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Understanding the Basics of International Law:
History of International Law: Treaty of Westphalia to the United Nations
Nations, or sovereign states, are key actors in the realm of international law. So in order to understand the roots of international law, it's necessary to understand the roots of the modern state.
The concept of the state began in the fourteenth century but it was not until the Peace, or Treaty, of Westphalia in 1648 that sovereign states emerged in an international community. Marking the end of the devastating Thirty Years War, the delegates met with hopes of unification and cooperation and compassion for mankind. Their highest goal was to create a lasting
peace.1 The treaty created by the delegates established states as
independent and of equal legal
standing.2 Additionally, from that point on all
treatie
s
were to be recognized as legally
binding.3
As time passed, rules of international intercourse developed. Their basis was drawn from the works of Dutch legal philosopher Hugo Grotius, who is considered the father of international law.4 His book, "On the Law of War and Peace" in 1625 discusses what laws, namely those based on natural law, should govern the international society. Grotius' work was revolutionary in his perception of many sovereign states all belonging to the same community.
The next significant step in the development of international law came at the end of French emperor Napoleon Bonaparte's reign with the Congress of Vienna in 1815.5 European nations met to re-instate national boundaries prior to Napoleon's conquests, placing kings back in power and borders back in place. Like the delegates almost 150 years ago, the Congress of Vienna wanted to create an outline to prevent future wars and create a common peace.6 While actions stabilized the European continent, there was still no way to enforce their plans.
The development of the needed enforcement corresponded with the Industrial Revolution in England during the nineteenth century. Technology, economic and social diversification, and interstate intercourse rose. The globalization of the economy and increased interaction called for common laws between nations. Interest groups rose, as did communication with the creation of the International Telecommunication Union, the International Telegraph Union and the Universal Postal Union.7 Non-governmental organizations and intergovernmental organizations grew, helping with social and economic troubles, producing international laws. In 1889, an International Peace Conference was held but their plans for settling crises, codifying war, and preventing war were unsuccessful, much like their predecessors.8
In 1945, fifty representatives from around the globe met in San Francisco at the United Nations Conference on International Organization. Their purpose was to promote international cooperation and achieving peace and security, in response to the threats of the Axis Powers, lead by Nazi
Germany.9 The end result was the formation of a permanent international government organization, the United Nations. Its precursor was the failed
League of Nations, started by the President Woodrow Wilson after WWI.10 Although it disbanded after WWII broke out, it laid much ground work for the success of the United Nations, which is presently active with 189 nation
members.11 The United Nations continues to promote peace and security, human rights,
socio-economic growth, and development of international
law.12
Dominance of Treaty Making in International Environmental Law Since 1970
Treaties concerning the environment on an international scale date back to 191113 but the real steps towards establishing an international system of environmental law began in January of 1972. The first major global environmental conference was held in Stockholm, Sweden, where the UN General Assembly held a conference with the purpose of establishing a means of promoting ways to protect and improve the
environment.14
The Stockholm Declaration established guidelines for future policies. These included placing the major responsibility of environmental protection in the hands of states, lay groundwork for liability and responsibility for environmental damage, and that mankind has a fundamental right to a safe, quality environment.15 At the conference, delegates also created the
Stockholm Action Plan, outlining the environmental issues that needed
addressing.16
After the conference, a flood of treaties came forward, dealing at first with air and water throughout the 1970's. Then, in the next decade, environmental and species protection refocused the attention of international communities. In the 1990's, treaties concerning hazardous waste transportation and biological genetic diversity developed.17 With these treaties, the field of international environmental policy established itself.
The reason treaties are now the most important source of international law is their beneficial characteristics. Without a treaty's provision for specific legal obligations between two consenting states, there it would not be actual law.18 Treaties are enforceable and derive their legitimacy because a state must agree to join in the contractual responsibilities to the environment.19
A
treaty is able to shift appropriately to a changing circumstance. A state or states that ratified a treaty can make to amendments to the
original or can have a reservation, in which a state gives limited consent. Sustained by an internal structure, the Conference of Parties (COP), secretariats, and subsidiary bodies are responsible for treaty up-keep and sources of information and advice, respectively. Treaties meet the organizational need for creating a web of international laws.
Reasons for State Compliance with International Environment Law:
The establishment of governmental and non-governmental international organizations has helped to stabilize international environmental law. But, means of enforcing these laws are still weak.20 Three different problems can arise in the realms of regulated human behavior, non-regulated human behavior, and non-human sources. Because a nation's fear of punishment or sanctions is low due to the impracticability to carry-through with them, the reasons for compliance must is rooted in other arenas.21
Various theories from political to philosophical give possible
explanations as to why states comply with environmental treaties. One school
of thought, following the works of Immanuel Kant and
Jeremy
Bentham, provides there is a moral guidance and states act from a system that encourages
compliance.22 Another point of view argues the same point of compliance but for different reasons. It holds that international laws are in fact not law at all because they are unenforceable. It is the moral force and
establishment of maxims that creates a fear of violating international norms, leading states to compliance.23 Fear of punishment is minute compared to fear of losing legitimacy or domestic support.
Acting in the interests of one's own nation is the foundation for realist theory. States are selfish and main goal is to gain power and security.24 A hegemon or other powerful states may find a policy to be so beneficial they may force weaker states to ratify a treaty.25 Although international governmental organizations are not capable of strong punishment, a hegemon is because of their domination of the international system26, mostly on economic levels.
Moreover, the realist theory argues that states, in fact, do not comply. If a nation should happen to find treaties regulating actions they already take part in, then they will ratify that treaty.27 A nation will only ratify a treaty that would require a change in actions if they can benefit more from ratifying rather than opposing it.28 Gains are made on two levels. Domestically, they can gain in other agendas via the environmental policy.29 Internationally, the state's government gains legitimacy and integrity with other nations.30
There are, however, ways to increase compliance and improve environmental contracts.31 First, reducing the cost of negotiations will increase participation. Second, give greater amounts of general information about the treaty topic. Finally, monitoring ratifying nations reduces other nations' fears of being cheated.32 But even though compliance will rise, motivation for compliance will still vary.
Endnotes
1. The Schiller Institute, Peace of Westphalia, (2001),
<http://www.schillerinstitute.org/strategic/hzlt_of_w_0599.html>.
2. Id.
3. Id.
4. Oregon State University, Hugo Grotius, 1583-1645, (2001), <http://www.orst.edu/instruct/phl302/philosophers/grotius.html>.
5. Western and Central Europe Chronology, Congress of Vienna, (2001), <http://campus.northpark.edu/history/WebChron/WestEurope/Vienna.html>.
6. Id.
7. Basic Facts About the United Nations, About the United Nations - History, (2000), <http://www.un.org/aboutun/history.htm>.
8. Id.
9. Id.
10. Id.
11. Id.
12. Id.
13. David Hunter, James Salzman, and Durwood Zaelke, International Environmental Law and Policy, 2d ed, 170, (2002).
14. Hunter, Salzman, Zaelke, 173.
15. Hunter, Salzman, Zaelke, 176.
16.Hunter, Salzman, Zaelke, 174.
17.Hunter, Salzman, Zaelke, 179.
18.Hunter, Salzman, Zaelke, 273.
19.Hunter, Salzman, Zaelke, 291.
20.Hunter, Salzman, Zaelke, 451.
21. Id.
22.Hunter, Salzman, Zaelke, 440.
23.Id.
24.Hunter, Salzman, Zaelke, 452.
25.Hunter, Salzman, Zaelke, 454.
26.Id.
27.Hunter, Salzman, Zaelke, 453.
28.Id.
29.Hunter, Salzman, Zaelke, 454.
30.Id.
31.Hunter, Salzman, Zaelke, 446.
32. id.
| 03/27/2003 | Copyright © Dorothy Wales Johnson 2000, 2001, 2002. All federal and state copyrights reserved for all original material presented in this course through any medium, including lecture or print. | Homepage |