Доктрины Международного Права

Ideas about right, justice, good, ethical behavior, and law date back far into human history. Accordingly, when we speak about the intellectual or doctrinal origins of international law, we find that many early philosophers and theologians expressed ideas of proper conduct that are directly relevant to the law of nations and may, in their time, have affected the behavior of rulers. It is therefore entirely appropriate for students of international legal doctrine to turn to the classic writers of Greece and Rome, to the theologians of Christendom, Islam, China, India, and elsewhere for evidence of an awareness of norms, precepts, injunctions, or advice that coincides with or gives expression to guidance for the proper conduct of relations with others. These are precisely the sources which publicists of the sixteenth and later centuries turned to for evidence of the origins of the principles of the law of nations.

Among the earliest publicists who pursued a systemic approach to the law of nations was the so-called “Spanish School of International Law”, and of these the most influential was Francisco de Vitoria (c. 1483-1546). Vitoria questioned in his work De Indis et de iure belli relectiones the justness of Spanish conquest in the Americas and upheld the rights of the local inhabitants, condemned pillage and slavery, said that non-combatants should be spared, and pagans had the right to life. Such practices were also criticized by Francisco de Suarez (1548-1617), who believed that the individual had a natural right to life, liberty, and property, that people were the original holders of political authority, and the State operated on the basis of a social contract to which the people had consented. Vitoria was closest to the “universal society” approach, whereas Suarez relied upon a variation of the “great community” notion.

The most famous publicist of the sixteenth and seventeenth centuries is Hugo Grotius (1583-1645), a Dutch jurist and diplomat who wrote widely on Dutch law, theology, and the law of nations. His work Mare liberum (1609) has endured as a pre-eminent work defending the freedoms of the seas, and his De jure belli ac pacis (1625) remains the first major treatise to lay out conceptually a “system of the law of nations”. This work is widely respected as a benchmark of the transition from mediaeval to modern approaches to international law, differing markedly in its style of presentation and reasoning from subsequent works of the Enlightenment. While perhaps more partial to the “great community” idea, his understanding of international society included States, rulers, individuals, and associations, and he extended the sources of international law to include custom, together with divine will. It would be an exaggeration, however, to call Grotius the “father of international law”, as is sometimes done – first, because he owed much to other writers, including the Anglo/Italian, Alberico Gentili (1552-1608); second, because his contributions were to the doctrine of international law and not to the legal system itself; and third, because he himself was closer to the “great community” conception of the international system rather than to a system of sovereign States.

Of the eighteenth century publicists, the Swiss jurist Emer de Vattel (1714-1767) considerably advanced the embryo of a systematic exposition of international law proposed by Grotius. “Each sovereign State claims, and actually possesses, an absolute independence from all others”, a beneficial circumstance because each State was able to “govern herself in the manner best suited to her own circumstances”. This principle laid the ground for the freedom of each State to enjoy equally their existence without interference from other States. Diplomacy and the balance of power in his view should be relied upon to maintain order in the international system, which in turn counseled that diplomats should enjoy full inviolability of their person and property. All States had a common interest in ensuring that diplomacy was an obligatory and protected practice.

Just as other publicists, Vattel did not “create” international law, but his influential book did accelerate and reinforce other international legal developments apparent in the texts of treaties and diplomatic correspondence: increasingly legalistic terminology; more emphasis upon sovereign equality and non-intervention; references explicitly to the balance of power as a desirable outcome of diplomacy; agreements of States to establish and to accept permanent embassies; and the stability of existing territorial possessions and boundaries.

The greater emphasis on sovereignty was accompanied after the Congress of Vienna (1815) by the expanded use of treaties to form more precise, more formal, and more consensual relationships. Between 1814 and 1924 more than 16,000 international treaties were concluded. There was greater recourse to international congresses and conferences to negotiate multilateral conventions regulating matters of more than bilateral concern. By the second half of the nineteenth century functional international organizations had been founded to coordinate areas of inter-state contact (postal services, weights and measures, communication by telegraph and cable, sanitation, international rivers and railways, among others0. These organizations had permanent secretariats and limited international legal personality. Arbitration was used to settle disputes between States (between 1794 and 1900 there were at least 177 arbitrations between States), and the First Hague Peace Conference (1899) established a Permanent Court of Arbitration.

At the Congress of Vienna the concept of the leading role of “great powers” was acknowledged more formally than previously and eventually institutionalized within the League of Nations and the United Nations in the form of permanent membership on the main decision-making organs. Although world politics in the nineteenth century was dominated by the major European powers and reflected in the Eurocentric approaches to international law, this domination weakened towards the end of the century; the Ottoman Porte and Japan became factors. The Second Hague Peace Conference (1907) was attended by States from North and South America and Asia. Concepts of national self-determination undermined the principle of dynastic rights after the French Revolution, despite a reaction against these trends; ultimately under the impact of The Fourteen Points of Woodrow Wilson and the 1917 October Revolution in Russia, self-determination led to the dissolution of European empires and expansion of the State system.

Finally, in the late nineteenth century serious efforts were commenced by States to mitigate the horrors and consequences of warfare. Initial efforts addressed not the right of States to engage in warfare, but the means by which warfare might be waged and the treatment of prisoners and the civilian population. The establishment of the League of Nations was the first institutionalized response to limit the right to go to war.