Ana Sayfa / Yazılarımız / Siyaset / İngilizce Yazılar / From A Brief Glimpse To Deep End: History Of International Law

From A Brief Glimpse To Deep End: History Of International Law

Abstract

            As a term of international law had not emerged suddenly from ashes of discipline of law as like the others. It took almost thousands of years from the Carthaginians’ silent trading with a Northern African tribe until the present day of what we assumpt we know everything about the philosophical background of law of relations between states. We can divide the historical process of development of international law into three parts; before 19th century, 19th century and finally 20th-21st century. In this article hereby i tried to have account on how the development of international relations shaped the first prominent appearence of international law as a discipline.

First Interstate Relations in Ancient Times

            Herodotus’s description of “silent trading” between the Carthaginians and an unnamed North African tribe in the sixth century BC was just a little glimpse over the first intersociety relations. “When the Carthaginians arrived in the tribe’s area by ships, they would unload a pile of goods from their vessels, leave them on the beach and then return to their boats and send a smoke signal. And the natives would then come and take the goods, leave a pile of gold. Then the Carthaginians would return and if satisfied that the gold represented a fair price they would take it and depart. There was perfect honesty on both sides” Herodotus assures us with no problem of theft and conflict[1].

            This silent trading arrangement would not be suffice to have an account of political interaction. But we must accept the description of its being the first substantive relation between different societies in ancient times. But if we ask about the beginning of international relations there are various different answers  to this question. If by “international law” is meant a more or less comprehensive substantive code of conduct appliying to the nations then the late classical period of Middle Ages was the time of its birth. If international law is defined as the integration into something like a single community under a rule of law, then the 19th century would be the earliest date. If ,finally, international law is understood to mean the enactmens and judicial decisions of a world government, then its birth lies somewhere in the future.

            We could find the nascent of international law in three areas of ancient Eurasia; Mesopotamia, the North India, the classical Greek. This three part of areas provide a evidence of development of diplomatic relations. One of the earliest surviving treaty was Khadesh treaty concluded between the Egytians and the Hittite Empire from 13th century. And as good faith and a binding force enlisting gods of both nations were ensuring. Also in Greek, there were city-states which had a major additional contiribution on the subject of the practice of arbitration of disputes. In Western history, Rome is a supreme example. Roman Empire was ramshackle comparing with Arabic empires in which the body of law of relations between states within the Muslim World was much richer than the relations with the outside world in the matter of diplomatic relations. But that began to change when appropriate concepts of philosophy was imported from Greece.

            One of them was the idea of universal principles of law; the rules of conduct already presents in all human beings. The idea was first surfaced in writings of Aristotle[2] but taken further by Stoic School believing that entire world is governed by law of nature which Cicero characterized it  as being “spread through the whole human community, unchanging and eternal”[3]

            These concepts of universal law and law of nature was adopted by Roman lawyers and Christian Church. The lawyers made a distiction; jus naturale (natural law) and jus gentile (law of people). Natural law was not only applicable for humans but at the same time applicable for animal kingdom as well. And jus gentium was applicable for human world. It did not consist of what would now be called rules of international law. Instead it was a collection of laws common to all nations. It sets out general norms of conduct with a list of prohibitions and punishments.

            Then Hugo Grotius whose major work is On the Law of War and Peace made a important new ground. He transformed the term of jus gentium into something prominently different called the law of nations. It was regarded as something different from the law of nature rather then being sub-categorized. Also it was not regarded as body of law governing human social affairs in general. Instead it was a set of rules applying specifically to one particular category of human beings; rulers of State. Now for the first time there was a clear conception of a systematic body of law which is applicable to international relations.

            In sharp contrast to Grotius, Thomas Hobbes whose master work was Leviathan believed that the pre-political condition of human society was a chaotic world and security could be attained by the radical step of having all of the nature surrender their natural rights to a sovereign power of their own creation. Also on thesis the only possible way in which states could construct a stable international system was through entering into agreements. These agreements could take of two form; written or unwritten. The written form comprised the treaties. And the unwritten form was Customary law which means that the condition which had been implemented by a society for a long time and it turned out to be a general norm[4].

            The writings of Grotius and Hobbes were not done in vacuum. Various forces were at work int this period to give this new law of nations a concrete reality. One of the most important effect of this trend was the founding of strong central governments in Western Europe. Also inovation in standing European armies in place of the older feudal levies was another substantive example of this thesis becoming widespread by having new descriptions towards Hobbes’ and Grotius’ thoughts.

            The idea of the existence of “community of states” lies down beyond these thesis. That the existence was consisted with the peace settlement arrived at Westphalia in 1648 at the conclusion of the Thirty Years of War in Germany. The Peace of Westphalia provided a sort of template which marked out a division of labour between national and international spheres, placing religion carefully into domestic law. Additionally, the idea of community of states was including a concept of balance of power. In conjunction with this concept ,at least in Western Europe, wars was largely conducted under certain rules of manner and by the trained forces was in replace of older ancient armies. As a result European diplomacy became more resamblence to game of chess; so had warfare by gaining riutalistic air.

Positivism as a New Concept

            The nineteenth century was outstanding within the framework of the rise of dominance of the legal philosophical term known as of positivism which is meant such a wealth of things. Also the expression of positive law had been in use since the Middle Ages to refer the man-made law of particular states in contrast to divine law (god-made) and natural law. And the chief propounder of positivism was the French social philosopher Auguste Comte. By “positive” Comte meant something like “scientific”,”empirical” in contrast to speculative modes of thought. And he clarified this philosophical term as dawning of true and final liberalization of the human mind from dogmas of the past.

            Positivism envisaged the emergence of a sort of technocratic utopia, in which the world would be governed not by politicians or lawyers but by engineers, industrialists and financiers. One another the most central aspect of positivism was its close attention to question of the sources of international law created by the states themselves. Thus international law was seen as the sum total of agreements and it must be seen as a law between states, not as a law above states. International law, in other words was now regarded as corpus of rules arising from the conscious creation of the

States themselves rather then the manner of old natural law. The scientific and technocratic and political ethos of positivism brought up a new sense of business-like character to the study and practice of international law. An important sign of this founding of the International Law Association in 1873. This was also the period in which international law became a subject of university studies.

20th and 21st Centuries; The Last Outlook of International Law

            The 20th century witness two great war; the First World War and The Second World War. The “fruit” of the first one was the establishment of the League of Nations whose covenant was set out in the Versailles Treaty of 1919. This new system of world order would be open, parliamentary and democratic character.

            League of Nations had no attempt to be a world government. Instead it would be sovereign power over its member states. Its very purpose was to maintain peace internationally. But most importantly it did not prohibit war under the condition of having been observed the peaceful settlements before restoring to war for member States. Obviously it was ,just, regulating procedural requirements to restore to war instead of full prohibition.

            At the interwar period a world court known as Permanent Justice of International Court was established. But it did not have compulsory jurisdiction over all disputes. Also international area witnessed the first multilateral initiatives on human rights. A number of bilateral conventions for the protection of minorities were concluded between various newly created states and League of Nations.

            Aftermath the Second World War, that the period witnessed unique changements of international law. It was clear that League of Nations was failed with the outbreak of the second great war of the century. But international law entered a period of confidence and prestige. International lawyers found themselves with the dramatic prosecutions of German and Japanise leaders for crimes under international law at Nuremberg and Tokio in the late 1940s.

            Most importantly the founding of the United Nations in 1945, to replace the defunct League of Nations, was a critical step in the creation of a new world order. United Nations came with a new world court called International Court of Justice which is sanction mechanism over its member States. But it still had no compulsory jurisdiction because of pure right of sovereignity of the member states. Also at the heart of the organization Security Council which had been constituted by permanent members of the organisation acted as a collective bulwork against future aggressors. In contrast to League of Nations, United Nations’ very first purpose was to maintain peace and ,additionally, to protect the security of the international area.

            This newly shaped purpose in the aftermath of Second World War towards new world order was a quite remarkable changement come with the Charter of the United Nations. Distinctively it was restricting violence by prohibiting not only war but also “the use of force”. But there were some exceptions under the condition of self-defence. Not in this brief article the term of the use of force could be explained broadly. But maybe further articles of mine will bring the light onto this broad subject.

            The establishment of United Nations was not the only sign of internatinal law having been going further by the necessities of conjunctions. The founding of International Criminal Court with Rome Statue concluded in 2002 was an outstanding sanction mechanism as jurisdiction covering the crimes against humanity, genocide etc. Its distinctive ,also prominent, feature from ICJ was that it has jurisdiction over individuals instead of states. That meant that international law was going deeper as far as it could do on the subject of its judicial power as its capability of jurisdiction over individuality.

Conclusion

            International law had great accumulation ever since the people’s first decision of making social contract to build societies ,according to Hobbesian philosophical concept, and get in relation with each other. From that time to the present world witnessed remarkable and dramatic changements of the regulation of law between states or societies. The first descriptions of Groutius and Hobbes made a great deal for the first ignition of thinking the situation internationally. Then positivism was the rising philosophical thought coming up with law of nations and its dominance lasted until the end of 19th century. Then two greatest war drafted the outlook of international law. United Nations was born from the ashes of this historical wars and it acted as world government and executive of international law in international area.

References

Aristotle, ‘Rhetoric’, in  e Basic Works of Aristotle (McKeon, R (ed) 1941), (New York: Random House), pp 1325–1451.

Cicero, MT (1998), Republic (Rudd, N (trans.)) (Oxford: Oxford University Press).

Herodotus (1954), Histories (De Sélincourt, A (trans.)) (Harmondsworth: Penguin).

Hobbes, T (1957), Leviathan; or  e Matter, Forme and Power of a Commonwealth Ecclesiastical and Civil (Oakeshott, M (ed)) (Oxford: Blackwell).

Grotius, H (1925),  e Law of War and Peace (Kelsey, FW (trans.)) (Oxford: Clarendon Press).

Neff, SC, A Short History of International Law, http://9jalegal.com.ng, Web. 08.10.2018

Sterio, M, the Evolution of International Law, https://lawdigitalcommons.bc.edu, Web. 08.10.2018

Notes

[1] Herodotus (1954), Histories (De Sélincourt, A (trans.)) (Harmondsworth: Penguin)

[2] Aristotle, ‘Rhetoric’, in  e Basic Works of Aristotle (McKeon, R (ed) 1941), (New York: Random House), pp 1325–1451.

[3] Cicero, MT (1998), Republic (Rudd, N (trans.)) (Oxford: Oxford University Press).

[4] Hobbes, T (1957), Leviathan; or  e Matter, Forme and Power of a Commonwealth Ecclesiastical and Civil (Oakeshott, M (ed)) (Oxford: Blackwell)

 

Yazar Hakkında 

Serkan Yeter / TESA Siyaset Masası Araştırmacı Yazarı

İstanbul Üniversitesi

Siyaset Bilimi ve Uluslararası İlişkiler / Lisans Mezunu

 

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