International Law, Public
International Law, Public
the totality of legal principles and norms governing relations between nations. International law, like any other law, is a historical phenomenon; it originated at the time of the emergence of states. The conditions under which states existed and developed necessitated the establishment of political, economic, and other relations among them. These relations gradually became regular, requiring that they be governed by law. The principles and norms of law that became known as international law (droit international) evolved on this basis.
The nature and level of development of interstate relations at a particular historical period determine the content and level of development of international law. International law, however, always has a class nature: it is created by states, which express their class will in the norms of international law.
Certain institutions of international law were well developed even in ancient times, as may be seen from legal works dating from the second century B.C. to the first century A.D., for example, the Indian Code of Manu and Arthashastra and the Egyptian diplomatic archives in Tell el-Amarna. The legal norms relating to embassies and treaties and certain rules of warfare were developed most extensively. In general, international law was regional (for example, Indian or Greek international law) because international relations were confined to definite regions.
The international law of the slaveholding age included such institutions and norms as the immunity and extraterritoriality of ambassadors, the sanctity of treaties and alliances, arbitration and mediation, protection of the rights of foreigners, the procedure for declaring war, the neutral status of religious and other buildings, and bans on poisoned weapons. The class nature of international law during this period may be seen from articles in treaties calling for mutual assistance in the event of slave rebellions and for the reciprocal return of runaway slaves and from articles defining as international crimes such actions as the incitement of slaves to rebellion. The theoretical principles of international law were expounded in the works of the ancient Greek scholars Polybius (second century B.C.), Plato (fifth and fourth centuries B.C.), and Aristotle (fourth century B.C.) and the Romans Cicero (first century B.C.) and Ulpian (second and third centuries A.D.). However, the science of international law in the strict sense did not emerge until the feudal period and developed under capitalism.
The emergence of feudal states and their fragmentation and incessant internecine wars necessitated both the establishment of political alliances and the development of international relations. Inasmuch as the feudal period was a time of numerous wars, questions of warfare occupied a significant place in the theory and practice of international law. The exchange of resident diplomatic representatives began in the 15th century, and in the 16th century most European states maintained permanent departments of foreign relations. Consular law developed at this time: consuls were given considerable authority to protect the rights of their country’s citizens abroad, especially in Oriental countries (capitulations). The Italian city-republics of Venice, Florence, Pisa, and Genoa played a large part in the development of medieval international law. The growth of maritime trade, which was related to the development of capitalist relations within feudal society, promoted the spread of international maritime agreements. There were numerous codifications of the customs of maritime trade, notably the Charte d’Oleron and the Consolato del Mare. In the early 17th century the principle of freedom of the open sea was introduced. Kievan Rus’ and the Russian centralized state maintained extensive relations with various foreign countries, and here norms of international law were elaborated that in some respects surpassed the level of the European international law of the time, including the principles of state succession, liberation of prisoners not only for ransom but also without compensation, and demilitarization of areas such as eastern Karelia (1323).
The theologians and jurists of the Middle Ages formulated a number of important principles of international law, chiefly in the areas of treaty law (the principle of pacta sunt servandd) and the law of war (ransoming prisoners, protecting the civilian population). The concept of sovereignty evolved during the formation of national and multinational states and the consolidation of supreme power. The Dutch jurist and diplomat Hugo Grotius (16th and 17th centuries) and his followers laid the foundations for the bourgeois science of international law in the late feudal period in Western Europe.
Although international law in the age of feudalism had a number of features that reflected the class nature of feudal society, some of its institutions and norms were preserved and developed further in the capitalist period.
Bourgeois revolutions, especially the Great French Revolution, contributed to the rise of such principles of international law as sovereign equality, independence, territorial inviolability, noninterference in the internal affairs of other states, and observance of treaties. The bourgeoisie, fighting against the forces of feudal reaction, declared these principles to be the foundations of international relations. These principles were incorporated in a number of international instruments and gradually became generally recognized principles and norms of international law. In the age of capitalism, international law was enriched by such institutions and norms as the recognition and succession of states, plebiscite and choice of citizenship, the right of asylum, prohibition of the slave trade, and good offices. The law of war underwent major changes. It was proclaimed that only defensive and just wars and wars to defend violated rights were permissible, that the wounded and prisoners must be treated humanely, and that the rights of civilian populations must be respected; weapons causing excessive suffering were banned, privateering was prohibited, and the rights of neutral states were protected.
The bourgeois science of international law developed under the influence of Hugo Grotius, who initiated two trends in bourgeois doctrine: the natural-philosophical school, which attempted to establish the general philosophical foundations of international law (S. Pufendorf, C. Wolff, and E. Vattel in Germany), and the positive school, which turned to the established customs and treaty practices of states (C. Bynkershoek, J. Moser, R. Zouche). In the 19th century the historical-positive school became dominant, represented by A. Heffter, G. Triepel, and F. List in Germany; J. Westlake, R. Phillimore, T. Holland, and L. Oppenheim in Great Britain; H. Bonfils and P. Fauchille in France; and J. Moore, W. Lawrence, and H. Wheaton in the United States. Russia made a significant contribution to the development of the science of international law, initiating a number of international instruments concerning the laws and customs of warfare, including the Paris Declaration of 1856, the Geneva Convention of 1864, the St. Petersburg Declaration of 1868, and the Hague conventions of 1899 and 1907. Such prominent Russian scholars as V. F. Malinovskii, V. A. Nezabitovskii, D. I. Kachenovskii, L. A. Komarovskii, and F. F. Martens worked on theoretical problems of international law.
A typical feature of bourgeois law—the formal equality of all before the law—is also embodied in the international law of the capitalist era. Recognition of progressive principles of international law was often a mere formality, since in practice they were violated by the major countries. In general, international law in the age of capitalism served as a means of protecting the political and economic interests of the bourgeoisie. The validity of this law was limited to the “civilized” European states and did not apply to the colonial countries and peoples. Bourgeois international law not only retained but also developed such reactionary norms and institutions of feudal international law as war, reprisals, annexation, imposts, vassalage, capitulations, protectorates, and spheres of influence.
In the 18th and 19th centuries nihilistic theories rejecting international law became fairly widespread, especially in Germany. These theories were often used to justify the militarist aspirations of the bourgeoisie.
In the age of imperialism the bourgeoisie has rejected the basic principles of international law it had proclaimed earlier, flouting the elementary norms of international relations. Various theories and conceptions whose primary purpose is to justify and substantiate the aggressive policy of imperialism are proliferating in the bourgeois science of international law. In addition to denying that sovereignty and noninterference are fundamental principles of international law and advocating cosmopolitan ideas of a “world state” and “world government,” bourgeois science is reviving nihilistic views of international law (whose base is allegedly narrowing) and propagandizing the breakdown of general international law into regional systems and the creation of “interbloc law.”
The Great October Socialist Revolution, which ushered in a new age in the development of the human race, had a determining effect on the further development of international relations and laid the foundation for a qualitatively new, modern international law.
The international law existing prior to the formation of the Soviet state was a complex aggregate of principles and norms that had evolved under different historical conditions. Along with principles and norms designed to ensure peaceful relations among states, there were also principles and norms reflecting and institutionalizing national oppression and colonial domination by imperialist countries.
Presenting the Decree on Peace for consideration by the Second Congress of Soviets, V. I. Lenin declared: “We reject all clauses on plunder and violence, but we shall welcome all clauses containing provisions for good neighborly relations and all economic agreements; we cannot reject these” ( Poln. sobr. soch., 5th ed., vol. 35, p. 20). The Soviet state opposed all that was outdated and reactionary in international law and favored the development of its democratic principles. It advocated the introduction of new principles and norms to ensure world peace, the liberation of peoples from national and colonial oppression, and the development of comprehensive cooperation among them on an equal, voluntary basis. V. I. Lenin proposed the principle of peaceful coexistence among states with different social systems. Fundamental changes have occurred in international law through the influence of the Soviet state, particularly after the formation of the world socialist system. Many reactionary institutions and norms have lost their force. Such fundamental principles as the prohibition of the use or threat of force in international relations, self-determination for nations (natsii, nations in the historical sense) and peoples, and obligatory peaceful settlement of disputes have been incorporated in various important international documents, notably the UN Charter. The democratic principles of respect for sovereignty, noninterference in internal affairs, and equality have been further developed. These changes point to the creation of a new, modern international law, incorporating the basic political and legal conditions for peaceful coexistence and ensuring its viability.
The subjects of international law—the participants in international legal relations—are primarily states. New states become subjects of international law regardless of any instrument or declaration of intent by other participants in international relations. The principle of the equality and self-determination of peoples incorporated in the UN Charter and the 1960 UN declaration on granting independence to colonial countries and peoples assure that the subjects of international law include not only existing states but also peoples and nations that have not yet realized their right to self-determination. International organizations whose formation and activity do not contradict the basic principles of international law are also recognized as the subjects of international law.
Contemporary international law contains generally recognized principles and norms, that is, principles and norms that have been recognized by all states and that are binding upon them. Certain norms of international law are obligatory only for certain states and have local significance, for example, the norms of treaties in which a limited number of states participate. However, an essential condition for the legality and validity of such local norms, as well as of treaty obligations between two or more states, is that these norms conform to the generally recognized principles and norms of international law.
Both the principles and the norms of international law are rules of conduct for participants in international relations, and in this sense they are equally important. However, there are certain differences between these two concepts. Generally recognized principles of international law are the general and most important primary rules of conduct for the subjects of international relations, the guiding ideas of international legality. The basic principles of international law are now set forth in the UN Charter, in the elaboration of which the USSR played an active part. The leading principles of contemporary international law include the principles of nonaggression, self-determination of peoples, peaceful resolution of disputes, disarmament, respect for human rights, and prohibition of war propaganda. The norms of international law are the concrete rules of conduct that elaborate and specify the principles of international law. The Soviet Union and the other socialist countries initiated the codification of the principles of international law contained in the UN Charter, and the 25th session of the UN General Assembly (1970) adopted the Declaration of the Principles of International Law, formulating the norms arising out of guiding principles of international law.
The norms of international law regulate a wide variety of relations among states in the political, economic, social, and cultural spheres. Cooperation among states is extending to issues that were once outside the bounds of international law, such as the maintenance of peace and security, the development of science, technology, and education, the improvement of working conditions, and efforts to combat crime. Moreover, completely new areas of international cooperation have arisen, which also fall within the sphere of legal regulation, including the peaceful use of atomic energy, protection of the environment, and exploration of space and the ocean floor.
New norms of international law are created and existing norms are abolished or amended through agreement among states, which may be either clearly expressed (an international treaty) or tacit (international custom). Accordingly, a standard distinction is observed in international law between conventional and customary norms. Today most new norms of international law are created by international conventions. The UN Charter recognizes that the codification and progressive development of international law is one of the most important aspects of cooperation among states, and the UN International Law Commission has been formed to carry out this task. The Soviet Union and the other socialist countries always participate in the progressive development and codification of international law.
An important characteristic of contemporary international law is the restriction of coercion as a means of achieving observance of its principles and norms. The UN Charter abolished the so-called right of self-assistance, which was understood to mean the right of a state to resort to any coercive measure independently and without control. Envisaging the establishment of a centralized apparatus to apply coercive measures, the UN Charter considerably limited the right of self-defense, the exercise of which was placed under the strict international control of a designated agency, the UN Security Council.
Violation of obligations by states entails the application of various sanctions in accordance with the principle of responsibility under international law. Sometimes natural persons are brought to accountability. Thus, contemporary international law recognizes the principle of individual criminal responsibility (together with state responsibility) for crimes against peace, war crimes, and crimes against humanity.
Contemporary international law includes generally recognized principles and norms that are intended to govern relations among all states regardless of their socioeconomic systems. But the attitudes of different countries toward these principles and norms are by no means identical. The practice of international relations reveals that capitalist states frequently violate elementary principles of international relations and attempt to use the norms of international law to further their policy of aggression and expansion.
The formation of the world socialist system, which marked the beginning of a new kind of international relationship among states bound together by a common socioeconomic system, promotes the establishment of democratic principles of international law and exercises a steadily growing influence on international relations and on the balance of forces in the world.
REFERENCESKurs mezhdunarodnogo prava, vols. 1-6. Moscow, 1967-73.
Tunkin, G. I. Teoriia mezhdunarodnogo prava. Moscow, 1970.
N. A. USHAKOV and V. I. MENZHINSKII