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International Law:

Historical Development,

Theories and Sources

Submitted by:

Clint Lou Matthew P. Estapia

Subject:

Public International Law

Professor:

Atty. Fretti G. Ganchoon


International law, also known as International Public Law or the law of
nations is a set of various rules, norms, and standards generally accepted in the
relationship between various states and nations. It establishes normative guidelines
and a common conceptual framework for states to follow across a broad range of
domains, including war, diplomacy, trade, and human rights1.

Basic concepts of international law such as treaties can be traced back


thousands of years ago across the vast expanse of human history. Various
agreements has been established between different warring tribes and kingdoms
even before the advent of recorded history. Early examples of treaties includes the
treaty that was enacted around 2100 BC, which is an agreement between the rulers
of the city-states of Lagash and Umma in Mesopotamia, inscribed on a stone block,
setting a prescribed boundary between their two states2. Around 1000 BC, an
agreement was signed between Ramses II of Egypt and the king of the Hittites
establishing "eternal peace and brotherhood" between their two kingdoms. The
treaty established an agreement of respect with regards to each other’s territory and
establishing a form of defensive alliance between the two former enemies3. The two
kingdoms also signed a peace treaty ended the Egyptian Hittite war in 1276 BC.
The two ancient superpowers finally ended the war that lasted more than 80 years
with the treaty. While the treaty was not the first in the history of the world, it is the
oldest known that was concluded between two independent states with equal power
and status.

During the classical period, the Roman Empire, on their part, did not or
refused develop an international law, as it acted without regard to any external rules
in its dealings with those territories that were not already part of the empire since
they are considered barbarians. The Romans did, however, form municipal laws
governing the interactions between private Roman citizens and foreigners called
the jus gentium 4. These laws, embodied some ideas of basic fairness, and

1
Slomanson, William (2011). Fundamental Perspectives on International Law. Boston, USA: Wadsworth.
pp. 4–5.
2
Nussbaum, Arthur (1954). A concise history of the law of nations. pp. 1–2.
3
Mishkov, Alexander (2015). Egyptian Hittite Peace Treaty - One Of The Oldest Treatise In The World.
http://www.documentarytube.com/articles/egyptian-hittite-peace-treaty--one-of-the-oldest-treaties-in-the-
world
4
R.W. Dyson, Natural Law and Political Realism in the History of Political Thought (Peter Lang, 2005),
vol. 1, p. 127.
attributed some rules to an objective, independent "natural law." The ius gentium is
not a body of statute law or a legal code, but rather customary law thought to be
held in common by all gentes ("peoples" or "nations") in "reasoned compliance with
standards of international conduct"5.

In the middle east, during the advent of Islam, early Islamic law's principles
or the shariah law concerning military conduct and the treatment of prisoners of
war under the early Caliphate of the Umayyad and the Abbasid are considered
precursors to international humanitarian law6. The many requirements on how
prisoners of war should be treated included, for example, providing shelter, food
and clothing, respecting their cultures, and preventing any acts of execution, rape or
revenge. Some of these principles were not codified in Western international
law until modern times. Islamic law under the early Caliphate institutionalised
humanitarian limitations on military conduct, including attempts to limit the severity
of war, guidelines for ceasing hostilities, distinguishing between civilians and
combatants, preventing unnecessary destruction, and caring for the sick and
wounded7.

In the years following the fall of the Roman empire from the various barbarian
tribes that surrounded it, western civilization reeled back into isolationism in order to
rebuild their broken sociaety. As the dark ages passed and the middle ages
reached its dawn, international trade became the real catalyst for the development
of objective rules of behaviour between states. As the different european states
once again began to look outward, and without a code of conduct to guide them,
there was little to guarantee trade or protect the merchants of one state from the
actions of another. Economic self-interest drove the evolution of common
international trade rules, and most importantly the rules and customs of maritime
law. As international trade, exploration and warfare became more involved and
complex, the need for common international customs and practices became even
more important. The Hanseatic League of the more than 150 entities in what is now
Germany, Scandinavia, and the Baltic states developed many useful international

5
David J. Bederman, International Law in Antiquity (Cambridge University Press, 2004), p. 85.
6
Malekian, Farhad (2011). Principles of Islamic International Criminal Law: A Comparative Search. BRILL.
p. 335. ISBN 9789004203969.
7
Saeed, Abdullah (2018). Human Rights and Islam: An Introduction to Key Debates between Islamic Law
and International Human Rights Law. Edward Elgar Publishing. p. 299. ISBN 9781784716585.
customs, which facilitated trade and communication among other things 8. As the
European trade market begun to flourish, and new sources of trade goods are being
discovered in the east, major European powers begun to expand beyond the
confines of the known world. The Treaty of Tordesillas, between Portugal and Spain
(technically its component Kingdom of Castile), was negotiated by the Papacy and
divided newly discovered lands outside of Europe between the two countries along
a line of longitude through what is now eastern Brazil9.

After the devastation of the thirty years war and the European wars of
religion, The Peace of Westphalia established the precedent of peace established
by a diplomatic congress. A new system of political order arose in central Europe,
based upon peaceful coexistence among sovereign states. Inter-state aggression
was to be held in check by a balance of power, and a norm was established against
interference in another state's domestic affairs. As European influence spread
across the globe, these Westphalian principles, especially the concept of sovereign
states, became central to international law and to the prevailing world order10.

As the world entered the 19th and the 20th centuries, various countries have
managed to avoid war and enagaged in it leading to various international norms and
customs established along the way. The devastations of the first and the second
world war would be the turning point in the history of International Law. As various
nations

8
Smith, Jillian R. (May 2010). "2". Hanseatic Cogs and Baltic Trade: Interrelations Between Trade,
Technology and Ecology(Thesis). University of Nebraska at Lincoln. Retrieved 1 July 2019.
9
Pillalamarri, Akhilesh (November 2016). The 5 Most Important Treaties in World History.
https://nationalinterest.org/blog/the-buzz/the-5-most-important-treaties-world-history-18380
10
Henry Kissinger (2014). "Introduction and Chpt 1". World Order: Reflections on the Character of Nations
and the Course of History. Allen Lane. ISBN 0241004268.