Part I The structure of international law
1. The history and nature of international law
Structure of Today’s Lecture
A Brief History of International Law
The Scope and Content of International Law
A definition of International Law
The function of International Law
1.1 Introduction: international law as law
Public international law
<-> Private international law:
o Regulates the conflicts between rules of different domestic legal orders
Public international law:
o Regulates relations between States
The purpose of international law has shifted overtime, in line with political
and social developments; accordingly, the underlying ideas and
assumptions about the role of law in international society have also
evolved
A Brief History of International Law
Modern international law begins with the 1648 Peace of Westphalia
However, different communities and societies have interacted with each
other since ‘time immemorial’
o For as long as organized human groups or societies have existed, rules
have been developed to regulate their relations with one another
Signing treaties of alliance and friendship, exchange tributes
E.g. the ‘Eternal Treaty’ agreed between an Egyptian pharaoh and
Hittite king
There is much to be said about international law outside the Western
world
Euro-centric international law today has roots in European expansion from
1492-1914
Intellectual currents in international law,
pre-1500
Aristotelian idea of kosmopolis permeating much mediaeval scholarship
o No Greece, but many city-states
o Kosmos = universe; polis = city
Ideal of ‘one community’ embraced by the Christian Church, transformed
into jus naturale
Jus Gentium—the law of peoples—marginalised during mediaeval epoch
Yet murmurs of ‘modern’ international law in Italian city-States
1
, o The pope and other city-states in Italy treaded with eachother
After the fall of the Roman Empire: a patchwork of feudal entities
Over time, they fell away in favour of centralized structures
They began to take on the characteristics of a ‘State’:
o = a permanent political unit, supported by institutions and
bureaucracies, and independent courts with an authority to give final
judgments
Intellectual currents in international law (1500-1648)
Protestant Reformation struck discord in the unity of Western Europe
o They challenged the authority of the Holy Roman Empire and the
Catholic Church
As well as the Pope as the Emperor claimed to lead a universal
Christian polity.
The Pope claimed that the ecclesiastical law would purportedly
(zogezegd) apply to all sovereigns
o Protestant rulers began asserting sovereignty independent from Empire
and Church
A series of religious wars began culminating with the Peace of Westphalia,
1648
o Cuius regio eius religio (‘whose realm, his religion’)
Each State would henceforth be free to choose for themselves which
religion to adopt
1.2 The founding myths of modern international law
1.2.1 The Peace of Westphalia (1648)
Modern international law 1648-1815
Consequences of the Peace of Whestphalia:
1. The sense of jus naturale weakened
o = rejection of the secular power of the Pope over the internal affairs of
other States
o Catholic and Protestant States would henceforth be sovereign and
equal, under no higher power.
o Intellectually, this represented a decisive move away from the concept
of the Christian universal law of nations
o Nevertheless, international law retained certain concepts with
theological origins
Francisco de Vitoria (Spanisch Scholastic) argued that the indigenous
people of the Americas could not be sovereign, because it was
2
, impossible for non-Christians to engage in a just war, which one of
the attributes of sovereignty.
2. The sovereignty of each State was affirmed
o The concept of sovereignty was borrow from Jean Bodin’s (16th century)
theory of ‘absolute sovereignty’
A sovereign isn’t bound by the laws they personally instituted, but
only the laws of God and nature
3. The principle of non-interference in the internal affairs of a State was
recognized in the 1555 Peace of Augsburg
4. A series of rules for States to relate to each other began to emerge
5. Jus Gentium reborn?
1.2.2 The rise and decline of natural law (1648-1815)
Grotius, jus naturale and jus gentium
Hugo Grotius (de Groot), based in Leiden
Instrumental in establishing the freedom of the seas and that they could
not be appropriated by one State (Portugal & Spain) but were open to all
o Beneficial to Dutch commercial interests (Dutch East India Company)
De Jure Belli act Pacis (On the Law of War and Peace)
o His image of the nature of international law
o International law portrayed as a combination of two distinct bodies, jus
gentium and jus naturale
Jus naturale: eternal, universal laws that ‘existed within nature’;
discovered through human reason
Law of nature
Jus gentium, for Grotius, purely a human creation, subject to change
from time to time, and variable from place to place.
Law of people (positive law)
<-> Vitoria: Laws that applied to a community of all world
citizens
Taken up by Wolff, Pufendorf, Kant; but rejected by Vattel, who focused
only on relevance of jus gentium
o Pufendorf: jus naturale (reason and Christian mortality) prevailed over
practices of jus gentium
o Wolf: promoting an overarching ‘supreme state’ based on jus gentium
(scientific principles) which gathered all nations in ‘following the
leadership of nature’
o Kant: civitas gentium (world federation) with all the peoples of the
earth
3
, o Vattel: Le droit des Gens: doctrine of the equality of states within a
collective European State system where only the positive law matters
(not natural law)
= gradual move to positivism within international law
Characteristics of the jus gentium
Based on the sovereign equality of States
A voluntary system based on consent to obligation, non-interference,
horizontality
Rejection of natural justice and other prescriptive principles (Emer de
Vattel)
Yet facilitated colonialism and the mission civilisatrice in the 18th and 19th
centuries
o Haitan Revolution (1791-1804) as a consequence of the Spanish (Haiti)
and French (Saint-Dominique) colonization
Gave rise to international legal positivism
1.2.3 The nineteenth century and the rise of positivism (1815-1914)
1.2.3.1 The Congress of Vienna and the emerge of the ‘Concert of
Europe’
The Concert of Europe, 1815-1914
The 1815 Congress of Vienna = outcome of Napoleonic wars
Although sovereign equality was respected, ‘Great Powers’ were given
special privileges for maintenance of the system (inc. intervention)
o Great Britain, France, Austria, Prussia and Russia dominated to the
exclusion of all others
o There are still five permanent members of the United Nations Security
Council which hold the power of veto in the only international organ
capable of authorizing binding enforcement measures on all other
States
China, Frankrijk, Rusland, VS, VK
Non-institutional, early ‘successes’
o It lacked any formal institutional structure and depended entirely on
the goodwill of the Great Powers themselves
o Convened >20 times between 1815 and 1870 to deal with
revolutionary uprising and forestall inter-State conflicts
o Weaken over time and collapse of the Concert-system due to the
Crimean war
4
1. The history and nature of international law
Structure of Today’s Lecture
A Brief History of International Law
The Scope and Content of International Law
A definition of International Law
The function of International Law
1.1 Introduction: international law as law
Public international law
<-> Private international law:
o Regulates the conflicts between rules of different domestic legal orders
Public international law:
o Regulates relations between States
The purpose of international law has shifted overtime, in line with political
and social developments; accordingly, the underlying ideas and
assumptions about the role of law in international society have also
evolved
A Brief History of International Law
Modern international law begins with the 1648 Peace of Westphalia
However, different communities and societies have interacted with each
other since ‘time immemorial’
o For as long as organized human groups or societies have existed, rules
have been developed to regulate their relations with one another
Signing treaties of alliance and friendship, exchange tributes
E.g. the ‘Eternal Treaty’ agreed between an Egyptian pharaoh and
Hittite king
There is much to be said about international law outside the Western
world
Euro-centric international law today has roots in European expansion from
1492-1914
Intellectual currents in international law,
pre-1500
Aristotelian idea of kosmopolis permeating much mediaeval scholarship
o No Greece, but many city-states
o Kosmos = universe; polis = city
Ideal of ‘one community’ embraced by the Christian Church, transformed
into jus naturale
Jus Gentium—the law of peoples—marginalised during mediaeval epoch
Yet murmurs of ‘modern’ international law in Italian city-States
1
, o The pope and other city-states in Italy treaded with eachother
After the fall of the Roman Empire: a patchwork of feudal entities
Over time, they fell away in favour of centralized structures
They began to take on the characteristics of a ‘State’:
o = a permanent political unit, supported by institutions and
bureaucracies, and independent courts with an authority to give final
judgments
Intellectual currents in international law (1500-1648)
Protestant Reformation struck discord in the unity of Western Europe
o They challenged the authority of the Holy Roman Empire and the
Catholic Church
As well as the Pope as the Emperor claimed to lead a universal
Christian polity.
The Pope claimed that the ecclesiastical law would purportedly
(zogezegd) apply to all sovereigns
o Protestant rulers began asserting sovereignty independent from Empire
and Church
A series of religious wars began culminating with the Peace of Westphalia,
1648
o Cuius regio eius religio (‘whose realm, his religion’)
Each State would henceforth be free to choose for themselves which
religion to adopt
1.2 The founding myths of modern international law
1.2.1 The Peace of Westphalia (1648)
Modern international law 1648-1815
Consequences of the Peace of Whestphalia:
1. The sense of jus naturale weakened
o = rejection of the secular power of the Pope over the internal affairs of
other States
o Catholic and Protestant States would henceforth be sovereign and
equal, under no higher power.
o Intellectually, this represented a decisive move away from the concept
of the Christian universal law of nations
o Nevertheless, international law retained certain concepts with
theological origins
Francisco de Vitoria (Spanisch Scholastic) argued that the indigenous
people of the Americas could not be sovereign, because it was
2
, impossible for non-Christians to engage in a just war, which one of
the attributes of sovereignty.
2. The sovereignty of each State was affirmed
o The concept of sovereignty was borrow from Jean Bodin’s (16th century)
theory of ‘absolute sovereignty’
A sovereign isn’t bound by the laws they personally instituted, but
only the laws of God and nature
3. The principle of non-interference in the internal affairs of a State was
recognized in the 1555 Peace of Augsburg
4. A series of rules for States to relate to each other began to emerge
5. Jus Gentium reborn?
1.2.2 The rise and decline of natural law (1648-1815)
Grotius, jus naturale and jus gentium
Hugo Grotius (de Groot), based in Leiden
Instrumental in establishing the freedom of the seas and that they could
not be appropriated by one State (Portugal & Spain) but were open to all
o Beneficial to Dutch commercial interests (Dutch East India Company)
De Jure Belli act Pacis (On the Law of War and Peace)
o His image of the nature of international law
o International law portrayed as a combination of two distinct bodies, jus
gentium and jus naturale
Jus naturale: eternal, universal laws that ‘existed within nature’;
discovered through human reason
Law of nature
Jus gentium, for Grotius, purely a human creation, subject to change
from time to time, and variable from place to place.
Law of people (positive law)
<-> Vitoria: Laws that applied to a community of all world
citizens
Taken up by Wolff, Pufendorf, Kant; but rejected by Vattel, who focused
only on relevance of jus gentium
o Pufendorf: jus naturale (reason and Christian mortality) prevailed over
practices of jus gentium
o Wolf: promoting an overarching ‘supreme state’ based on jus gentium
(scientific principles) which gathered all nations in ‘following the
leadership of nature’
o Kant: civitas gentium (world federation) with all the peoples of the
earth
3
, o Vattel: Le droit des Gens: doctrine of the equality of states within a
collective European State system where only the positive law matters
(not natural law)
= gradual move to positivism within international law
Characteristics of the jus gentium
Based on the sovereign equality of States
A voluntary system based on consent to obligation, non-interference,
horizontality
Rejection of natural justice and other prescriptive principles (Emer de
Vattel)
Yet facilitated colonialism and the mission civilisatrice in the 18th and 19th
centuries
o Haitan Revolution (1791-1804) as a consequence of the Spanish (Haiti)
and French (Saint-Dominique) colonization
Gave rise to international legal positivism
1.2.3 The nineteenth century and the rise of positivism (1815-1914)
1.2.3.1 The Congress of Vienna and the emerge of the ‘Concert of
Europe’
The Concert of Europe, 1815-1914
The 1815 Congress of Vienna = outcome of Napoleonic wars
Although sovereign equality was respected, ‘Great Powers’ were given
special privileges for maintenance of the system (inc. intervention)
o Great Britain, France, Austria, Prussia and Russia dominated to the
exclusion of all others
o There are still five permanent members of the United Nations Security
Council which hold the power of veto in the only international organ
capable of authorizing binding enforcement measures on all other
States
China, Frankrijk, Rusland, VS, VK
Non-institutional, early ‘successes’
o It lacked any formal institutional structure and depended entirely on
the goodwill of the Great Powers themselves
o Convened >20 times between 1815 and 1870 to deal with
revolutionary uprising and forestall inter-State conflicts
o Weaken over time and collapse of the Concert-system due to the
Crimean war
4
