Lecture 3: the history of international law Flashcards
Why is the periodization of international law (IL) controversial?
It’s not objective—reflects dominant powers’ views.
Periods like “Middle Ages” or “Post-WW2” didn’t exist to those living in them.
Grewe’s famous periodization ties IL development to global hegemons (e.g., Spanish, French, British, etc.).
IL shaped by whoever holds the most power.
What’s the importance of critical and non-Western approaches to IL’s history?
Critical approaches link current IL to its colonial/imperial roots.
Non-Western thinkers (e.g., Chakrabarty) argue that IL is still told through Western categories, even in the Global South.
“Provincializing Europe” = recognizing Europe’s dominance in shaping IL but also seeking alternative lenses.
What are critiques of how legal history is often written?
Often lawyer-written, Whiggish (linear progress), and law-office history (reverse-engineered to justify today).
Ignores the messiness, colonialism, and moral problems of IL’s past.
Critical histories expose IL’s foundations in inequality and imperialism.
What does the quote “A legal order is not… a system of coherent rules…” mean?
IL isn’t just a clean system of rules—it’s a normative vision shaped by the hegemon.
Law often serves the powerful by appearing objective, but it reflects deeper political and moral choices.
Did international law (IL) exist in antiquity?
Not IL as we understand it today—modern IL (law between sovereign, equal states based on consent) is ~400 years old, rooted in Christian Europe and the Westphalian system.
Ancient entities had laws and treaties, but not under the same legal or conceptual framework.
What is the traditional view on the origins of international law?
IL began with the rise of modern sovereign states (16th century Europe).
Westphalian model defines IL as law between equal, sovereign states, so pre-modern law doesn’t “count” under this view.
What is the relativist approach to the origins of IL?
Challenges the need for Westphalian states; sees interactions between unequal entities (e.g., empires, kingdoms) as valid IL.
Accepts multiple forms of IL, not just the modern European model.
Ancient IL wasn’t “less legal”—just different.
Is ancient IL part of today’s international legal system?
No direct continuity—there’s a historical break between ancient and modern IL.
But some principles and institutions (e.g., treaties) show continuity.
Acknowledging this doesn’t make ancient IL illegitimate.
What’s the significance of the 1259 BC treaty between Ramesses II and Hattusili III?
One of the earliest peace treaties.
Includes divine invocations (lists of gods), unlike modern treaties.
Shows IL rooted in religious and moral authority, not modern positivist principles between equals.
Raises questions about where we “start” IL history—Rome? Egypt? Why?
What is ius gentium in Ancient Rome?
Latin for “law of peoples.”
A Roman concept referring to rules governing relations between different groups or gentes, not necessarily states.
Influenced later conceptions of international law.
How did ius gentium differ from ius civile?
Ius civile = Roman civil law (specific to Roman citizens).
Ius gentium = universal principles based on natural reason, followed by all human societies (in theory).
Reflected a belief in shared human legal norms beyond borders.
Why is ius gentium considered important for IL history?
Marks a move toward universal norms across groups
Emphasizes natural reason as a legal source
Seen as a precursor to modern natural law theories in IL
It was not IL between sovereign states, but laid conceptual groundwork
What is the Natural Law tradition in international law?
Law is derived from nature and often linked to God
Expressed through human reason
Claims to be universal and moral
Dominant until ~17th century
What is the Positivist tradition in international law?
Law is based on state practice and legal instruments
Law is separate from morality
Became dominant from ~19th century
Why did the Roman ius gentium decline in importance over time?
Roman expansion meant fewer independent gentes
Conquered peoples became Roman subjects, governed by Roman (ius civile) or local customary law
Rome no longer treated others as sovereign equals after major conquests like Carthage
What was the status of international law after Rome’s fall?
Europe became a patchwork of polities
No clear boundary between international and domestic law
Blurred by overarching authorities like the Papacy and Holy Roman Empire
What legal traditions influenced medieval international interactions?
Canon law: Church law, heavily influenced by Roman law
Lex mercatoria: Grassroots commercial law made by merchants
Maritime codes: Early international regulations for shipping/trade
What was Francisco de Vitoria’s position on colonization?
Anti-colonial; argued Native Americans had legal rights
Conversion must be voluntary
Land could only be annexed in just war or as reparation
Law underpinned a universal society of nations
What did Hugo Grotius argue about natural law and religion?
Natural law is rational and universal, not dependent on religion
Even without God, rational and social nature obliges lawful behavior
“Law would still be valid even if God did not exist”
What is De jure belli ac pacis (1625) about?
Laws of war and peace
Based on natural law (partly secularized)
Just war theory:
When war is justified
Rules of warfare must be followed even in unjust wars
What is Mare Liberum (1609)?
Defends free seas—oceans can’t be owned
Critique of Portugal’s mare clausum policy
Argues all nations have the right to travel and trade freely
Later modified by van Bynkershoek: 3-mile rule (effective control = cannon shot range)
What major change did the Westphalian system introduce to IL?
Codified the idea of sovereign, equal states
Marked the start of modern international law
Emphasized non-intervention and territorial integrity
What did the Peace of Westphalia (1648) symbolize in international law?
Ended the Thirty Years’ War
Marked decline in religious authority (esp. the Pope)
Not a true turning point, but symbolized trends toward secular, sovereign state authority
Helped normalize the idea of state sovereignty in legal and political thought
Who was Emer de Vattel and why is he significant?
18th-century thinker bridging natural law and positivism
Author of The Law of Nations (1758)
Hugely influential, especially on U.S. Founders
Focused on what states do, not just what they ought to do
Manual for diplomats: practical + theoretical
What is the key shift in Vattel’s international legal thought?
States (not individuals) are central legal actors
States are free and equal, but guided by self-preservation
Natural law applies to individuals, while positive law governs state-to-state relations
What does Vattel mean by saying “the law of nations is the law of sovereigns”
Free, independent states are treated as moral persons
IL is made by and for sovereign states, not for individuals
This reflects a move toward state-centric positivism
What are Vattel’s three forms of positive international law?
1.Conventional law – treaties (express consent)
2.Customary law – state practice (tacit consent)
3.Voluntary law – consent is presumed, reflects states’ shared interest in preserving basic international order
What is the “necessary law of nations” according to Vattel?
A residual natural law
Absolutely binding, cannot be overridden by treaties or state behavior
Today referred to as jus cogens (e.g., bans on genocide or slavery)
How did Vattel’s approach blend natural law with positivism?
Retained natural law as a foundational principle
But emphasized the importance of state practice, consent, and diplomatic pragmatism
Helped shift IL toward a state-based, more secular and empirical system
