2.

1 Prior to and between 15th C and 18th C

The development of international law can be traced from early dealings among societies and city

states when society became complex and interactions were more observed. That account takes

into consideration the trading dealings in North African tribes that has given inference on the

presence of the principle of good faith as understood today. 1 The treaties concluded between

Egyptian king and the king of Hittites, agreements between rival Middle Eastern powers and the

role played by Israel have a special place in the early origins of international law. 2

The Roman Empire had a well developed system of law that was applicable to its citizens. The

law was called jus civile. This law however could not cater for citizens of other nations who had

different culture, background and interest hence there was developed a system of law that would

cure the deficiency of jus civile. Rules were then developed to govern the relation between

foreigners and foreigners and citizens this was called Jus gentum.3 The jus gentum developed

and became the law of Roman with universal application something which made jus civile

inapplicable. Hugo Grotius determined the jus gentum as operating in contract relations hence

the development of treaty laws, acquisition of territory etc.

On the other hand, the intellectual developments on the area surrounding the law of Nature in

Greek gave a new dimension to development of international law. The law of nature that is

rooted in human intelligence was unlimited in a sense that it could not be restricted to a

1
Ademola Abas International Law: text, cases and materials Oxford University Press New York 2012 pg 4
2
Malcom N Shaw (note 1) pg 14 - 15
3
ibid at pg 17 and Alina Kaczorowska Public International Law Routledge New York 2010 pg 9
particular nation, it was of universal application and this is an important aspect in understanding

international law generally but with specific reference to human rights.4

When trying to understand the origin of documentation of international law it is imperative that

any search goes through the developments of western culture (Intellectual) and politics as such

Africa played a minor role. Therefore, the development of codification of international law can

be seen from the creation of modern Western states in the 15 thC particularly Western European

states. One can trace the political background to the 1648 5 Westphalia treaties (peace of

Westphalia) which were concluded as a means of ending religious wars by establishing general

public order giving equality of sovereign states not to impose on other states. 6 Rules that

developed included, the Ecclesiastical rules, Feudal rules, Lex macatoria,

Note: reference must also be made to the work of those referred to as the founders of

international law who include Francisco Vitoria, Francisco Suarez, Alberico Gentili and

Hugo Grotius.7

2.2 19th Century Period

This period was marked by the emergence of new states, abolition of slavery and the conclusion

of the congress of Vienna 1815. The congress had the following outcome:-

o It led to the conclusion of napoleon wars and decided which rules ought to be

applied

4
ibid.
5
Consolidation of states that there is no intervention.
6
J. Craig Barker International Law and International Relations for the 21 st C Biddles Limited Great Britain pg 2 - 7
7
Malcom N Shaw (note 1) pg 24 & 25 Grotius natural law reference on what state system should be and what basic
rules should prevail among them.
 o Established the principle of freedom of navigation with regard to international

waters.8

This era was also characterised by the rise of positivism which had a central idea that a valid law

is the result of the will of states and thus the conclusion of a treaty is a manifestation of state

sovereignty and therefore any international law formed as a result of conclusion of treaty is a true

international law that follows the thinking of positivists. 9 States are therefore the full subjects of

international law and other non state actors were considered to be obligatory to international law

i.e. objects of international law

During this era, there was also massive industrialization and a wide economic growth which

increased interaction between states which led to the increase of public and private international

institutions and thus international law developed to accommodate this. This made economic

interdependence among sovereign states more prominent. Also, democracy and nationalism was

a feature that characterised this period.

Codification of international law was the most important aspect that characterised this era.

o There was transformation of customary international law into written rules. The

International Committee of the Red Cross (ICRC) 10 which was founded in 1863

helped to promote the series of Geneva Conventions 1899 11 and the Hague

Conference of 1907.

8
Ibid pg 27
9
see the writings of positivists like Jean Bodin, John Austin and Jeremy Bentham
10
see http://www.icrc.org/eng/
11
Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field.
Geneva, 12 August 1949. This Convention represents the fourth version of the Geneva Convention on the wounded
and sick after those adopted in 1864, 1906 and 1929; Convention (II) for the Amelioration of the Condition of
Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August 1949; Convention (III)
relative to the Treatment of Prisoners of War. Geneva, 12 August 1949 and Convention (IV) relative to the
Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.
 o There was the solidification of pacific settlement of international disputes by the

creation of the Permanent Court of Arbitration (PCA).12

o The formation of international Law Commission which is responsible for the

codification of international law to date.13

2.3 The 20th Century

This Century was characterised by World Wars I & II and thereafter the cold war. WWI and

WWII shocked the international community and they impacted to a great extent on the way

international law reacted to the after math of the events. Following the end of WWI the League

of Nations was created by a peace Treaty of 1919 with a mandate of enforcing and attaining

international peace and impacting the ideal that national will should be subordinate to collective

international right something which meant the limiting of state sovereignty. Despite these

promising objectives, the efforts of the League of Nations were hampered by yet another

outburst of WWII.14

WWII paved the way for international law to expand in a way not many could have predicted.

After the end of WWII international community witnessed the creation of an international

organisation the United Nations (UN) and the Permanent Court of International Justice (PCIJ)

something which was and still is a historical milestone in international law. The UN had an
12
see http://www.pca-cpa.org/showpage.asp?pag_id=363
13
see http://www.un.org/law/ilc/
14
Christopher C Joyner International law in the 21st C Rules of Global Governance Rowman & Littlefield Publishers
INC Oxford USA 2005 pg 20-21.
initial number of 51 members but the decolonisation and self determination of people during the

20th Century increased the number of member states to 192. Further, the principles of individual

criminal responsibility under international law were first articulated under the International

Military Tribunal of Nuremberg, a product of WWII.15

The century’s successful codification and progressive development of international law cannot

be ignored. During this century a number of international conventions were adopted creating new

fields of international law or solidifying the existing fields. The outburst of conventions in the

area of human rights must be stressed as it moved from the general conventions to specific

conventions governing vulnerable groups such as women, children and refugees. 16 Also,

international law “moved from being a mere regulatory body of laws used to help advance world

order values and help improve human condition.”17 The assertion on the privilege of states was

slowly watered down in the sense that state sovereignty was slowly begin to be limited. Above

all, the century witnessed international law begin to bring under its ambit the relations between

states and non state actors and individuals.18

2.4 The current period

International law is developing everyday to respond to the changes that international community

is undergoing. These changes are diverse and so is international law today. With these changes

there is a growing tension between a strict and broad definition of international law.

2.4.1 Strict definition

16
B G Ramcharan The International Law and Practice of early – warning and Preventive Diplomacy: The emerging
Global Watch Martinus Nijhoff Publishers The Netherlands 1991 pg 1
17
ibid at 2.
18
Ole Spiermann Twentienth Century Internationalism in Law European Journal of International Law European
Journal of International Law (2008) vol 18 no 5 785 at 786.
International law is created only by states. This definition is based on the idea that international

law reflects the basic state oriented character of world politics because states have over the years

become the primary repository over the organised hopes of the people whether for protection or

expansion of economy. Therefore international law has expanded horizontally to embrace the

new states that were founded after colonization/self determination and others which drifted

from the existing countries example Sudan and South Sudan; India and Pakistan etc.

2.4.2 Broad definition

The current changing of political background and weakening of states has made the political

power in the hands of states less powerful than during the 19 thC where states were absolute

sovereign (although international law is still 80% about states.) These changes have led to the

verticalization movement of international law. This is seen by the inclusion of new entities as

derivative subjects of international law. These new entities19 include:-

i. International organisations. These are established by states through

international agreements and posses such powers as stipulated in such

agreements. They can therefore do what is only stated in the agreement and not

otherwise as such they are a creature of states. The definition of what constitutes

international organisations is found under article 2 of the Vienna Convention and

article 2 of Draft Articles on Responsibility of International Organisation. 20 They

coordinate the behaviour of states and make certain decisions which are

19
Malcom N Shaw (note 1) pg 43-49
20
www.untreaty.un.org
 independent from what member states can say. Other actors include NGOs 21 and

Trans national organisations.

ii. Individuals. Initially individuals were only objects of international law they

could not enforce any rights or bear responsibility under international law. This

has changed considerably. Today individuals are derivative subjects of

international law although not full subjects because they cannot make

conventions. This change began with the Nuremberg and Tokyo tribunals which

were the first tribunals to try individuals of crimes committed under international

law. Further reference has to be made to the 1948 Genocide Convention and

subsequent developments under human rights and international criminal law.22

Further, international law today covers many new fields which were not embraced by the

developments before the 20th and 21st Centuries. These new field include, international

environmental law, international trade, health law, human rights particular focus on

specific groups which are at risk like, children, women, disabled etc, also the exploration

of outer space.

Also, international law is currently institutionalised where there has developed a number

of institutions which govern specific fields of international law. To that there are different

adjudicating organs for different treaties.

21
Example, the ICRC role in the adoption of the Geneva Conventions of 1949, the role of international
organisations in examining states’ compliance to international law norms.
22
see the role played by adhoc tribunals, Special Courts and the International Criminal Court.