Contents Page

Introduction 1

International Law 2

Brief on the Treaty of Westphalia 3

International law predating 1648 4-6

Conclusion 7
Introduction

This paper seeks to discuss whether or not international law began with the Treaty of

Westphalia. While it will highlight that the treaty began what is considered as the

emerging of an international system, it will also note that the notion of international law,

though not formally referred to as international law, predates the treaty altogether. It will

first define the terms of international law and the Westphalian Treaty, thereafter reaffirm,

using research data that international law had existed prior. Historical evidence will be

used to prove the aforementioned.

International Law

It is the general acceptance that international law is largely created and put to effect by

states, hence it’s origination from the words ‘law of nations’ or ‘Droit te gens’. The term

‘international law’ itself is said to have first been used by Jeremy Benthan in 1780 and has

replaced the aforementioned terminologies in 18401. Until the time of the World Wars, it

was the consensus that this was the law that governs relations between states.

While the term has been used in 1780, it can be considered to have been around quite

some time before. It is seen in research to have been identified as straightforward notions

in political relationships many moons ago.2 Specifically pointed out were treaties and

decrees signed between rulers, which outlined a key concept of international law;

boundaries, cordial relations.3 Ideally, the concept of international law has been seen as

a collection of agreements, rules, and treaties which are considered binding, this is

between countries, specifically, sovereign states. There is a consensus for the promotion

of justice, interest, peace and trade.

While acknowledging that international law, more so the term, was coined in the 1700s,

it can be considered a derivative of treaties, customs, and general practices

1 Malanczuk, P., & Akehurst, M. B. (1997). Akehurst's modern introduction to international law.
London: Routledge.
2 D.J. Bederman, International Law in Antiquity, Cambridge, 2001.
3 Nussbaum, Law of Nations
Brief on the Treaty of Westphalia

Signed between May and October of 1648, the treaty ended the European Wars which

were considered as religious war which included the Thirty Years of War (1618-1648).4 It

is argued that this was responsible for the emergence of the international system. 5 It is

said that this Westphalian Peace pushed the ideologies of cohesion between states and

made way for formal diplomatic relations.6 For the most part, as said, Europe's centre

experiences several religious confrontations between the Roman Catholics and the

Protestants, challenging the right of the emperor of the Roman Empire to decide their

religion.7 Again, this has been outlined as one of the most pertinent documents in the

Western world’s history, but, by extension, it established these legal principles and

foundations for our modern system.

4Clodfelter, Michael (2017). Warfare and Armed Conflicts: A Statistical Encyclopedia of

Casualty and Other Figures, 1492–2015. McFarland

5Osiander, Andreas (2001). "Sovereignty, International Relations, and the Westphalian Myth".
International Organization
6Henry Kissinger (2014). "Introduction and Chpt 1". World Order: Reflections on the Character
of Nations and the Course of History
7Steven L. Spiegel et al, World Politics in a New Era, Belmont, CA: Wadsworth/Thomson
Learning, 2004, 150.
International law predating 1648

As noted, the position of the paper is to indicate that international law predates the treaty

of Westphalia. It is said by German diplomat and historian Grew, that there existed three

distinct systems of international law, which separated major powers of the time; 1494-

1648 – Spanish age, 1648-1815 – French age, and 1815-1993 English age.8 Though many

predate 1494, the earliest account in the Spanish age could be considered as the Treaty of

Tordesillas which aided in the division of discovered lands outside Europe. This was done

between the Empires of Portugal and Spain.9

Drifting from those later years, it has been found that there were earlier agreements,

specifically around 2100 BC. This was in the form of a treaty signed between the rulers of

Lagash and Umma (city-states) located in Mesopotamia. It is said that the treaty defined

a boundary which ought to be respected by both sides and was written in stone 10,

somewhat similar to biblical references of ‘The Ten Commandments’ which itself, as a

religious authority, saw many upholding in the spread of Christianity. Further, in the

context of the treaty between Lagash and Umma, was the agreement between Ramses II

and Hittites in the aim of creating eternal peace. 11 According to the Nussbaum (Law of

Nations), it appeared that from the agreement, the establishment of territorial integrity

appeared, and the elimination of aggression and establishment of an alliance for defence.

Moving back to the mention of Christianity, many rules relating to the aforementioned

8 Grewe (1984), op. cit., 43.

9 Parise, Agustín (23 January 2017)
10 Nussbaum, Law of Nations, pp. 1–2.
11 Nussbaum, Law of Nations, pp. 1–2.
were handed to religious persons, founded on morality, peace and social justice, identified

as key to man’s existence.

Notwithstanding the mentioned, we find that sovereignty (a key component of

international law) was present. This being the state’s possession of supreme legislative

and political power. Which gears to the sixteenth century in the years of Machiavelli,

Hobbes, and Bodin.12 It is argued that international law is based on the principle of

sovereignty, and that sovereignty is the most important principle of international law.

sovereignty is the criterion for membership in the international society, and that

(sovereignty in sum is the ‘cornerstone of international law’) and the ‘controlling principle

of world order’.

Further, around same 2100 BC, between rulers of ancient empires, operations were

founded on the principles of pacta sunt servanda (agreements must be kept), and good

faith, both of which are recognized by the Vienna Convention as fundamental principles

of modern laws of treaties.

Additionally, before the Westphalian treaty, there was the Peace of Augsburg, which had

been documented as the legal basis for which Catholicism and Lutheranism could've

existed in Germany. This was promulgated in 1555. It has been understood that the peace

allowed the state princes to decide the religion of their sphere and allowed the exit of

residents who chose neither. The legislation officially ended the conflict between the two

groups.13

12 T.L.Thorson, A History of Political Theory, 4th edn 1973, Part III: The Theory of the National
State.
13 https://www.britannica.com/event/Peace-of-Augsburg
In this sense, it is of my belief that with the evidence of relations presented, it shows

plainly that while in disarray, man has intended to create a system whereby there are

interconnected. With the fall empires in the 5th century and ongoing war, nation-state

groups emerged creating rules to develop and govern interstate relations. These include

trade laws, maritime laws, and Christian laws to govern groups. Subsequent to this and

growing wealth, rules became necessary.

Conclusion

While we understand that the formal and essential structure of international law was

mapped out during the European Renaissance, we must acknowledge that the origin of

this idea presents itself way back in historical reference and in itself can be traced to

agreements between peoples and nations in the ancient Middle East and Europe.