INTERNATIONAL LAW
Section 1
Introduction: what is modern
international law?
Prof. Zhang Naigen
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The “father” (founder) of
modern international law
• Hugo Grotius (15831645)
• The emergence of
modern international
law
• The works of modern
international law
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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
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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.
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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.
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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
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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?
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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.
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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.
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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.
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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.
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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.
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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
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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
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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.
The Law of War and Peace
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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 War and Peace
The law of nations is the
law with obligatory
force based on the will
of all nations.
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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
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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.
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The Peace of Westphalia
Ratification of the Treaty of Münster
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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.
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The Peace
of Palace
at walking
area in
Münster
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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
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A simplified map of Europe after
the Peace of Westphalia in 1648
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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
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Amsterdam citizens celebrating the
Peace of Münster, 1648
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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)
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Scope of international law
new int’l law
traditional int’l law
law of air and
outer space
law of sea
environmental law
law of treaty
human rights
humanitarian law
law of diplomatic relation
international
organization
law of war
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international
economic law
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Q&A
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