Lecture 3: History of the development of international law (I)

Question 1

Grewe’s ‘epochs’

Answer 1

There have been 5 ‘epochs’ or periods in IL connected to the dominant power in the system at them time;

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 Third World (1945-1989)

Question 2

Legal history (the history of law) tends to be these 2 things but can also be a third

Answer 2

1. Whiggish: a narrative of inevitable progress, from the dark lawless ages to enlightenment (legalization)
2. ‘Law-office history’: history of legal developments in reverse chronological order, designed to justify current state of affairs (looking back and seeing how current rule was used before to justify its use now)
3. Critical: linking current practices to unsavory histories in the past

Question 3

Has the non-Western world shaped the origins of IL?

Answer 3

No, IL has origins in rules made in Europe, regardless of where in the world you are. IL has existed outside of Europe, but has not influenced modern IL as much as Europe

Question 4

Did IL exist in antiquity?

Answer 4

No; medieval societies had rules, but it was not IL because it wasn’t concluded between sovereign, equal states

Instead, they had “primitive” rules of conduct based on religion and tradition

Question 5

When is IL traditionally traced back to?

Answer 5

The rise of modern sovereign states in Europe in the 16th century-ish

Question 6

If IL did not exist in antiquity, why does it matter?

Answer 6

Because there are continuities for some institutions and principles of IL

E.g. Treaty of Peace in 1259 BC shared similarities of mutual renunciation of invasion and reaffirmation of former treaties, but gods were the guarantors of the treaty, not good faith and international enforcement

Question 7

Who developed the first system that had a bearing on modern IL?

Answer 7

Ancient Rome

Question 8

What is “ius gentium” - 3 points

Answer 8

1. First body of rules understood as IL
2. The law between different peoples (not nations or states) based on reason - in contrast to domestic/peculiar law/ius civile
3. An early articulation of the natural law view of IL

Question 9

What is the natural law tradition and when was it dominant? - 3 points

Answer 9

1. Law is derived from nature (usually linked to God) and expressed as human reason (God -> Nature -> Reason -> rules of conduct)
2. Highly normative and universalist (based on moral)
3. Dominant until around the 17th century

Question 10

What is the positivist law tradition and when did it become dominant? - 3 points

Answer 10

1. The content of law is determined objectively through legal instruments and state practice (based on facts, not morality) - the past determines the law
2. Morality is beyond the scope of legal science
3. Became dominant around 19th century onward

Question 11

Natural law was used to justify…

Answer 11

Domination of other peoples, because they lacked reason

Question 12

How did the fall of ius gentium come about?

Answer 12

When the Roman empire expanded, the importance of ius gentium faded as people became part of the Roman empire and thus under Roman law, and after the fall of Carthage, Rome was unwilling to recognize other polities as sovereign equals

Question 13

Debate about ius gentium

Answer 13

Did the Romans understand it as a body of law between international equals or a basic set of rules which even barbarians could be expected to follow?

Question 14

Ius gentium includes these 5

Answer 14

1. Status of envoys as inviolable
2. How to make treaties
3. Taking of war loot and slaves
4. Treatment of foreigners
5. How to declare war

Question 15

The importance of ius gentium for modern IL lies in…

Answer 15

Its rediscovery after the collapse of the Roman world and how it was refashioned

Question 16

What happened to “IL” between the Roman order and Westphalia?

Answer 16

More or less independent polities emerged in Europe, but the line between international and local was blurry, esp. because of overarching structures like the Holy Roman Empire and the Pope

Question 17

Which bodies of law emerged in-between Roman empire and Westphalia, made by the pope?

Answer 17

1. Canon law: law of the Roman Catholic Church and the Pope’s authority over all
2. Lex mercatoria: Law of the merchants (trade law)
3. Maritime law (what to do if you need foreign vessel in high seas)

= state was absent, private practice created law in this period

Question 18

Francisco de Vitoria - who was he and what did he argue? - 4 points

Answer 18

1. Influential opponent of Spanish subjugation and forcible conversion of Indigenous Americans - from a Christian and legal point of view
2. Natural law based on Christianity
3. Annexation of land could only happen in wartime and as reparation for wrongdoing
4. Law underpins a universal society in which independent nations can conduct intercourse

Question 19

Hugo Grotius - who has he and what did he argue? 3 points

Answer 19

1. Defender of natural law, but attempted to imagine what natural law would look like without God (because of 1500s reformation) - would our system still be legitimate?
2. If an action agrees with the rational and social aspects of human nature (e.g. reason), it is permissible (regardless of religion)
3. We obey law not because of divine sanction, but because natural law obliges us to perform actions which conduce to our rationality, sociability, and self-preservation

Question 20

Hugo Grotius - de jure belli ac pacis (1625)- 2 points

Answer 20

1. A just war theory about when was is just and how it should be conducted
2. Argues that rules of war have to be followed regardless of whether the war is legitimate

Question 21

Hugo Grotius - Mare Liberium (1609) - 2 points

Answer 21

1. A rebuttal to Portuguese monopoly on the ocean (because the Dutch traded a lot and needed access)
2. Seas are free for all nations to use because every nation is free to travel to other nations to trade. Logic is that trade is natural and agreeable to reason, and if trade needs oceans to be possible, then oceans must be free to trade

Question 22

What did Bynkershoek contribute to the laws of the ocean?

Answer 22

The idea of effective control: you only control the ocean if you can maintain permanent control over it (as far as your cannon can shoot from land, you control - the rest is international waters)

Question 23

Is the Peace of Westphalia the origin of modern international order with sovereign, equal states?

Answer 23

No! It was an important landmark in signalling the process of creating it, but it itself mostly had symbolic value

Question 24

What did the Peace of Westphalia actually say?

Answer 24

You have to tolerate religious minorities and you can change religion without foreign interference

Question 25

Emer de Vattel - what did he argue? - 3 points

Answer 25

1. Argued that natural law existed alongside positivism - natural law binds the individual, while the law of nations binds inter-state relations
2. Mixed theory of law with state practice (e.g. what states do, not what they ought to do)
3. States are equal and naturally free but are bound by self-preservation and have broad discretion in determining the rights and wrongs of their behavior (no authority above states)

Question 26

What is Vattel’s typology of positive IL (= the law of nations)?

Answer 26

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 to preserve the basic principles of the international community to which consent is presumed (bit of natural law that can be changed)

Question 27

Alongside the positive law of nations, Vattel argues what about the “necessary law of nations”

Answer 27

A residual natural law that nations are bound to observe and which cannot be changed via positive law because they are fundamentally important, e.g. rule against genocide today

Question 28

Vattel argued for two kinds of law

Answer 28

1. Positive law of nations (made by states)
2. Necessary law of nations (natural law)