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THE GROWTH OF EUROPEAN INTERNATIONAL LAW



Legal, religious, and ethical norms regulating transactions between diverse politi­cal units existed in many non-Western, preindustrial international systems and civilizations. However, it was in Greece, the Roman Empire, and particularly seventeenth-century Europe that the first coherent legal system, divorced from religion, developed. Among primitive tribes, and in India, China, and the Islamic empire, the norms observed in interunit transactions were inseparable from general precepts of morality or religion, or from ancient customs. The concepts of legal rights and obligations of sovereign governments, central to modern international law, did not come into existence until the appearance of the European nation-state system in the fifteenth, sixteenth, and seventeenth cen­turies.6

What order existed in late medieval Europe grew out of the authority of the Church to prescribe general rules of conduct and from the customary rules of chivalry. In addition, medieval society incorporated the tradition of natural law and order from Rome, from which other principles relating to the transactions between political units were derived. Generally, however, it was the Church, with its notions of hierarchy, authority, and duty, and its ultimate sanction of excommunication, that had the largest impact in moderating the politics of the period. The Peace of God, declared by the Church in the tenth

4 George Modelski. "Kautilya: Foreign Policy and International System in the Ancient Hindu World." American Political Science Review. 58 (1964), 556. There is other evidence, however, that the ancient Indians did. on the whole, observe treaties and develop some legal norms that were observed for reasons other than immediate gain. See Frank M. Russell, Theories of International Relations (New York: Appleton-Century-Crofts, Inc.. 1936), pp. 41-46.

5 A.L. Basham, The Wonder That Was India (London: Sidgwick and Jackson, 1954), pp. 122-24. 126.

6 Quincy Wright, The Role of International Law in the Elimination of War (Manchester, Eng.: Manchester University Press, 1961), pp. 18-19.

363 Law and World Opinion in Explanations of Foreign Policy

century, attempted to impose restrictions on war, violence, and plundering, but the results were negligible. The Truce of God (1041), established by the Bishop of Aries and the Abbot of Cluny, was more successful and did effectively limit the scope and degree of violence in certain parts of medieval Europe. There was to be, for example, no fighting between Wednesday evening and Monday morning. Such declaratory laws were never observed with any precision, nor did they gain acceptance as custom except in some localities. Later in the medieval period, the doctrine of "just war" arose and helped to deter some forms of violence. The Church considered war "illegal" and its perpetrators subject to ecclesiastical punishment if it was not properly declared by established authorities, with just causes and legitimate objectives.7

The basic premises and rules of modern international law—sovereignty, territorial integrity, equality, and noninterference in other states' internal af­fairs—developed simultaneously with the growth of centralized dynastic political units that no longer accepted the command of any authorities within or outside of their boundaries. Diplomats and dynasts might have acknowledged certain principles ofjustice deriving from the "law of nature," but generally their conduct in foreign relations was restrained, if at all, only by obligations undertaken with each other in treaties. Religious principles, the Church, and abstract notions of "natural law" no longer effectively limited what the new sovereigns or prin­cipalities could and could not do to their neighbors. Restraints were mostly self-imposed, voluntarily observed, and enforced primarily by the threat of coun­teraction and retaliation. Customs also played a role in providing criteria for distinguishing legitimate from illegitimate policies, and in some instances, the writings of eminent lawyers and theologians, such as Grotius, Pufendorf, and Vattel, had an impact on restricting the actions of Europe's political units. This is not to suggest that by the eighteenth century there existed either a comprehen­sive set of legal norms prescribing rights and duties in all kinds of relations or a general practice of observing treaties in conducting diplomatic and commer­cial relations between dynasts. Claims by dynasts that certain customs were so well established as to be part of international law were seldom met with agree­ment by other states.8 Rules observed during the conduct of warfare seemed to arise more from the limitations imposed by a crude military technology than from commonly recognized legal principles or humanitarian sentiments. Never­theless, jurists and diplomats continued to elaborate on the "law of nations," the number of international treaties proliferated, and dynasts increasingly refer­red to legal advisers in conducting their politics, even if they did not consistently apply the legal advice they received.

New European needs gave the impetus for rapid development of interna-

7 See for details M.H. Keen, The Laws of War in the Late Middle Ages (Toronto: University of Toronto Press, 1965).

8 See Percy Corbett, Law in Diplomacy (Princeton, N.J.: Princeton University Press, 1959), Chap. 1.

364 Law and World Opinion in Explanations of Foreign Policy

tional law in the nineteenth century. In particular, the growing volume of intra-European trade and development of sources of raw materials and markets in non-European areas created similar types of transactions and hence similar out­looks toward the rules needed to place economic relations on a stable and predictable basis. Britain's dominant naval position enabled it to establish almost unilaterally the foundations for the modern law of the sea. The greatest expan­sion of legal doctrines covered matters pertaining to the obligations of debtor states, sanctity of money, protection of commercial property during civil strife, and expropriation of private property.9 These aspects of international law ex­pressed the contemporary European doctrines of laissez-faire economics and the mutual interests of European business owners in expanding markets and obtaining security for their foreign investments. Thus, nineteenth-century inter­national law was the law of an expanding commercial civilization. But in regulat­ing the use of force and tempering national and imperial rivalries, the law was much less effective.

The doctrine of "just war," which had placed some limitations on the use of force prior to the eighteenth century, was never carried through to the nineteenth century. On the contrary, governments viewed the threat and use of force as legitimate exercises of a sovereign's will. Some publicists fought for the cause of peace and disarmament, but the law of the period reflected the belief that war was a self-justifying instrument of inducement. The relative military stability of the nineteenth century and the restraints on the use of force flowed from the creation of deterrents and the operation of the Concert of Europe, not from the effectiveness of legal principles.

Nineteenth-century international law did incorporate limitations on the scope and degree of violence.10 New laws of neutrality established definite rights and obligations for both belligerents and neutrals, helping prevent the extension of bilateral military confrontations into continental or regional holocausts, and certain areas or countries such as Switzerland (1815), Belgium (1831), and the Congo Basin (1885) were premanently neutralized by the great powers, thereby removing them from the arenas of conflict.11 Series of multilateral conventions and codes were also drafted to prevent undue suffering among troops and civil­ians alike. In most cases, the laws of neutrality and warfare were observed until developments in military technology in the twentieth century made them more or less obsolete.

9 See Richard A. Falk, "Historical Tendencies, Modernizing and Revolutionary Nations, and the International Legal Order," in Legal and Political Problems of World Order, prelim, ed , ed Saul H. Mendlovitz (New York: The Fund for Education Concerning World Peace through World Law, 1962), pp. 133-34; Charles De Visscher, Theory and Reality in Public International Law, trans P.E. Corbett (Princeton, N.J.: Princeton University Press, 1957), p. 136; Morton A. Kaplan and Nicholas de B. Katzenbach, The Political Foundations of International Law (New York: John Wiley, 1961), p. 28.

10 Richard A. Falk, "Revolutionary Nations and the Quality of International Legal Order," in The Revolution in World Politics, ed. Morton A. Kaplan (New York: John Wiley, 1962), p. 320.

11 Belgium and the Congo (Zaire) are, of course, no longer neutral

CONTEMPORARY INTERNATIONAL LAW:

 




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