In the following extract, Ernst-Otto Czempiel explains the effect of international law as a peace strategy, while at the same time highlighting the limitations of this strategy, which is dependent on consensus between the states. One of the most significant achievements of international law is the codification of human rights.

Codifying the law does not mean creating it. And it because of this that international law is often accused of describing and preserving dissatisfaction in its current state. This is only correct to a certain extent and plausible from a retrospective position. Indeed, it would have made little sense to have postulated nothing but ideals. Given that there is no law-making and law-sanctioning authority in the international system, international law is only able to put down in words the things that the states that participate in the system are prepared to accept as being binding. Putting progress down in writing represents (...) another advancement.

But has international law failed to have its own direct influence on the peace process? Well, for one, it has introduced into international politics a way of dealing with conflict through arbitration and judgment and with the permanent court of arbitration 1899, the permanent international court of justice 1920 and the ICJ set up authorities for this purpose.

Apart from that, political interests have also played their part in the further development of international law: for instance European pacifism during the 19th century, which played a major role in driving forward the establishment of the international courts of arbitration and courts of justice; and the Third World, which introduced the right to development into international law. The term international law, then, is used here as a shorthand expression to encompass a number of players: states, the science of international law and interest groups. These different players are integrated in seeking to limit and eradicate the use of force in the international system using a legal process to rule over interaction between states. (...)

The most significant aspect of international law lies in codifying the individual stages associated with the peace process. While Grotius (1584-1645) is regarded as the founder of modern international law, the Dominican de Vitoria was almost 100 years ahead of him as the creator of the first comprehensive codification of the existing laws surrounding peace and war, followed only a little later by the Spanish Jesuit Suarez (1548-1617). It was these three, but especially Grotius, who were responsible for the international law of modern times by making it to a system of regularity for intergovernmental relationships between the developing territorial states based on natural law. (...)

Regularity is the central term on which international law during modern history has been founded. While it didn't' do away with war, it did manage to „monitor“ it (Carl Schmitt). This was certainly of benefit to peace as non-war. By limiting and creating order to war, the horrors, which would have been caused by the unrestricted use of force, were reduced. War became a recognized political means, which could be implemented in certain circumstances and, therefore, lead to success. Its use was codified by classic international law, which remained valid until the First World War. It didn't contain peace strategies in the true sense, but rather served in regulating the use of war. To this end, it reflected the interests of the territorial state and absolutism, whose aims were more to do with capturing land and populations than bringing about their destruction.

This involved the use violent and non-violent methods. The international law of the Modern History period developed negotiation (colloquium), agreement (compromissum) and lots (lors). Of these means, agreement or rather compromise was the most important. It's important, however, not to attach too much weight to its former significance in terms of peace strategy. Indeed, if reaching a non-violent agreement was not possible, war was always available as an acceptable alternative.

Its position as „ultima ratio regis“ was undisputed in the ius publicum europaeum. The states and the people who lived in them were regarded as the private property of the sovereigns, whose relationship between each other was regulated by international law. The sovereign did not embody the state, they formed it - as was famously expressed by Ludwig XIV.

This means, then, that international law was firmly designed and intended as a strategy. International relations during the development of Modern History, in as far as they were politically relevant, were carried out between the sovereigns. Society was affected, but only in a selective way. Even when war did break out, it only affected small and limited parts of the country rather than its entirety. And anyway, the developing exchangeable economic relationships apart, there was hardly any interaction between the different parts of society worth mentioning. Indeed, horses were the fastest mode of transport and communication up until the 19th century. This also served in limiting the extent to which Absolutist power could be exercised; it did however serve in mediatising its subjects entirely in terms of the political interaction in the system. Only against this ruler-sociological background was it possible to place war and peace on an equal footing in the political and legal consciousness of Modern History.

Indeed, even the French Revolution, which replaced sovereignty of the king with sovereignty of the people, did not put an instant end to this situation. This new form of sovereignty did not abolish the mediatazation of the individual and even served in strengthening the foreign affairs of the political systems. These systems represented the state's interests vis-à-vis other states and demanded subordination below the rulers in return for security. The difference now was that these systems had to be functionally justified as a consequence of sovereignty of the people. The assent of the individual to a subject of politics, which was brought about by the French Revolution, resulted in an increasing demand for people's existence to be preserved. At first these demands were only raised in the special circumstances of war, when the protection and claim of the state were released to an equal extent; and it was for this reason that ius in bello was expanded. During the 19th century, however, this demand spread to encompass the entire scope of politics. And it was this demand that did away with the equal importance of war and peace, that made peace the primary desired state of international politics and, finally, de-legitimized the use of violence in the international system.

This process of democratization, which was triggered by the French Revolution, which slowly gathered pace during the 19th century, which accelerated during the 20th century and which still has a long way to go, has been significantly reflected in the development of international law. The Declaration Respecting Maritime Law in Paris in 1856 expanded the ius in bello and at the same time represented the birth of humanitarian international law. For the very first time it was becoming apparent - and this was also reflected subsequently in the first Geneva Convention in 1864 and especially in the Hague Agreement about the Regulation of Land War 1907 - that the individual had elementary rights which should not be mediatized and had to be respected by the state. (...)

The evolvement of the pacifist movement in the 19th century, which accompanied democratization, led to more and more vigorous demands for war to be abandoned and replaced with mediation as a peaceful means. While it might not have been triggered by this movement, the first institutionalized procedure for achieving a non-violent resolution to conflict at the end of the 19th century in the form of the court of arbitration was certainly brought about by it. Then, at the end of the First World War, the decisive if incomplete political measures were taken to limit considerably the "freedom to declare war". A peaceful arbitration process and a waiting period was slotted in ahead of war.

This represented the beginning of the end for the classic international law phase. From now on war and peace were no longer equal partners in the international system; international law now called for "strict guidelines" to be put in place that are "appropriate" for effectively preserving peace between the peoples“ (Article 11). The development of international law was then pushed further forwards with the draft of the Geneva Protocol in 1924 and the Kellogg Pact in 1928, which included a clause whereby the states agreed to forgo war as an instrument of national politics. This pact was more important in principle than it was practically or politically, particularly since it gave up the link made in the Geneva Protocol between non-aggression and the peaceful resolution of conflicts. Nonetheless, it did document a change in sentiment and signalled the end of the ius ad bellum.

The contribution made by international law towards strategies for peace, however, should not be seen just in terms of codifying the agreements made by nation states. Although this function is important enough, it also serves in making sure that that which has been achieved in terms of resolving conflicts cannot be avoided or forgotten. The Charta of the United Nations, for instance, discriminates against any attempt to reintroduce international use of aggression through the backdoor of a „just cause“ such as for a fight for national independence, which would mean returning to the outdated concept of bellum iustum.

It should also be pointed out that international law has done more than just codify the agreements between nation states, that is, the consensus between them. It also sought to establish institutions for dealing with international conflicts, which were similar or analogous to domestic means of jurisdiction. At the two Congresses of Europe at The Hague during the period of the League of Nations and at the beginning of the United Nations, these institutions were able to attract a great deal of attention, but have since been rather neglected. (...)

A good example of the way in which international law has continued to develop through the formulation of new principles and norms, as well as the contribution made to this process by political science, is particularly well illustrated by the attempts made to anchor human rights into law on an international scale. Human rights were mentioned in the statue of the United Nations: in its preamble in article 1, par. 3, and also in article 13 of the Charta. They were also generally announced by the United Nations on the 10th of December 1948 in the Universal Declaration of Human Rights. But human rights would have to wait until 1976 before they were made binding in international law, as the two „human rights pacts“ on civil and political rights and on economic and social rights came into force. As far as the signatories to these conventions were concerned, human rights became binding in law, even though it was left up to them to decide whether to adhere to the convention or not.

The limitations resulting from this, then, are considerable, especially in terms of implementing practical human rights observance measures. Yet for all this, the progress made by this convention is considerable. It documents the existence of a general set of rights that breaks through the vertical structure of the international system and puts the sovereignty of the state into perspective. It has made the individual the subject of policy with genuine rights and requirements that may not be encroached upon by the state.

Human rights make it clear that basic political interests exist which transcend all cultures and which are common to everyone in the world. That these rights are now demanding their place in the structure of world politics clearly demonstrates a new political human awakening and that at the very least a fundamental political standard has been established that is seeking recognition on a worldwide scale. To have put these into words and to have established them as an international norm represents the most significant achievement of international law and the political scientists involved. Changing political norms serves in changing awareness and influences, albeit indirectly and over the long-term, behavior; to this end, then, they make a contribution to peace.

On the other hand, however, it's important not to overestimate the codification of international law and its further development in functional terms. The most important reasons for this have already been mentioned. International law is and remains a consensus right, which depends on being accepted by all participating states. Its contribution to peace can only be as large as the members of the system will allow. To this end, it is up to states as to whether and to what degree international law can promote peace."

[Taken from: Ernst-Otto Czempiel: Friedensstrategien, Systemwandel durch Internationale Organisationen, Demokratisierung und Wirtschaft, Paderborn 1986, p. 64-71, 80-81]

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