History of International Law

History of International Law

Ancient History

The need for some principles and rules of conduct between independent states arises whenever such states enter into mutual relations. Rules governing the treatment of foreign traders, travelers, and ambassadors, as well as the conclusion and observance of treaties, developed early in human history. The oldest known treaty, preserved in an inscription on a stone monument, is a peace treaty between two Sumerian city-states, dating from about 3100 BC. A considerable number of treaties concluded by the empires of the ancient Middle East during the 2nd millennium BC show rudimentary notions of international law. In later antiquity the Jews, Greeks, and Romans developed tenets of international law. Jewish law as set forth in the Book of Deuteronomy contains prescriptions for the mitigation of warfare, notably prohibitions against the killing of women and children. The Greek city-states created an elaborate treaty system governing a multitude of aspects of the relations among themselves. The conduct of the Olympic Games and the protection of religious sanctuaries, such as the Temple of Delphi, were among the subjects of some of these inter-Greek treaties.

Even more than other ancient people, the Romans made significant contributions to the evolution of international law. They developed the idea of a jus gentium, a body of laws designed to govern the treatment of aliens subject to Roman rule and the relations between Roman citizens and aliens. They were the first people to recognize in principle the duty of a nation to refrain from engaging in warfare without a just cause and to originate the idea of a just war.

The Modern International System

Modern international law emerged as the result of the acceptance of the idea of the sovereign state, and was stimulated by the interest in Roman law in the 16th century. Building largely on the work of previous legal writers, especially Spanish precursors, the Dutch jurist Hugo Grotius, sometimes called the father of modern international law, published his celebrated treatise De Jure Belli ac Pacis (On the Laws of War and Peace) in 1625. (Prior to that time he had published his pioneering tract on freedom of the sea, Mare Liberum,1609.) Grotius based his system on the law of nature and propounded the view that the already existing customs governing the relation between nations had the force of law and were binding unless contrary to natural justice. His influence on the conduct of international affairs and the settlement of wars was great. His ideas became the cornerstone of the international system as established by the Peace Treaties of Westphalia (1648), which ended the Thirty Years’ War.

Other scholars and statesmen further developed the basic rules of international law, among them the Dutch jurist Cornelis van Bynkershoek and the Swiss diplomat Emmerich de Vattel whose Le droit des gens (1758; Law of Nations) exercised great influence on the framers of the U.S. Constitution. By the end of the second half of the 19th century the literature on the subject had reached vast proportions. The Institute of International Law, a private organization for the study of international law composed of outstanding scholars from various countries, was established in 1873. One of its founders was the American David D. Field, who in the same year had authored Outlines of an International Code.

International law stems from three main sources: treaties and international conventions, customs and customary usage, and the generally accepted principles of law and equity. Judicial decisions rendered by international tribunals and domestic courts are important elements of the law-making process of the international community. United Nations resolutions now may also have a great impact on the growth of the so-called customary international law that is synonymous with general principles of international law.

The present system of international law is based on the sovereign state concept. It is within the discretion of each state, therefore, to participate in the negotiation of, or to sign or ratify, any international treaty. Likewise, each member state of an international agency such as the UN is free to ratify any convention adopted by that agency.

Treaties and conventions were, at first, restricted in their effects to those countries that ratified them. They are particular, not general, international law; yet regulations and procedures contained in treaties and conventions have often developed into general customary usage, that is, have come to be considered binding even on those states that did not sign and ratify them. Customs and customary usages otherwise become part of international law because of continued acceptance by the great majority of nations, even if they are not embodied in a written treaty instrument. “Generally accepted principles of law and justice”fall into the same category and are, in fact, often difficult to distinguish from customs.

Since the beginning of the 19th century, international conferences have played an important part in the development of the international system and the law. Noteworthy in that respect was the Congress of Vienna which, through its Final Act of 1815, reorganized Europe after the defeat of Napoleon and also contributed to the body of international law. For example, it established rules for diplomatic procedure and the treatment of diplomatic envoys. On the urging of Britain, it included a general condemnation of the slave trade. Another important step in the development of international law was the Conference of Paris (1856), which was convened to terminate the Crimean War but at the same time adopted the Declaration of Maritime Law that abolished privateering and letters of marque, modernized the rights of neutrals during maritime war, and required blockades to be effective. The Declaration of Paris also initiated the practice of providing for the subsequent accession by nations other than the original signatories. In 1864 a conference convened in Geneva at the invitation of the Swiss Federal Council approved a convention for the protection of wounded soldiers in a land war; many nations subsequently acceded to this convention.

The avoidance or mitigation of the rigors of war continued to be the subject of other multilateral treaties. The peace conferences held in 1899 and 1907 in The Hague, the Netherlands, resulted in a number of conventions of that type. The 1899 conference adopted a Convention for the Pacific Settlement of International Disputes, which created the Permanent Court of Arbitration. Although it was not a veritable court with a fixed bench of judges, it served as an important instrument of arbitration.

At the end of World War I the League of Nations was established by the covenant signed in 1919 as part of the Treaty of Versailles. Pursuant to provisions in this covenant, the Permanent Court of International Justice was established in 1921. The League of Nations was created as a permanent organization of independent states for the purpose of maintaining peace and preventing war. During its existence 63 countries were members of the League at one time or another. The USSR joined in 1934, but Germany and Japan withdrew in 1933. The U.S. never became a member of the organization, which was powerless to forestall World War II. Equally unsuccessful in preventing hostilities was the Pact of Paris for the Renunciation of War (1928)-the so-called Kellogg-Briand Pact-although it was ratified by more than 60 nations, including Germany and Japan. After the termination of World War II in 1945 the UN Charter created a new organization with an elaborate machinery for solving disputes among nations and for the further development of international law.

Normally, every nation is expected to obey international law. Some nations, for example the United Kingdom, have incorporated into their municipal law the provision that international law shall be made part of the law of the land. The U.S. Constitution empowers Congress “to define and punish … Offences against the Law of Nations.”(Article I, Section 8). In cases involving international law, American courts tend to interpret American law in conformity with international law; such an attitude has consistently been urged by the U.S. Supreme Court.

If each nation were free to declare unilaterally that it is no longer bound by international law, the result would be anarchy. A test was provided in the conduct of Germany under Nazi rule. The Nürnberg tribunals held that the German government regulations that ordered, for example, the killing of prisoners of war in contravention of the generally valid rules of warfare were null and void and that the persons responsible for issuing and executing such orders were criminally responsible for violations of international law.

Source: “International Law,”Microsoft® Encarta® Online Encyclopedia 2000. Stefan A. Riesenfeld, J.S.D., LL.B.
Professor of Law, Hasting College of the Law, San Francisco; Emmanuel A. Heller Professor Emeritus, School of Law, University of California, Berkeley; Hon. Editor, American Journal of International Law. David Carliner, LL.B.
Attorney-at-law. Author of The Rights of Aliens.

No International Law in Antiquity

Lassa Oppenheim, in the book entitled The Future of International Law, about No International Law in Antiquity, wrote in 1921: 2. But all attempts to find in the ancient world a law of the same kind as modern international law must inevitably come to grief on the fact that the idea of a community of law between civilized states was entirely foreign to antiquity, and only begins to make its gradual appearance in the last third of the middle ages. The Jewish ideal of perpetual peace and the union of all mankind under One God, foreseen in prophetic vision by Isaiah (ii. 2-4), may be taken as the first formulation of pacificist doctrine, which of course implies a community of law between all states, but the prophet does not apprehend this community of law as an independent idea. This idea was likewise unknown in its generality to Greek civilization, although certainly looming before it with some clearness in the international relations of the Greek city-states one to another. But even if we may speak of a law resembling in many respects modern international law as prevailing between the states of ancient Greece, this law must nevertheless be limited to Greek states, foreign states and peoples standing outside this community of law as barbarians. On the other hand, Roman law possessed, it is true, a mass of legal rules for the intercourse between the Roman Empire and all foreign states, but these rules were Roman law and not rules of an international law such as postulates an international community of law.


See Also

History of the International Labour Organization
MPEPIL: History of international law
Lawyer’s history
History of Year Books
History of Working Time
History of Zionism
Legal History Resources
History of Industrial Councils
History of Nationalization

Further Reading

Reference works
•Grewe, W.G., Fontes Historiae Iuris Gentium / Wilhelm G. Grewe, 1995
•Journal of the History of International Law / Revue d’histoire du droit international
•Orakhelashvili, A. (ed.), Research handbook on the theory and history of international law / ed. by Alexander Orakhelashvili, 2011

•MacALISTER-SMITH, P., “Bio-Bibliographical Key to Membership of the Institut de Droit International, 1873-2001?, in : 5 Journal of the History of International Law (2003) 1, pp. 77-159
•MacALISTER-SMITH, P., and J. SCHWIETZKE, “Bibliography of the Textbooks and Comprehensive Treatises on Positive International Law of the 19th Century” , in : 3 Journal of the History of International Law (2001) 1, pp.75-142
•MacALISTER-SMITH, P., and J. SCHWIETZKE, “Literature and Documentary Sources relating to the History of Public International Law : an Annotated Bibliography Survey” , in : 1 Journal of the History of International Law (1999) 2, pp. 136-212
•ORAKHELASHVILI, A. (ed.), Research handbook on the theory and history of international law, Cheltenham etc. : Edward Elgar, 2011, xi, 543 p

Periodicals and Serial Publications
•Fundamina : a Journal of Legal History
•Journal of the History of International Law
•The Legal History Review

•CRAVEN, M., M. FITZMAURICE, and M. VOGIATZI (eds.), Time, History and International Law, Leiden etc. : Nijhoff, 2007
•GREWE, W.G., The Epochs of International Law, Berlin etc. : De Gruyter, 2000
•GREWE, W.G., Fontes Historiae Iuris Gentium, Berlin etc. : De Gruyter, 1988-1995
•JOHNSTON, D.M., The Historical Foundations of World Order : the Tower and the Arena, Leiden etc. : Nijhoff, 2008
•KATZ, S.N. (ed.), The Oxford International Encyclopedia of Legal History, Oxford etc. : Oxford University Press, 2009
•KEGOHEREL, H., Histoire du droit international public, Paris : Presses Universitaires de France, 1996
•KOSKENNIEMI, M., The gentle civilizer of nations : the rise and fall of international law , 1870-1960, Cambridge : Cambridge University Press, 2002
•LANG, M., H.BARTA, R.ROLLINGER (eds.), Staatsvertrage, Vülkerrecht und Diplomatie im Alten Orient und in der griechisch-rümischen Antike, Wiesbaden : Harrassowitz, 2011
•NUSSBAUM, A., A Concise History of the Law of Nations, New York, NY etc. : Macmillan, 1954
•REIBSTEIN, von E., Vülkerrecht : eine Geschichte seiner Ideen in Lehre und Praxis, Freiburg etc. : Alber, 1957-1963
•TRUYOL y SERRA, A., Histoire du droit international public, Paris : Economica, 1995
•ZIEGLER, K-H., Vülkerrechtsgeschichte : ein Studienbuch, München : Beck, 2007

•HUECK, I.J., “The Discipline of the History of International Law : New Trends and Methods on the History of International Law” , in : 3 Journal of the History of International Law (2001) 2, pp. 194-217
•LESAFFER, R., “International Law and its History : the Story of an Unrequited Love “, in ” Time, History and International Law” , Leiden etc. : Nijhoff, 2007, pp. 27-41
•STEIGER, H., “Probleme der Vülkerrechtsgeschichte” , in : 26 Der Staat (1987) 1, pp. 103-126
•ZIEGLER, K-H., “Emer de Vattel und die Entwicklung des Vülkerrechts im 18. Jahrhundert” , in Macht und Moral : politisches Denken im 17. und 18. Jahrhundert , Stuttgart : Kohlhammer, 2007, pp. 321-341
•ZIEGLER, K-H., “Vülkerrecht in den antiken Welten” , in Staatsvertrage, Vülkerrecht und Diplomatie im Alten Orient und in der griechisch-rümischen Antike , Wiesbaden : Harrassowitz, 2010, pp. 27-38
•ZIEGLER, K-H., “Zum Vülkerrecht in der rümischen Antike” , in Iurisprudentia universalis : Festschrift für Theo Mayer-Maly zum 70. Geburtstag , Küln etc. : Bühlau, 2002, pp. 933-944

History of International Law. Links

•Documents from Medieval and Early Modern England from the National Archives in London
•The 1582 edition of the Corpus Juris Canonici put online by UCLA’s Charles E. Young Research Library
•English Medieval Legal Documents AD 600 AD 1535: A Compilation of Published Sources. Prepared by Hazel D. Lord
•Harvard Resarch Guide Rare Books& Early manuscripts
•The History of International law today Published in Rechtsgeschichte, 2004 Martti Koskenniemi
•Internet Medieval Sourcebook: Medieval Legal History The Internet Medieval Sourcebook is now part of ORB, the Online Reference Book for Medieval Studies
•Legal Portraits Online
•Roman and Secular Law in the Middle Ages, by Kenneth Pennington
•Roman Law Resources Edited by Ernest Metzger
•The Timetable of World Legal History
•Website of the Program in the History and Theory of International Law , Institute for International Law and Justice, New York University School of Law



See Also

References and Further Reading

About the Author/s and Reviewer/s

Author: international

Mentioned in these Entries

Development International Law – Part 22, Development International Law – Part 3, Development International Law – Part 6, Development International Law -6, Development International Law -9, Encyclopedia of Public International Law, History of Nationalization, International Humanitarian Law Part 21, International Law Encyclopedia 4, International human rights law Part 30, International humanitarian law Part 20, International law index H, International law index, International law journals, International law today, International trade law7, Law Journals ranking worldwide, List of European and UK Online Journals, List of International Law Online Journals, MPEPIL: History of international law, MPEPIL: Overview articles, MPEPIL: Public Law: H, Public International Law Classification (Max Planck Institute), Public International Law. Bibliography and links, Textbooks, The gentle civilizer of nations : the rise and fall of international law, Trade law Part 55.