История международного права

The term “international law” was invented in the English language c. 1780 by Jeremy Bentham (1748-1832) and translated into Russian as «международное право», where it soon replaced earlier Russian terms: «народная правда», «народное право», «право народов», «всенародное право», and others. The origins, however, of international law extend to deepest antiquity, in all likelihood to the very origins of the human species and their subsequent divisions into clans, tribes, groupings, and communities, eventually princedoms, kingdoms, empires, and ultimately States.

For the purposes of the history of international law it is useful to distinguish between the history of individual institutes of international law, the history of international law as a system of law, and the history of doctrines of international law.

The history of international law has been sadly neglected for several reasons. Only rather recently in human history has international law come to be recognized as a fully-fledged legal system. Certain general trends and movements in the history of law also have militated against the detailed study of international law, among them the emergence of positivism, excessive preoccupation with State sovereignty as a principal element of international relations, and a myopic view of world history that distorts and overstates the European role to the prejudice of others in the history of the law of nations. International lawyers have been slow to integrate the recent discoveries and achievements of archaeological, ethnographic, anthropological, linguistic, and historical sciences into their discipline, including access to archives of State diplomatic practice. Modern theories of international law pay almost no regard to the historical roots of the discipline, which is the more astonishing given the historical nature of the international legal system.

Вопросы Периодизации и Международное Право

«Периодизация» in the context of history is the division of the past into periods of time for the purpose of better understanding the development of the course of events or the identification of developmental trends or laws at work in the course of history. Periodization may be purely chronological (days, weeks, months, years, decades, centuries, millennia, epochs, and so on), but more often is linked to factors that are perceived as causing change, usually momentous change, in the development of States or the international system. Any periodization necessarily assumes the application of, inter alia, the comparative method.

The German historian of international law, В. Греве, has correctly observed that «Проблема периодизации истории международного права ... является проблемой, которая еще и поныне либо вообще не обсуждалась, либо обсуждалось в очень общем плане».¹ The very title of Grewe’s work illustrates his concern with periodization, being devoted to “epochs” of the international legal system.

The great majority of historians of international law have identified the history of international law with the general history of mankind to such an extent that international legal development is identified entirely with the periodization of general history without any distinctive features and usually with an overwhelming element of “Europeanization”. The English international lawyer Thomas Joseph Lawrence (1849-1919), for example, divided the history of international law as follows: «В первом периоде – с самых древних времен до Римской империи – государства как таковые не имели взаимных прав и обязанностей. Родство было основой отношений между эллинскими образований ... Во втором периоде – от Римской империи до Реформации – считалось, что отношения между государствами должны регулироваться общей высшей властью. Долгое время Римская империя была такой властью. ... В третьем периоде – от Реформации до нашего времени – руководящий принцип тот, что государства являются образованиями в большом обществе, члены которого имеют взаимные права и обязанности».² Other jurists, such as the American Daniel Gardner (1799-1863), dismissed entirely the earlier period: “No writer pretends that International Law had any existence, until it arose in Europe since the dark ages”.³

As Butkevich has correctly observed, «Часто исследователи истории международного права не только полагали в основу ее деления общеисторические критерии и факты, но и соответственным образом разделяли исторические периоды. Если какой-то важный для развития человечества факт не мог быть использован как критерий для выделения того или иного исторического периода развития международного права, его использовали для дробления этого периода. Чаще всего такими фактами выступали мало характерные для международного права внутригосударственные политические изменения».⁴

It is now widely accepted that Soviet legal doctrine was incorrect when it identified the origins of international law with the origins of the development of the State or with the emergence of national legal systems.⁵ Whatever periods are chosen, international law developed in connection with the systems of relations between the subjects of international law, that is, what in modern terminology is called international relations. Moreover, at no time in its history has the international legal system established or imposed temporal requirements as to when particular norms or systems may have developed. In diplomacy or in international judicial or arbitral proceedings or in national courts the parties are at liberty to cite relevant evidence of international practice from any time period. International Law is an “historical system of law”.

A scientific periodization of international law must address several issues and take into account a number of factors. The first is concerned with evidence of the existence of institutes of international law in the earliest times of human history. We have every reason to draw the logical inference that when human communities began to enter into contact or relations with one another, they engaged in commerce, they went to war with one another, they made peace, they exchange persons who would later become heralds or envoys, the established a sense of territory and territorial possession or jurisdiction, and so on. For the earliest eras we have no written evidence of these relations and depend upon archaeology, legend, anthropology, and other sciences for glimpses into these times. The nature of the communities we assume to be families, clans, tribes, empires, and analogous formations (not, in other words, States). We can only conjecture about the extent to which such institutes existed, how and why they were (or were not) perceived as binding, how they may have evolved in the course of practice and experience, and how their existence and substance may have been transmitted from one grouping to another.

The term “international law” is hardly appropriate for this period, sometimes termed the period of the “pre-history of international law”. Some have suggested that we speak of “inter-tribal” or “inter-clan” law to more accurately reflect the true subjects of such law and the absence of a developed system of international relations. Nonetheless, we have every reason to assume that what became individual institutes of international law were present at least at an embryonic stage during this period.

The second issue is the element of “regionalism” or “localism” in the early development of international law and, indeed, still present to some extent. These considerations are also a reflection of international relations, the ability of peoples to travel, migrate, from one area to another, the extent to which they acquired mastery over other territories or adjacent peoples. For various periods of the history of international law we refer to the “Greek” and “Roman” worlds, the “Chinese” and the “Indian” regions, the “Americas”, the “Southeast Asian” archipelagoes and peninsulas, among others. The nineteenth-century histories of international law have been criticized, justly, for their “euro-centric” orientation,⁶ just as international law of that era was also characterized for the same shortcoming.⁷ These are all expressions of the “regionalism” of international relations in earlier human history, although evidence is gradually accumulating that peoples of the past may have had much greater contact with one another than was previously believed both by sea and by land. It cannot be excluded that knowledge of individual institutes of international law was transferred in the course of such contacts, such that we may speak of an “inter-regional” law of nations at a relatively early stage of human history. Some specialists consider these “inter-regional” contacts to represent the embryo of different “types” of the law of nations (см. ниже).