DEVELOPMENT OF INTERNATIONAL LAW

From its very nature, international law had to await the emergence of the nation

state in the fifteenth and sixteenth centuries. After the Roman Empire was

overrun by the barbarians in 476 AD, the dark ages set in as much of the artistic

and literary works of the ancient Greeks and Romans fell prey to the inscholiastic

excesses of the conquerors. Fortunately, however, the bishops and priests of

the Roman Catholic Church were able to save important works of ancient

scholars in their churches and monasteries. With the establishment of the Holy

Roman Empire in 800 AD, the Dark Ages came to an end and the Middle Ages

emerged to be dominated by the church in matters spiritual and by the Emperor

in matters secular. However, this secular and spiritual unity of the Papacy and

the Emperor was shattered by the Renaissance and Reformation which saw the

emergence of national sovereigns in England and The Netherlands anxious to

free themselves from external controls. The emerging secular independent

states were supported by the philosophical writings of Bodin (1530-96),

Machiavelli (1469-1527) and Thomas Hobbes (1585-1679).

In the meantime, while voyages of discovery began to proliferate and The

Netherlands and England began to assert their rights as independent states

freed from the shakles of the Papacy and Emperor, there arose a clear need for

a body of rules and principles to regulate inter-state relations and settle

international disputes. And this is where jurists like Vittoria (1480-1546), Ayala
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(1548-84), Suarez (1545-1617) and Gentilis (1552-1608) came into their own.

However, it was left to Hugo Grotius to develop in his ‘The Law of War and

Peace’ a systematic exposition of international law to complement his earlier

work entitled ‘Mare Liberum’. The European states system which developed

from this period down toi the Congress of Vienna in 1815 was greatly influenced

by the Peace of Westphalia (1648) which established the parameters of state

conduct especially during the eighteenth century which witnessed a spare of

internecine wars – the War of Spanish Succession (1701-14). The War of

Austrian Succession (1740-48), the War of Jenkins Era (1739-48), the Seven

Years War (1756-63), the War of American Independence (1774-83), the French

Revolutionary and Napoleonic Wars (1789-1815). Development of international

law during the eighteenth century was ably assisted by such outstanding jurists

like Pufendorf (1632-94), Bynkershoek (1673-1743), Wolff (1679-1754) and

Vattel (1714-67). Many of these writers, especially Bynkershoek were

pragmatists who looked to custom and treaties for applicable rules of

international law and less to natural law and, as a result were called positivists.

The Congress system established at Vienna in 1815 may be credited with

maintaining the peace of Europe which was only broken by the Crimean War

which ended in 1856. However, the period of tranquility in Europe could easily

be attributed to the preoccupation of European leaders with the unification of

Italy and Germany which only led to the Franco German War of 1870. In the

later part of the nineteenth century, inter-state rivalry intensified with the
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emergence of a unified Germany and Italy, the rapid pace of technological

development which dramatized the new technologies of violence and the

scramble for overseas territories especially in Africa. The jurists who emerged

around this time were pragmatists who looked to the practice of states to discern

applicable rules of international law. They hailed from different continents – Kant

(German) De Martens (Russia), Calvo (Argentina), Bhuritschli (Germany) and

Phillimore (Britain). The twentieth century witnessed an acceleration in the

development of international law. The Hague Conferences of 1899 and 1907

were attempts to regulate the conduct of states by peaceful modes of settlement.

The outbreak of the First World War (1914-18) bears brutal testimony to the

failure of these efforts. The peace of Versailles (1918) and the failure of the

League of Nations to become a reality placed a damper on all efforts at a

peaceful resolution of international disputes. The Kellogg-Briand Pact (1928)

was not enough to silence the drums of war which inspired open aggression.

And so Japan invaded China and Italy invaded Abyssinia providing Nazi

Germany with enough precedent to invade Poland and subsequently, Russia.

The termination of the Second World War (1939-45), provided the victorious

allies with the opportunity to build a world free from armaments and ruthless

aggression. However, failure of the permanent members of the Security Council

and other countries to honour relevant provisions of the Charter operated to deny

the United Nations of the independent capability for either peacekeeping or

peace-making. The only salvo in the armoury of the United Nations in the event
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of a crisis is economic sanctions which have proved over the years to be

depressingly ineffective against a determined miscreant state. Having won the

war in 1945, the victorious allies set about to win the peace by establishing an

intricate regime of international conventions regulating state interaction in every

spatial dimension. Beginning with the International Monetary Fund and the

International Bank for Reconstruction and Development at Bretton Woods in

1944, the victorious allies set about elaborating the Havana Charter which

emerged from the UN Conference on Trade and Employment (1947/48) for the

promotion of international trade on a multilateral, non-discriminatory basis, the

Chicago Convention (1944) for regulated competition in international commercial

air transport; the Washington Agreement (1955) establishing the International

Finance Corporation; the International Telecommunications Convention (1961)

establishing the International Telecommunications Union, the Washington

Convention (1947) establishing the World Meteorological Organisation; the

United Nations Convention (1948) establishing the Intergovernmental Maritime

Consultative Organisation, the General Agreement on Tariffs and Trade (1948),

the Geneva Conventions on the Law of the Sea (1958), the General Assembly

Declaration of Legal Principles Governing activities of States in the Exploration

and Use of Outer Space and the International Convention for the Protection of

Intellectual Property (1958).

The spate of multilateral treaties concluded after the termination of the Second

World War attests to the emergence of treaties as the dominant feature of

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international relations. Rapid developments in the technologies of violence as

demonstrated in the bombing of Hiroshima and Nagasaki and the Emergence of

ICBMs capable of carrying nuclear war heads, not to mention numerous other

mechanisms for deployment of weapons of mass destruction have heightened

the awareness of the need for humanizing military warfare. Consistently with

such awareness, the Geneva Conventions of 1949 designed to humanize

warfare were concluded. The emergence of Human Rights as an item high on

the international agenda probably coincided with the United Nations Declaration

on Human Rights, followed by the Convention on Civil and Political Rights and

the Convention on Economic and Social Rights, all of which blazed the trail for a

spate of other international human rights instruments, in particular, the European

Convention on Human Rights. Simultaneously with developments in the area of

international human rights were conventional arrangements to promote economic

integration in various areas of the world. Many of these economic integration

movements established regional courts to determine and settle international

disputes through the employment of applicable rules of international law.

Numbered among such Courts are the European Court of Justice, the EFTA

Court of Justice, the Andean Court of Justice, the MERCOSUR Court of Justice,

the Central American Court of Justice, the Caribbean Court of Justice, the Court

of Justice of COMESA and the ECOWAS Court of Justice. All of these Courts

like the International Court of Justice and the International Criminal Court apply

rules of international law to settle disputes.