Summary for the book
Malcolm D. Evans
Fifth Edition
ISBN: 978-0-19-879183-6
This summary contains the following chapters
CHAPTER 1 – A short history of international law
CHAPTER 4 – The theory and reality of the sources of international law
CHAPTER 9 – The individual and the internation...
international law malcolm d evans 978 0 19 879183 6
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International Law
Malcolm D. Evans
Fifth Edition
ISBN: 978-0-19-879183-6
This summary contains the following chapters
CHAPTER 1 – A short history of international law
CHAPTER 4 – The theory and reality of the sources of international law
CHAPTER 9 – The individual and the international legal system
CHAPTER 10 – Jurisdiction
CHAPTER 14 – The character and forms of international responsibility
CHAPTER 15 – Issues of admissibility and the law on international
responsibility
CHAPTER 18 – The means of dispute settlement
CHAPTER 19 – The international court of justice
CHAPTER 21 – The law of the sea
,CHAPTER 1 – A short history of international law
I. Introduction
II. Ancient worlds
The ambiguity of the term international law leads to various different answers to the question of when
international law began:
If international law is defined as the ensemble of methods or devices which gave an element of
predictability to international relations (silent trading), then the origin dates back to the beginning of
recorded history.
If international law is defined as a more or less comprehensive substantive code of conduct applied
to nations, then international law dates back to the classical period and the middle ages.
If international law is defined as a set if substantive principles applying uniquely to states as such,
then the 17th century would be the starting time.
If international law is defined as the integration of the world into something like a single community
under a rule of law, then the 19th century would be the starting point.
If international law is defined as the enactments of judicial decisions of a world government, then
the starting point lies somewhere in the far future.
If we take the most restricted of these definitions than we could expect to find the best evidence of
international law in
Mesopotamia (4th or 3rd millennium BC)
Northern India (In the Vedic period after 1600 BC)
Classical Greece
Each of these three state systems was characterized by a combination of political fragmentation and cultural
unity. This enabled a number of fairly standard practices, which helped to place interstate relationships on a
stable footing. Three areas provide evidence of international law
diplomatic relations
Treaty making
The conduct of war
The earliest surviving treaty text Is Between Egypt and the Hittite empire from the 13th century BC. This
agreement concerned an imperial division of spheres of influence and it dealt with the extradition a fugitive.
With the advent of the great universal religions, far more broadly-based systems of world order became
possible Islam, The roman empire. Greek philosophical ideas brought forward the concept of a universal
and eternal law. Which was later adopted by 2 groups: roman lawyers and the Christian church. These
groups spread this thought through Europe.
The roman lawyers made a distinction between Jus naturale (natural law) and jus gentium (the law of
people).
Natural law was the broader concept, applicable to everybody (Animals, plants, humans, nature)
Jus gentium was for the humans
III.The middle ages: the natural law era
The European middle ages offer a picture of the variety and complexity in international law:
The variety was most apparent in the decentralized word of feudalism, with its complex and
interlocking layers of rights and duties, and its diffusion of governmental powers and jurisdictions
The universality was evident in two major spheres:
o Philosophically and jurisprudentially on the continued stress on natural law
o Politically in the holy roman empire and in the revival of roman law which underpinned it
There are 3 outlooks
1. The universalist outlook: Medieval natural law
, During the middle ages, natural law conceptions from the classical world developed further under the
catholic church. The most outstanding feature was its all-embracing character. It encompassed and regulated
the natural and social life of the universe in all its infinite variety. Natural law was applied to all cultures and
civilizations, past and present.
Universalist outlook: Natural law was for everyone and everything.
2. The pluralist outlook: The Italian City states
Legal pluralism is the existence of multiple legal systems within one (human) population and/or geographic
area. Plural legal systems are particularly prevalent in former colonies, where the law of a former colonial
authority may exist alongside more traditional legal systems (customary law).
Cities were dependent in the sense of being wholly self-governing and independent of one another, but they
continued to be a subject of the empire.
3. Developments in state practice
Much of state practice in the middle ages consisted of traditional was inherited from ancient times.
Beginning the 11th century, European states began to conclude bilateral treaties that spelled out various
reciprocal guarantees of fair treatment. These agreements granted a range of privileges to the foreign
merchants based in the contracting states, such as the right to use their own law and courts when dealing
with one another.
Some aspects of the conduct of war were changed in the middle ages, most notably was the law on the
ransoming of prisoners of war.
Medieval international law was a jumble of different beliefs and practices from rarefied conceptions of the
law of nature, to the more serviceable rules by which various communities conducted their actual day to day
business, from warfare and diplomacy to buying and selling.
IV. The classical age (1600 – 1815)
In the 17th and 18th centuries a new spirit entered into doctrinal thought on international law The
secularization of natural law. This was the first time that a clear and shar distinction was made between Jus
gentium (law of nations) and natural law (Law of nature).
Natural law: Is universal and eternal. Its basis is reason. Human did not make this law, but they can apply
rationality to it.
Jus gentium: was seen purely as human creation, a product of human will and initiative. It is subject to
alteration from time to time and can vary from place to place. It is also a law that is created by and is
applicable to relations between states. It could, however, not alter the content of natural law
Grotius and Hobbes
Grotian approach: Applying the principles of natural law to international affairs. The most defining fracture
is its dualistic outlook. International law as a combination between the law of natural and the law of nations.
This did not go unchallenged as a rival school of naturalist rejected the dualistic stance.
Thomas Hobbes: Relations between states are governed exclusively by natural law.
The laws of nature in action:
One of the most important trends was the emergence of strong central governments in western Europe which
increasingly gained the upper hand over the older diffused jurisdictions of the feudal age. In addition, these
centralizing nation states were coming to be seen as permanently existing, corporate entities in their own
right, separate from the rulers who governed them at any given time.
This period marked the high tide of mercantilism
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