International law

The beginning of history of international law, or rather the international system, has usually been assigned to the Peace of Westphalia in 1648 which ended Europe's Wars of Religion. Before the Peace of Westphalia, the international system covered only the areas of Christianity, and rules and norms where established by the Catholic Church and the pope. It has been argued that the international system has remained mostly unchanged from that the Peace of Westphalia in 1648 until the Second World War.

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Since the Second World War, the growth of international institutions has been the key development. (Antola 1992, 12-13)

Historically, international law is based on two key features. Firstly, the international rules and principles were based on Western view and are Eurocentric; they rely on Christian ideology and free market paradigm (that all states are legally equal and free to pursue their own interests regardless of economic or social imbalance). Secondly, the international rules and principles were framed by the Great Powers or middle-sized states (mainly those with colonial empires) who elaborated the rules to serve their own interests. (Cassese 2001, 27)

Starting from the Peace of Westphalia begins the time of classical international law or what Georges Abi-Saab describes as "law of coexistence", while from the drafting of the UN Charter begins "law of co-operation" in international law (Abi-Saab 1998, 1).

Since the end of the cold war and at the time of drafting of the UN Charter, peace became the main goal of the international community and thus began the time of co-operation.

2.4.2. The nature of international legal subjects

The key feature of international law is that the regulations in the international framework are most commonly aimed at states rather than individuals. States are considered the main actors in the international arena and therefore are the main legal subjects of international law. However, within states individuals are the main legal subjects and private associations etc. are only secondary. In the international community, however, states are the principle subjects and the individuals' role is very limited, due to individuals' lack of access to instruments of power. In essence, the world community consists of sovereign states in which human beings play an insignificant role. However, a new feature of modern international law is the recognition of new subjects i.e. international organisations, individuals and national liberation movements although it is still arguable that individuals cannot be regarded as having the legal status of international subjects because individuals remain exclusively under the control of states. (Cassese 2001, 3-4)

11 2.4.3. Decentralization

In contrast to the national legal systems which are well developed and the organisational structure is enabling, in the international community power is fragmented and dispersed and there is no clear power structure. Cassese contends that

The relations between States of comprising the international community remain largely horizontal. No vertical structure has as yet crystallised, as is instead the rule within the domestic systems of States. (Cassese 2001, 5)

This, according to Cassese, means that the situation is "unsatisfactory" with reference to globalisation, and more particularly in this context, the emergence of global governance.

He argues that global governance is incapable of resolving problems at the global level with the factual situation being such that permanent power structures are absent. In order for international rules to become meaningful, they should be incorporated into national laws; to apply international law within a state, the law will be made into municipal law. In practice, this means that international rules are dependent on the cooperation of national legal systems. (ibid., 6)

2.4.4. Freedom of action

In international law its subjects enjoy relatively substantial freedom of action. In traditional international law, according to Cassese, the subjects' freedom of action was

"untrammelled" although in modern international law some restrictions have been established (2001, 10). Since the beginning, the key feature has been that international community cannot interfere with the internal political organisation of the states.

Particularly pronounced has been the states' freedom on deciding on foreign policy matters. Moreover, it has been completely at the discretion of states whether to enter into international agreements or not. Cassese argues that the "legal order adopted a laissez-faire attitude, thereby leaving an enormous field of action to states" (ibid., 11).

However, he also points out that this is purely from a legal point of view. In reality, states freedom is reduced by power politics, economic and social considerations etc.

At present, the classical interpretation of international law remains nearest to reality, although some progress has been made since the end of the First World War. Firstly, most states are affected by international treaties and thereby their domestic legal systems are impinged upon. Secondly, the increasing number of legal restrictions on the

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right to use force has decreased the level of freedom of states. Thirdly, it was established in the 1960s that some general principles or norms have greater legal force than others, peremptory rules, or what are called jus cogens (ibid., 11-12). Jus cogens means that some fundamental rules of customary international law cannot be modified by a treaty.

2.4.5. Coexistence of traditional and modern features of international law

In international law the old and new patterns, traditional and modern, coexist today.

According to Martin Wight (1994, 274), these can be distinguished as Grotian and Kantian models. The traditional Grotian model is based on a statist worldview, where sovereign states pursue their own interest and where individuals are not considered as subjects of international law. The modern Kantian model on the other hand is based on a cosmopolitan, universalistic worldview, where mankind can form a community and trans-national solidarity is one of its basic elements. It is arguable today that states have lost their absolute control over individuals and also that states have lost some of their powers to international organisations. In reality, however, individuals' procedural international rights and obligations are very limited; even though individuals may hold international legal status, their legal capacity is limited.

According to Cassese, developments in international law, although there have been significant changes after 1945, have not replaced the old Grotian framework. Cassese argues that the new legal institutions appear to have been superimposed on the old system (2001, 18).