, the Council of the League of Arab States adopted the Arab Charter on Human Rights, whose entry into force, which required seven ratifications, was reached in 2008.

OIC, established in 1969, aims at the promotion of Islamic solidarity among the 56 Member States and works towards cooperation in the economic, cultural and political spheres. The major human rights document, adopted in Cairo in 1990 under this framework, is the Cairo Declaration on Human Rights in Islam, which is of a declamatory nature only. As its title indicates, and given the aims of OIC, the declaration is closely based on the principles of the Shari'ah. In 2004, OIC adopted a binding instrument with a specific focus: the Covenant on the Rights of the Child in Islam. This Convention is open for ratification and will enter into force after 20 OIC member States have ratified it. Although the Convention provides for a monitoring mechanism -- the Islamic Committee on the Rights of the Child -- its mandate is only vaguely drafted.

Overlapping to some extent with the Muslim world, the heterogeneous Asian region stretches from Indonesia to Japan, comprising a diverse group of nations. Despite some efforts by the United Nations, no supranational human rights convention or body has been established in the Asia-Pacific region. In the absence of an intergovernmental organization serving as a regional umbrella that unites all the diverse States in this region, a regional human rights system remains unlikely.

Subregional level
In more recent times, the subregional level has emerged as another site for human rights struggle, particularly in Africa. As a result of a weak regional system under the African Union, a number of African sub-Regional Economic Communities (RECs) emerged from the 1970s: most prominently, the Economic Community of West African States, the Common Market for Eastern and Southern Africa, the Southern African Development Community (SADC) and the East African Community (EAC). Although these RECs are primarily aimed at subregional economic integration, and not at the realization of human rights, there is an inevitable overlap in that their aims of economic integration and poverty eradication are linked to the realization of socio-economic rights. In a number of the founding treaties of RECs, human rights are given explicit recognition as being integral to the organizations' aims. By creating subregional courts with an implicit, or sometimes explicit, mandate to deal with human rights cases, it is apparent that these economic communities have become key role-players in the African regional human rights system.

Two decisions of subregional courts illustrate the growing significance of RECs to human rights protection. In a case brought against Uganda, it was contended that Uganda violated the EAC Treaty when it re-arrested 14 accused persons after they had been granted bail. 3 The Court, in 2007, held that Uganda had violated the rule of law doctrine, as enshrined among the fundamental principles governing EAC.

In its first decision on the merits of a case, delivered in November 2008, 4 the SADC Tribunal held that it had jurisdiction, on the basis of the SADC Treaty, to deal with the acquisition of agricultural land by the Zimbabwean Government, carried out under an amendment to the Constitution (Amendment 17). The Tribunal further found that, as it targeted white farmers, the Zimbabwean land reform programme violated article 6(2) of the SADC Treaty, which outlaws discrimination on the grounds of race, among other factors. As to the remedial order, the Tribunal directed Zimbabwe to protect the possession, occupation and ownership of lands belonging to applicants and pay fair compensation to those whose land had already been expropriated.

Promising developments towards subregional human rights protection have also recently occurred in the Association of Southeast Asian Nations (ASEAN), bringing together the founding States of Indonesia, Malaysia, Singapore, Thailand and the Philippines. Although ASEAN was established in 1967, a formal founding treaty (the ASEAN Charter) was adopted only in 2007. The Charter envisages the establishment of an ASEAN human rights body -- a process that is still underway.

Not by States Alone
Advances in human rights are not dependent only on States. Non-governmental organizations have been very influential in advancing awareness on important issues and have prepared the ground for declarations and treaties subsequently adopted by the United Nations.

The role of civil society is of particular importance when the contentiousness of an issue inhibits State action. The Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity is a case in point. Although it was adopted in November 2006 by 29 experts from only 25 countries, the 29 principles contained in the document -- related to State obligations in respect of sexual orientation and gender identity -- are becoming an internationally accepted point of reference and are likely to steer future discussions.

The international human rights law landscape today looks radically different from 60 years ago when the Universal Declaration was adopted. Significant advances have been made since the Second World War in expanding the normative reach of international human rights law, leading to the proliferation of human rights law at the international level. Over the last few decades, however, attention has shifted to the implementation and enforcement of human rights norms, to the development of more secure safety nets and to a critical appraisal of the impact of the norms. Greater concern for human rights has also been accompanied with greater emphasis on the individual liability of those responsible for gross human rights violations in the form of genocide, crimes against humanity and war crimes. The creation of international criminal tribunals, including the International Criminal Court in 1998, constitutes a trend towards the humanization of international law. The further juridification of international human rights law is exemplified by the establishment of more courts, the extension of judicial mandates to include human rights, and the unequivocal acceptance that all rights are justiciable. With the adoption of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, there is much clearer acceptance of the principle of indivisibility under international human rights law. However, the constant evolution of the international human rights regime depends greatly on non-State actors, as is exemplified by their role in advocating for and preparing the normative ground for the recognition of the rights of "sexual minorities". There is no doubt that the landscape is to undergo dramatic changes in the next 60 years.

1. In Larger Freedom: Towards Development, Security and Human Rights for All, Report of the Secretary-General, UN Doc A/49/2005, 21 March 2005.

2. UN Doc. A/RES/60/251 (para 13), 3 April 2006, recommending to the Economic and Social Council to "abolish" the Commission on Human Rights on 16 June 2006.

3. James Katabazi and Others v Secretary-General of the EAC and Attorney-General of Uganda, Reference 1 of 2007, East African Court of Justice, 1 November 2007.

4. Mike Campbell (Pvt) Limited and Others v Republic of Zimbabwe, Case SADCT 2/07, SADC Tribunal, 28 November 2008.


International law history

About the end of the thirteenth century, there were more than one hundred ecclesiastical sovereign states within the limits of the German Empire. Now we can readily infer what all this means in the contest between Feudalism and the Roman Jurisprudence. The bishops were nurtured in this latter system, they were hostile to the usages of Feudalism, they had no desire to perpetuate the sway of their own families. Consequently in all the ecclesiastical states the principles of the Roman Jurisprudence were to a greater or less extent introduced or restored. And precisely the same thing happened with the great Free Cities of the North, known as the Hanseatic League, to which we have already referred.

All these things contributed to establish the Roman System side by side with Feudalism in Germany and to perpetuate it. Even the transfer of the imperial title to the German monarchs, and the frequent visits of the German Emperors to be crowned at Rome, together with the sentimental desire on their part to revive not only the Roman Empire, but all the incidents of that Empire, including therein of course the Roman Jurisprudence, were powerful factors in the revival of the principles of the Roman Law in Germany. The Lutheran Reformation checked this movement by the enlargement of the powers of the petty feudal princes, who, in consequence of it, became absolute monarchs within their own dominions, and found the usages of Feudalism more in accordance with their selfish purpose than the principles of the Roman Jurisprudence. But the free spirit which first found vent in the American Revolution, and which speedily reacted upon Europe, ultimately leading to the French Revolution of 1789, began also to make headway in Germany about the same time, and led to the promulgation of new codes of law both in Prussia and Austria, mainly upon the lines of the Roman Law, and ultimately to the adoption of the Code Napoleon, by all the States of Germany.

There is yet another phase of the great contest. In the course of it the Christian Church laid the foundations of modern International Law. Private International Law, as it has been called, or the Conflict of Laws, as it has sometimes been known, had been very fully developed by the Praetor Peregrinus at Rome in the administration of justice between Roman citizens and foreigners domiciled at Rome, and in controversies between foreigners themselves of different nationalities and modern civilization has added little or nothing to the rules of the Roman Law upon this subject. But it was reserved for the Christian Church of the Middle Ages to deal with the nations as nations, and to procure them to deal with each other as members of the common family of States, upon principles of equity and justice, and in accordance with the tenets of Christianity. Feudalism was no more than organized brigandage and it tended to make every nation, and every petty principality, and every man, the enemy of every other nation, and principality, and human being.

Feudalism was a state of society, in which every man capable of bearing arms may be said to have slept upon his arms, ever ready to be roused to the sound of battle, and in which every alien was regarded prima facie as an enemy. The Christian Church ever sought to superinduce a kindlier feeling, to induce the nations to refrain from border warfare, and to submit their controversies to arbitration and many a controversy between nations in the Middle Ages was submitted to the Roman Pontiff as arbitrator. We may recall one famous controversy towards the end of the period, which is most interesting to us as having reference to our own America.

At the end of the fifteenth century, when Columbus had just discovered America, Spain and Portugal led all the nations of Europe and of the world in maritime enterprise. While the great Genoese, and Alonzo de Ojeda, and Amerigo Vespucci, and other famous adventurers, were engaged in the discovery and exploration of a new world for Castille and Leon, Bartholemew Diaz, in the services of Portugal, pushed southward along the coast of Africa and doubled the Cape of Good Hope, being the first to do so since the time of Pharoah Necho, King of Egypt. Following in his wake, the great Portuguese navigator, Vasco de Gama, sailed through the straits of Mozambique, plunged boldly into the unknown wastes of the Indian Ocean, and reached the coast of Hindustan.


Institute of International Law

Founding. Gustave Rolin-Jaequemyns, a Belgian jurist and editor of the Revue de droit international et de législation comparée, provided the initiative for the founding of the Institute of International Law (L’Institut de droit international). In the aftermath of the Franco-Prussian War (1870-1871), he entered into correspondence with some other leading jurists who were also beginning to consider ways of establishing collective scientific action for the promotion of international law – inseparable, in their opinion, from the promotion of peace. In September, 1873, he assembled ten eminent jurists for meetings in the town hall of Ghent: Tobias Asser (The Netherlands), Wladimir Besobrasoff (Russia), J. K. Bluntschli (Germany), Carlos Calvo (Argentina), David Dudley Field (U.S.A.), Émile de Laveleye (Belgium), James Lorimer (Great Britain), P. S. Mancini (Italy), Gustave Moynier (Switzerland), and Augusto Pierantoni (Italy). This group established the Institute, electing Mancini president and Rolin-Jacquemyns secretary-general. The Institute held its first session in Geneva in 1874 its fifty-fifth is scheduled for Zagreb in August-September, 1971.

The Institute of International Law is a purely scientific and private association, without official character, whose objective is to promote the progress of international law by: formulating general principles cooperating in codification seeking official acceptance of principles in harmony with the needs of modern society contributing to the maintenance of peace or to the observance of the laws of war proffering needed judicial advice in controversial or doubtful cases and contributing, through publications, education of the public, and any other means, to the success of the principles of justice and humanity which should govern international relations.

Participants. The Institute maintains a reasonably balanced representation from the nations of the world and extends membership only to those who have demonstrated scholarly attainment and who are likely to be free from political pressures. The statutes and regulations governing the Institute establish three categories of participants: members, associates, and honorary members. The associates – limited to seventy-two – are drawn from candidates «who have rendered service to international law, either in the domain of theory or of practice» 1 and who have been presented either by their national associations or by the Bureau of the Institute. The members – limited to sixty – are chosen from among the associates. The honorary members – not limited in number by the statutes but sparingly chosen in practice – are selected from the ranks of members or associates or from any other persons who distinguish themselves in the field of international law.

All participants share in the scholarly and issue-oriented activities of the Institute. Only the members deal with administrative matters such as finances, decisions concerning the statutes and regulations, election of members and honorary members, or the election of members of the Bureau or of the Council of the Auxiliary Foundation.

To assure representation of the various judicial systems of the world, the Institute permits no state to have more than one-fifth of the members or associates allowed in each category, and the Bureau of the Institute may allocate to candidates from parts of the world which are under-represented, up to one-third of the number of associate memberships open in any given session. As of May, 1971, the Institute had a total of 115 members, associates, and honorary members drawn from forty states, the preponderant number being from Western countries 2 .

Organization. The assembly of members and honorary members convened at each session is the sovereign legislative body of the Institute. Executive power is vested in the Bureau of the Institute, an office composed of the president of the Institute, the three vice-presidents, the secretary-general, and the treasurer.

The president, usually chosen from among the members representing the country or institution which is to host the next session of the Institute, and the first vice-president are elected at the end of a given session and remain in office until the close of the following session. The second and third vice-presidents are elected at the opening of each session, remaining in office until the start of the next session. The secretary-general and the treasurer, elected to serve for three sessions, may succeed themselves. As the principal executive officer of the Institute, the secretary-general directs the daily operation of the Institute, assumes custody of its archives, and supervises publication of its Yearbook. His residence is the official seat of the Institute. 3

Finances. For many years the Institute was financed by contributions from its participants. Since the turn of the century, it has gradually built up an endowment from gifts, awards, and bequests, most notably the Nobel Peace Prize funds of 1904 and grants from the Carnegie Endowment for International Peace.

To manage the endowment funds, the Institute in 1947 created, under Swiss law, its Auxiliary Foundation, with headquarters in Lausanne. The funds, derived from the Foundation and administered by the treasurer, are used to reimburse members and associates for travel expenses incurred by attendance at the sessions, to defray organizational costs of the sessions, and to pay for the publication of the Yearbook.

Activities. The preoccupation of the Institute is the objective study of existing international law and its abiding concern is that the evolution of international law proceed in a manner that conforms to the principles of justice and humanity. Since it is a private association, it has no mandate to intervene directly in actual international disputes. The Institute does not, therefore, participate in the settlement of international controversies, nor does it censure governments for the positions they take in particular cases. The only exception to this rule was its adoption of a resolution in 1877 pertaining to the application of international law in the war between Russia and Turkey.

The Institute does not, however, limit its concern to legal abstractions nor its thinking to mere speculation. The Institute has formulated and endorsed specific proposals for the gradual creation of an international community that respects law and justice. Between 1873 and 1969, the pacific settlement of international disputes, for example, has been the subject of fifteen directly applicable resolutions and of many others indirectly applicable. Among these resolutions are those on treaties of arbitration on procedures in conciliation on the establishment, composition, and procedure of an International Court of Justice. On the subject of human rights the Institute has adopted at least eleven directly applicable resolutions, including its declaration of 1929 and the statement of 1947. Between 1873 and World War I, the question of neutrality was the concern of twenty-one resolutions, but it was not revived until half a century later in resolutions of 1963 and 1969. In the domain of international private law, from 1873 to 1969, the Institute has adopted sixty-four resolutions dealing with civil, criminal, and commercial matters.

Although the resolutions of the Institute have no official authority in the chancellories or the parliaments of the world, they have nonetheless exerted a significant influence on their actions, as well as on international conferences and on public opinion in general. For example, certain international treaties of the 1880’s embodied recommendations made by the Institute on the Suez Canal and on the submarine cable international arbitration procedures incorporated some of its suggestions the Hague Peace Conferences of 1899 and 1907 utilized its studies on the laws of war, especially those on the codification of land war prepared at its 1880 session in Oxford and thereafter called the «Oxford Manual» the League of Nations and the United Nations have considered its recommendations on various questions. In the domain of international private law, the Institute’s influence can be seen in extradition legislation – to cite only one instance and the 1969 discussion of pollution of international waters provides direction for research on a pressing, contemporary problem 4 .

Selected Bibliography
Abrams, Irwin, «The Emergence of the International Law Societies», Review of Politics, 19 (1957) 361-380.
Annuaire de l’Institut de droit international: Session d’Édimbourg, Septembre, 1969. Volume 53, 2 tomes. Bâle, Éditions juridiques et sociologiques S.A., 1970. The first volume of the Annuaire was published at Ghent in 1877 the 53 volumes provide a complete record of the Proceedings of the Institute.
Rolin, Albéric, Les Origines de l’Institut de droit international (1873-1923): Souvenirs d’un témoin. Gand, 1923.
Schou, August, Histoire de l’internationalisme III: Du Congrès de Vienne jusqu’à la première guerre mondiale (1914), pp. 311-321. Publications de l’Institut Nobel Norvégien, Tome VIII. Oslo, Aschehoug, 1963.
«Statuts de l’Institut de droit international.» An offprint of pp. xxxiii-ixxv from Tome II of the Annuaire, q.v.supra.
«Table des matiéres: L’Indiquant le titre des Résolutions adoptées par l’Institut au cours de ses cinquante-quatre sessions tenues depuis sa fondation en 1873 jusqu’à 1969.» An offprint of pp. ixxix-xci from Tome II of the Annuaire, q.v. supra.
Wehberg, Hans, Institut de droit international: Tableau général des résolutions, 1873-1956. Bâle, Éditions juridiques et sociologiques S.A., 1957.

* The editor gratefully acknowledges permission to use freely material kindly supplier for this history by the Institute of International Law.

1. Statuts de l’Institut de droit international, Article 5.

2. Countries having four or more representatives are: Austria 4, Belgium 8, England 11, France 9, Germany 5, Greece 5, Italy 9, The Netherlands 4, Spain 5, Switzerland 5, United States 6.

3. In the Institute’s history of almost a hundred years there have been twelve secretaries-general: G. Rolin-Jacquemyns (1873-1878, Ghent 1887-1892, Brussels) M. Rivier (1878-1887, Brussels) E. Lehr (1892-1900, Lausanne) Baron Descamps (1900-1906, Louvain) A. Rolin ( 1906-1913, Ghent 1913-1919, The Hague 1919-1923, Brussels) M. Nerincx (1923-1927, Louvain) C. De Visscher (1927-1931, Ghent 1931-1937, Brussels) F. De Visscher (1937-1950, Brussels) H. Wehberg (1950- 1962, Geneva) P. Guggenheim (par interim 1962-1963, Geneva) Mme. S. Bastid (1963-1969, Paris) P. De Visscher (1969-, Brussels).

4. «Etude des mesures internationales les plus aptes à prévenir la pollution des milieux maritimes» in Annuaire (1969), pp. 547-711.

From Nobel Lectures, Peace 1901-1925, Editor Frederick W. Haberman, Elsevier Publishing Company, Amsterdam, 1972

This text was first published in the book series Les Prix Nobel. It was later edited and republished in Nobel Lectures. To cite this document, always state the source as shown above.

Copyright © The Nobel Foundation 1904

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Introduction: Towards a Global History of International Law, Bardo Fassbender and Anne Peters
Part One: Actors
1:Peoples and Nations, Jörg Fisch
2:States, Antonio Cassese
3:Peace Treaties and the Formation of International Law, Randall Lesaffer
4:Minorities and Majorities, Janne Elisabeth Nijman
5:Hostes humani generis: Pirates, Slavers, and other Criminals, Joaquín Alcáide Fernandez
6:International Arbitration and Courts, Cornelis G. Roelofsen
7:International Organizations: Between Technocracy and Democracy, Anne Peters and Simone Peter
8:Peace Movements, Civil Society, and the Development of International Law, Cecelia M. Lynch
Part Two: Themes
9:Territory and Boundaries, Daniel-Erasmus Khan
10:Cosmopolis and Utopia, Dominique Gaurier
11:Peace and War, Mary Ellen O'Connell
12:Religion and Religious Intervention, Antje von Ungern-Sternberg
13:The Protection of the Individual in Times of War and Peace, Robert Kolb
14:Trade, Chartered Companies, and Mercantile Associations, Koen Stapelbroek
15:The Sea, David J. Bederman
Part Three: Regions
I. Africa and Arabia
16:Africa North of the Sahara and Arab Countries, Fatiha Sahli and Abdelmalek El Ouazzani
17:Africa, James Thuo Gathii
18:The Ottoman Empire and the Abode of Islam, Umut Özsu
II. Asia
19:China, Shin Kawashima
20:Japan, Masaharu Yanagihara
21:India, Bimal N. Patel
III. The Americas and the Caribbean
22:North America: American Exceptionalism in International Law, Mark W. Janis
23:Latin America, Jorge L. Esquirol
24:The Caribbean, David Berry
IV. Europe
25:From the Late Middle Ages to the Peace of Westphalia, Martin Kintzinger
26:From the Peace of Westphalia to the Congress of Vienna, Heinz Duchhardt
27:From the Congress of Vienna to the Paris Peace Treaties of 1919, Milos Vec
28:From the Paris Peace Treaties to the End of the Second World War, Peter Krüger
V. Encounters
29:China - Europe, Chi-Hua Tang
30:Japan - Europe, Kinji Akashi
31:India - Europe, Upendra Baxi
32:Russia - Europe, Lauri Mälksoo
33:North American Indigenous Peoples' Encounters, Kenneth Coates
Part Four: Interaction or Imposition
34:Diplomacy, Arthur Eyffinger
35:Discovery, Conquest, and Occupation of Territory, Andrew Fitzmaurice
36:Colonialism and Domination, Matthew Craven
37:Slavery, Seymour Drescher
38:The Civilized and the Uncivilized, Liliana Obregón Tarazona
Part Five: Methodology and Theory
39:A History of International Law Histories, Martti Koskenniemi
40:Doctrine versus State Practice, Anthony Carty
41:The Periodization of the History of International Law, Oliver Diggelmann
42:The Reception of Ancient Legal Th ought in Early Modern International Law, Kaius Tuori
43:Eurocentrism in the History of International Law, Arnulf Becker Lorca
44:Identifying Regions and Sub-Regions in the History of International Law, Antony Anghie
Part Six: People in Portrait
45:Muhammad al-Shaybani (749/50-805), Mashood A. Baderin
46:Francisco de Vitoria (1480-1546) and Francisco Suárez (1548-1617), Annabel Brett
47:Alberico Gentili (1552-1608), Merio Scattola
48:Hugo Grotius (1583-1645), Peter Haggenmacher
49:Samuel Pufendorf (1632-1694), Knud Haakonssen
50:Christian Wolff (1679-1754), Knud Haakonssen
51:Cornelius van Bynkershoek (1673-1743), Kinji Akashi
52:Jean-Jacques Rousseau (1712-1778), Georg Cavallar
53:Emer de Vattel (1714-1767), Emmanuelle Jouannet
54:Immanuel Kant (1724-1804), Pauline Kleingeld
55:Georg Wilhelm Friedrich Hegel (1770-1831), Armin von Bogdandy and Sergio Dellavalle
56:Henry Wheaton (1785-1848), Lydia H. Liu
57:Francis Lieber (1798-1872), Silja Vöneky
58:Bertha von Suttner (1843-1914), Simone Peter
59:Friedrich Fromhold von Martens (Fyodor Fyodorovich Martens) (1845-1909), Lauri Mälksoo
60:Lassa Oppenheim (1858-1919), Mathias Schmoeckel
61:Max Huber (1874-1960), Oliver Diggelmann
62:Georges Scelle (1878-1961), Oliver Diggelmann
63:Hans Kelsen (1881-1973), Bardo Fassbender
64:Carl Schmitt (1888-1985), Bardo Fassbender
65:Sir Hersch Lauterpacht (1897-1960), Iain G.M. Scobbie

Edited by Bardo Fassbender and Anne Peters Simone Peter and Daniel Högger

Oxford Handbooks


The Oxford Handbook of the History of International Law

This Handbook represents a big step towards a global history of international law. First, it notes that the Eurocentric story of international law is incomplete since it ignores the violence, ruthlessness, and arrogance which accompanied the dissemination of Western rules, and the destruction of other legal cultures which that dissemination caused. Second, the authors of the book come from different academic backgrounds: they are lawyers, historians, and political scientists. They come from, and work in, different regions of the world. Although accounts of the history of international law written from a non-European perspective are still rare, processes of creative appropriation and hybridization have recently been highlighted both by global historians and by international and comparative lawyers. Studying the history of international law can help improve our understanding of the character of a particular legal order, its promise, and its limits. The world is experiencing a period of fundamental change in international relations, a process instigated by the collapse of the Soviet Union and the communist bloc of states, and the end of the Cold War. This Handbook represents not the history, but many histories of international law.

Bibliographic Information

Editors

Bardo Fassbender, editor
Bardo Fassbender is Professor of International Law at the Bundeswehr University in Munich. He holds an LLM from Yale Law School and a Doctor iuris from the Humboldt University in Berlin. His principal fields of research are international law, United Nations law, comparative constitutional law and theory, and the history of international and constitutional law. He is co-editor of the series Studien zur Geschichte des Völkerrechts (Studies in the History of International Law).

Anne Peters, editor
Anne Peters is Professor of Public International Law at the University of Basel and Dean of Research of the Law Faculty. Her current research covers public international law, especially its constitutionalization, governance and human rights.


The Max Planck Encyclopedia of Public International Law is a comprehensive online resource containing peer-reviewed articles on every aspect of public international law. Written and edited by an incomparable team of over 800 scholars and practitioners, published in partnership with the Max Planck Institute for Comparative Public Law and International Law, and updated through-out the year, this major reference work is essential for anyone researching or teaching international law.

Where and when did the history of international law begin? Many scholars have argued about the definitive date and periodisation of certain dynamic developments, let alone which treaties, institutions, and figures have shaped the field’s core doctrines. Indeed, many of our “modern” notions of human rights, rules of war, and sovereignty have origins stretching much farther back than generally appreciated. Hugo Grotius’s publication of De iure belli ac pacis freed international law from some of its theological baggage. The Déclaration du Droit des Gens cataloged fundamental rights and duties. The First Hague Peace Conference of 1899 established the Permanent Court of Arbitration. In an effort to sort through the major developments, we’ve created the brief timeline of the history of public international law below, beginning with the Treaty of Tordesillas in 1494 and running until the Arms Trade Treaty in 2014.

Information on events in the history of international law in the timeline above are sourced from Oxford Historical Treaties, the Max Planck Encyclopaedia of Public International Law, relevant book chapters, blog articles, and journal articles. Follow the links in each timeline entry to learn more about the subject.

Is there a milestone missing? Share your thoughts in the comments below.

Featured image: Réception d’un ambassadeur français à Constantinople, Vanmour Jean-Baptiste (1671-1737). (c) RMN-Grand Palais / A. Danvers. Licensed and used with permission.

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