Nature and origins 7

rule or norm is
clear and precise, and
unconditional,
implementaryaction. In the United Kingdom, without the
the applicability need for further
of Community Law
and its legal ettect as such are provided for in s 2
Act 1972.16 The aceptance of the
(1) of the European Communities
supremacy of Community Law over national
domestic law has not been uniform
Communities, with variations even in thethroughout the member states of the
country.7 Community Law should notapproach of courts of the one member
be regarded form of
international law, but as sui generis. as a
regional
itselt, recognise in Community institutions, including the Court
appropriate circumstances the
international law, tor the Community itself is an institution binding effect of general
being an independent sovereign entity with its own of international law,
legal system, independent of the member states. sovereign rights and its own
Origins and development of international law
The modern system of international law is a product, roughly
the last four hundred years.lt grew to some extent of
speaking, of only
out the usages and practices
of modern European states in their intercourse
and
the influence of writers and communications,
still bears witness to
while it
seventeenth, and jurists of the sixteenth,
eighteenth centuries, who first formulated some of its most
fundamental tenets. Moreover, it remains
and territorial sovereignty, and the tinged with concepts such as national
that owe their force to
perfect equality and independence of states,
political theories underlying the modern European
state
system, although, curiously enough, some of these
the of concepts have commanded
support newly emerged non-European states.
But any historical account of the
in the period of
system must begin with earliest times, for even
antiquity rules of conduct to regulate the relations between
independent communities were felt necessary and emerged from the usages
observed by these communities in their mutual
of ambassadors, and certain laws and relations.[Treaties, the immunities
usages of war are to be found
many centuries
before the dawn of Christianity, for example in ancient
Egypt and India,8 while
For decisions, see Case 42/80: Re
Wire-Ropes,
ECR 3635, [1981]2 CMLR 532; Case 91/79: Re
Chains and Hooks; EC Commission v Italy [1980]
Detergents Directive; EC Commissionv ER
[1980] ECR 1099, [1981] 1 CMLR 331; and Case 43/75: Defrenne v Sabena [1981] 1 AllItaly
122n (Community Law binds all
organs of member states, including the
bodies), and EC Commission v United Kingdom: 165/82 [1983] ECR judiciary
and
3431, [1984] legislative
1 CMLR
44, ECJ (application in the United Kingdom of the Sex Discrimination Directive of
16. United 1976).
Kingdom legislation is to be construed so as to give effect to anyrights prescribed by the
Treaty of Rome of 25 March 1957, establishing the European Economic Community; see Siskina
v Distos Cia Naviera SA
[1977] 3 WLR 532, CA, [1979] AC 210, HL; Case 12/81: Garland v
British Rail Engineering Ltd [1983] 2 AC 751; Ex p Factortame Ltd (No
2) [1990] 2 AC 85,
[1991] 1 AC 603, ECJ, 645, HL.
17. As to some of these variations see S. S. Malawer "International
Law, European Community
Law and the Rule of Reason' 8 J World Trade L (1974) 18,
passim, and G. Bebr 'How Supreme
is Community Law in the National Courts?" (1974) 11 CML Rev 3 at 8 et
seq. Cf as to the
position in the United Kingdom, HP Bulmer Ltd vJ Bollinger SA [1974] Ch 401, [1974]2 All
ER 1226, and L. Collins European Community Law in the United Kingdom (1975).
18. See A. Nussbaum A Concise
History of the Law of Nations (revised edn, 1954) PP 1 et seq, S.
Korff Hague Recueil (1923) Vol L pp 17-22, H.
Relations in Ancient India the article °The
Chatterjee International Law and Inter-State
(1958), History of the Law of Nations' in the Encyclo-
paedia of International Law Vol 7 (1984), and the Historical Introduction to
Henkin, Pugh,
Schachter and Smit lnternational Law: Cases and Materials (2nd edn,
1987) pp xxxili-xlii.
 international law
and basis of
8 Nature, origins

of recourse to arbitrationand mediation anc ent in .

historical it would be wrong torego

cases
there were

China and in
the early Islamicworld, although c o n t r i b u t i o n towards the
instances as representing any
serious lution
early of i n t e r n a t i o n a l
law.
of the modern system the Greek City States.
We find, for example,
in the period of aman

re Dut
of an embryonic, although
independent of one another, evidence
law which one authority-Professor Vinograd.
limited, form of international
aptly described 'intermunicipal'. This inter municipal law was com
as
law long-standing s
of customary rules which had crystallised intothe trom to the inviolabilit
followed by these cities such as, for instance, rules as
of
heralds in battle, the need for a prior declaration of war,
and the enslavemnent
of prisoners of war. These rules were applied not only in the relations inter sec
thesesovereign Greek cities, but as between them and neighbouring tates.
Underlying the rules there were, however, deep religiousintluences, characteristic
of an era in which the distinctions between law, morality, justice and religion
were not sharply drawn.
In the period of Rome's dominanceof the ancient world, there also emereed
rules governing the relationsbetween Rome and the various nations or peoples
with which it had contact.One significant aspect of these rules was their leeal
character, thus contrasting with the religious nature of the customarv rulee
observed by the Greek City States. But Rome's main contribution to the
development of international law was less through these rules than through the
indirect influence of Roman law generally, inasmuch as
law was revived at a later stage in when the study of Roman
Europe, it
capable of ready adaptation to the regulation ofprovided analogies and principles
relations between modern
Actually, the total direct contribution of the Greeks and Romans states
development of international law was relatively meagre. Conditions to the
to the
growth of a modern law of nations did not favourable
the fifteenth
century, when in Europe really come into
being until
there began to evolve a number of
independent civilised staes.20 Before that time
stages in which either conditions were so Europe had passed through various
ordered rules of conduct between nations, chaotic
or the
as to make impossible
any
such that there was no political circumstances
necessity for a code of international law. were
later
period of Roman history with the Thus in the
over the whole civilised
and
authority
world, there were no
of the Roman
Empire extending
era,
therefore
there
a law of
nations was not called independent states in any
sense
were two matters for. During the
of a
system of international particularly which militated early medieval
the temporal and
law: against the evolution
Roman spiritual unity of the greater
Empire, although
by numerous to some part of Europe under
instances of conflict extent this unity was notional and the Holy
and
1ee
disharmony; and belcu
VolVinogradoff
I, Bibliotheca
pp 13 et
seq, Visseriana
eless there is evidence of Dissertationum Jus Internationale
nturiesrulesin the Easternsome development of
observed certain Illustrantiure(1923)
and Empire international law in the thirteenthaand
usages in their and in Italy, while
relations with the Sovereigns oftmedieval England
foreign
Soveregs
 Dod 16) 7suulaa
ll15)
Madu v

Nature and origins 9

. the feudal structure
of Western Europe, hinging on a hierarchy of
which not only clogged the emergence of independent states authority
but
s

prevented the Powers of the time from acquiring the unitary character also
and
authority of modern sovereign states.
Profound alterations occurred in the fifteenth and sixteenth centuries. The
discovery of the New World, the Renaissance of learning, and the
as a religious
revolution disrupted the Reformation
of Europe, and shook the foundations façade
of the political and spiritual unity O A AAn1

of medieval Christendom. Theories

evolved to meet the new conditions; intellectually, the secular conceptionswere of a
modern sOvereign state and of a modern
in the works of Bodin independent Sovereign found expression
(1530-1596),
an Italian, and later in the
a
Frenchman, Machiavelli (1469-1527),
seventeenth century, Hobbes
Englishman. (1588-1679), an
With the growth of a number of
early Greece, the process of formation independent states there was initiated, as in
of customary
from the usages and rules of
followed by such states in theirinternational law
practices
So in Italy with its multitude of small mutual relations.
relations with each other and with theindependent states, maintaining
outside world, there developeddiplomatic
of customary rules a number
relating to diplomatic envoys, for example, their
reception and inviolability.! | appointment,
An important fact also was that
had begun to take into account theby
the fifteenth and sixteenth
evolution
centuries jurists
sovereign states and to think and write about
of a community of independent
nations, realising the necessity for some different problems of the law of
of the relations between such body of rules to regulate certain aspects
states. Where there were no
rules, these jurists were obliged to devise and fashion established customary
reasoning or analogy. Not only did they draw on the workingofprinciples by
which had become the
subject of revived study in principles Roman law
eleventh century onwards, but Europe as from the end of the
they had recourse also to the precedents of
history, to theology, to the canon law, and to the ancient
the 'law of nature'-a semi-theological concept
concept which for centuries exercised a profound influence
of
on the
development of international
important contributions to the infant law. Among the early writers who made
science of the law of nations were
(1480-1546), who was Professor of Theology in the Vittoria
Belli (1502-1575), an University
Ttalian, Brunus (1491-1563), a German,
of Salamanca,"
Vasquez de Menchaca (1512-1569), a Spaniard, Ayala Fernando
of Spanish
extraction, Suarez (1548-1617), a great Spanish (1548-1584), a jurist
(1552-1608), an Italian who Jesuit, and Gentilis
is frequently became
Professor of Civil Law at Oxford, and who-
regarded as the founder of a systematic law of nations. The writings
1. Cfalso the influence of the early codes of
mercantile and maritime usage, eg, the Rhodian Laws
formulated between the seventh and the ninth
in France during the twelfth century, and the centuries, del Laws or
the Rolls of Oléron collected
followed Consolato
by Mediterranean countries and apparently collected inMare as to the customs of
the sea
2. See below, pp 19-21. Spain in the fourteenth century.
.
Of particular importance was the contribution the so-called
including Suarez and Ayala, mentioned above. Inoftheir works one'school'
finds
of Spanish
writers,
the concepts of the universal validity of a law of powerfully expressed
higher law, which influenced nations, and of the subjection of all states to a
jurists succeeding centuries. The influence of
in
scholars and writers
 international law
and b a s i s of
Nature,
origins
10
that o n e majorbetween ion of sixteens
preoccuDati.

these carly
jurists reveal signiticantly
warfare
of law was the law of
international Dthis
he noted that by the fifteenth century the European
century nt
n ropean Powers
Ccntury
armies, a practice which
connection

had begun
to maintain standing
of w a r to ëvolve.
turally caused
and practices
writers on in
uniform usages
the greatest of theearly
B general acknowledgment
the Dutch
scholar, jurist, and diplomat/Grotius (1583-164 1645), whose international
law was
treatise on the subject De
Jure Belli.ac Pacis (The Lawwof War
systematic
in 1625. On th treatise, Grotius has
ofthis
account and
Peace) first appeared father
been described as
thee of the law of nations,although it is ma
intained by sometimes
incorrect on the grounds that his
such description is deb
of time he followe to the
a
some that
is all tooevident and that in point
writings of Gentilis
as Belli, Ayala and others
mentioned above. Indeed both th Ce writers
Gentilisiters
and
much to their
precursors.
Grotius owed Pacis will be
in De Jure Belli ac
bund ll the fo..
Nor is it exact to that
affirm
international law that existed in 1625. It cannot, for example, be main
rhat Grotius dealt fully with the
law and practice of his day as to maintained
ties, or
that his coverage of the rules and usages of warfar was entirely compreher
Besides[ De Jure Belli ac Pacis was not primarily
or exclusively a +r ve
se on
international law, as it embraced numerous topics of legal science, and to
on problems of theological or philosophic interest. Grotius's historicalouche
eminence rests rather on his continued inspirational appeal as the creator ofpre-
the
first adequate comprehensive framework of the modern science of internati
onal
law.
In his book, as befitted a diplomat of practical experience, and a lawver uwh
had practised, Grotius dealt repeatedly with the actual customs followed by the
states of his day, At the same time Grotiuus was a theorist who espoused certa
doctrines. One central doctrine in his treatise was the acceptance of the lawo
nature' as an independent source of rules of the law ot nations, apart from custom
and treaties. The Grotian law of nature' was to some extent a
secularised version.
being founded primarily on the dictates of reason, on the rational
as social human nature of men
beings, and in that form it was to become a
inspiration to later jurists. potent source of
Grotius has had an
abiding influence upon international law and international
lawyers, although the extent of this influence has fluctuated at different
and his actual impact upon the periods,
practice of
traditionally represented. While it would be states was never so
considerable as is
wrong to say that his views were
inEastern Europe such as Paulus Vladimiri
also not be overlooked. For (1371-1435) of the University of
Hamilton Political Thought indiscussion of the writings of Vittoria Cracow,
and Suarez, see shouo
to the intluence of Gentilis onSixteenth Century Spain Det
iritto July-October 1964, pp Grotius, see Fujio Ito Rivista
to
(1963).
vanInternational Law' (1963) III621-627. See also Lord
McNair Internazionale di Fuoso
of hisSomeren Umpire to the Ind [IL 271 at The
Practitioners
birth was Nations
celebrated in 1983. (Dobson 272-273. For a bio
Dson Books
! biography of Grotius s
Keen Ltd, London, 1965). The
what The Lawstreatment
Grotius of War in forthethe laws and
wrote. quatercentena
and
Late Middle usages of
war in the later Middle Ages,
war
daie
Ages iges,see
see M.H
(1965); this may be usefully read in tne
 Nature and origins 11

always treated as being of compelling authority-frequently they were the object

of criticism-nevertheless his principal work, De Jure Belli ac Pacis, was
continually relied upon as a work of reference and authority in the decisions of
courts, and in the
textbooks of later
doctrines have lett their mark on, andwriters of standing. Also several Grotian
international law, namely, the distinction implicit in the character of
are
between modern
just and unjust
ot the rights and freedoms of the individual, the doctrine ofwar,the
recognitionthe
neutrality, idea of peace, and the value of periodic conferences between qualified
rulers of states. Nor should it be the
was regarded as the historic forgotten that for over three centuries Grotius
standard-bearer of the doctrine of the freedom ot
the seas by reason of his authorship of the
1609. work, Mare Liberum, published in
The history of the law of nations
marked by the final evolution of the during
the two centuries after
modern state-system in Europe, Grotius was
by the Treaty of Westphalia of 1648 marking the endprocess
a
greatly influenced
of the
Thirty Years' War, and by the development from
substantial body of new customary rules.Even relationsusage and practice of a
and intercourse by treaty
or otherwise
between European and Asian governments or communities
contributed the formation of these rules.
to
Moreover the science of international
law was further enriched by the
Side by side there proceeded
writings and studies of a number of great jurists.
naturally
the customary rules and the works of these
a kind of
action and reaction between
great writers; not
systematic treatment of the subject provide the best evidence ofonly
did their
the rules, but
they suggested new rules or principles where none had yet emerged from
practice of states. The influence of these great jurists on the developmentthe
of
international law was considerable, as can be seen from their frequent citation
by national courts during the nineteenth century and even up to the present time.
The most outstanding writers of the seventeenth and
eighteenth centuries
following the appearance of Grotius's treatise were Zouche (1590-1660),
Professor of Civil Law at Oxford, as had been Gentilis (see above), and an
Admiralty Judge, Pufendorf (1632-1694), Professor at the University of
Heidelberg, Bynkershoek (1673-1743), a Dutch jurist, Wolff (1679-1754), a
German jurist and philosopher, who constructed an
original, systematic
methodology of international law and the law of nature, Moser (1701-1795), a
German Professor ofLaw, von Martens (1756-1821), also a German Professor
of Law, and Vattel (1714-1767), a Swiss jurist and diplomat, who was greatly
influenced by the writings of Wolff, and who perhaps of these seven men proved
to have the greatest influence, and found the widest acceptance, wider even than
that extended to Grotius. In the eighteenth century, there was a growing
tendency
among jurists to seek the rules of international law mainly in custom and treaties,
and to relegate to a minor position the law of nature', or reason, as a source of
principles. This tendency was extremely marked, for instance, in the case of
Bynkershoek's writings and found expression particularly also in the works of
Moser, and von Martens. There were, however, jurists who at the same time
cung to the traditions of the law of nature, either almost wholly, or coupled
with a lesser degree of emphasis upon custom and treaties as components of

6. Cf Joan D. Tooke The just War in Aquinas and Grotius (1965).

 12 Nan

with these adherents to the law nature, write

internation
law. As contrasted
vho attached primary or major weight to cus
whe
uch as
Bynkershoek

as
positivists'. tomary and
known
rules
were
internationallav law further expanded. This
treaty
In the
nineteenth century
which
fall more properly within the scop
hehistorica
was due
n u m b e r of
factors new states
further rise of powerful
a the c i v i l i s a t i o . n within
to
studies,sation
instance,
for of world expansion of European and
de Europe,
the trañspört, the greater destructívenessoferseas,rfare verseas, the
it urgent forh
o u t s i d e

influence of new
inventions.
All these made international
Ora
and the acquire a
system ofrule ar e m a t e in
an
to
affairs. There was

manner
states
society of
the conduct of
international

the law of war

and neutrality, and the great
evelopment
ncrease in
in
during
century
the 1ational arbitral tribunals following the Alabama Claime
tribun arbitral

source of rules and

international
adjudications by rovided an important new nciples.
Award of 187 to acquire
abit of negotiating general treaties in
the hab.
Besides,
states
commenced

mutual concern the Nor was nineteenth century

aftairs of law. The works
works of jurists belonery
ofjurists onging to
order to regulate law. The
international

great
writers o n
uted significantly to the scientific treaatment
without its
contribu.
nations
number of
ditferent were
Kent_(American), Wheaton (American), De
them Phillimore (British), Calvo (Argentinian
a
subject; among inian)
of the iber (German), Bluntschli
Martens (Russian), Klüber (German),
(German) and
and Hall British).
Bluntschli
(French),
(Italian),
Pradier-Fodéré
writers was to concentrate on existing practicCe,
Fiore of these
of not aband
abandonir
The general
tendency
the aw
'lav of
ot nature, although
nature',
discard the
concept of absence oft custom or treaty ules,
and to where, in the a
should be the law.
and justice
reason
recourse to as to what
upon to speculate in thetwentieth century
The
they were called developments have taken place
Other important was established by the
Hague Conferences of
Arbitration was set up in 1921
Permanent Court of of International Justice
The Permanent Court and was aucceeded in 1946
1899 and 1907. judicial tribunaß
authoritative
international
has ben the creation
asan Justice/T hen there
Court ot are in ettectthose of
by the present Internationalorganisations whose functions as the League
of permanent international of peace and human welfare, such
the International Labour
the interests
world government in the United Nations,
successor, others referred
of Nations and its present Civil Aviation Organisation, and
of all has been the
Organisation, the International most remarkable
And perhaps
Chapter 20 of this book. multilateral treaty or convention
of international law to cover by
wIdening scope înterest affecting states (eg, patents
kind of economic or social of individua
not only every and freedoms
and copyright), but also the fundamental rights
human beings. international law that tn
. t is characteristic of the latter-day evolution of
that modern international lawye
intluence of writers has tended to decline, and decisions of tribunas.
nave come to pay far more regard to practice and to trends of past
and
the spelling
Current practiceof
out cannot of
rules beinternational law from assumed
carried too far. This was shown a t the eneva 1961,

f 1961,
Conterence of 1958 on the Law of the Sea, at the Vienna Conferences nular
1963, and 1968-1969 on, respectively, Diplomatic Relation Const
Third
Relations, and the Law of Treaties, and in the sessions 1973-19
United Nations Conference n a
on the Law of the Sea (UNCLOS I, ****
 Nature and origins 13

number ot instances an apparent weight of practice in favour of a

proposedby rule
of international law did not necessarily result in its general acceptance the
states represented at the Conferences. Nevertheless, 'natural law' writers have
ceased to
command the same degree of influence as formerly, perhaps because
of the emergence of a number of states outside
Europe which did not inherit
doctrines of Christian civilisation such as that of 'natural law', or which possessed
traditional cultures impelling them towards differing perceptions with
to law and legal
procedure. These new states (in particular the Afro-Asian respect
group)
have challenged certain of the basic
principles of international law, stemming
from its early European evolution in the seventeenth and
albeit they have to some extent recognised natural law eighteenth centuries,
in regard to certain
concepts, eg, self-determination." Moreover, many long-standing rules and
concepts of international law have been subjected to severe strains and stresses
under the impact of modern developments in
technology, of modern
exigencies, and-not least-the more enlightened sociological views andeconomic
attitudes
which prevail today.
Above all, there is the rapidly changing world situation to which the traditional
system ot international law must adapt itself. The era of East-West rivalry
between blocs led by.the two superpowers has given way to a more
natural-in
a senseorder of things in which states are asserting their individual self-interest.
This development has its ugly side when it is impelled by ethnic or
religious
intolerance or by authoritarian ideologies. The notion of the Third World-a
term coined at the Bandung Conference in 1955 to indicate states not aligned
with either the Western or the Communist blocs-has given way to a category
of 'developing states, within which exists a subcategory of desperately poor least
developed states'. Trade has become the major concern of the developed states
as they vie for markets and self advancement, not only in traditional goods and
commodities but also in technology, in which intellectual and industrial property
rights play an important role. Of particular concern to developing states is the
increasing degree to which trade, development assistance, respect for human
rights, and the protection of the natural environment have become linked, not
always to their immediate advantage. New hope is emerging for the effective
end of the threat of use of nuclear arms. Another positive sign is the more co-
operative spirit demonstrated in the United Nations Security Council since the
end of the Cold War which may enable the Charter provisions for collective world
security to be realised more effectively. But structural and political problems
remain to be solved within the United Nations system. Apart from this,
international law is now called upon to find new rules or guidelines to govern
the fields of nuclear and thermonuclear energy (indeed of all forms of energy,
having regard to events since 1973, and the depletion of oil reserves), and

7. Reference should be made in this connection to the important activities in the field of study of
international law, of the Asian-African Legal Consultative Committee, representing the Afro-
have been attended by an observer
Asian group of states. Certain sessions of this Committee
from the International Law Commission, which has a
standing invitation to send an observer.
the international law of the new Asian and other states, see Syatauw Some
For impact upon
Newly Established Asian States and the Development of International Law (1961), S. P. Sinha
(1967), R. P. Anand New States and International Law
New Nations and the Law of Nations
(1972), and F. C. Okoye International Law and the New African States (1972).
 ana basis of international law
Nature, origins
14
eientific research generally, to provide special régimes for vario
international tradee (eg the international sale and
state activities atminternational
in the ational sea.areas
sea-.
in arria of
upper
regulate nere and
environment.8 to
to
goods),
natural
the Plan' ontrol the pr he cosof
to protect and control
the 'Action adopted ar Bu w Os,
population (cf
population
United Nations /arld PopulationConterence), to
deal with the tra
flow of computer data so
as, inter alia,toprotect privacy" o
Key aspects of communication cOp a Rerne trans-border
universal system to regulare sseemina
and to establish a new legal régime for th
of information, the seabed beyond the limie
exploitation of the resources of limits of n and nati al
sovereignty.

status of international law

Present-day
as we know it today, is that indispensable bod.
International law, Ot rules
without wh
regulating for the most part the relations between states,
for them to have steady and trequent intercourse uld
hevirtually impossiblethe Of their mutual relationshins TLe. It in
is
fact an expression of necessity
the international society of statescence*
system of international law,
of some
and commerce, of exchange of ideas, and of noo
enjoy the benefits ot trade mal
routine communication.
has witnessed a greater impetus to the develonmens of
The present century of its history. This was a na
international law than at any prev1Ous stage of states, and of the vastly increa
result of the growing interdependence
all kinds ot inventions that overcame the
ntercourse between them due to
difficulties of time, space, and intellectual communication. New rules had to be

found or devised to meet innumerable on new Situations. Whereas previously the

international society of states could rely the relatively slow process of custom
international law, exigencies
modern called for
for the formation of rules of
a
there into being the
speedier method of law-making. As a result,
came great
down to be
number of multilateral treaties of the last80 years laying
rules
observed by' the majority of states--l w-making treaties' or "international
these 'law-making treaties'there
legislation', as they have been called. Apart from
the use of arbitration to settle international
was a remarkable development in
at the same time the Permanent Court of InternationalJustice came
cHsputes, and
byitsdecisions to make an important contribution to the growth of internationa
law. The mantle of the Permanent Court then descended upon itts successor, the
International Court of Justice. Nor should there be forgotten the wor
codifying and progressivety developing international law at present being
sponsored by the United Nations with the expert aid of a body known as tne
International Law Commission, created in 1947.10
8.
Richard A. Falk New Trends in International Law: The Challenges of the Ecological
980) 61 US Naval War College International Studies 122, especially at pp 1287
Athough treaties had nevertheless played an important role in the medieval law of nauo nd,
he
aiso, In the relations between European states and nations or entities in Asia au
seventeenth, eighteenth and nineteenth centuries.
November 1947 f
Novemberthe1947; for textmission was adopted by the United Nations General Assembiy The
of Statute, see UN Year
Work of International Law Commission Book 1947-1948 2l1, or
consisting
in 1949. originally
of 15 (3rd edn, 1980) pp 103-108.
Subjects dealt withmembers,
rs,
appointed in their individual
by the Commission since 1949
erts,rights
capacity ase expasic
first and
m
have included u
 Nature and origins 15S

It is true that in some

quarters there is a tendency to disparage internationa
law, even to the extent of questioning its existence and value. There are two
main reasons for this:
a. the generally held view that the rules of international law are designed only
maintain peace; and
to
b.gnorance of the vast number of rules which, unlike the rules dealing with
high policy', that is, issues of peace or war, receive little publicity.
Actually, however, a considerable part of international law is not concerned
at all with issues of peace or war. In practice, legal advisers to Foreign Offices
and practising international lawyers daily apply and consider settled rules of
international law dealing with an immense variety of matters. Some of these
important matters which arise over and over again in practice are claims for
injuries to citizens abroad, the reception or deportation of aliens, extradition,
questions of nationality, the extra-territorial operation of certain national
legislation, and the interpretation of the numerous complicated treaties or
arrangements now entered into by most states with reference to commerce,
finance, transport, civil aviation, nuclear energy, and many other subjects.
Breaches of international law resulting in wars or conflicts of aggression and
the inability of international law to cope with such endemic problems as
disarmament, international terrorism and trafficking in conventional arms tend
to receive adverse attention, and from them the public incorrectly deduces the
complete breakdown of international law. The answer to this criticism is that
even, for example, in time of war or armed conflict there is no absolute
breakdown of international law, as many rules affecting the relations of
belligerents inter se or with neutrals are of vital importance and to a large extent
are strictly observed. Another consideration is worth mentioning, namely that
in the case of war or armed conflict, the states involved seek to justify their
position by reference to international law. This applies also in 'crisis' situations,
short of war; for example, during the Cuban missilecrisis of 1962, the United
States relied to some extent on the Inter-American Treaty of Reciprocal Assistance
of 1947 as a legal basis for its 'selective' blockade or 'quarantine of Cuba.
Itis possible to argue further that in municipal law (that is, state law), breaches,
disturbances and crimes take place, but no one denies the existence of law to
armed conflicts
which all citizens are subject. Similarly, the recurrence of war and
that international law
between states does not necessarily involve the conclusion
is non-existent.

duties of states, offences against the peaceandsecurity of mankind (the Nuremberg principles),
reservations to conventions, the regime of the high seas, the law of treaties, arbitral procedure,
criminal jurisdiction, the definition of aggression, state
nationality, statelessness, international relations
consular practice, succession of states and governments,
responsibility, diplomatic and the most-favoured-nation clause,
between states and inter-governmental organisations, of
and state property, and the non-navigational uses
jurisdictional immunities of states of 34 members following an
international watercourses. The Commission now consists
had been previously enlarged in 1956 to 21, and
(itand
25). As tocomposition
of its
then in 1961into1981
enlargement the methods procedures followed by the Commission in
'codification' and 'progressive development' of international
discharging its functions of the 11-21. For the
records of its work of
law, see The Work the International Law Commission (3rd edn 1980) pp
see the Yearbook of the International Law Commission (1949-).
 and basis of international law
16 Nature, origins

Finally, it is incorrect to regard the maintenance of peace as the e

of international law. As
one authority well said half a
ntury ago,1ireitspurpose
d'être is rather to:

form a framework within which international relations can be co.

raison
provide a system of rules facilitating international intercourse; and
practical necessity it has, and will, operate as a legal system even as a
ducted nd to
matter of

trequent. wars are

The same authority went on to say:
Tt is, ofcourse, true that the ideal of international law must be a
perfectly le
in which war will be entirely eliminated, just as the ideal of
municipal
Constitution and legal system so pertect, that revolution, revolt, strikes. system
law
take place and every man's rights are speedily, cheaply, and ikes, etc can isis a
ete
fallibly enforced
infallibly enforced erever
Lapses from such ideals are as inevitable as the existence of law itself