Исторические Типы Международного Права
Institutes of international law or systemic conceptions of international law may acquire different features or perform different functions within different systems of international relations. In the opinion of some historians of international law it is therefore relevant when developing periodizations of the history of international law to take into account the nature of the “international system” within which norms of the law of nations were formed and operated at particular moments of human history. P. G. Vinogradov (1854-1925) was among the first to call attention to this phenomenon. In his work on historical types of international law he began by identifying what he regarded as “historical types of law”. С его точки зрения, существует пять типов: (1) племя; (2) город; (3) церковь; (4) договорная ассоциация; и (5) коллективистская организация. Without dwelling on these in detail, suffice it to observe that in his perception:
… эволюция этих групп будет принимать форму международного общения, союзов и федераций. С целью защиты и торговли в различных географических областях и абсолютно разных этнографических комбинациях будут развиваться соответствующие формы взаимопомощи, арбитража, религиозных санкций. Таким образом, на каждом этапе цивилизации мы будем встречать характерные черты международного права.8
Применяя этот анализ к античным греческим городам, он отмечал, что «обычой ошибкой является предположение, что Греческий мир был неполноценен, что нельзя говорить о существовании международного права в обществах, разделенных на множество республик». Наоборот, по его мнению, более тщательное исследование показывает, что «мир греческих городов был приспособлен к развитию международных или, правильнее сказать, межгородских отношений».
Professor Georg Schwarzenberger (1908-1991) elaborated and extended the Vinogradov thesis by suggesting the usefulness of developing models for the purpose of forming a “picture of the historical reality of international law”.9 He considered that the use of models dispensed with the need to devise “fictitious genealogies of contemporary international law”; allows for the more adequate of earlier, now defunct, systems of international law; avoided unnecessary forms of geographical or ethnically-based “centrism” and “parochialism” that linked international law with particular parts of the world; gave a better understanding of the enduring nature of customary international law; and encouraged the study of primary, rather than secondary, source materials.
Отдельные Институты Международного Права
Perhaps as an early manifestation of “eurocentrism”, the majority of historians of international law have concentrated their attention on “classical antiquity in Greece,” 10 which would commence about 600 b.c. However, the earliest records of human society available to us suggest that communities surrounding the Mediterranean Sea, in the Middle East, in the western hemisphere, and in nomadic Central and Inner Asia were in a constant state of warfare punctuated by occasional periods of peace or armistice. It is apparent that early primitive communities engaged in commerce, intermarried, contracted alliances, interrupted conflicts with peace agreements, and practiced the arts of diplomacy in the form of negotiation, communication by heralds and couriers, exchanges of gifts, dispatch of envoys, and the like. When literacy developed, the historical record discloses that treaties were reduced to written form, surviving evidence of which dates from at least the third millennium before our era (the great majority being “vassalage agreements”). The texts suggest that the parties had an understanding of reciprocity and mutuality, that the obligations contained in the treaties were understood to be legally binding (using oaths to the gods as witnesses and guarantors of the agreement), and that a breach of obligations engaged a duty to make reparation.
Submarine archaeology is transforming our understanding of the development of maritime trade. Rafts existed in Southeast Asia as early as 40,000 b.c., and primitive “boats” in Scandinavia date from Neolithic times. The Egyptians probably were sailing craft by the sixth millennium b.c. Long-distance trading by sea was pioneered by the Mesopotamians in the second millennium b.c., with the Phoenicians acquiring legendary skills and eventually linking India and China with the commercial centers of the Mediterranean. Evidence is accumulating that the Chinese had developed a maritime capability much earlier than previously believed.
Whether modern institutes of international law should be regarded as evidence of a continuum from the past, or direct descendants of earlier practices which in the course of time have coalesced into a system of international law, is debated by historians of international law. Douglas Johnston (1931-2006) is undoubtedly correct in suggesting that “It seems more accurate to see the system of international law, as we know it now, as a gradual accumulation of elements – ideas, norms, practices, institutions, and especially values – that were shared in some degree among pre-modern peoples. These ‘elements’ might be regarded as the preconditions of what would evolve into ‘world community law’.”11
For reasons not fully understood or appreciated, around the seventh century b.c. the development of human society in several parts of the world accelerated into a period of qualitative advance without precedent – measured by urbanization, the emergence of a literary tradition, concepts of civic ideals, the formation of religious and philosophical tenets, and an awareness of the desirability of order on a large, if not universal, scale. These were to contribute immensely later to establishing the intellectual prerequisites for the development of international law. For many historians of international law this is the “classical” period of international law.
At the level of “State practice” Hellenic civilization left us with a record of treaties concluded among the “city-States”, alliance strategies and tactics, and rules for the conduct of warfare. Special protections for officials sent on diplomatic missions were developed and respected, suggesting to some that the level of compliance with diplomatic customs reached a level in the fifth and fourth centuries b.c. that was not replicated in Europe until the sixteenth century a.d. The institution of honorary consul is traced by many to the Greek invention of the proxenoi. Third-party dispute settlement in the form of arbitration draws upon the procedures, principles, and formalities developed by the Greeks.
The “Glory of Rome” includes Roman law and legal skills as well as the demonstrated ability to be the most efficient and most successful conquerors in world history. Rome accepted that resort to war should be based on a just cause, requiring in later Roman practice an official demand for satisfaction (bona fides) and a formal declaration of hostilities. A just cause would include an affront to the personal inviolability of a Roman envoy or a violation of a treaty of alliance. The conduct of warfare in Roman eyes was subject to rules of universal application, although they were often breached in practice.
The jus gentium of Rome was at first developed to settle disputes between foreigners within Roman jurisdiction, usually but not necessarily commercial, and eventually extended to disputes between citizens of Rome and non-citizens. It was in essence a system of private law, having nothing to do with disputes between nation-States; a system of transnational commercial law asserted to be universally valid.12 Later the jus gentium would be held to guarantee the natural rights of individuals against rulers and acquire the meaning of the law of nations.
The famous debate of the seventeenth century between Hugo Grotius and John Selden concerning the freedom of the seas revolved around central concepts of Roman law: open sea (mare liberum), closed sea (mare clausum), marginal sea (mare adiacens), resources belonging to no one (res nullius) as opposed to resources belonging to everyone (res communis), supreme power (imperium), and ownership and control (dominium). Roman law supplied the terminology but left the solution to a later age.
By the sixth century b.c., as Greece was commencing to develop, China consisted of nine ancient states constantly at war with one another. Strict procedures were followed in waging warfare comparable, it has been suggested, to European practices under the influence of medieval chivalry. Elements of reciprocity were in evidence. Prisoners were taken and sometimes exchanged; the fruits of pillage were shared. Diplomacy was used to resolve conflicts; treaties of peace and alliance were negotiated. The triumph of the Han dynasty led to the formation of the first united Chinese empire that held power for more than two millennia, the so-called “Middle Kingdom”.
India is more difficult to characterize. Diplomatic relations among entities of the subcontinent undoubtedly existed during the era of Antiquity, and the privileged status of envoys was recognized. But documentary evidence is slim that India did actually develop a “family of nations”, although assuredly there was a system of order in operation in the region.
For Africa it was essentially the Egyptian legacy that was relevant. The remainder of the continent was but slightly affected by the achievements of Eurasian civilization. Islam did not arrive until considerably later.
The end of the Roman Empire was followed by a multi-faceted international order between about 400 a d and the discovery of the Americas in 1492. The Roman Empire fractionated into hundreds of entities claiming authority over territory and individuals, among them the papacy, the Emperor of the Holy Roman Empire (after 800 a d), the Hanseatic League and similar leagues of mercantile cities, the Knights Templar, the Teutonic Knights, and other chivalric orders, and sundry bishops, barons, dukes, princes, and kings. Byzantium and Islam emerged to become powerful actors in the international community. China maintained internal stability without fundamental systemic changes while developing a tribute system. In southeast Asia maritime commerce flourished and contributed to the development of the law of the sea and the law of treaties. The individual institutes of the law of nations lived on, gradually becoming more refined. The more powerful entities based their commercial and maritime relations with others increasingly on legal principles. The rules developed in the third century b c by the Island of Rhodes matured into a “code” and were widely practiced into the post-Roman era.
The arts and institutions of diplomacy were strengthened in the practices of Byzantium and the Italian city-States, with Venice issuing a set of rules regulating diplomacy in the thirteenth century and establishing resident ambassadors from the mid-fifteenth century. Christian States began to establish “consulates” with extraterritorial privileges in Islamic countries. The gradual emergence of diplomatic institutes and concepts of extraterritoriality undermined the complex system of claims to feudal rights advanced by the local nobility and the papacy, who claimed that entities subject to their authority had no right to engage in independent diplomacy. Local rulers increasingly asserted their authority against not only lesser rulers in their own domains, but against outside claimants such as the Pope and the Holy Roman Emperor. What many regard as the first treaty concluded between two equal sovereigns was signed in 921 between Henry I, the first king of Saxony, and Emperor Charles III. At the Council of Constance (1414-1418) Poland asserted its right to form an alliance with the pagan State of Lithuania against the Teutonic Order on the grounds that under the law of nations a community could defend itself irrespective of their religious beliefs if they exercised effective jurisdiction over a particular territory. Although treaties were more extensively entered into during this era, they were regarded as personal agreements between rulers, supported by religious oaths, and not necessarily binding upon their successors unless expressly so provided. A sharp distinction was not yet drawn between the personal and private transactions, on one hand, and more public matters such as marriage, inheritance, and war.
The transition to a system of legal norms regulating relations between equal sovereigns was propelled by a number of factors. The discovery of the Americas and related issues of occupation and colonization raised questions of the legal justification for territorial acquisition and the legal rights of the existing inhabitants. Territorial space and precise boundaries were become more legally significant as sovereignty emerged and cartography developed. Entities whose existence and legal status depended upon something other than territory (religion, loyalty to ideas) were weakened (papacy, chivalric orders). The Reformation became intimately involved in strengthening claims to monarchical sovereignty in Europe against other claimants to power.