http://faculty.ucc.edu/egh-damerow/int_law.htm A Brief History of International Law.

It is only since the development of the modern state system after the Treaty of Westphalia that we can begin to talk about international law. International law refers to the legal rules whereby the international system operates. It defines the primary subjects of international law, that is the sovereign states. It regulates the relationships between states and other international actors. It defines the condition of peace, war, and neutrality. It establishes rules for the conduct of war, the recognition of states, the dissolution of states, the recognition of governments, the rules of diplomacy and diplomatic etiquette, and many other subjects. The origins of international law are somewhat diffuse since the earliest writers on international law had to invent a new terminology of law out of existing medieval and ancient legal traditions. ugo !rotius is generally considered the father of international law. is De Jure Belli ac Pacis, generally translated as The Law of War and also Peace, is a very eclectic work. e mixes ideas of natural law and positivism. is most lasting contribution was his advocacy of the freedom of the seas. The early publicists on international law interwove ideas of divine law "found in the #ible, natural law "!od$s laws as discernable through human reason%, the jus gentium of the &omans "as a common law derived from the many different laws of the many cultures conquered by the &omans%, the just war doctrine of the &oman 'atholic 'hurch, the jus inter gens, and the (aw of )ations. The term international law was coined in the early *+th century by the #ritish utilitarian and law reformer, ,eremy #entham. -ntil then, it was known as The Law of ations. The Law of !ar is the oldest part of (aw of )ations. The aim was to limit the violence of war. The concern with creating a law of war derived from the horrible behavior of mercenary armies during the Thirty .ears War. /odern armies with their uniforms and disciplined training are a relatively recent development connected to the creation of the modern, centrali0ed, bureaucratic state. The law of war dealt with how to treat prisoners of war, treatment of civilians during a time of war, civilian casualties1 the rights of neutrals1 the code of naval warfare, and similar topics. The Law of "eace attempted to define the rules for the recognition of states "sovereigns% and governments. 2riginally, we are talking about the rights of kings, rules of succession, inheritance of titles and property, treatment of the king$s ambassadors and other diplomatic personnel. The law of peace is largely a set of protocols for behavior in an aristocratic society, where titles and ranks are all important. 3ome of the ideas of the (aw of )ations derive from the natural rights doctrines developed by Thomas Ho##es. #efore the formation of modern states and their governments, human beings were held to have lived in a state of nature. In the state of nature, all human beings were equal and had the natural right to defend their lives, appropriate property at will, and enjoy whatever liberties they could get away with. These natural rights, according to obbes, produced a state of nature which was 4nasty, brutish, cruel, and short.4 It was only through the social contract and the formation of government that human beings escaped these terrible conditions. $ohn Loc%e took obbes$s ideas and saniti0ed them by assuming that human beings, even in a state of nature "before the formation of government and law%, behaved fairly decently. ence (ocke$s social contract was revocable and produced a limited government, whereas obbes had advocated an irrevocable compact and an absolutely powerful (eviathan.

Whereas human beings everywhere in the West had formed governments, the community of nations was still in a state of nature. The (aw of )ations, therefore, was the set of rules which governed the behavior of 3overeigns in a continuing state of nature. The (aw of )ations recogni0es that all states are equal. This is called the sovereign equality of states. 5ll states, like individuals in the hypothetical state of nature, had the natural right of life, that is they can defend their lives. 6or states, this translates into a right of existence and self7defense. )atural &ights 8octrine9 state of nature1 sovereign equality1 right to self7defense1 sovereign immunity1 domestic jurisdiction1 raison d$etat1 so7called rights and duties of states. "ositi&ism. 8uring the *+th century, most of these legal theories rooted in the middle ages and the early modern period were swept away. (aw properly so7called was a command of a definite sovereign backed by sanctions. International law could not meet that definition and was, at best, a kind of second rate law, like customs and traditions in primitive, pre7state, societies. There was no higher authority above each sovereign state. 3tates did, however, deal with each other9 they exchanged ambassadors, traded with each other, and went to war with each other. In their dealings with each other, states made treaties. These treaties did have a kind of legal and moral authority. These treaties, according to the positivists, were the primary source of international law. -ltimately, however, the legal basis even of treaties depended on the consent of the parties. 3tates which violated their treaties too frequently would be distrusted1 no one would deal with them1 they might even provoke a war. International law was obeyed most of the time because it was in the self7interest of states to do so. 5ccording to the positivists, international law applied only to sovereign states. 2nly states were the subjects of international law1 individuals and non7state groups could only be the object of international law. The international system depended on power, military might, and the fortunes of war. International law was a useful tool of power and it provided some organi0ing principles but ultimately each state was sovereign, free to do as it pleased. &eciprocity was an important principle underlying international law. If I mistreat your prisoners of war, you$ll do the same to mine. Traditional &ersus the ew International Law. In the :;th century, international law has undergone a major transformation. )ew subjects have been added "in addition to sovereign states%. 5t the end of World War I, largely at the urging of the 5merican <resident Woodrow Wilson, the (eague of )ations was established. The (eague was an international organi0ation. It was an Inter7!overnmental 2rgani0ation "I!2%. Its members were sovereign states, but the (eague also had a limited legal status in its own right. 5 new structure had emerged within the international system and new rules were made. Treaties were negotiated which made aggressive warfare violations of international law. There was even an effort to outlaw war entirely. 2nly wars sanctioned by the (eague were legitimate. The principle of collecti&e security was to replace the traditional balance of power.