lecture 3 History of the development of international law (

Class overview

• 1. The history of histories of international law

  2. International law in antiquity

  3. The Romans and the ius gentium

  4. Grotius, Westphalia, and “modern”

  international law

  5. Vattel and the transition to positivis

The history of histories of international law

Why? Who cares?

• Periodization is not a value-neutral, technical exercise, but reflects underlying

  concerns

  • history can be chopped up

• Grewe’s ‘epochs’ (reading): hugely influential, but reflects his view that international

  law’s development is tied to the dominant power in the system of states at any given

  time, i.e.

  • right wing theorists depending germany after treaty of versailles

  • reflects a underlying worldview that int law is shaped by a secret power by hegemons

    • Spanish age (1494-1648); French age (1648-1815); British age (1815-1919); Anglo-

      American condominium (1919-1944); and American-Soviet rivalry and rise of the ThirdWorld (1945-1989)

• “[A] legal order is not primarily a system of coherent and precisely interacting rules

  without gaps and contradictions. It is rather the normative image of a natural state of

  order

  • it reflects the objectives of the hegemon

  • similar to a realists point of view

The history of histories of international law

• Legal history tends to be:

  • Whiggish: narrative of inevitable progress, from the dark lawless ages to

    enlightenment

    • our ancestors lived in caves and killed eachother and now no

    • history moves through one way through progress

    • its abt the possibilities of human improvement

    • legal history tends to be how our ancestors had no laws and now we do

  • ‘Law-office history’: the history of legal developments in reverse chronological

    order, designed to justify the current state of affair

    • legal history done by lawyers which is technical.

    • history is not meant to describe but to go backward to justify how we are here

    • start w a premise and go backward. history is a tool

      • ex: why soverignty exists

The history of histories of international law

• But it can also be:

  • Critical, linking current practices to unsavoury histories in the past

    • wants to link into law and colonialism etc

• How we tell the history of international law affects our understanding of its nature

  and moral underpinnings

  • a law is not only historical but also underlying understanding of morality of int law

    • is int law moral?

The history of histories of international law

• How about the non-Western world?

  • “European thought is at once both indispensable and inadequate in helping

    us to think through the experiences of political modernity in non-Western

    nations, and provincializing Europe becomes the task of exploring how this

    thought – which is now everybody’s heritage and which affect us all – may be

    renewed from and for the margins”—Dipesh Chakrabar

  • alot of int law is based on western perspectives… its impossible to reference the south w/o the west

    • people are influenced by the west

    • europe is a part but important part of the story

    • its impossible to tell the history of int law w/o referencing to the west

International law in antiquity

• Did such a thing exist?

• “International law as a law between sovereign and equal states based on the common consent of those states is a product of modern Christian civilization, and may be said to be about four hundred years old.”

  • we don’t actually know

  • its 400 yearls old based on christians civilizations in the west —> int law is modern in the 1500s in europe

International law in antiquit

• Traditionally, the origins of international law have been traced back to the rise of

  the modern sovereign state in Europe in the 16th century or so, which precludes the

  existence of “true” international law before that

  • not rlly int law because int law we have today in terms of doctrine is based on 16th century and after

  • before the 1600 is different then int law from today

• Recently, some have advocated a more “relativist” approach to the origins of

  international law has emerged, broadening what is understood as international law

  • the def of int law has been enlarged

• This is not a claim about ancient international law being part of the same

  continuous and evolving legal system, but a recognition that there are continuities

  for some institutions and principles of international law

International law in antiquity

• first treaty of peace between Ramesses II

  and attušili III, circa 1259 BC

• problem w int law - what is considered it?

  • debate: fear of punishment by gods isnt int law ? or it

    • is law only punishable by states it is and sovereignty ?

The Romans and the ius gentium

• Though Near Easter, Far Eastern, and Greek peoples all had some system of rules

  which regulated relations between different polities, many scholars focus on

  Ancient Rome as the first to have developed a system which has had a bearing on

  modern international law

  • ancient rome was the beg on int law

• The Roman ius gentium covered things such as status of envoys (inviolable), the

  making of treaties, taking of war loot and slaves, treatment of aliens, and

  requirements for declaring war, both substantive and formal

  • we see things very similar to now

The Romans and the ius gentium

• Gaius, Institutes 1:1 (161 AD)

• “the law that natural reason establishes among all mankind is

  followed by all peoples alike, and is called ius gentium as being the law

  observed by all mankind. Thus the Roman people observes partly

  its own peculiar law and partly the common law of all mankind.”

  • it sounds like int law because its a law all mankind follows

The Romans and the ius gentium

• Distinguishes ius gentium (the law of all gentes) to ius civile, the local law of the

  civitas

• Not the law between states, but between groups of human beings (gens)

  • can we assimilate gens to states?

• An early and influential articulation of the natural law view of international law

  • natural law: law comes from nature and transcends human beings

  • vs int law: law made by ppl

The Romans and the ius gentium

• Natural law tradition

  • Law as being derived from nature

    (usually linked back to God) and

    expressed as human reason

  • Highly normative and universalist in its

    claims

  • Dominant until c. the 17th century

    • ex: romans

• Positivist tradition

  • Law’s content is determined objectively

    through legal instruments and state

    practice

    • we choose what is law

  • The moral quality of laws is viewed as

    being beyond the scope of legal science

    • its abt what is written not moral

    • morality doesnt enter into it

    • morality is seen as separate

  • Became dominant from c. the 19th century

    onward

The Romans and the ius gentium

• Because of the Roman empire’s expansionist practices, the importance of ius

  gentium would fade, as more and more gentes became part of the Roman empire,

  and thus came under Roman law (as well as their own customary law)—After the

  fall of Carthage Rome was unwilling to recognize other polities as sovereign equals

  • declined bcuz roman empire became too successful

• Did the Romans understand ius gentium as a body of law between international

  equals or as basic rules which even barbarians could be expected to follow?

• The importance of ius gentium for modern international law lies in its rediscovery

  after the collapse of the Roman world

  • not roman law about rome but roman law where europeans used it

The Romans and the ius gentium

• After the collapse of the Roman order, a series of more or less independent polities

  emerged in Europe

• Though they had frequent interactions through treaties etc, the line between

  “international” and “local” was blurry, especially due to the existence of

  overarching structures such as the Holy Roman Empire and the Papacy

  • not rlly understood it is blurry

• Many bodies of law emerged which had implications for international interactions

  —Canon law; lex mercatoria; various codes of maritime law

  • canon law could be int law to some extent ; but still state centered

  • merchant law : merchants who traded , came from below that became more int

  • maritime law: customs of sailors became a body of law

Grotius, Westphalia, and “modern” international la

• Hugo Grotius (1583–1645), one of the “fathers of

  international law”, alongside

  • most history of int law began

    • Francisco de Vitoria (c. 1483–1546): monk

    • Alberico Gentili (1552–1608): swiss

    • Samuel von Pufendorf (1632–1694): german

• Closely associated with the Dutch East India Company

Grotius, Westphalia, and “modern” international law

• they were animated by contemporary concerns, particularly empire

  abroad and religious conflict in Europe

• Vitoria—the legal status of Amerindians in the Spanish Empire

  • monk

• Gentili—the status of diplomats; the laws of war

• Grotius—the ownership of the seas; the laws of war

  • who owns the ocean?

Grotius, Westphalia, and “modern” international law

Francisco de Vitoria

• Dominican friar, whose ideas are only known through lecture notes

• Influential opponent of the Spanish subjugation of Native Amerindians, as well as

  of forcible conversion—from a Christian and legal point of view

  • against of the spanish subjugatition of native amerindians (now n and s america)

  • didnt allow in forced conversion rooted in christianity

• Annexation of land could only happen in wartime and as reparation

• He saw law as underpinning an universal society in which independent nations

  could conduct intercourse

Grotius, Westphalia, and “modern” international law

Hugo Grotius

• A defender of natural law; but attempted to imagine what natural law would look

  like without God

  • “What we have been saying would have a degree of validity even if we should

    concede that which cannot be conceded without the utmost wickedness,

    that there is no God, or that the affairs of men are of no concern to him.

  • hes saying lets assume theres no god, law is still valid

  • doesnt reject god but assumes if you are athiest natural law is still correct

Grotius, Westphalia, and “modern” international law

• If an action agrees with the rational and social aspects of human nature, it is

  permissible; if it doesn’t, it is impermissible—regardless of the religion of the

  group, as long as they are rational or social

  • takes god out of natural law

  • wanted all christians to unite to same legal system

• We obey law not because of divine sanction (necessarily), but because natural law

  obliges us to perform actions which conduce to our rationality, sociability and need

  for self-preservation

  • law advances our rationality and helps self preservation

  • we dont follow law out of punishment we do from rationality and its reasonable

Grotius, Westphalia, and “modern” international law

• De jure belli ac pacis (1625)

  • A just war theory which owed much to

    Aquinas, though with an agnostic basis

  • Lays out the just causes for war and rules

    about how war should be conducted

  • Importantly, argues rules of war have to

    be followed regardless of whether the war is legitimate

  • ex: you must follow the laws of war to make it even more justifiable even tho its not good

• Mare Liberum (1609)

  • A rebuttal to the Portuguest mare clausum

    policy

  • Argues that seas are free for all nations to use, because every nation is free to travel to every other nation, and to trade with it

    • if you can own land why not oceans?

    • quite capitalist in this way

  • Eventually, van Bynkershoek split the

    difference by introducing the idea of

    effective control

    • ex: if you can sink a ship you can control it

Vattel and the transition to positivism

Peace of Westphalia (1648)

• Ended the Thirty Years’ War

• Most of what IR says about the “Westphalian system” is WRONG historically, but

  its importance is arguably in symbolizing trends already underway, particularly in

  reinforcing secular sovereign state authorit

Vattel and the transition to positivism Emer de Vattel

• A follower of Grotius who combined natural law with an emerging positivist lens

  • transitions between natural law and positivism

• Enormously influential well into the 20th century, not least because of his adoption

  by the founders of the United States

• The Law of Nations: Or, Principles of the Law of Nature Applied to the Conduct

  and Affairs of Nations and Sovereigns (1758)—a potent mix of high theory and

  practical accounts of state practice—what states do, not what thy ought to do

  • mix of theory and practice

Vattel and the transition to positivism

• States, not individuals, are at the core of Vattel’s legal thought

• States are equal and naturally free; but states are bound by self-preservation, so

  have broad discretion in determining the rights and wrongs of their behaviour

  • similar to positvist

• He largely separated natural law, which bound the individual, from the law of

  nations, which was intra-state law

  • they dont reject it but seperates natural law

• “The law of nations is the law of sovereigns: free and independent states are

  moral persons, whose rights and obligations we are to establish in this

  treatise.

Vattel and the transition to positivism

• Vattel offered a typology of positive international law:

  • Conventional law—the result of the express consent of states

  • Customary law—the result of states’ tacit or implied consent

  • Voluntary law—reflects the will of states in order to preserve the basic principles of the international community, to which consent is presumed

• Alongside the positive law of nations, there is the “necessary law of nations”—a

  residual natural law which nations are absolutely bound to observe and which

  cannot be changed via positive law

  • laws are universal like genocide — not rlly consent