Система Международного Права

It is widely accepted that the enduring legacy of Rome was its legal system and concomitant methods of legal reasoning and systematization. The influence of Roman law is to be seen throughout the world, irrespective of what family of legal systems is concerned. This legacy also has affected the development of the law of nations as that term applied in Rome itself and subsequently came to designate the norms of law applicable to the relations of States and other subjects of international law. As Johnston has noted, “… there is no doubt that the ‘classical’ system of international law, evolving through the 17^th, 18^th and 19^th centuries, owed most of its inspiration to the civil-law inheritors of Roman law … In most areas of international legal doctrine roman law is the best, as well as the first, source of analogy”.¹³

The notion that a body of norms exists as a system to regulate relations between equal sovereigns is an intellectual development dating from the late fifteenth and sixteenth centuries and not something created by States or sovereigns themselves. The explosion of scholarly writing on the subject happened to coincide with the introduction of printing into Europe. The intellectual contribution of Europe to the origin and elaboration of modern international law lies not in the creation of norms, but in the generalization of State practice and the provision of legal support for individual claims through which a systemic dimension was imparted to the law of nations. It is the combination of State practice and learned exegesis that established the foundations of contemporary international law. With the concept of “system” came an understanding of a “society” or “community” to which international law belonged and whose relations it regulated. Some jurists believed in a “universal society” encompassing all of mankind and governed by natural law. Others supported the notion of a “great community” smaller than universal but nonetheless of considerable magnitude. Both concepts were indebted to the Roman Empire. The third concept, enduring to today, of a “community of States” continues to operate as the doctrinal foundation of international law, although the world may be moving more in the direction of a “universal society” at present.

At the level of State practice, the treaties that constituted the Peace of Westphalia (1648) are widely accepted as constituting the “constitution” of the new international system of sovereign States. Although they incorporated provisions ensuring the “exact and reciprocal equality” of members of the Holy Roman Empire, described as their “droit de souverainité” by the French delegation, the right of rulers to determine the official religion of a territory originates in earlier treaties and the balance of power was not introduced until at least 1713 in the Treaty of Utrecht. Rather than being the precise benchmark of the State system, Westphalia is rather symbolic of developments underway in Europe for sometime randomly and a decisive movement towards an international law based primarily on positivism.