History of International Law
Author: Jane Doe
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Learning objectives: Gaining enough background-knowledge on international legal history to understand the references to histories in the following sub-chapters and other chapters of the book.
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A. Introduction Edit
Scholarly disciplines and fields of expertise more generally are constituted through how they tell their own history. Therefore, it is impossible to understand public international law both as a field of study and as an area of practical expertise without understanding its history. This does not mean that one can 'uncover' the 'true nature' of international law by finding a fixed origin or reveal the right way of interpreting specific legal doctrines by looking at their origins. In her book on International Law and the Politics of History, Anne Orford has powerfully laid out why international lawyers' thirst for certainty cannot be quenched by turning to history. What turning to history can do, however, is teach us something about the predominant self-images of the discipline through the way it habitually tells its own history. These self-images play such a crucial role in international legal histories that one may go as far as calling them 'fan fiction'. Of course, histories of international law also teach us something about how certain rules, institutions, concepts, doctrines, and apparent truths were created, and about how the law contributes to carrying 'past' injustices into the present. Perhaps most importantly, learning about how international law came about and about how it contributed to domination, exploitation, and injustice more generally means learning about how the world can be changed for the better.
To this end, the overall approach of this book is to include historical contextualisation in all parts of the book. The purpose of this chapter on the history of international law is to provide the necessary background knowledge to be able to connect these specific historical contextualisation and to place them in a broader picture. To this end, this introductory sub-chapter, first, offers some brief observations on the different ways in which international law as a discipline conceives of its origins, as well as on different ways in which 'origin stories' of individual areas of international law can be told. Second, it expands on some of the most important turning points, which mark a 'before' and 'after' and which are often referenced when talking about the development of important areas of international law. Third, it offers a glimpse into the contradictory nature of international law and its history, by introducing an account of the history of international law as a history of both empire and resistance. The following sub-chapters will then expand on selected topics, which are particularly important for understanding influential accounts of international law's origins, turning points, and contradictions. The origins of international law are further scrutinized in the sub-chapter on founding myths, while important turning points and accounts of domination and resistance are discussed in more detail in the sub-chapters on the nineteenth century and on decolonisation.
B. Origins and International Law Edit
Histories of something necessarily have to start somewhere. Different approaches to history as a discipline and to using history in international law are partly characterised by different ways of both choosing the starting point and portraying the role of this starting point. The standard way of telling the history of international law consists in presenting a starting point that offers a foundation to international law, a point in time that reflects international law's 'original identity', thus assuming ‘the existence of immobile forms that precede the external world of accident and succession’. The most popular starting point in this sense consists of the combination of Hugo Grotius' work De jure belli ac pacis (Latin: Of the Law on War and Peace) in 1625 and the Peace of Westphalia in 1648. This typical starting point in telling the history of international law also typically coincides with a conception of history as an endeavour that portrays 'how it really was' in the past.  A different way of conceiving of origins consists in searching for starting points not as points in time marking the 'birth' and foundation of something, but rather as the circumstances that best explain the emergence, formation, and heritage of something. International legal scholars who rely on a (loosely) Foucauldian notion of 'genealogy' adopt this latter stance towards origins. A third way of engaging with history rejects such origin stories altogether, arguing that events, ideas, and people of the past have to be examined not for what they brought about but for the role they played in their own time. However, as Anne Orford has famously remarked, lawyers are typically trained to make meaning move through time.
Moreover, choosing a starting point for the history of international law one wants to write presupposes that one knows, at least roughly, what international law is. If international law is understood as the law that governs the relationship between sovereign States, then the starting point in the history of international law has to depict how States and sovereignty emerged and how and when they started to have relationships governed by law. If international law is, more broadly, understood as the law of global encounters, then one may conclude that the encounters that shaped the laws continuing to govern global encounters today emerged not (primarily and exclusively) in encounters between States, but between Empires such as the Spanish, Portuguese, Dutch, and British Empire and between one or more of these Empires, the people living on the land these Empires sought to conquer, and the companies they sponsored to carry out these conquests.
[Reflections on origin stories of individual branches]
C. Turning Points in the History of International Law Edit
I. Portuguese and Spanish Colonial Conquest and the Treaty of Tordesillas (1494) Edit
As pointed out above, one way of telling the history of international law is as a history of colonial encounter. The first period of European colonialism was marked by a rivalry between Portuguese and Spanish conquistadores (Portuguese and Spanish: 'conquerors'), who were sponsored by the respective monarchs to 'discover' and conquer the rest of the world. While the Portuguese, over the course of the fifteenth century, sailed the Atlantic coast of Africa and reached the Indian Ocean by these routes, the 'Catholic Monarchs' Isabella I of Castile and Ferdinand the II of Aragon provided funds for Christopher Columbus' plan to find a way to the Indies by sailing westward through the Atlantic. Instead of India, Columbus reached the island named Ayiti or Quisqueya by its Taíno inhabitants, but which Columbus claimed to have 'discovered' and proceded to call 'Hispaniola', a Latinized way of saying 'Spanish'. The 'discovery' of this island and other islands in the Caribbean during Columbus' first expedition propmpted the Catholic Monarchs to seek the support of Pope Alexander VI for their claim to the 'New World' immediatley after Columbus' return in 1493. After ongoing colonial rivalries between the Spanish and Portuguese monarchs and respective papal bulls and treaties, the details of which cannot be recounted here, the Catholic Monarchs on one side and Joao II, King of Portugal, on the other side, divided up their speheres of influence in the Atlantic by agreeing on a new demarcation line in the Treaty of Tordesillas, which was signed on June 7th, 1494. The Treaty of Tordesillas marks an important turning point in the history of international law, not only because the spheres of influence outlined in this treaty established the division between Hispanic and Portuguese parts of the Americas - the latter constituting today's State of Brazil - but also because it marks an important step away from relying on purely Papal authority and grounding legal claims in inter-state agreements instead. In this sense, the Treaty of Tordesillas may be seen to be part of the origins of international law both as the law of inter-state relationships and as the law of colonial encounter. Other important steps in this development consist in the Treaty of Zaragoza, signed in 1529, which constitutes the first instance in which one of the colonising states formulated a legal claim to the land in the Americas based on so-called 'first discovery'. A synthesis between different sources of claims to land and authority is formulated by Francisco de Vitoria in 1537-1539 in his lectures De Indis (Latin: 'Of the Indies'), a work which Third World Approaches to International Law (TWAIL) consider to be a decisive element of international law's origins.
II. Sovereignty and Secularism on the European Continent and in the Colonial Encounter Edit
As stated above - and as will be reiterated throughout the book - the dominant way of characterising international law is as the law that governs the relations between sovereign States. The end of the sixteenth and, more importantly, the seventeenth century, are crucial for the emergence of sovereignty as the paradigm governing the relationships between political entities. These political entities, on the European continent, merged from being mainly Empires, cities, leagues of trading posts such as the Hanseatic League, and other actors to being mainly organised as States. When Jean Bodin published his work titled Six Livres de la République (English: 'Six Books of the Republic') in 1576, which contained the now canonical definition of sovereignty as 'absolute and perpetual power' and of accountability of the sovereign Prince 'only to God', this description was still largely counterfactual. Over the course of the seventeenth century, sovereign States did, however, gain the ability to control their territory, as the grounds for authority shifted from an interpersonal to a territorial model. This provided sovereign States with the necessary authority and political continuity to commit themselves externally as States rather than as individual monarchs or other rulers.
Simultaneously, chartered companies like the Dutch East India Company, which was founded in 1602, exerted a slightly different kind of sovereignty on the territories and on the parts of the sea where they sought to establish trading monopolies or, where they lacked the necessary control to establish such a monopoly, to push for freedom of travel and trade. Among the influential figures who advocated for freedom of the seas and free trade in this sense and in the interest of the Dutch East India Company was Hugo Grotius, whose first work, De mare liberum (Latin: 'Of the free sea'), was, in its first version, commissioned by the Dutch East India Company. With his work De jure belli ac pacis libri tres (Latin: 'Three books on war and peace'), Grotius provided a comprehensive work on international law and a synthesis between naturalist conceptions of the law, i.e. conceptions that base the validity of the law on a source outside of the law like God or reason, and positivist conceptions that derive the validity of the law from legal rules themselves and from the will and consent of the sovereign. These two characteristics of De jure belli ac pacis libri tres - its comprehensive systematicity and its combination of naturalist and positivist concepttions of law - earned Grotius the title of 'father of international law', which will be problematised in the following sub-chapter on international law's founding myths. The second element that is, next to Grotius, part of most origin stories of international law is the Peace of Westphalia of 1648. The peace treaties of Münster and Osnabrück, which together form the Peace of Westphalia, marked the end of the Thirty Years War on the European continent, a war fought along religious lines between catholic and protestant rulers. In confirmation of the earlier Peace of Augsburg of 1555, which established the principle cuius regio eius religio (Latin: 'whose realm, their religion'), the Peace of Westphalia was the focal point of a longer development that resulted in the establishment of a system of sovereign States centered around territoriality and the prohibition of outside interference. 'Westphalia' is therefore also often used as a chiffre for describing an international system characterised by unfettered State sovereignty and little to no rules governing how States are to exercise their sovereignty - especially within their territories.
D. The History of International Law as a History of both Empire and Resistance Edit
Further Readings Edit
- Source I
- Source II
- Summary I
- Summary II
- The first footnote. Please adhere to OSCOLA when formating citations. Whenever possible, provide a link with the citation, ideally to an open-access source.
- Tamsin Philippa Paige, ‘I Just Called History, as a Discipline, Fanfic* and I’m Not Sure That I Want to Walk That Back *i Didn’t Mean This in a Pejorative Way but People Seem to Take It That Way’ (Twitter, 25 May 2023);https://twitter.com/Paging_Dr_Paige/status/1661623415034486784; accessed 20 June 2023.
- On Founding Myths, see González Hauck, § 1.1, in this textbook.
- On the Nineteenth Century, see González Hauck, § 1.2, in this textbook.
- On Decolonisation, see Soomro, § 1.2, in this textbook.
- Michel Foucault, ‘Nietzsche, Genealogy, History’ in Michel Foucault, Donald F Bouchard (ed), Donald F Bouchard and Sherry Simon (trsls), Language, Counter-Memory, Practice (Cornell University Press 1977) 142.
- Michel Foucault, ‘Nietzsche, Genealogy, History’ in Michel Foucault, Donald F Bouchard (ed), Donald F Bouchard and Sherry Simon (trsls), Language, Counter-Memory, Practice (Cornell University Press 1977) 145.
- [references from contextualist school]
- For an overview, see Thomas Duve, 'Treaty of Tordesillas', in Max Planck Encyclopedia of Public International Law, paras 4-10.
- Hendrik Spruyt, The Sovereign State and its Competitors (Princeton University Press 1994).