Intl-Law-Golove-Sp06 - 1 I. HISTORICAL INTRODUCTION 1....

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1 I. HISTORICAL INTRODUCTION 1. Fundamental Historical Developments 1. Intl law gone from system based on natural law to positivism 2. Under Law of Nations, customary intl law and bilateral treaties most important 1. Now multilateral treaties, or even universal (i.e. Kyoto) are dominant 2. These treaties are of lawmaking character, see selves as making law for community 3. Move from uniform community to very diverse 1. Initially just simple divide US/USSR, now diversity much more complex 4. Early law about co-existence, now about solving common problem that we face 5. Decentralized system of small # of states to larger and more organized system of many states 6. System of state freedom to pursue aims to one of basic tenet of non-use of force preeminant 7. From state-centered system to one in which actors wider variety (individuals, corporations) 1. Int'l law used to be just rules governing interactions b/t states 1. individuals affected, i.e. as aliens, but no individual right in traditional I-law: duty created in host state, and right of feeder states 2. today, expanded enormously 1. int'l organizations, UN, NGO 2. human rights/criminal laws don't to apply only to states, also for individuals 2. Ancient History 1. International law goes back to Greece and Rome. Roman law applied throughout empire, but in provinces local law continued to apply. 2. Roman jurists came up w/ jus gentium , way of regulating “transnational” interaction fairly b/t Romans and those living in the provinces – principles of general equity and “natural law” 3. Europe, 1600s 1. rise in trade make clear need for systematization and 30 Years War make clear need for laws of war 1. Treaty of Westphalia (1648): Ended 30-Years-War, catastrophic period in Euro period. Inaugurated modern state system and idea of states as actors w/ sovereignty w/in borders. 2. Hugo Grotius: Natural Law 1. restitution must be made for harms done by one party to another 2. promises must be kept ( pacta sunt servanda ) 3. freedom of the seas 4. jus naturale ( natural law derived from principles of natural/universal reason) 2. Positivism: 1. Grotius drew distinction b/t jus naturale and jus gentium (customary law of nations, i.e. jus voluntarium (body of law formed by the conduct and will of nations) 2. This became bigger deal later, as positivist philosophy gained over natural law ideas 3. Main tenets: 1. law is the practice of states and conduct of international relations as evidenced by customs or treaties, rather than derivation of norms from natural principles 2. corresponds to rise of nation state and absolute claims to legal supremacy 3. Wolff expresses idea of modern state -- int'l obligations are only those to which state has voluntarily agreed through practice hardening into custom, or specific written consent 4. Principle of voluntarism in intl law: 1. required by sovereignty requires that sovereign not be “bound” by someone else 2. This doesn't mean no intl law, rather that based on
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This note was uploaded on 04/04/2008 for the course LAW ALL taught by Professor Multiple during the Fall '06 term at NYU.

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Intl-Law-Golove-Sp06 - 1 I. HISTORICAL INTRODUCTION 1....

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