On the Notion, Concept and Contemporary Role of International Law in historical Perspective.

Abstract

Summary The article discusses the essence of international law by focusing on three issues: (1) its origin; (2) its name and the normative content related thereto; (3) its role in the contemporary world. The author applies two research methods: the historical and legal method as well as the dogmatic one. The text has a three-part structure. The first part presents an analysis of the moment in which the legal regime emerged whose task was to regulate the functioning of socio-political subjects. At that point, the author analyses two main views expressed in scholarship. In his opinion one should depart from Grotius’ conception regarding the origin of international law. What is a sign of the existence of that legal regime is not the equality of subjects, but their very existence and consent to base their relations on certain rules (law). Equality constitutes just one – and not the only one possible – principle among the standards regulating relations of the subjects in a certain community. Hence, what is considered as the beginning of international law is the period during which the first socio-political constructions emerged, and not equal and sovereign states in the sense of the European civilisation. The second part deals with the moment in which the name – that is used to this day – of the said regime (international law) developed. The author reminds however that in reality the regime under discussion had existed earlier although its scope and name were different. He explains what normative content is related to each name of that regime and, at the same time, discusses the process concerning the structural and material evolution of international law. The whole is summarised with the conclusion that the name used today does not reflect the essence of that order. The evolution of its content would require another change in that regard. It is also indicated that such proposals have already been put forward in scholarship (transnational law, global law). To finish his considerations, the author reminds of the classic role of international law, which has been to regulate the functioning of the subjects belonging to that order. Against this background, he indicates that also nowadays this role is fading. International relations are evolving substantially, causing international law to lose its long-standing purpose and meaning. And although all this is changing, the order itself is not collapsing. This is the case because international law still has a stigmatising power – a unique force which does not allow to explicitly reject it. International law still provides politics with a certain framework of decency. Proving that a given country has violated norms of international law automatically depreciates it in the eyes of the international community. This may not only result in international sanctions but also in diminishing the position of such a country in the international community. Therefore, even the largest states never allow to be directly accused of breaching legal standards. As soon as their activity is criticised in light of a given norm, they immediately seek justification in other legal rules or create a complicated interpretation to reject the accusation. Sometimes they blame another subject to justify their conduct with self-defence or retortion. What makes this possible is the structurally complicated situation of international law, which is characterised by constant evolution.