History of International Law, Ancient Times to 1648 Wolfgang Preiser
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History of International Law, Ancient Times to 1648 Wolfgang Preiser Content type: Encyclopedia entries Product: Max Planck Encyclopedias of International Law [MPIL] Module: Max Planck Encyclopedia of Public International Law [MPEPIL] Article last updated: August 2008 Subject(s): Ancient Times to 1648 Published under the auspices of the Max Planck Institute for Comparative Public Law and International Law under the direction of Professor Anne Peters (2021–) and Professor Rüdiger Wolfrum (2004–2020). From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 30 September 2021 A. Introduction 1 The following survey of the early history of the law of nations is confined to those periods which have proved to be of importance for modern international law. Developments which have had no noticeable influence on the modern law have been left out of account. The evolution of international law in the Far East and in South and South-East Asia are treated in separate articles. This article deals principally with European developments in the narrower sense, beginning with the international law of the ancient Greek city-States; however, it also includes an account of the legal features of an international character in the ancient Near East, whose close connection with the cultures of pre-classical antiquity is now recognized to an increasing extent (see also → International Law, Regional Developments: East Asia; → International Law, Regional Developments: Latin America; → International Law, Regional Developments: Islam; → International Law, Regional Developments: South and South-East Asia). 2 The article principally concerns those periods in which the law of nations played a substantial part in determining the practice of international relations (→ International Relations, Principal Theories). Other periods, in which individual legal features of an international nature did exist, but which did not produce a functioning international legal system, are dealt with only to the extent required by the context. B. Ancient Times (3000 BCE to AD 400) 1. Pre-Classical Antiquity 3 Around the beginning of the third millennium BCE, the Sumerians in southern Mesopotamia and the Egyptians in the Nile valley became the first peoples to cross the threshold between prehistory and early history. Through the invention of writing and the establishment of chronology they acquired the means of recording the life of both the individual and the community and putting it into historical sequence, and thus gained a heightened awareness of their existence. Only then were the conditions created in which a meaningful and purposeful ordering of life, the development of law, and the definition of interests on the basis of law became possible. 4 However, international relations in the Near East in the third millennium and the first half of the second millennium cannot be regarded as being regulated by law. Egypt cannot be considered as a party to international relations at this time, since until around the middle of the second millennium it only engaged in relatively sparse trading with the Syrian coastal region and otherwise remained predominantly in the traditional isolation of the Old Kingdom until the age of Hyksos (circa 1650 to 1550 BCE). The lively dealings between the Sumerian city-States in Mesopotamia did indeed provide the external conditions for an international legal order to come into existence; however, the instability of these relations and, above all, the lack of a developed sense of legal rights and obligations meant that, here too, the evolution of an international legal order did not progress beyond an early stage. The codifications of national law, which are found from the end of the third millennium in the Near East, at first only affected the position of the individual in the State. Even a ruler such as Hammurabi of Babylon (1729 to 1686 BCE), whose care for securing the legal rights of his subjects is evident, pursued an unscrupulous policy of using force to achieve external objectives. It was only with the consolidation of relations between States in the 16th century BCE that the internal and external conditions necessary for the development of an international legal system were met at the same time. From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 30 September 2021 5 The political equilibrium that provided the foundation for a system of international relations, based inter alia on law, in the ancient Near East from the middle of the 15th century BCE until the inclusion of the so-called ‘maritime peoples’ around 1200 BCE, involved—admittedly not precisely at the same time—five independent States of equal rank: Egypt, Babylonia, the Hittite Kingdom of Asia Minor, the Mitami from the north-west of Mesopotamia (who flourished before the middle of the 14th century BCE), and the Assyrian Empire (whose power increased as that of the Mitanni declined). These two and a half centuries were by no means free from military conflict, but the predominant impression is one of a varied international life, ranging from extensive trade and cultural contacts to frequent close links between the rulers and their families and to many legal ties. A close network of international relations came into existence, supported by a uniform international language, Akkadian, and included a number of States of lesser importance in addition to the principal powers. Although, no doubt, only a fraction of the surviving material has so far seen the light of day, archaeological evidence enables us to know more about the international relations of this period than about those of many periods closer to our own time. Such evidence includes the tablets recovered at El-Amarna in Upper Egypt from AD 1887 onwards, which provide information on Egyptian foreign policy in the first half of the 14th century BCE; the clay tablets from the archives of the Hittite capital Hattusas (modern Boghaz Keui), which have been excavated since AD 1906; the diplomatic correspondence of the local rulers that was discovered from AD 1929 onwards in Ugarit in northern Syria (modern Ras Shamra), and many other discoveries. The richest sources of information concern the international relations of the Hittite Empire. 6 The need felt by the Hittites in this, as in other aspects of life, to clarify their relationship with the surrounding world, led them to bring their relations with other States, as far as possible, into a definite legal order. Besides ‘allies’, on the one hand, that is to say rulers of equal rank, with whom there existed treaties of friendship and alliance (Alliances), and ‘enemies’ on the other, they knew two further forms of association between States, both based on inequality: the relationship of vassalage, which is sometimes more a matter of national public law than international law; and the position of kuiruana man, ranking between an ally and a vassal, which was legally a kind of protectorate. The rulers recognized by the Hittite Emperor as his equals—the kings of Egypt, Babylonia, Assyria, and the Mitanni—are expressly listed as equals in the texts of Hittite treaties from the end of the 14th century BCE. Only one of these treaties between equals—admittedly the most important—has been preserved: the peace treaty (→ Peace Treaties) of about 1270 BCE, 16 years after the battle of Kadesh on the Syrian Orontes, between Egypt and the Hittite Empire. This contained a defensive alliance, a non-aggression pact, an obligation to render assistance against rebel subjects, mutual guarantees regarding the succession to the throne, and provisions concerning extradition (→ Extradition; → Non-Aggression Pacts). It was characteristic of a treaty concluded between equals that both parties should swear to it; the treaty was perfected by mutual obligation (lex) and attestation. By contrast, treaties concluded with rulers of lower rank than the Hittite Emperor—whether under international or national law—were characterized by the fact that, in general, the other party swore to a text placed before him by the Emperor, although he would also invoke his own gods as witnesses to his oath. In contrast, the treaties later dictated by the Assyrians were, in most cases, sworn to in the name of Assyrian deities alone, and for this reason cannot, as a rule, be considered as part of international law. The Hittite laws of war were also characterized, by comparison with what was usual in the ancient East, by respect for legality and humane behaviour. A typical example is the institution of ‘submission at the place of conflict’, which From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2021. All Rights Reserved.date: 30 September 2021 preserved a besieged town from destruction and its inhabitants from being taken into captivity. 7 The collapse of these States and their legal order around the year 1200 BCE was followed by several centuries of pronounced international anarchy and then, from the ninth century BCE, by the era of Assyrian supremacy, during which efforts to achieve unlimited world domination largely excluded the development of international legal relations. After the end of Assyrian rule, a new equilibrium was established in the Near East at the end of the seventh century BCE between Egypt and the Median, the New Babylonian, and the Lydian kingdoms, but this had to yield soon after the middle of the sixth century BCE to the Achaemenid Empire founded by Cyrus. 2. Ancient Greece and Persia 8 International legal relations within the ancient Greek world existed from the time that the subjects of an international legal system had been created in the form of the internally autonomous, externally sovereign city- or municipality-States (polis), at the latest by the end of the seventh or the beginning of the sixth century BCE (→ Sovereignty). The international legal order which bound these city-States together ended with the loss of Greek freedom at the battle of Chaeronea (338 BCE).