Law, International (Law of Nations and Law of the Sea)
Law, International (Law of Nations and Law of the Sea)
Since the end of the Middle Ages, international law and international trade have evolved in an encompassed manner to become distinctive aspects of Western civilization. Their progressive worldwide spread exemplifies the global society we inhabit, one governed by a system of rules applicable to the relations among states, international and regional organizations, private companies, and individuals. The origins of this phenomenon lie in the emergence of the first European nation-states and the philosophical, political, economical, and practical theories regulating them.
If it is true that in principle in the Mesopotamian, Egyptian, Chinese, Roman and Pre-Columbian civilizations some traces of some elements of the modern international law system can be identified, in practice their institutions and procedures are not comparable with the ones created in Europe from the twelfth century onwards and thereafter exported to the rest of the world. The twelfth century marks the beginning of the unification and centralization of power in England and France, as well as the unstoppable rhythm of the Spanish reconquest of the Iberian Peninsula.
This political process occurred simultaneously with the apogee of the Hanseatic League, which united in one system of trade the entire area from London and Bruges to Finland and Russia. In England the flourishing local and regional trade produced a Law Merchant, which was intended to regulate commerce and maritime operations, and which constitutes and embryonic international trade law. In the Mediterranean, Arab control was increasingly disrupted, and the Italian city-republics of Genoa and Venice, as later the cities of Florence and Milan, acquired a dominant role in basic finance and in the trade of cotton, silk, camelhair, perfumes, medicines, precious stones, and other commodities.
In the same period an age of discovery was initiated when the Portuguese started to search for a direct route to the Far East, which in 1419 had reached Madeira, in 1487 the Cape of Good Hope, and in 1498 India. The Portuguese expansion was in close competition with a Spanish expansion, which in 1492 completed the expulsion of the Moors from the Iberian Peninsula and discovered America; Spain, with its strongly regulated approach to overseas trade, later projected its control over the expansive Pacific Rim. During the seventeenth century the Spaniards were followed and eventually outstripped by the Dutch, French, and British.
From the fifteenth century, the simple customary rules under which states operated vis-à-vis other states proved to be increasingly insufficient to regulate the more complex conflicts of interest that arose between consolidated political entities. This tradition was heavily influenced by the work of Thomas Aquinas (1224–1274), who proposed that natural law applied to relations among states. During the Age of Discovery these ideas were reexamined by, for instance, the Spanish Dominican Francisco de Vitoria (1486–1546) who, out of concern for the aboriginal rights of American Indians, stated that the sovereignty of the state had to be limited by natural law. Similarly, the Jesuit Francisco Suárez (1548–1617) established that natural law was immutable and obligatory, and that it was different from the jus gentium (law of man), which was based on custom and therefore mutable. Such ideas were contested, as by the Italian lawyer Alberico Gentili (1552–1608), whose De Jure Belli Libri Tres (Three Books on the Law of War, 1598) secularized discussion of the power of the state, and the justice and injustice of war.
The views of Vitoria, Suárez, and Gentili were later summarized and contextualized by the Dutch philosopher, poet, and diplomat Hugo Grotius (1583–1645), who in 1625 published the highly influential treatise De Jure Belli ac Pacis (On the Law of War and Peace), a work that provided a comprehensive interpretation of natural law and excised international law from theology. According to Grotius, the states could decide according to their individual interests, but had to accept that natural law was necessary to regulate international relations, inasmuch as it emerged from the exercise of the human reason to indicate what was morally right or wrong. This law recognized a number of rights as belonging to the states: the rights to equality, independence, international respect, and international trade.
In making his argument, Grotius contested the position of French philosopher Jean Bodin (1530–1596), who argued in his Six Books of the Republic (1576) that all power rested with the state sovereign and was indivisible, perpetual, and supreme. Grotius's point of view was sustained by Thomas Hobbes (1588–1679) who, in publishing Leviathan (1651), insisted that the state was necessary to avoid social chaos.
Nevertheless, the intellectual debate on the limits to sovereign power in the international arena continued. In 1672 German jurist Samuel Pufendorf (1632–1694) published Of the Law of Nature and Nations, a treatise in which he equated international law with natural law. The conflation was contested, most notably by Richard Zouche (1590–1660), Cornelis van Bynkershoek (1673–1743), and Christian von Wolff (1679–1754), exponents of the so-called positivist school, which advocated the analysis of legal issues using only the empirical method, not innate principles or natural law.
Wolff's disciple Emmerich de Vattel (1714–1767) published the Principles of the Law of Nature Applied to the Conduct and Affairs of Nations and Sovereign (1758), in which he combined both approaches: orienting the principles of the natural law in practical manner, and introducing the idea of equality of states into the doctrine. The combination influenced those asserting themselves in the American and French Revolutions and, later, in the Latin American wars of independence.
The positivist approach to international law dominated thinking in the nineteenth century and divided into two schools: the monist, which claimed there was one central principle that links internal law and international law, and the dualist, which argued for finding commonality between the two.
The heritage of the eighteenth-century formulation and positivist-era thinking indelibly imprinted legal thinking in the twentieth century. In time, after both world wars, it undergirded the creation of the Society of Nations (1919), the United Nations (1946), and various Bretton Woods institutions, notably the World Bank and the International Monetary Fund. It also underlay the General Agreement on Trade and Tariff (GATT, 1948), a juridical instrument and forum devised to liberalize and increase international commerce, whose framework and diplomatic experience proved to be fundamental to the creation of the World Trade Organization (WTO) in 1994.
ECONOMIC INTERESTS AND THE LAW OF THE SEA
A main component of the sovereign power for the modern nation-state is control over a territory. This principle was most notably enunciated by Grotius, who, desiring to promote the commercial interest of Dutch overseas, proposed the principle of mare liberum (freedom of the seas). This idea was initially disputed by the English lawyer John Selden (1584–1654), who countered with the idea of mare clausum (a sea closed), an idea that supported England's own interest above those of other European powers.
The principle of freedom of the seas was formally recognized by the Congress of Vienna (1815) and became a keystone of modern international law. Nonetheless, its application was a subject of deep dispute among the different maritime powers. In recent times the dispute has surfaced between developed and underdeveloped countries. In 1958 a United Nations conference was called to address the issue; this legislated the problem in four separate conventions: Territorial Sea and Contiguous Zone; High Seas; Fishing and Conservation of the Living Resources of the High Seas; and the Continental Shelf. The institutions that this conference set up were later consolidated and harmonized in the Convention of the Law of the Sea (agreed, 1982; effective, 1994). The impact of this convention on maritime trade is manifold: it establishes the territorial sea limits of coastal states; it delineates their fishing and mining jurisdictions with respect to an Economic Exclusive Zone and the Continental Shelf; it defines the legal status of seabed resources lying outside the national jurisdictions; it sets navigational rights; it sets standards for the conservations and management of marine resources; and it calls for protection of marine environment.
SEE ALSO GATT, WTO; Theories of International Trade.
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Churchill, Robin R., and Lowe, A. Vaughn. The Law of the Sea. Manchester, U.K.: Manchester University Press, 1999.
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Ngyuen Quoc Dinh; Daillier, Patric; and Pellet, Alain. Droit International Public. Paris: Libraire Générale de Droit et Jurisprudence, 2002.
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