[Being the introductory notes for my "winter school" seminars on international law for Singaporean students. Comments most welcome.]
International law has probably existed, in some form, for as long as tribal people have had dealings with other tribes. The ancient Romans certainly recognised a difference between Roman law (the law that applied within their Empire) and “the law of peoples” (jus gentium) – that is, a law that applied between the ancient Romans and other peoples.
So, while tribes, communities or peoples could organise their own societies under their own law, for a long time in human history it has been understood that there is a law that applies between communities in their dealings with each other.
In the modern era, this has become known as “international law”, meaning (obviously) the law between nations. This points to a change in ideas: by the early nineteenth century writers, thinkers and politicians in Europe saw themselves as belonging first to a community called a “nation” or a “State”.
It is important to bear in mind that States do not have “natural” borders. Germany, Singapore, India and Pakistan, for example, are all, historically, quite recent creations.
The first idea of international law is that all States are equal; that is, all States are “sovereign” and have a right to organise their society according to their own internal laws, free from external interference (though there are limits to this freedom). However, some States are more powerful than others, and may have more influence over how international law changes over time.
International law as we know it now is essentially an invention of nineteenth-century Europe. This is simply a consequence of the power those States had at that time. The most important recent example of the role of powerful states in creating new international law can be seen in the formation of the United Nations, and other institutions, in 1945.
Before discussing the UN, it is important to consider it in historical context. Often, the major changes in international law are prompted by extraordinary and disastrous world events.
The period 1929 – 1945 was an economic and humanitarian disaster for Europe, the United States and many of the States and territories conquered by Japan. The world had seen the following crises:
(1) a severe depression in global trade and the near collapse of many developed-world economies in the 1930s (“the Great Depression”);
(2) Japanese military expansion from 1931 (the seizing of Manchuria) or 1937 (the commencement of war against China), and Germany military expansion from 1939 (the invasion of Poland); and
(3) governments acting with a shocking disregard for human life and dignity, principally in the “Holocaust”, the murder by the Nazi party government of Jews, gypsies and the physically and mentally handicapped in German-occupied territory (the number of murdered Jewish people alone is usually estimated at 6 million).
Of course, other atrocities were committed during the course of the war, notably in Japanese prisoner of war camps and the treatment of civilians in occupied Japanese territory. Arguably, the dropping of two nuclear weapons by the United States on Japanese cities (Hiroshima, Nagasaki) and the British fire-bombing of German cities such as Dresden, were also indiscriminate actions, causing unnecessary civilian deaths and casualties not justified by legitimate military objectives.
However, the sheer scale of the Holocaust, its meticulous government organisation, and its targeting of specific ethnic groups made it a unique “international crime”.
Economic matters, though, were also important to the victors of the 1939-1945 world war (principally the United States, France, Russia, the United Kingdom and China). Some believed that Germany’s economic condition had contributed to the rise of the Nazi party and the outbreak of the 1939 European war. Everyone accepted that all States had suffered in the Great Depression of the 1930s.
It was generally agreed that two major problems had contributed to the collapse of the world economy in 1929. First, “protectionism” – that is many States restricted trade with each other by placing high “tarrifs” (or taxes) on imported foreign goods. This slowed world trade, hurt all countries who relied on export income and often made locally made goods more expensive (by shutting out cheaper imported components). The second problem was “exchange rate devaluation”, which is too complex to explain here.
In this context, the victors of the 1939-1945 (or 1937-1945) war all agreed on certain things:
(1) there needed to be a better international trade system, one designed to reduce or eliminate tariffs;
(2) there needed to be a new international organisation to try and prevent the outbreak of war between States; and
(3) there needed to be a new respect for “human rights” and new categories of “international crimes” to prevent something like the Holocaust happening again.
From this consensus we can see the origins of the idea for a world trading organisation, a united nations organisation, a system of human rights and crimes against humanity, and an international criminal court. Not all of these things happened at once; indeed, it was not until the 1990s that one could see institutions and laws reflecting all these 1945 goals.
Now we have the World Trade Organisation or WTO (and World Bank and International Monetary Fund), the United Nations, the Universal Declaration on Human Rights and various human rights treaties, the Genocide Convention and other international crimes (as a type of human rights protection) and an International Criminal Court or ICC.
This course will study key aspects of the UN security system to prevent war, the WTO system to promote global trade, the crime of genocide and the new ICC.