Midterm 1: History of International Law

Ancient Worlds

International law can be traced back to the three areas of ancient Eurasia that were characterized
by dense networks of small, independent States sharing a more or less common religious and
cultural value system:

(a) Mesopotamia (by, say, the fourth or third millennium BC)

(b) Northern India (in the Vedic period after about 1600 BC)

(c) Classical Greece

From each of these three State systems, characterized by a blend of political fragmentation and
cultural unity, a number of fairly standard practices emerged, which helped to place inter-State
relations on at least a somewhat stable and predictable footing. This was true in three areas
especially: diplomatic relations, treaty-making, and the conduct of war.

The Middle Ages

During the European Middle Ages, natural-law thought flourished under the auspices of the
Catholic Church, rooted in classical Stoic and Roman legal traditions. Notably, the dominant
school, exemplified by Thomas Aquinas, was rationalist, relying on human reason rather than
revelation to discern natural law. The comprehensive nature of medieval natural law governed
the entire universe, both natural and social, with a monistic and deductive character. The
teleological aspect, influenced by Aristotelian outlook, imbued the universe with a universal
grand plan, guiding society toward reason and the law of nature. The distinction between jus
naturale and jus gentium persisted, with the latter seen as an application of natural law to human
governance, encompassing general norms of conduct rather than specific legal codes. Notably,
medieval natural-law thought shaped ideas about just wars, extending from debates on personal
conduct to lawful inter-State warfare. While rationalist and debated among educated theorists, it
was not always a living law in everyday practice. The late Middle Ages saw the application of
international law to political and military issues, notably in debates over the Spanish conquest of
the New World. State practices, including diplomatic relations and treaties, reflected a blend of
inherited traditions and evolving norms, creating a complex landscape of beliefs and practices in
medieval international law.

The Classical Age

During the Classical Age (1600-1815), a transformative shift occurred in doctrinal thought on
international law, largely attributed to Dutch writer Hugo Grotius. Grotius emphasized the
distinction between the law of nations (jus gentium) and natural law, marking the emergence of
a voluntary law of nations rooted in State practice. This period witnessed the recognition of
nation-States as permanent entities with distinct legal personalities, further solidified by the
acceptance that treaties bound the State itself, not just its rulers. The development of
government bureaucracies and academic sciences of statecraft paralleled the acknowledgment
of States governed by a distinct set of laws—the law of nations.

While natural law persisted in systematic jurisprudence, particularly in the works of thinkers like
Hobbes, Spinoza, and Leibnitz, the voluntary law of nations gained prominence. Samuel
Pufendorf and Christian Wolff contributed to the rationalist tradition, organizing natural law into
elaborate structures. The Peace of Westphalia in 1648 exemplified the separation of religious
matters into the domestic sphere, distinguishing international matters from domestic affairs.

The dualistic nature of law persisted, with the law of nations coexisting alongside natural law.
Emmerich de Vattel's treatise in 1758 exemplified this duality, providing a practical handbook for
lawyers and statesmen, blending theoretical concepts with real-world applications. Vattel
embraced the voluntary law alongside natural law, contributing to the modern law of nations.

In this period, the natural law retained theoretical importance, but the voluntary law gained
significance as it regulated external State conduct. War became a key area of distinction between
the two laws, with natural law focusing on just wars and the voluntary law regulating the conduct
of wars. Economic relations, particularly the freedom of trade, saw support in the natural law,
while bilateral treaties of friendship, commerce, and navigation standardized trade relations
among European States.

The voluntary law, with its practical and utilitarian character, introduced dynamism to
international law, emphasizing the making of new laws through treaties and custom. However,
challenges arose in conceptualizing the binding nature of treaties in extreme situations, where a
State's vital interests were threatened. Customary law, seen as a tacit treaty or contractual
agreement among States, presented conceptual difficulties that persisted into modern
international law, enriching the field with ongoing debates and uncertainties.

The Nineteenth Century

The nineteenth century, extraordinarily, is the least explored area of the history of international
law. It might be said that three rival traditions co-existed uneasily in that period. For lack of any
standard or accepted terminology in this area, we may label them the positivist tradition, the
natural-law remnant, and the historicist (or p.erhaps romantic) tendency. The dominant tradition
of these three, by a very wide margin, was the positivist one, which :will therefore claim the
greater part of our attention. The historicist strand has been the least explored.
The POSITIVIST Tradition

The term 'positivism' originated in the 1830s and, as conceived by Auguste Comte, initially
denoted a scientific, empirical approach in contrast to speculative or religious thought. Comte
proposed three historical stages of human development: theological, metaphysical, and positive.
The positive stage, marked by rigorous study of objective facts, aimed at liberating the human
mind from past superstitions. In the legal sphere, positivism manifested as the belief that law is a
human institution, succeeding the voluntary law of the seventeenth and eighteenth centuries.

Nineteenth-century positivism, distinct from earlier voluntary law, applied the voluntary law as a
doctrinaire principle, asserting that rules binding states emanate from their free will. Positivism
strongly emphasized the independent nation-State as the fundamental unit of international law,
leading to a pluralistic outlook and the principle of sovereign equality among States. This era
marked the abandonment of the monistic and teleological views of medieval natural law,
replacing them with an instrumentalist outlook, treating law as a tool for political goals.

Positivism's technocratic and instrumentalist approach resulted in a moral ambivalence, allowing

law to serve both benevolent and malevolent purposes. Lawyers in this period refrained from
delving into high politics, considering fundamental national-security interests beyond the realm
of law. Despite losing the role of moral critics, international lawyers became solid professionals
as the field established itself as a profession.

In the nineteenth century, positivism saw major treatises written in various European languages,
with notable works by Martens, Wheaton, Phillimore, Heffter, Funck-Brentano, and Bonfils.
Positivism contributed to the legislative efforts of the international community through
multilateral treaties, such as the Declaration of Paris (1856) and the Hague Peace Conferences
(1899 and 1907). The era also marked progress in inter-State arbitration for the peaceful
settlement of disputes.

The positivist outlook facilitated economic and material betterment, aligning with physiocrats'
calls for freedom of trade in foodstuffs and envisioning a technocratic program for global
economic development. This economic campaign, involving lawyers in a technical capacity, led to
the negotiation of treaties and agreements, contributing to global economic integration by the
early twentieth century.

The NATURAL LAW Remnants

In the nineteenth century, the ideals of natural-law tradition persisted prominently in the realm
of the use of force, particularly in the context of "measures short of war." While war was
considered a matter of state security policy falling under the jurisdiction of politicians, measures
short of war were viewed as law enforcement actions, akin to the medieval concept of just war.
This aspect of history remains relatively unexplored.
A crucial category of such measures was forcible reprisals, involving armed actions against states
accused of violating the law. Reprisals were not expressions of state policy but rather law-
enforcement operations. The nineteenth century saw a proliferation of armed reprisals, often
prompted by unaddressed injuries to nationals. Examples included Britain's blockade of Greek
ports in 1850 and the coalition blockade of Venezuelan ports in 1902-03. Reprisals sometimes
extended to the occupation of territory and even the bombardment of civilian areas.

Other forms of forcible self-help included actions under the banner of necessity, such as self-
defense actions. An illustrative incident was the British pursuit of Canadian insurgents into the
United States in 1837, justified as an act of self-defense. Measures short of war also encompassed
punitive expeditions, like the British expedition against the Mahdi in Sudan in 1898 and the
American pursuit of Pancho Villa in Mexico in 1916. The rescue of imperiled nationals, exemplified
by the multinational force in Peking during the Boxer Rebellion of 1900, was another
manifestation of necessity.

However, these measures often opened the door to abuses, such as annexations stemming from
punitive operations. Criticism was directed at major powers for exclusively employing armed
reprisals against developing countries. Outrage from developing states led to diplomatic efforts,
including the proposal by Argentina's Foreign Minister Luis Drago for a ban on the use of force in
cases of contract debts. The Porter Convention of 1907, adopted by the Second Hague Peace
Conference, introduced procedural requirements before armed reprisals could be used in debt-
default cases.

Ironically, the natural-law tradition, once an embodiment of idealism and global brotherhood,
ended in a blood-stained manner. A philosophy that originally championed the protection of the
weak against the strong became a tool of the powerful against the less powerful. The abuses and
stark power imbalances in these forcible self-help actions left a lasting negative impact on
relations between developed and developing nations, akin to the stain of imperialism itself.

The HISTORICIST Tradition

In the nineteenth century, the historicist strand of thought, influenced by Georg Friedrich Hegel,
presented an evolved version of natural law, though it diverged significantly from its original form.
Hegel, aligning with positivists, emphasized the nation-state as the primary unit of study, linking
it closely with cultural and psychological aspirations. This historicist mentality had limited
influence in international law, finding support mainly from James Lorimer in Scotland and
Pasquale Mancini in Italy. The historicist outlook encompassed liberal nationalism, self-
determination, and ideas about both progressive and atavistic states, spanning the political
spectrum.

Central to historicism was the belief in comprehending and guiding the direction of history, giving
it a teleological aspect reminiscent of older natural-law thought. Following the Congress of Vienna
in 1814-1815, major powers aimed to maintain European peace through a system rooted in law,
termed the "public law of Europe." This system emphasized adherence to treaty commitments
and respect for established laws, legitimate governments, and property rights.

The Quintuple Alliance, akin to a precursor of the United Nations, oversaw this "public law of
Europe." However, the system's effectiveness waned as the interests of major powers diverged.
The Holy Alliance, formed by Russia, Prussia, and Austria, aimed to suppress revolution, while
Britain opposed active intervention. The oversight evolved into the "Concert of Europe,"
intervening on an ad hoc basis in crises.

Despite some humanitarian considerations in interventions, such as in Greece, Belgium, and

Mount Lebanon, the Concert of Europe's guidance worked inconsistently due to conflicting major
power interests. The system proved unable to prevent the outbreak of the Great War in 1914-
1918, leading to the development of new forms of world organization.

The 20th and 21st Centuries

In the aftermath of the Great War (1914-18), dissatisfaction with the positivist 'rules of the game'
approach and ad hoc interventions by the Concert of Europe led to the establishment of the
League of Nations in the Versailles Treaty of 1919. The League aimed for an open, parliamentary,
and democratic world order, seeking to prevent any resort to war as a national policy. However,
its practical impact was limited, with no sanctions provided, and self-defense action permitted.

The League faced challenges in distinguishing between war and measures short of war, such as
reprisals. Two key initiatives emerged: the Kellogg-Briand Pact of 1928, calling for renunciation of
war, and the Stimson Doctrine of 1932, asserting non-recognition of situations resulting from
aggression. The League's sanctions provision was invoked only once, against Italy for invading
Ethiopia in 1935-36, but it failed to prevent Ethiopia's conquest.

The League, despite combining conservatism and boldness, did not fundamentally change the
sovereign prerogatives of nation-states. The inter-war period saw significant developments in
international law, including the establishment of the Permanent Court of International Justice,
codification efforts, and the first multilateral initiatives on human rights.

After the Second World War, the League was replaced by the United Nations (UN) in 1945, with
the UN Charter containing a comprehensive ban on the use of force, making an exception for self-
defense. The UN marked a return to great-power dominance, emphasizing collective security
through the Security Council. Economic integration efforts and institutions like the International
Monetary Fund and the World Bank were introduced to promote global economic prosperity.

Despite initial optimism, the post-World War II period witnessed Cold War rivalries, limiting the
UN's effectiveness. However, international law experienced a surge in activity, with increased
codification, expanded subject areas, and the proliferation of international organizations. The
interplay of developing states and established norms led to the consolidation of the sovereign
equality of states. While socialism and the influx of developing states did not bring fundamental
conceptual upheaval, the 1980s saw a cautious return of idealism in international law.

This second wave of optimism brought challenges, as international lawyers sought to assert
norms intrusively. Examples included the UN's authorization of force to overthrow an
unconstitutional government in Haiti (1994) and the acquiescence in humanitarian intervention
in Kosovo (1999). Various fronts, including self-determination rights, human rights, democracy,
governance, and environmental protection, faced controversies, reflecting a shift toward a more
activist role for international law.

Conclusion

At the beginning of the twenty-first century, it is hard to see the UN 'failing' in the way that the
League of Nations did and being completely wound up. No one foresees a reversion to the
rudimentary ways of Herodotus's silent traders. But it is not impossible to foresee a nationalist or
populist backlash against what is seen to be excessive international activism and against the
elitist, technocratic culture of international law and organization. If there is one lesson that the
history of international law teaches, it is that the world at large-the 'outside world' if you will-has
done far more to mould international law than vice versa. By the beginning of the twenty-first
century, international lawyers were changing the world to a greater extent than they ever had
before. But it is (or should be) sobering to think that the great forces of history-religious,
economic, political, psychological, scientific-have never before been successfully 'managed' or
tamed. And only a rash gambler would wager that success was now at hand. Perhaps the most
interesting chapters of our history remain to be written.