History of Public International Law

Cruz, John D.

Antonio Cassese, in his book International Law (Cassese, A. International

law. Oxford: Oxford University Press. 2005), identifies four major periods of
advancement of public international law. These four periods are defined by major
wars.

The Peace of Westphalia to World War I

The era from the Peace of Westphalia (1648) to the start of the First World
War was one of the development of the modern nation-state. Before 1648, many of
the countries did not have effective centralized governments and government
bureaucracies. A bureaucratic structure replaced the local rule of the nobility.

The Industrial Revolution created a technological gulf between the major

powers of the world and a competition for raw materials and labor. This period saw
the colonial subjugation of vast areas of Asia, Africa, and the Americas. In order to
both administer these territories and develop policies for resolving disputes, the
dominant world powers began to depend on the principles of international law.

International law during this period was one of dominant European/American

powers largely interacting among each other as equals, and treating the remainder of
the world as inferior powers. Attempts to stabilize relations between powers as well
as to resist revolutionary tendencies after the US and French upheavals resulted in
the development of the Concert of Europe – a series of treaties executed around
1815. The key elements included:

 A Declaration of Principles binding the signatories to standards of behavior that

were based on the precepts of Christian Religion

 A military alliance based on the Treaty of Paris (1815) between Austria, Prussia,
Russia and France (1818). The purpose was to provide mutual aid to suppress any
revolutionary elements and prevent the renewal of the revolutionary movements
that led to the American and French Revolutions.
 Periodical summit meetings. The rise of multilateral diplomacy and regular
meetings of nations where common concerns and interests could be discussed and
ideally settled.

US began to emerge as a world power. The promulgation of the Monroe

Doctrine in 1823 provided that while the US would not intervene in European
colonial affairs, the US would not tolerate European intervention in the affairs of
independent states in the Americas.

The codification and development of procedures for dispute resolution began

to shift the elements of power from the major powers to a more balanced
approach. The adoption of the Hague Convention of 1899 limited the ability of
powers to use certain types of weapons and dictated the treatment of
combatants. These treaties governed the interactions between signatories, but left
the colonial and non-European nations unprotected.

This period saw the development of the basic principles of international law,
the evolution of multilateral diplomacy, and a beginning of the leveling of powers
between large powers and small nations.

World War I to World War II

World War I marked the end of the colonial period and the failure of
international diplomacy. This era also saw the elimination of many of the remaining
capitulation agreements, and the gradual return of local enforcement of laws.

The war, with some 17 million military and civilian deaths, also brought a
united desire to utilize diplomacy and the rule of law as opposed to force of arms to
dictate international relations. Following the First World War, the belligerents
worked to develop a framework for diplomacy and enforcement of international law
through the League of Nations. However, the failure of the US and USSR to join the
League limited its effectiveness, and ultimately led to its failure. The organization
proved itself to be ineffective due to a lack of enforcement power.
The Cold War

The period after the World War II saw international law take center stage. The
United Nations was established with the participation of all major world powers
which led to a formal structure for the resolution and discussion of major
international issues. Two superpowers, the United States and the USSR, arose after
the war. These two superpowers represented competing military, legal, political and
economic polarities that soon resulted in the division of much of the globe into two
opposing camps. The Universal Declaration on Human Rights as well as the UN
New International Economic Order began establishing a legal framework of rules
and objectives to protect and enhance the developing nations.

Post-Cold War Period

The US effectively became the sole superpower after the fall of the USSR in
1989. Interventions by the United States, with and without UN support, in Kosovo,
Bosnia, Somalia, Iraq and Afghanistan during the last 20 years supported the view
of the US as the world international “policeman”. The UN has seen its influence
diminish in recent times because of the disproportionate power exercised by the US
and the emergence of a regional political and economic central government in
Europe through the EU.

Where the Cold War saw a tension between East and West, the post-Cold War
era is seeing international law conflict emerging between North and South – the
developed and the developing nations. These tensions, which have their seed in the
colonial period, have become more pronounced as Northern nations begin to focus
on environmentally conscious and sustainable development, which limits the access
to cheap but environmentally damaging technology for the emerging nations. One
emerging trend in the post-Cold War era is the integration of multiple bodies of law
in treaties and agreements. Historically a treaty or trade agreement tended to focus
on one element, such as human rights, environmental protection, weapons
limitations or tariffs and trade. However, the new trend is to balance these elements
into holistic and integrated agreements. The trend appears to be headed towards
broader agreements, regionalization, and stronger enforcement procedures.