Maritime Law Christopher Hill Pdf Files

Maritime law christopher hill pdf files

International law , also known as public international law and law of nations , [1] is the set of rules, norms, and standards generally accepted in relations between nations. International law thus provides a means for states to practice more stable, consistent, and organized international relations.

The sources of international law include international custom general state practice accepted as law , treaties , and general principles of law recognized by most national legal systems. International law may also be reflected in international comity , the practices and customs adopted by states to maintain good relations and mutual recognition, such as saluting the flag of a foreign ship or enforcing a foreign judgment.

International law differs from state-based legal systems in that it is primarily—though not exclusively—applicable to countries, rather than to individuals, and operates largely through consent, since there is no universally accepted authority to enforce it upon sovereign states.

Maritime law christopher hill pdf files

Consequently, states may choose to not abide by international law, and even to break a treaty. The relationship and interaction between a national legal system municipal law and international law is complex and variable. National law may become international law when treaties permit national jurisdiction to supranational tribunals such as the European Court of Human Rights or the International Criminal Court.

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Treaties such as the Geneva Conventions may require national law to conform to treaty provisions. National laws or constitutions may also provide for the implementation or integration of international legal obligations into domestic law.

The term "international law" is sometimes divided into "public" and "private" international law, particularly by civil law scholars, who seek to follow a Roman tradition.

International law

On this view, "public" international law is said to cover relations between nation-states and includes fields such as treaty law , law of sea , international criminal law , the laws of war or international humanitarian law , international human rights law , and refugee law. By contrast "private" international law, which is more commonly termed " conflict of laws ", concerns whether courts within countries claim jurisdiction over cases with a foreign element, and which country's law applies.

A more recent concept is " supranational law ", which concerns regional agreements where the laws of nation states may be held inapplicable when conflicting with a supranational legal system to which the nation has a treaty obligation.

The term "transnational law" is sometimes used to a body of rules that transcend the nation state.

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The origins of international law can be traced back to ancient times. Interstate pacts and agreements of various kinds were also negotiated and concluded by polities across the world, from the eastern Mediterranean to East Asia. Ancient Greece , which developed basic notions of governance and international relations, contributed to the formation of the international legal system; many of the earliest peace treaties on record were concluded among the Greek city-states or with neighboring states.

Maritime law christopher hill pdf files

The Roman Empire established an early conceptual framework for international law, jus gentium "law of nations" , which governed both the status of foreigners living in Rome and relations between foreigners and Roman citizens.

Adopting the Greek concept of natural law —the idea that certain rights are inherent to all humans—the Romans conceived of jus gentiumas as being universal.

However, in contrast to modern international law, the Roman law of nations applied to relations with and between foreign individuals rather than among political units such as states. Beginning with the Spring and Autumn period of the eighth century BCE, China was divided into numerous ethnic Han states that were often at war with each other.

Subsequently, there emerged rules for diplomacy and treaty-making, including notions regarding the just grounds for war, the rights of neutral parties, and the consolidation and partition of states; these concepts were sometimes applied to relations with non-Han "barbarians" along China's western periphery. Similarly, the Indian subcontinent was characterized by an ever-changing panoply of states, which over time developed rules of neutrality, treaty law, and international conduct.

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Embassies both temporary and permanent were established between states to maintain diplomatic relations, and relations were conducted with distant states in Europe and East Asia. Following the collapse of the western Roman Empire in the fifth century CE, Europe fragmented into numerous often-warring states for much of the next five centuries.

Maritime law christopher hill pdf files

Political power was dispersed across a range of entities, including the Church , mercantile city-states, and kingdoms, most of which had overlapping and ever-changing jurisdictions. As in China and India, these divisions prompted the development of rules aimed at providing stable and predictable relations.

Concurrently, in the Islamic world , foreign relations were guided based on the division of the world into three categories: The dar al-Islam territory of Islam , where Islamic law prevailed; dar al-sulh territory of treaty , non-Islamic realms that have concluded an armistice with a Muslim government; and dar al-harb territory of war , non-Islamic lands whose rulers are called upon to accept Islam. Islamic law in this period institutionalised humanitarian limitations on military conduct, including attempts to limit the severity of war, guidelines for ceasing hostilities, distinguishing between civilians and combatants, preventing unnecessary destruction, and caring for the sick and wounded.

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Some of these principles were not codified in Western international law until modern times. During the European Middle Ages , international law was concerned primarily with the purpose and legitimacy of war, seeking to determine what constituted a "just war ".

For example, the theory of armistice held the nation that caused unwarranted war could not enjoy the right to obtain or conquer trophies that were legitimate at the time. In Islam, a similar framework was developed wherein the law of nations was derived, in part, from the principles and rules set forth in treaties with non-Muslims. The 15th century witnessed a confluence of factors that contributed to an accelerated development of international law into its current framework.

The influx of Greek scholars from the collapsing Byzantine Empire , along with the introduction of the printing press , spurred the development of science, humanism, and notions of individual rights.

Increased navigation and exploration by Europeans challenged scholars to devise a conceptual framework for relations with different peoples and cultures.

The formation of centralized states such as Spain and France brought more wealth, ambition, and trade, which in turn required increasingly more sophisticated rules and regulations.

The Italian peninsula, divided among various city-states with complex and often fractious relationships, was subsequently an early incubator of international law theory.

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Jurist and law professor Bartolus da Saxoferrato — , who was well versed in Roman and Byzantine law, contributed to the increasingly relevant area of " conflicts of law ", which concerns disputes between private individuals and entities in different sovereign jurisdictions; he is thus considered the founder of private international law.

Another Italian jurist and law professor, Baldus de Ubaldis — , provided voluminous commentaries and compilations of Roman, ecclesiastical, and feudal law , thus creating an organized source of law that could be referenced by different nations.

The most famous contributor from the region, Alberico Gentili — , is considered a founder of international law, authoring one of the earliest works on the subject, De Legationibus Libri Tres , in He wrote several more books on various issues in international law, notably De jure belli libri tres Three Books on the Law of War , which provided comprehensive commentary on the laws of war and treaties,. Spain, whose global empire spurred a golden age of economic and intellectual development in the 16th and 17th centuries, produced major contributors to international law.

Francisco de Vitoria — , who was concerned with the treatment of the indigenous peoples by Spain, invoked the law of nations as a basis for their innate dignity and rights, articulating an early version of sovereign equality between peoples. The Dutch jurist Hugo Grotius — is widely regarded as the most seminal figure in international law, being one of the first scholars to articulate an international order that consists of a "society of states" governed not by force or warfare but by actual laws, mutual agreements, and customs.

He also emphasized the freedom of the high seas , which was not only relevant to the growing number of European states exploring and colonising the world, but remains a cornerstone of international law today.

Maritime law christopher hill pdf files

Although the modern study of international law would not begin until the early 19th century, the 16th-century scholars Gentili, Vitoria and Grotius laid the foundations and are widely regarded as the "fathers of international law. Grotius inspired two nascent schools of international law, the naturalists and the positivists. In the former camp was German jurist Samuel von Pufendorf —94 , who stressed the supremacy of the law of nature over states.

His work, De iure naturae et gentium, expanded on the theories of Grotius and grounded natural law to reason and the secular world, asserting that it regulates only the external acts of states.

Maritime law christopher hill pdf files

Pufendorf challenged the Hobbesian notion that the state of nature was one of war and conflict, arguing that the natural state of the world is actually peaceful but weak and uncertain without adherence to the law of nations. The actions of a state consist of nothing more than the sum of the individuals within that state, thereby requiring the state to apply a fundamental law of reason, which is the basis of natural law.

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He was among the earliest scholars to expand international law beyond European Christian nations, advocating for its application and recognition among all peoples on the basis of shared humanity. In contrast, positivist writers, such as Richard Zouche — in England and Cornelis van Bynkershoek — in the Netherlands, argued that international law should derive from the actual practice of states rather than Christian or Greco-Roman sources.

The study of international law shifted away from its core concern on the law of war and towards the domains such as the law of the sea and commercial treaties. The positivist school made use of the new scientific method and was in that respect consistent with the empiricist and inductive approach to philosophy that was then gaining acceptance in Europe.

The developments of the 16th century came to a head at the conclusion of the " Peace of Westphalia " in , which is considered to be the seminal event in international law.

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The resulting " Westphalian sovereignty " established the current international legal order characterized by independent sovereign entities known as " nation states ", which have equality of sovereignty regardless of size and power, defined primarily by the inviolability of borders and non-interference in the domestic affairs of sovereign states.

From this period onward, the concept of the sovereign nation-state evolved rapidly, and with it the development of complex relations that required predictable, widely accepted rules and guidelines. The idea of nationalism , in which people began to see themselves as citizens of a particular group with a distinct national identity, further solidified the concept and formation of nation-states. Elements of the naturalist and positivist schools became synthesised, most notably by German philosopher Christian Wolff — and Swiss jurist Emerich de Vattel —67 , both of whom sought a middle-ground approach in international law.

During the 18th century, the positivist tradition gained broader acceptance, although the concept of natural rights remained influential in international politics, particularly through the republican revolutions of the United States and France.

Not until the 20th century would natural rights gain further salience in international law.

Maritime law christopher hill pdf files

Several legal systems developed in Europe , including the codified systems of continental European states known as civil law , and English common law , which is based on decisions by judges and not by written codes.

Other areas around the world developed differing legal systems, with the Chinese legal tradition dating back more than four thousand years, although at the end of the 19th century, there was still no written code for civil proceedings in China. Until the midth century, relations between states were dictated mostly by treaties, agreements between states to behave in a certain way, unenforceable except by force, and nonbinding except as matters of honor and faithfulness.

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One of the first instruments of modern international law was the Lieber Code of , which governed the conduct of U. Civil War , and is considered to be the first written recitation of the rules and articles of war adhered to by all civilized nations.

This led to the first prosecution for war crimes, in which a Confederate commandant was tried and hanged for holding prisoners of war in cruel and depraved conditions at Andersonville , Georgia. In the years that followed, other states subscribed to limitations of their conduct, and numerous other treaties and bodies were created to regulate the conduct of states towards one another, including the Permanent Court of Arbitration in , and the Hague and Geneva Conventions , the first of which was passed in The concept of sovereignty was spread throughout the world by European powers, which had established colonies and spheres of influences over virtually every society.

Positivism reached its peak in the late 19th century and its influence began to wane following the unprecedented bloodshed of the First World War , which spurred the creation of international organisations such as the League of Nations , founded in to safeguard peace and security.

International law began to incorporate more naturalist notions such as self determination and human rights.

The Second World War accelerated this development, leading to the establishment of the United Nations , whose Charter enshrined principles such as nonaggression, nonintervention, and collective security.

A more robust international legal order followed, which was buttressed by institutions such as the International Court of Justice and the United Nations Security Council , and by multilateral agreements such as the Genocide Convention. The International Law Commission ILC was established in to help develop, codify, and strengthen international law.

Having become geographically international through the colonial expansion of the European powers, international law became truly international in the s and s, when rapid decolonisation across the world resulted in the establishment of scores of newly independent states.

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The varying political and economic interests and needs of these states, along with their diverse cultural backgrounds, infused the hitherto European-dominated principles and practices of international law with new influences. A flurry of institutions, ranging from the World Health Organisation to the World Trade Organisation , furthered the development of a stable, predictable legal order with rules governing virtually every domain. The phenomenon of globalisation , which has led to the rapid integration of the world in economic, political, and even cultural terms, presents one of the greatest challenges to devising a truly international legal system.

Sources of international law have been influenced by a range of political and legal theories.

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During the 20th century, it was recognized by legal positivists that a sovereign state could limit its authority to act by consenting to an agreement according to the contract principle pacta sunt servanda. Additionally, judicial decisions and the teachings of prominent international law scholars may be applied as "subsidiary means for the determination of rules of law".

Many scholars agree that the fact that the sources are arranged sequentially suggests an implicit hierarchy of sources. By contrast, Article 21 of the Rome Statute of the International Criminal Court clearly defines a hierarchy of applicable law or sources of international law. International treaty law comprises obligations expressly and voluntarily accepted by states between themselves in treaties.

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The Vienna Convention on the Law of Treaties defines a treaty as follows. This definition has led case-law to define a treaty as an international agreement that meets the following criteria:. Where there are disputes about the exact meaning and application of national laws, it is the responsibility of the courts to decide what the law means. In international law, interpretation is within the domain of the states concerned, but may also be conferred on judicial bodies such as the International Court of Justice, by the terms of the treaties or by consent of the parties.

Thus, while it is generally the responsibility of states to interpret the law for themselves, the processes of diplomacy and availability of supra-national judicial organs routinely provide assistance to that end.

The Vienna Convention on the Law of Treaties , which codifies several bedrock principles of treaty interpretation, holds that a treaty "shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

The foregoing are general rules of interpretation, and do no preclude the application of specific rules for particular areas of international law.

Customary international law is derived from the consistent practice of States accompanied by opinio juris , i. Judgments of international tribunals as well as scholarly works have traditionally been looked to as persuasive sources for custom in addition to direct evidence of state behavior.

Codified customary law is made the binding interpretation of the underlying custom by agreement through treaty. For states not party to such treaties, the work of the ILC may still be accepted as custom applying to those states.

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General principles of law are those commonly recognized by the major legal systems of the world.