History of international law

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The history of international law examines the evolution of state practice and the doctrinal developments in international law. In that respect, it is different from international private law and comparative history of constitutional law. Although international law in the modern sense of the word has only existed since about the 16th century, many historians of international law also take ancient history into account as a source for the early development of international legal principles. In that respect, important concepts are derived from the practice between Greek city-states and the Roman law concept of ius gentium (which regulated contacts between Roman citizens and non-Roman people). These principles where not universal however. In East Asia, political theory was based not on the equality of states, but rather the cosmological supremacy of the Emperor of China.

The development of modern public international law is usually traced back to the Westphalian treaties of 1648, which in a way established the principle of state sovereignty as a cornerstone of the international order. However the first attempts at formulating autonomous theories of international law occurred before this, in Spain, in the 16th century. Most prominent among the early theorizers were the Roman Catholic theologians Francisco de Vitoria and Francisco Suárez. Suárez is especially notable in this regard in that he distinguished between ius inter gentes and ius intra gentes which he derived from ius gentium (the rights of peoples). Ius inter gentes corresponds to modern international law. In 1625, Hugo Grotius followed with the first systematic treatise on international law, de iure belli ac pacis, which dealt with the laws of war and peace. One important aspect of Grotius's treatment of international law is that he no longer bases it exclusively upon natural law, but also accepts that states among themselves can also create binding rules of law (ius voluntarium).

Still, in the 17th and 18th centuries, the idea of natural law as a basis for international law remained influential, and were further expressed in the works of Samuel von Pufendorf and Christian Wolff. Yet, in the second half of the 18th century, a shift occurs towards positivism in international law. In addition, the idea of international law as a means for maintaining international peace is challenged due to the increasing tensions between the European great powers (France, Prussia, Great-Britain, Russia and Austria). This tension between legal norms and political imperatives is well reflected in the century's most important treatise on international law, Emer de Vattel's Du Droit des Gens (1758). At the end of the century, Immanuel Kant believes that international law as a law that can justify war does not serve the purpose of peace anymore, and therefore argues in Perpetual Peace (Zum Ewigen Frieden, 1795) and the Metaphysics of Morals (Metaphysik der Sitten, 1797) for creating a new kind of international law.

After World War I, an attempt was made to establish such a new international law of peace, of which the League of Nations was considered to be one of the cornerstones, but this attempt failed unfortunately. The Charter of the United Nations (1945) in fact reflects the fact that the traditional notion of state sovereignty remains the key concept in the law of nations.

In the historiography of international law, some German authors, most notably among them Wilhelm Grewe and Karl-Heinz Ziegler, have argued that several periods can be distinguished, such as the Spanish era (1494-1648), the French era (1648-1789/1815), the English era (1789/1815-1919) and the American era since 1919.

The transitions between these eras are often marked by grand peace settlements, such as the earlier mentioned treaties of Westphalia (1645-48), the treaties of Ryswick and Utrecht (1697/1714), Vienna (1814-15), Paris (1919) and San Francisco (the UN Charter, 1945).

[edit] Some important authors in the history of international law

14th century

15th century

Martinus Garatus Laudensis

16th century

17th century

18th century

19th century

Jeremy Bentham
Johann Bluntschli
Henry Wheaton
Robert Phillimore
Henry Sumner Maine

20th century

[edit] Some universities and institutes where the history of international law can be studied

Frankfurt am Main (Max-Planck Institute for the History of European Law)
Graduate Institute of International Studies, Geneva (P. Haggenmacher)
Tilburg University (R. Lesaffer, Research Group on the History of International Law)
University of Paris (Panthéon-Sorbonne)
Cambridge University (Law faculty)
New York University School of Law (Program for History and Theory of International Law)
Harvard University (European Law Research Center)
Leiden University (A. Wijffels)
University of Utrecht (C.G. Roelofsen)
Erasmus University Rotterdam (L. Winkel)
University of Helsinki (Law faculty, Erik Castrén Institute of International Law and Human Rights)
University of Buenos Aires (E. J. Buis)
University of St Andrews (School of International Relations)
University of New South Wales (Law faculty)

[edit] References

W.G. Grewe, Epochen der Völkerrechtsgeschichte, translated as The Epochs of International Law
M. Koskenniemi, The Gentle Civilizer of Nations
A. Nussbaum, A Concise History of the Law of Nations
H. Legohérel, Histoire du Droit International Public
A. Truyol y Serra, Histoire du Droit International
Journal of the History of International Law, since 1999