HISTORY AND ORIGIN OF INTERNATIONAL LAW

The subjects of law in any legal system are not essentially identical in their nature or in the extent of their rights, and their nature depends upon the wants of the community. Throughout the history of international law, the development of the law of nations has been influenced by the necessities of international life, and also the progressive increase within the collective activities of States has led to the increase in international law by certain entities that are not States. This development culminated in the establishment in June 1945 of an international organization whose functions and principles are laid out in the Charter of the United Nations. However, to attain these ends the attribution of international personality is indispensable.

The term “International Law” was coined by British jurist Jeremy Bentham in 1780 in his book titled “Principles of Morals and Legislation”. Earlier, it was known as the Law of Nations. Dutch jurist Hugo Grotius is known as “The Father of International Law,” he was Famous for his 2 books Mare Liberum (1609) and De Jure Belli Ac Pacis (1625).

West Rand Central Gold Mining Ltd. Co. Vs King[1]   KBD of UK High Court defined International Law as “the form of rules accepted by civilized States as determining their conduct towards each other and towards each other’s subjects”.

International law itself is split into a conflict of laws or private law of nations as it sometimes referred to as and public law of nations usually simply termed international law. There are varied branches of international law. They are Law of Sea, Air and Space Law, Human Rights Law, International Humanitarian Law, International Trade Law, International Environmental Law, Asylum and Extradition, and Law of International Organizations.

OPPENHEIM (1992)

International law is that the body of rules that are lawfully binding on States in their intercourse with one another. These rules are primarily those that govern the relations of States. However, States aren’t the sole subjects of international law. International law confers the rights and duties of individuals and organizations.

Criticism of Oppenheim’s Definition

1. Only regards States as subjects of International Law. In the modern era, I.O.’s, International Institutions, and even Individuals are considered subjects of international law.

2. Ignores the human rights of individuals.

3. Ignores MNC’s and their activities.

4. Customs and Treaties are not the only sources of International Law.

5. Civilization cannot be associated with a particular religion or a particular geographical area.

NATURE AND DEVELOPMENT OF INTERNATIONAL LAW

The international law is different from what you mean by international harmony, or practices like saluting the flags of foreign warships at sea, that are enforced through courtesy and are not considered lawfully binding. Similarly, the mistake of confusing the law of nations with international morality should be avoided. whereas they may meet at certain points, the former discipline is a legal one both as regards its content and its form, whereas the idea of international morality is a branch of ethics. This doesn’t mean, however, that international law will be divorced from its values.

Western jurists consider International Law as a product of Christian civilization and a gift of European countries to the world. But this view is not correct. International Law has been in existence since ancient times.

• International Law in the era of Ancient period -Hindu law by the mention in Ramayan, Mahabharat, Manusmriti, Bhagavad Gita; Muslim law in The Holy Quran and in Jews believed in Internationalism by the mention in the Book of Deuteronomy: Love the Strangers, for you were strangers in the land of Egypt; Monotheism vs Polytheism. Under Greek law by way of Socrates, Plato, and Aristotle; Friendly relations between City-States; Arbitration; Laws of War and Peace. Roman law mentions about Just and Unjust War; Laws of War and Peace; Recognized 3 types of treaties; i.e., Treaty of Friendship, Alliance, and Hospitality.

• International Law in Medieval Era – International Law developed tremendously in the medieval era particularly in the 16th and 17th centuries. Hugo Grotius was the Chief Architect of the development of International Law in this era. He laid the foundation of Modern International Law through his 2 books.

• International Law in Modern Era – In the 19th and 20th centuries, International Law developed from European International Law to Proper International Law. With the admission of Turkey to the Family of Nations by the Treaty of Paris in 1856, International Law ceased to be a law between the Christian States only. From 1945 to 2018, the number of members of the UN has increased from 51 to 193.

FACTORS WHICH WERE RESPONSIBLE FOR THE GROWTH DURING THE MODERN PERIOD

Many factors contributed to the development of International Law in the 19th and 20th centuries.

• Vienna Congress, 1815 – It was the Landmark event where Many rules of International Law were formulated, viz., international rivers, diplomatic agents, etc.

• Declaration of Paris, 1856 – Naval warfare rules were laid down in that. Attack on undefended people during a naval war was prohibited.

• Geneva Convention, 1864 – Rules of land warfare were laid down. The killing of wounded or surrendered soldiers was prohibited.

• Hague Conferences of 1899 and 1907: Emphasized the settlement of international disputes by peaceful means.  Laid down the rights and duties of neutral States during the war. PCA was established in 1899.

• League of Nations: Established after WW I by Treaty of Versailles, 1919. The objective was to improve international relations and prevent future wars.  Encouraged settlement of disputes by arbitration. PCIJ was established in 1922 and abolished in 1946.

• Pact of Paris, 1928: Also known as Kellog- Briand Pact. Parties to it renounced War as an instrument of national policy and for settlement of disputes. (Difference b/w War and External Aggression).

• Geneva Convention, 1929 – Signed by 47 States. Rules regarding the treatment of Prisoners of War were laid down. Ex: Medical, Sanitation, etc.

• Establishment of UN – Established on Oct. 24, 1945. Headquarters in New York. From 51 members to 193 members. 6 Organs.

• Geneva Conventions of 1949 – 4 treaties and 3 additional protocols. Lay down the standards of international law for humanitarian treatment in war.

• UNCLOS, 1982 – Constitution for the Oceans. Longest Convention in International Law- 320 Articles and 9 Annexes.

BASIS OF INTERNATIONAL LAW

There are two main theories regarding the basis of international law natural law theory or theories as to the law of nature and Positivism.

• NATURAL LAW THEORY – This theory can be traced back to the Greek civilization. According to naturalists what is law relies on a better law determined by reason. States submit to International law because their relations are regulated by the higher law the law of nature. The concept of the law of nature was promoted in the 16th and 17th centuries. Grotius rationalized the natural law and applied it in the law of nations. Grotius took a bold step to secularize natural law. Natural law relies on the idea of the concept that people possess the information of good and evil conditioning for right and wrong isn’t necessary as the conscience of each individual has an innate idea of what is right and what is wrong. Natural law would “still have a degree of validity even if there is no God;” it should be noted that natural law can be affirmed through reason in the absence of God.

• POSITIVISM LAW THEORY – Bynkershock, a Dutch jurist is the main exponent of this theory. Positivism law theory is based on the law of positivism, which means the law that is in fact in comparison to the law that ought to be. As per the positivist theory, international law consists of rules that the States have consented to look at. The consent could also be express or implied. Acquiescing (consent) a customary rule is an example of implied consent e.g., non- refoulement, immunity of visiting foreign heads of State, etc. The validity of law relies on the need of the State and therefore the rules of international law and municipal law are issued by the will of the State are binding on both.

LEGALITY OF INTERNATIONAL LAW

In the 19th Century, 2 views were prevalent regarding the legality of International Law. Firstly, International Law is not a true law. It is only a positive morality supported by Austin, Bentham, Holland, and Brown. Secondly, International Law is true law which is supported by L. Oppenheim, J.G. Starke, J.L. Brierly, and Hans Kelsen.

• International Law is not True Law – John Austin propounded this view. He believed that international law is only positive morality. It lacks a supreme and sovereign lawgiver. It lacks a proper enforcement agency. It lacks effective sanctions. According to Austin, the law is the command of the sovereign backed by sanctions just in case the command is violated by the individual. There should be a legislative authority enacting the rule of conduct and imposing a physical sanction. thus supported what he said, it can be concluded that any rule that is not enacted by any superior or legislative authority, cannot be considered a law and furthermore if laws are violated, sanctions must be obligatory based on that Austin complete that International laws are just based on ethics and morality and are not true law.

• International Law is True Law – This view has been supported by L. Oppenheim, J.G. Starke, Hans Kelsen, and J.L. Brierly. They have criticized Austin’s definition and concept of Law on many grounds. Starke opined that Austin’s views may be right for his time, but are not acceptable in the modern era and Kelsen also stated that International Law is in its primitive stage. It will grow stronger with time.

DIFFERENCE BETWEEN PUBLIC AND PRIVATE INTERNATIONAL LAW

International law consists of 2 branches: public international law and private international law. Public law refers to all the legal rules governing international relations between public entities like States and international organizations. in order to settle a public law dispute, it’s the International Court of Justice (ICJ) sitting in the Hague The Netherlands which will be seized. The united nations have different organs and one of them is The International Court of Justice.

The main idea of private law is the “foreign element”. private law is that the area of law that comes into play whenever a court is faced with an issue that contains a foreign element, or a foreign association. The mere presence of such a foreign element in an exceedingly legal matter raises a number of queries and it’s the function of private law to provide a solution to those queries and to confirm simple solutions.

Public international law deals with both States and individuals and it is the same for all states and private international law deals with individuals only and it varies from one State to another. Public law may or may not be a part of Municipal Law but private law is always a part of Municipal Law. Public law deals in both civil and criminal matters and based mainly on International Customs and Treaties and private law deals with civil matters only based on laws passed by Legislatures of States.

CONCLUSION

International law is a set of rules that are binding between countries and aims to confirm security and peace among varied nations. The subject of the question under international law isn’t solely the Nation or state however can be taken as an individual also. International law is made to ensure and maintain world peace and order, and to settle various disputes among different nations or states and individuals to provide fundamental rights to them. However, there are still numerous shortcomings because of that international relations are suffering.

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[1] (1905) 2 KBD 91