laws120002.02fall semester 20131 international law section 1 introduction: what is modern...

LAWS120002.02 Fall semester 2013 1

INTERNATIONAL LAW

Section 1 Introduction: what is modern

international law?

Prof. Zhang Naigen


The “father” (founder) of modern international law

• Hugo Grotius (1583-1645)

• The emergence of modern international law

• The works of modern international law


The emergence of modern international law

• Background• Dutch struggle against Spanish control

for national independent• Dispute between Dutch and Portugal on

freedom of sea • Thirty Years War in Europe• The need to have the new law of nations


Dutch struggle against Spanish control

• It was taken 80 years (1568-1648) for the successful revolt of the seventeen provinces in the low countries against the Spanish Empire. It led to the formation of the independent Dutch state of the Netherlands.


De facto Independent Netherlands

• European territories under the rule of the Spanish king around 1580

• the Netherlands in light green on a map showing modern-day state borders.

• Netherlands declared independence in 1581.


The works of modern international law

• Commentary on the Laws of Prize and Booty (1604)

• The Freedom of the Sea or the Rights which belong to the Dutch to take part in the East Indian Trade (1609)

• The Law of War and Peace (1625)• The historical event created a great

international lawyer: the case of Catharine


The Case of Catharine Holland v. Portugal (1595-1602)

• The first well-known case of modern international law (Commentary on the Laws of Prize and Booty )

• Cause of the war

• War against Portugal

• The case before the Court of Prize in Hague

• How to settle the case?


Case of Catharine: Cause of the war

• [international trade] Ship dispatched by the merchants of Holland and Zeeland to the various islands of the Indian Ocean not subject to Portuguese rule had been sailing forth on commercial ventures from as far back as 1595, [dispute between Dutch and Portugal on navigation by sea] when our sailors at last prepared to seek vengeance for the slaughter of many their comrades, as well as for the losses suffered both by themselves and by their allies either in consequence of Portuguese calumnies or at the hands of Portuguese emissaries, through the perfidy of latter and [war] finally through the open armed violence of that people and their allies.


War against Portugal

[course of the war] In the year 1602, after several manifestations of hostility of both sides, it so happened that Jacob Heemskerck (Commander of the Amsterdam fleet of eight ships lying in the Strait of Singapore, one of the two straits by which Sumatra is separated from the Malay Peninsula) forced a Portuguese's vessel to surrender and, disbanding its crew, sailed it home.


The Case before the Court of Prize in Hague

[the name of case] This vessel, the Catharine by name, a ship of the class known as ‘caracks’, was laden with merchandise. [one of many cases] Quite similar acts had of course been committed by other persons prior to that time, and have also been committed since then; but inasmuch as this particular instance is for many reasons the mostly widely celebrated, [analysis of case/ purpose of argument] we have chosen it for examination as the episode representatively of all such captures, so that on the basis of this investigation judgment may readily be passed in regard to other cases.


How to settle the case?

• Which court shall have jurisdiction over this case?

• What kind of law shall be applied for this case?

• Grotius contributed his ideas as a Dutch government lawyer.


Jurisdiction

• In regard to judicial procedure, precedence shall be given to the state which is the defendant, or whose citizen is the defendant; but if the said state proves remiss in the discharge of its judicial duty, then that state shall be the judge, which is itself the plaintiff, or whose citizen is the plaintiff.

Commentary on the Laws of Prize and Booty

• The case was taken by the court in Hague.


Applicable laws

• Precepts of the law of nature:• It shall be permissible to defend [one’s own] life and

to shun that which threatens to prove injurious; • It shall be permissible to acquire for oneself, and to

retain, those things which are useful for life;• Let no one inflict injury upon his fellow;• Let no one seize possession of that which has been

taken into the possession of another;• Evil deeds must be corrected; • Good deeds must be recompensed.

Commentary on the Laws of Prize and Booty


The law of nature

• The law of nature is a dictate of right reason, which points out that an act, according as it is or is not in conformity with rational nature, has in it a quality of moral baseness or moral necessity; and that, in consequence, such an act is either forbidden or enjoined by the author of nature, God.

The Law of War and Peace


How to prove the law of nature?

• Proof a priori consists in demonstrating the necessary agreement or disagreement of anything with a rational and social nature.

• Proof a posteriori, including, if not with absolute assurance, at least with every probability, that that is according to the law of nature which is believed to be such among all nations, or among all those that are more advanced in civilization.



Grotius’ idea of law of nations

• The law of nations is based on the law of nature, which has received its obligatory force from the will of all nations, or of many nations.


The law of nations is the law with obligatory force based on the will of all nations.


Traditional definition of international law

• A traditional definition of international law is that it concerns the legal relationships between sovereign states and covers a wide variety of topics such as the law of sea or the laws of war.

Epps. P.3


First modern treaty as international law

• The Peace of Westphalia (1648, three years after death of Grotius)

• The prevailing view in the study of international law is that it emerged in Europe in the period after the Peace of Westphalia (1648), which concluded the Thirty Years War.


The Peace of Westphalia Ratification of the Treaty of Münster


What’s the Peace of Westphalia?

• The term Peace of Westphalia refers to the two peace treaties of Osnabrück and Münster, signed on May 15 and October 24 of 1648 respectively, which ended both the Thirty Years’ War in Germany and the Eighty Years’ War between Spain and the Nethlands. The Treaties involved the Holy Roman Emperor, Ferdinand III (Habsgurg), the Kingdoms of Spain, France and Sweden, the Dutch Republic and their allies among the princes of the Holy Roman Empire. That were treaties among European nations, i.e., law of European nations or inter-European national law.


The Peace of Palace

at walking

area in

Münster


Visit at Peace of Palace in Münster

• It was a convention held at the Peace Palace in the city of Münster, Westphalia of northern Germany

• I visited the Peace of Palace in Münster on July 20, 2005


A simplified map of Europe after the Peace of Westphalia in 1648


Contributions of the Peace Westphalia for modern international law

• The independence of the Dutch Republic, Switzerland, Savoy, Milan, Genoa, Mantua, Tuscany, Lucca, Modena and Parma from the Empire was formally recognized, as these regions had been de facto independent of the Emperors since the late 15th century.

• Barriers to trade and commerce erected during the war were abolished, and 'a degree' of free navigation was guaranteed on the Rhine


Amsterdam citizens celebrating the Peace of Münster, 1648


Evolution of the term of international law

• 1600s-1700s • Grotius: ius gentium (term of Roman law, law of nations) Pufendorf: Volkenrecht (1672) Vattel: le droit de gens (1758) Comparison between Ius and lex droit and legislation equity / justice / right and law (lagu) /legislation

• Jurisprudence: ius prudential • Bentham: international jurisprudence (1789)• 1800s-• Wheaton: Elements of international law (1836), which was translated into Chinese, Wanguo Gongfa (1864)


Scope of international law

traditional int’l law

law of sea

law of treaty

law of diplomatic relation

law of war

new int’l law

law of air and outer space

environmental law

human rights

humanitarian law

international organization

international economic law


Q & A

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