Historical Development of Public International Law

By – Abhishek Kaushal [1]

Introduction

Law brings and keeps members of the society together in their obedience towards accepted standards and values. Law is a system of rules that governs how people behave in society and examines the beliefs and engrossments of the society in which they live. There exist several distinctions between “law within a state” and the “law that is working inter-state” or amongst nations. such law also applies to states, individuals, and international organisations. Private (“conflict of laws”) international law deals with cases where foreign entities invade and raise problems about how foreign law should be applied or what function do international courts have in public international law. (“international law”).[2] Whereas, Public International law envelopes inter – state relations and regulation of several functions of international organizations.

Historical development

The growth of western customs, culture, and political bodies established the foundation for public international law. The evolution of the European concept regarding a sovereign and the free nations were in need of a method for conducting inter – state relations according to the generally adhered standards behavior. This requirement was fulfilled by international law. While characterization of international law may be done on a technical and theoretical basis: wherever there were relations amongst state like entities (groups of societies), there was likely to be a law that governed those relations. Thus, historically public international law goes far back in time.

Early origin

While the current system of international law can be detected of being about 400 years old, the fundamental ideas of international law it can be seen in public relations centuries ago. [3] About 2100 BC ago, a formal treaty was made and inscribed between rulers of Umma and Lagash, in Mesopotamia. The treaty, engraved on a chunk of stone, was concerning the establishment of specified boundaries that were to be respected by both sides. [4] The next major instance concerning an important international treaty of binding nature was one which was made about a thousand years later for establishment of eternal peace and brotherhood between The King of Hittites and Rameses II of Egypt.

Since that treaty various agreements amongst rival Middle Eastern rulers were made, generally relating to creation of political union in order to maintain a supremacy of a super-powerful dynasty. [5] It’s also worth mentioning ancient Israel’s role. For instance, Prophet Isaiah proclaimed that sworn accords must be performed even where such accord is with a foe. He believed that social justice and tranquility were the explanation to the existence of a man and not power. Many cultures and customs emerged in the Far East, particularly in Chinese and Indian civilization, prior to the birth of Christ. Several Hindu cultural standards depicted a growing sense of kindness and morality.

The Chinese civilization put a lot of effort into ensuring that its constituents were in sync. As the ideologies of ancient civilizations were culturally restrained, there wasn’t any concept of an international body of nations of co – existing inside a delineated structure. Purview of the law of nations was very limited.

The epoch of Greece from about the 6th Century BC to couple of centuries is of importance. It’s crucial and logical bent of mind; continuous examination and study of nature and the man and its fascination for discussion and argument were spread all over With the Renaissance, Europe and western ideologies were permeated. Several treaties in Greece linked the city-states in a framework for economic and strategic cooperation.

State people in each other’s zone or area were granted remedies. Regulations for protection and sanctity of diplomatic delegates were developed. However, despite the growth of colonies, no sight of a world community could be tracked back to that epoch. This was done by the administrators of the Roman Empire. [6]

The early Roman law (“the jus civile”) only applicable over the people of Rome. It was a formal and a rigid law which was unable to dispense material support for expansion and development of the state. This requirement was fulfilled by the development and ongoing growth of “jus gentium” (“law of people”). This provided simplified regulations to keep relation amongst citizens and foreigners in order. Later, The later legislation constituted Roman Empire civil law but were regarded as having obvious implications. One of the most prominent Greek doctrines that the Empire adopted was natural law. [7]

The concept of natural law created a set of regulations having worldwide application. These regulations were rational and logical. As the theory notions of ‘law of nature’ were embedded in human intellect, it wasn’t restricted to any states or area or community and hence has a universal relevance. Natural law was thought to exist independently of the law of “jus gentium”.

The “Corpus Juris Civilis” (body of civil law), a collection of legal works by numerous Byzantine scholars, compiled the traditional standards of Roman law. When the Roman Empire fell apart and the medieval Era Days darkness began to lift, this collection proved priceless.

At this point, the evolution of Islam must be mentioned. Its opinion of the global community and the legal system is based on an unfavourable position in the direction of non-Muslims and the concept of togetherness, “Dar – al – Islam”, in the middle of the Muslim nations. The law concerning diplomatic delegates was built upon the ideas of safety and hospitality (“aman”), while rules related to international treaties emerged out of the idea of arose from the idea of keeping agreements made. [8]

The Medieval Period and the Revival

The structured Pope’s command and the vast system of authority that the Church possessed defined the Medieval Period.[9] There was only one faith in Europe, and the church’s law was imposed to everyone. During this epoch, power of the Holy Roman Empire and universal nature canon law was of particular importance. With time, law relating to merchants, maritime and commerce developed.

The “Law Merchant,” a collection of laws that surrounded foreign traders, was developed by English law. Later it proclaimed to be of universal relevance.[10] Such commercial and maritime codes were the part of the forbearers of international law as being formulated against the background of cross – national relations and indicated the necessity of laws for enveloping the international conditions.

The initiation of printing in the 15th century provided a means to disseminate information, and the growth of commercial groups provided the backdrop for the emergence of a new inquiring viewpoint. The advancement of nation – states of Spain, France and England, depicted the method of formation of territorially joined independent units.

This paved the way for a higher level of contact with supreme units, as well as the need to monitor and supervise certain operations in a consistent manner. From these hectic struggles, several essential of modern international life developed, such as theory of balance of authority, statesmanship, idea of community of states and diplomacy.[11]

It was the development of the idea of an international community of individual states that marked the starting point of international law. Accordingly, a unique principle to support international connections was anthropomorphized and the international law was heralded as an element of universal natural law. The primary philosophers of the law of nations were engrossed with the concepts of Natural Law and their philosophies were founded on the tenets of natural law.

With such an intelligent backdrop, the scholars of Renaissance period addressed the question of the grounds and explanation of a system of the law of nations. Sir Henry Maine, a jurist belonging to the English Historical School of Jurisprudence, wrote, “The birth of modern public international law was the grandest function of the law of nature.” [12]

Modern Public international law’s forefathers

The works of thinkers and jurists throughout the Spanish Golden Age reveal the intrinsic essence of current international law.[13] “Francisco Suarez” (1548 – 1617) was a Spanish theorist and theologian. He was of the opinion that the mandatory feature of international law was founded on theory natural law. He also pointed out that the core of international law was derived out from divine law rule for carrying out contractual contracts.[14]

From a dissimilar backdrop but fairly prominent was the Italian jurist “Alberico Gentili” (1552 – 1608) is credited as the founder of the scientific theory in civil conventions, and thus downplayed the importance of theology dissertations at the time.   It is however, “Hugo Grotius, a Dutch scholar is known as the father of international law”. He stated that if there were no God, the natural laws will be legitimate. Nature’s law has now restored to becoming only based on logic. Equity had been an integral component of person’s societal structure, making this not only helpful but also necessary.

He noted, “theological distinction between a just and an unjust war, a notion that was soon to disappear from treatises on international law, but which in some way supported the modern approached to aggression, self-defense and liberation.” He is of the idea that a particular nation cannot expropriate the high seas for their own as they belonged to all.

Positivism and naturalism

On the one hand there was the natural school of law, epitomized by German philosopher and jurist named Samuel Pufendorf (1632 – 94).[15] Pufendorf tried to discover the international law completely from the concepts of natural law. He regarded law of nature as a moralistic concept and refuted the soundness of the regulations regarding customs. He further refuted the relevance of treaties in discussion on law of nations.

One of the founding fathers of the positive school of jurisprudence and founders of the law of nations was the English jurist Richard Zouche (1590 – 1660). While absolutely completely laying aside the law of nature, he gave very little attention to the traditional doctrines. Similarly, the Dutch philosophers, “Cornelius Bynkershoek (1673 – 1743)” emphasized the importance of new technologies was largely ignored, as was the natural law. Bynkershoek contributed significantly towards the growing notion of impartial or quasi conflict combatants’ roles and obligations.

The positivist outlook was acquired from the experience embraced by the Renaissance. The method was more concerned with monitoring episodes as they occurred and reflecting on the real difficulties that arose, rather than with developing a theory based on inferences from absolute principles. The ideology was that it was of key importance what the nations do in reality and not what they would have had done in the backdrop of basic norms of natural law. The quintessence of international law was agreements and norms recognized by governments.

The works of a Swiss lawyer named “Vattel (1714 – 67)” contain ethos of positivism and naturalism. He initiated a notion of equality and fairness of nations into the law of nations, declaring, “A small republic was no less a superior than the most powerful kingdom, just as a dwarf was as much a man as a giant.” “Vattel” downplayed the value of environmental justice by distinguishing between moral and action laws. He believed that only laws of action could be of utility from the practical aspect.[16]

The 19th century

The 19th century, in contrary to the eighteenth, had been a realistic and utilitarian epoch. The Convention of Austria created a national global system, which would be based on the Continental normative framework. The international treaties pivoted around the European culture, traditions, ideologies and rules.

The region was maintained by Christian nations, into which foreign states could only enter on terms and permission of the Western powers. The era also saw Latin America gaining independence. Independence of region and states coming under the region led to the creation of a unique perception the specifics of civil conventions as applied by the countries in the area, for instance, diplomatic refuge and reception of foreign nationals. Patriotism and democracy encouraged on by the French revolution wars and kingdom.

Both spread all over the continent and changed the essentials and framework of international relations. All these elements generated a huge growth in the quantity and range of both private and public international entities, and the law of nations proliferated to maintain and control these entities. This century also saw the academic study of international law in higher education institution, where theorist and professors were employed and special textbooks also appeared that highlighted the operation of nations.

It was the German philosopher “Georg W.F. Hegel” analyzed “doctrine of the will of the state”. He opinion that “The individual was subordinate to the state, because the latter enshrined the ‘wills’ of all citizens and had evolved into a higher will, and on the external scene the state was sovereign and supreme.” Evolution multilateral obligations and norms persuaded the philosophers belonging to positivist school, to address these issues of law of the nations. Consequently, due to such efforts of the positivist theorists, two schools of thought, i.e., monistic and dualistic school of thought, surfaced out.

The theorists belonging to the former school were of the opinion that there only existed a unitary foundational theory which was the bedrock of both international and national law. Theorists belonging to the latter school of thought emphasized the element of consent. Publication of various tenets of international law was also in this century. These works stressed upon the significance of behavior of nations towards evolution of norms or international law.[17]

The twentieth century

The zestful and sanguine nineteenth century saw its closure with the happening of World War – I. The most significant bequest of the “1919 Treaty of Versailles” was considered through the founding “United Nations”.[18] League comprised for an executive council and an assembly. However, it was impaired from the beginning due to non – attendance of “Soviet Union and the United States” and thus remained Eurocentric organization. In 1931, China got invaded by Japan and after a couple of years they withdrew themselves from the League.

Ethiopia got attacked by Italy, and Germany continued unbridled upon a series of external and internal aggressions. Following the invasion of Finland by the Soviet Union, they were expelled from the organization in 1939. In its short existence the “League of Nations” helped in the consolidation of the “United Nations”.[19]

League of Nations was succeeded the United National Organization (“UNO”) in the year 1946 after the traumatic experience of World War – II. UNO tried to rectify and resolve many of the errors and issues respectively that were faced by the League. Its establishment in New York.

Third-World Countries

The fragmentation of western empires and the formation of new nations from referred to as Middle East was one of the key definitive episodes in the post – revolutionary period since World War II. The Eurocentric principles upon which the international law was based including the values of Christianity and urbanization did not contemplate the necessities and concerns of the nation’s recently gotten independence in the mid and late twentieth century.

In their search for a safe haven within the geographic bounds of the generally recognized regulatory regime, the new states have enthusiastically adopted the principles of nation-state supremacy or fairness, as well as the notions of free from intervention and aggression.

As the agony of decolonization decreased and the sovereignty of the west is disintegrated, there is a possibility that substantial disagreements and contrast in perspectives may arise. This shift and tendency will further lead to a far better understanding of the historical conceptions and traditions that existed before happening of colonization of nations. It will also lead to a rise in consciousness regarding the application and validity of these conceptions and traditions for future evolution of state sovereignty.

The axis of disagreement is shifting from Northwest to Southeast with the fall of communism and the proliferation of the Russian Empire, which eventually became today’s Russia, as well as Western collaboration. It has started to show that various distinctive matters ranging from law of human rights to law of the sea to the economic law, considering the effect of modern technology has not yet been fully recognized and acknowledged.

Conclusion

While the modern evolution of the law of nations was just around four centuries old, the fundamental concept of international law is centuries old. From agreements being made on a stone block in 2000 BC to the establishment of several international organizations in the twentieth century, international law has been massively developed. Since the supremacy of ideas of Christianity and theories of philosophers in the Renaissance which had formed the foundation of international law, modern and liberal and universally relevant concepts, the principles of public international law have evolved manifold.

It can be observed that as the nation’s de – colonized and gained independence the Eurocentric ideologies and the supremacy of the European continent declined, new concepts and theories of international law emerged. The power had finally shifted away from Europe and with such decline in power; the twentieth century saw the rise of the third world countries and disintegration of the remaining colonial powers. All in all, with time the world has seen the historical development and evolution of international law.

References

  1. 3rd year student, B.B.A. LL.B., Delhi Metropolitan Education, Noida (Uttar Pradesh)
  2. This term was first used by J. Bentham: see Jeremy Bentham, Introduction to the Principles of Morals and
    Legislation
    (Oxford University Press, London, 1st edn., 1780).
  3. D. J. Bederman, International Law in Antiquity (Cambridge University Press, Cambridge,2001)
  4. Arthur Nussbaum, A Concise History of the Law of Nations (The Macmillan Company, New York, rev edn. 1954)
  5. Rudolf Bernhardt, Encyclopedia of Public International Law (North Holland Publishing Company, Amsterdam, vol. VII, 1984).
  6. Supra, note 5 at136–9.
  7. Dennis Lloyd, Introduction to Jurisprudence, 79–169 (Stevens, London, 4th edn, 1979).
  8. Supra, note 5 at141 – 142
  9. Supra, note 4 at17–23
  10. Sir William Searle Holdsworth, A History of English Law 60 – 63 (Little, Brown and Company, Boston, vol. 5, 1924).
  11. G. Mattingley, Renaissance Diplomacy (Penguin Books, Maryland, 1955).
  12. Henry Maine, Ancient Law 56 and 64 – 66 (London, 1st edn, 1861).
  13. Supra, note 5 at 150.
  14. Supra, note 4 at 84 – 91.
  15. Supra, note 4 at 147–50.
  16. Supra, note 4 at. 156–64.
  17. H. Wheaton, Elements of International Law (Carey, Lea and Blanchard, New York, 1st edn, 1836).
  18. Supra, note 4 at 251–90.
  19. George Scott, The Rise and Fall of the League of Nations (The Macmillan Company, New York, 1973).

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