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The history of international law examines the evolution and development of public international law in both state practice and conceptual understanding. Modern international law developed out of Renaissance Europe and is strongly entwined with the development of western political organisation at that time. The development of European notions of sovereignty and nation states would necessitate the development of methods for interstate relations and standards of behaviour, and these would lay the foundations of what would become international law. However, while the origins of the modern system of international law can be traced back 400 years, the development of the concepts and practises that would underpin that system can be traced back to ancient historical politics and relationships thousands of years old. Important concepts are derived from the practice between Greek city-states and the Roman law concept of ius gentium (which regulated contacts between Roman citizens and non-Roman people). These principles were not universal however. In East Asia, political theory was based not on the equality of states, but rather the cosmological supremacy of the Emperor of China.
Basic concepts of international law such as treaties can be traced back thousands of years. [1] Early examples of treaties include around 2100 BC an agreement between the rulers of the city-states of Lagash and Umma in Mesopotamia, inscribed on a stone block, setting a prescribed boundary between their two states. [2] Around 1000 BC, an agreement was signed between Ramses II of Egypt and the king of the Hittites establishing "eternal peace and brotherhood" between their two nations: dealing with respect for each other's territory and establishing a form of defensive alliance. [2] The ancient Greeks before Alexander the Great formed many small states that constantly interacted. In peace and in war, an inter-state culture evolved that prescribed certain rules for how these states would interact. These rules did not apply to interactions with non-Greek states, but among themselves the Greek inter-state community resembled in some respects the modern international community.
The Roman Empire did not develop an international law, as it acted without regard to any external rules in its dealings with those territories that were not already part of the empire. The Romans did, however, form municipal laws governing the interactions between private Roman citizens and foreigners. These laws, called the jus gentium (as opposed to the jus civile governing interactions between citizens) codified some ideas of basic fairness, and attributed some rules to an objective, independent "natural law." These jus gentium ideas of fairness and natural law have survived and are reflected in modern international law.
Early Islamic law's principles concerning military conduct and the treatment of prisoners of war under the early Caliphate are considered precursors to international humanitarian law. The many requirements on how prisoners of war should be treated included, for example, providing shelter, food and clothing, respecting their cultures, and preventing any acts of execution, rape or revenge. Some of these principles were not codified in Western international law until modern times. [3] Islamic law under the early Caliphate 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. [4]
After the fall of the Roman Empire and the collapse of the Holy Roman Empire into independent cities, principalities, kingdoms and nations, for the first time there was a real need for rules of conduct between a large international community. Without an empire or a dominant religious leadership to moderate and direct international dealings, most of Europe looked to Justinian's code of law from the Roman Empire, and the canon law of the Catholic Church for inspiration.
International trade was the real catalyst for the development of objective rules of behaviour between states. Without a code of conduct, there was little to guarantee trade or protect the merchants of one state from the actions of another. Economic self-interest drove the evolution of common international trade rules, and most importantly the rules and customs of maritime law.
As international trade, exploration and warfare became more involved and complex, the need for common international customs and practices became even more important. The Hanseatic League of the more than 150 entities in what is now Germany, Scandinavia, and the Baltic states developed many useful international customs, which facilitated trade and communication among other things. The Italian city-states developed diplomatic rules, as they began sending ambassadors to foreign capitals. Treaties—agreements between governments intended to be binding—became a useful tool to protect commerce. The horrors of the Thirty Years' War, meanwhile, created an outcry for rules of combat that would protect civilian communities.
International practices, customs, rules and treaties proliferated to the point of complexity. Several scholars sought to compile them all into organized treatises. The most important of these was Hugo Grotius, whose treatise De Jure Belli Ac Pacis Libri Tres is considered the starting point for modern international law. Before Hugo Grotius, most European thinkers treated law as something independent of mankind, with its own existence. Some laws were invented by men, but ultimately they reflected the essential natural law. Grotius was no different, except in one important respect: Unlike the earlier thinkers, who believed that the natural law was imposed by a deity, Grotius believed that the natural law came from an essential universal reason, common to all men.
This rationalist perspective enabled Grotius to posit several rational principles underlying law. Law was not imposed from above, but rather derived from principles. Foundation principles included the axioms that promises must be kept, and that harming another requires restitution. These two principles have served as the basis for much of subsequent international law. Apart from natural-law principles, Grotius also dealt with international custom, or voluntary law. Grotius emphasized the importance of actual practices, customs and treaties—what "is" done—as opposed to normative rules of what "ought to be" done. This positivist approach to international law strengthened over time. As nations became the predominant form of state in Europe, and their man-made laws became more important than religious doctrines and philosophies, the law of what "is" similarly became more important than the law of what "ought to be."
According to the Jewish jurist and diplomat Shabtai Rosenne, the 17-century major figures of the law of nations were used to extensively refer to Jewish sources like the Codes of Law, Maimonides, Moses of Coucy, Ibn Ezra, Leon of Modena and Menasseh Ben Israel. [5] The jurists referring to them were Grotius, Selden, Ayala, Gentili, Zouch, Samuel Rachel and Pufendorf. [5]
The Westphalian treaties of 1648 were a turning point in establishing the principle of state sovereignty as a cornerstone of the international order. However the first attempts at formulating autonomous theories of international law occurred before this, in Spain, in the 16th century. Most prominent among the early theorizers were the Roman Catholic theologians Francisco de Vitoria and Francisco Suárez. Suárez is especially notable in this regard in that he distinguished between ius inter gentes and ius intra gentes which he derived from ius gentium (the rights of peoples). Ius inter gentes corresponds to modern international law. In 1625, Hugo Grotius followed with the first systematic treatise on international law, de iure belli ac pacis , which dealt with the laws of war and peace. One important aspect of Grotius's treatment of international law is that he no longer bases it exclusively upon natural law, but also accepts that states among themselves can also create binding rules of law (ius voluntarium).
Still, in the 17th and 18th centuries, the idea of natural law as a basis for international law remained influential, and were further expressed in the works of Samuel von Pufendorf and Christian Wolff. Yet, in the second half of the 18th century, a shift occurs towards positivism in international law. In addition, the idea of international law as a means for maintaining international peace is challenged due to the increasing tensions between the European great powers (France, Prussia, Great-Britain, Russia and Austria). This tension between legal norms and political imperatives is well reflected in the century's most important treatise on international law, Emer de Vattel's Du Droit des Gens (1758). At the end of the century, Immanuel Kant believed that international law as a law that can justify war does not serve the purpose of peace anymore, and therefore argues in Perpetual Peace (Zum Ewigen Frieden, 1795) and the Metaphysics of Morals (Metaphysik der Sitten, 1797) for creating a new kind of international law.
After World War I, an attempt was made to establish such a new international law of peace, of which the League of Nations was considered to be one of the cornerstones, but this attempt failed. The Charter of the United Nations (1945) in fact reflects the fact that the traditional notion of state sovereignty remains the key concept in the law of nations. However, as recent research has shown, ius contra bellum (the outlawry of war) has its roots in 19th century legal and political discourse. [6]
In the historiography of international law, some German authors, most notably among them Wilhelm Grewe and Karl-Heinz Ziegler, have argued that several periods can be distinguished, such as the Spanish era (1494–1648), the French era (1648-1789/1815), the English era (1789/1815-1919) and the American era since 1919. The transitions between these eras are often marked by grand peace settlements, such as the earlier mentioned treaties of Westphalia (1645–48), the treaties of Ryswick and Utrecht (1697/1714), Vienna (1814–15), Paris (1919) and San Francisco (the UN Charter, 1945).
Following World War I, as after the Thirty Years' War, there was an outcry for rules of warfare to protect civilian populations, as well as a desire to curb invasions. The League of Nations, established after the war, attempted to curb invasions by enacting a treaty agreement providing for economic and military sanctions against member states that used "external aggression" to invade or conquer other member states. An international court was established, the Permanent Court of International Justice, to arbitrate disputes between nations without resorting to war. Meanwhile, many nations signed treaties agreeing to use international arbitration rather than warfare to settle differences. International crises, however, demonstrated that nations were not yet committed to the idea of giving external authorities a say in how nations conducted their affairs. Aggression on the part of Germany, Italy and Japan went unchecked by international law, and it took a Second World War to end it.
After World War II, as after the First World War and the Thirty Years' War, there was a strong desire to never again endure the horrors of war endured by the civilian populations. The League of Nations was re-attempted through another treaty organization, the United Nations.
The postwar era has been a highly successful one for international law. International cooperation has become far more commonplace, though of course not universal. Importantly, nearly two hundred nations are now members of the United Nations, and have voluntarily bound themselves to its charter. Even the most powerful nations have recognized the need for international cooperation and supports, and have routinely sought international agreement and consent before engaging in acts of war.
International law is, of course, only partly about the conduct of war. Most rules are civil, concerning the delivery of mail, trade, shipping, air travel, and the like. Most rules are obeyed routinely by most countries, because the rules make life easier for all concerned. The rules are rarely disputed. But some international law is extremely political and hotly debated. This includes not just the laws of warfare but also such matters as fishing rights.
An important development in modern international law is the concept of "consent." Before World War II, a nation would not have been considered to be bound by a rule unless it had formally agreed to be bound by it, or it was already customarily abiding by that rule. Now, however, merely consenting to an international practice is sufficient to be bound by it, without signing a treaty.
An evolution of the positivist approach of Grotius, the concept of consent is an element of customary international law. Customary international law is essentially what states actually do (state practice), plus the opinio juris of what states believe international law requires them to do.
Customary international law applies to every country, regardless of whether they have formally agreed to it. At the same time, all countries take part in forming customary international law by their practices and decisions. As new rules arise, countries accept, reject or modify them. When most countries are following a rule, everyone else will be held to it. Therefore, doing nothing is the same as consenting. Nations that did not take action may find themselves bound by an international law that is not to their advantage.
Customary international law can be overruled, however, by a treaty. For this reason, much customary international law has been agreed to formally by treaties between nations.
Treaties are essentially contracts between countries. They are agreements by which the parties intend to be bound. If treaties are broken, their effectiveness is weakened because there is no guarantee that future promises will be kept. So there is a strong incentive for nations to take treaties very seriously.
Modern nations engage in a two-step procedure for entering into treaties. The first step is signing the treaty. Being a signatory to a treaty means that a country intends to enter into the agreement. The second step is ratifying the treaty. A country that has ratified a treaty has gone beyond merely intending to enter into the agreement, and is now bound by it. This is a critical distinction, and sometimes a point of confusion. A nation may be a signatory to a treaty for many years without ever having ratified it.
Each country ratifies treaties its own way. The United States requires the two-thirds support of the Senate, the upper body of its legislature, for a treaty to be ratified; both the executive and the legislature must agree. In Canada, on the other hand, ratification is strictly an executive action, and no parliamentary approval is required before the nation is bound.
Modern treaties are interpreted according to the 1969 Vienna Convention on the Law of Treaties. This convention is so widely accepted that even nations that are not parties to the convention follow it. The convention's most important and sensible rule is that a treaty should be interpreted according to the plain meaning of its language, in the context of its purpose, and in good faith. This prevents much squabbling and unnecessary nit-picking. It also makes treaty authors spell out what they are trying to accomplish, to make interpretation easier, in a non-binding "preamble."
In the modern world, international law is contested for its inability to enforce its rulings.
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Roman law is the legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables, to the Corpus Juris Civilis ordered by Eastern Roman emperor Justinian I. Roman law forms the basic framework for civil law, the most widely used legal system today, and the terms are sometimes used synonymously. The historical importance of Roman law is reflected by the continued use of Latin legal terminology in many legal systems influenced by it, including common law.
A treaty is a formal, legally binding written agreement between actors in international law. It is usually made by and between sovereign states, but can include international organizations, individuals, business entities, and other legal persons. A treaty may also be known as an international agreement, protocol, covenant, convention, pact, or exchange of letters, among other terms. However, only documents that are legally binding on the parties are considered treaties under international law. Treaties vary on the basis of obligations, precision, and delegation.
Hugo Grotius, also known as Huig de Groot and Hugo de Groot, was a Dutch humanist, diplomat, lawyer, theologian, jurist, statesman, poet and playwright. A teenage prodigy, he was born in Delft and studied at Leiden University. He was imprisoned in Loevestein Castle for his involvement in the controversies over religious policy of the Dutch Republic, but escaped hidden in a chest of books that was transported to Gorinchem. Grotius wrote most of his major works in exile in France.
The law of war is the component of international law that regulates the conditions for initiating war and the conduct of hostilities. Laws of war define sovereignty and nationhood, states and territories, occupation, and other critical terms of law.
The just war theory is a doctrine, also referred to as a tradition, of military ethics that aims to ensure that a war is morally justifiable through a series of criteria, all of which must be met for a war to be considered just. It has been studied by military leaders, theologians, ethicists and policymakers. The criteria are split into two groups: jus ad bellum and jus in bello. The first group of criteria concerns the morality of going to war, and the second group of criteria concerns the moral conduct within war. There have been calls for the inclusion of a third category of just war theory dealing with the morality of post-war settlement and reconstruction. The just war theory postulates the belief that war, while it is terrible but less so with the right conduct, is not always the worst option. Important responsibilities, undesirable outcomes, or preventable atrocities may justify war.
Samuel Freiherr von Pufendorf was a German jurist, political philosopher, economist and historian. He was born Samuel Pufendorf and ennobled in 1694; he was made a baron by Charles XI of Sweden a few months before his death at age 62. Among his achievements are his commentaries and revisions of the natural law theories of Thomas Hobbes and Hugo Grotius.
The Vienna Convention on the Law of Treaties (VCLT) is an international agreement that regulates treaties among sovereign states; the VCLT is a codification of customary international law and state practice concerning treaties.
A peremptory norm is a fundamental principle of international law that is accepted by the international community of states as a norm from which no derogation is permitted.
A peace treaty is an agreement between two or more hostile parties, usually countries or governments, which formally ends a state of war between the parties. It is different from an armistice, which is an agreement to stop hostilities; a surrender, in which an army agrees to give up arms; or a ceasefire or truce, in which the parties may agree to temporarily or permanently stop fighting.
Freedom of the seas is a principle in the law of the sea. It stresses freedom to navigate the oceans. It also disapproves of war fought in water. The freedom is to be breached only in a necessary international agreement.
International humanitarian law (IHL), also referred to as the laws of armed conflict, is the law that regulates the conduct of war. It is a branch of international law that seeks to limit the effects of armed conflict by protecting persons who are not participating in hostilities and by restricting and regulating the means and methods of warfare available to combatants.
Customary international law is an aspect of international law involving the principle of custom. Along with general principles of law and treaties, custom is considered by the International Court of Justice, jurists, the United Nations, and its member states to be among the primary sources of international law.
The ius gentium or jus gentium is a concept of international law within the ancient Roman legal system and Western law traditions based on or influenced by it. The ius gentium is not a body of statute law nor a legal code, but rather customary law thought to be held in common by all gentes in "reasoned compliance with standards of international conduct".
International law, also known as "law of nations", refers to the body of rules which regulate the conduct of sovereign states in their relations with one another. Sources of international law include treaties, international customs, general widely recognized principles of law, the decisions of national and lower courts, and scholarly writings. They are the materials and processes out of which the rules and principles regulating the international community are developed. They have been influenced by a range of political and legal theories.
International law is the set of rules, norms, and standards generally recognised as binding between states. It establishes normative guidelines and a common conceptual framework for states across a broad range of domains, including war and diplomacy, economic relations, and human rights. International law differs from state-based domestic legal systems in primarily, though not exclusively, applicable to states, rather than to individuals, and operates largely through consent, since there is no universally accepted authority to enforce it upon sovereign states. States may choose to not abide by international law, and even to breach a treaty but such violations, particularly of peremptory norms, can be met with disapproval by others and in some cases coercive action ranging from diplomatic and economic sanctions to war.
Ius or Jus in ancient Rome was a right to which a citizen (civis) was entitled by virtue of his citizenship (civitas). The iura were specified by laws, so ius sometimes meant law. As one went to the law courts to sue for one's rights, ius also meant justice and the place where justice was sought.
While belief in the sanctity of human life has ancient precedents in many religions of the world, the foundations of modern human rights began during the era of renaissance humanism in the early modern period. The European wars of religion and the civil wars of seventeenth-century Kingdom of England gave rise to the philosophy of liberalism and belief in natural rights became a central concern of European intellectual culture during the eighteenth-century Age of Enlightenment. Ideas of natural rights, which had a basis in natural law, lay at the core of the American and French Revolutions which occurred toward the end of that century, but the idea of human rights came about later. Democratic evolution through the nineteenth century paved the way for the advent of universal suffrage in the twentieth century. Two world wars led to the creation of the Universal Declaration of Human Rights.
The legal status of the Holy See, the ecclesiastical jurisdiction of the Catholic Church in Rome, both in state practice and according to the writing of modern legal scholars, is that of a full subject of public international law, with rights and duties analogous to those of states.
International legal theory, or theories of international law, comprise a variety of theoretical and methodological approaches used to explain and analyse the content, formation and effectiveness of international law and institutions and to suggest improvements. Some approaches center on the question of compliance: why states follow international norms in the absence of a coercive power that ensures compliance. Other approaches focus on the problem of the formation of international rules: why states voluntarily adopt international legal norms, that limit their freedom of action, in the absence of a world legislature. Other perspectives are policy oriented; they elaborate theoretical frameworks and instruments to criticize the existing rules and make suggestions on how to improve them. Some of these approaches are based on domestic legal theory, others are interdisciplinary, while others have been developed expressly to analyse international law.
Randall Christoph Herman Lesaffer is a Belgian historian of international law. He has been professor of legal history at KU Leuven since 1998 and at Tilburg University since 1999, where he also served as dean of Tilburg Law School from 2008 to 2012. He currently serves as the head of the Department of Roman Law and Legal History at the Faculty of Law and Criminology at KU Leuven. His work focuses on the Early Modern Age.
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