Private International Law/Foundations of international law - from Grotius onwards

Foundation Stones

Modern International law arose from Roman law, which was spread throughout Europe by the Roman Empire and later adapted and amended by the Holy Roman Church and the Eastern Orthodox church. The purpose of religion is to enforce habits and practices which have previously helped communities to survive. Peacemaking between peripatetic/hunter/warrior groups with few fixed assets and established agricultural tribes with huge investments in land development was key to civilization.

The first written law, the Codex Hammurabi engraved on stone stele in temples throughout the empire of Babylon on the orders of Hammurabi the sixth king (ca. 1795 – 1750 BC). This conferred a basic right of release of slaves (usually foreigners taken in battle) and imposed trading standards such as measurement and exchange of goods which greatly enhanced the empires relations with its neighbours. Only one Stele survives and is currently in the Louvre, Paris. There are strong links between this code and Mosaic law, traditionally handed to the Jewish nation during a period of migration.

Moses law was the basic ceremonial law of the Old Testament. It regulated the priesthood, sacrifices, rituals, meat and drink offerings, etc. It is associated with the ten commandments, a sort of portable version of common law easily indoctrinated in ordinary people at an early age. (there are actually fourteen or sixteen 'sacred commandments' in this code, since there are at least two versions and many interpretations) Roman law has the same basic ingredients, plus some rules for efficient tax collection.

The earliest known treatise on international law was the Introduction to the Law of Nations written at the end of the 8th century by Muhammad al-Shaybani (d. 804), a jurist of the Hanafi school of Islamic law and jurisprudence, which is based on the Qur'an, a holy scripture written in the early part of the 7th century and closely associated with, if not inspired by both Jewish and Christian traditions.

Modern Moral Challenges

The Netherlands were at war with Spain and Portugal when a loaded merchant ship, the Santa Catarina, was captured in 1603, by a privateer, and its cargo distributed among the owners of the Dutch ship. Not only was the legality of keeping the prize questionable under Dutch statute, some of the shareholders in the Company were Baptists who held strong religious views and objected to the forceful seizure on moral grounds. The majority of shareholders however were much more acquisitive.

Hugo Grotius or Huig de Groot was a leading jurist who considered the problem, and wrote a number of theoretical treatises including De Indis (On the Indies) in 1605 and Mare Liberum (The Free Seas, published 1609) Grotius formulated the new principle that the sea was international territory and all nations were free to use it for seafaring trade. Living in the times of the Eighty Years' War between Spain and the Netherlands and the Thirty Years' War between Catholic and Protestant European nations, it is not surprising that Grotius was deeply concerned with matters of conflicts between nations and religions. Grotius was himself imprisoned but escaped to France, where he completed 'De jure belli ac pacis libri tres (On the Law of War and Peace: Three books) which was first published in 1625, dedicated to Grotius' then patron, Louis XIII. The treatise advances a system of principles of natural law, which are held to be binding on all people and nations regardless of local custom.

Colonist England, struggling against the Dutch for domination of world trade, opposed the free-trade and international law ideas of their rivals and claimed That the Dominion of the British Sea, or That Which Incompasseth the Isle of Great Britain, is, and Ever Hath Been, a Part or Appendant of the Empire of that Island.[4] In Mare clausum (1635) John Selden endeavoured to prove that the sea was in practice virtually as capable of appropriation as terrestrial territory.

A workable formula was not found until very much later when Cornelius Bynkershoek proposed, in his ' De dominio maris (1702), restricting maritime dominion to the actual distance within which cannon range could effectively protect it. This became universally adopted and developed into the three-mile limit.

The 17th Century Dutch Republic meanwhile continued to champion the idea of free trade, whilst England adopted the Act of Navigation (1651), forbidding any goods from entering England except on English ships. This restrictive practice subsequently led to the First Anglo-Dutch War (1652 - 1654) which was probably the first military engagement fought entirely at sea.

Oliver Cromwell, Protector of England, repeatedly proposed a union between the two Christian Protestant nations to end the dispute. but in the end, although the Dutch surrendered, the dispute rumbled on, and following euphoria at the restoration of the English monarchy in 1660 the Second Anglo-Dutch War erupted in 1665 and lasted until 1667, by which time the British were almost bankrupt. This time the Dutch won.

With the expanding exploration and exploitation of the new world by European colonial nations, a new basis for avoiding war and state bankruptcy was needed.