This article is written by M. Bhavana Nmims Deemed University, Jadcherla Hyderabad, an intern under Legal Vidhiya
Abstract:
This paper delves into the intricate realm of international law, exploring its historical origins and the fundamental principles that underpin its formulation. By analysing the early development of international law, we uncover the ideologies that drove its inception and shaped its evolution over time. Two prominent schools of jurisprudence, namely natural law and positive law, are thoroughly examined for their pivotal roles in moulding the international legal landscape. This study investigates how these distinct jurisprudential perspectives have contributed to the establishment and progression of international law. Moreover, an in-depth analysis of treaties and case laws illuminates the practical application and enforcement of international legal norms. By exploring the complex interplay between historical origins, jurisprudential foundations, and contemporary legal mechanisms, this paper provides a comprehensive understanding of the multifaceted nature of international law.
Keywords: Natural law, Positive law, Jus Cogens, Treaties, Customary laws.
Introduction:
International law is a set of rules and principles governing relations between states, international organizations, and individuals in the global arena. It serves as the foundation for resolving disputes, promoting cooperation, and maintaining order in the international community. The primary sources of international law include treaties, customs, and various schools of jurisprudence. International law played a vital role in connecting different countries, providing trade and economic benefits by providing a transparent framework. International law also plays an important role in providing diplomacy and cooperation by encouraging nations to engage in peaceful diplomacy. Various treaties were been established to address environmental issues to encourage countries to safeguard the environment, such as Paris Agreement on climate change. International law facilitated the provision of humanitarian aid and providing assistance to countries facing crises in the case of natural disasters or health emergencies. International law also protects the interest of the smaller and vulnerable communities by ensuring that all countries are treated equally. At last, it establishes and promotes the rule of law at the global level. Just as domestic laws play governs the individual within a particular country, international law governs the actions of the nations in the interactions of the states.
Literature review:
Early Origins of International Law
While the modern international system can be traced back some 400 years, it could be said that it had its roots in ancient times, for instance, The kings of Mesopotamia and Egypt had diplomatic interactions in the ancient world. There are records of diplomatic letters exchanged between the Egyptian pharaohs and Mesopotamian kings during the 14th century BCE. These letters often discussed alliances, marriage proposals, and requests for military aid. There had been many such instances in Asia and various subcontinents where several kings had diplomatic relations with other kings. Emperor Ashoka, one of ancient India’s most famous Mauryan kings, had agreements and diplomatic relations with several foreign rulers. His inscriptions, known as the “Ashoka Edicts,” were engraved on rocks and pillars across the Indian subcontinent and even beyond its borders. These edicts often carried messages of non-violence, moral conduct, and peaceful coexistence with neighbouring states and foreign kingdoms. However, there was no conception of the international community and the existence of a defined framework. The idea of the existence of international law was foreign and was extremely non-existent.
During the 6th century BC, the influence of Greek philosophers on the emergence of international law was explored. While the direct impact may not have been as pronounced during their time, their philosophical ideas laid the foundation for later developments in legal and moral thought, which eventually contributed to the formation of international law. The study of the Greek scholars on international law was partly based on the philosophical, scientific, and political analyses which transmitted to mankind. Numerous treaties linked the city and state together and commencement of commercial and political associations were developed during the era. The idea of granting the rights to the citizens of the states and rules regarding the protection of diplomacy was established for the first time, perhaps there was no such thing as a world community that was traced back to the 6Th century as such. For Romans, law played a vital source of reference for every resident of the far-flung domain perhaps the early Roman civil law (the jus civile) was only applied to the Roman citizens reflecting the status of a small, unsophisticated society, but the Greek culture had a great influence on the formulation of roman philosophy and legal system (legal professionals, institutions, etc.) Eventually, the need for jus gentium (law of nations) and its progressive rules gradually over rode the narrow jus civile and created further scope for jus gentium.
Middle ages and development of International law:
Middle Ages were characterized by the authority of the church and the comprehensive structure of power it had. All the Europeans had one religion and ecclesiastical law applied to them, except for tribal race. There was a lot of struggles that took place between the religious authorities and the rulers of the Holy Roman Empire. The internal conflicts were resolved and the victory was declared to the papacy, but the victory over secularism was short-lived. The Religion and the common legacy of the Romans had a strong influence compared to the regional rivalries. Perhaps before the creation of international laws and implementation of those laws major social changes were necessary. One of the importance of this era was the authority of the Holy Roman and the supranational character of the canon law, despite that Commercial and marine law were developed, like Merchant laws for the regulation of trade and commerce and to settle disputes between the traders who are from cross- borders. Maritime customs based on the Rhodian Sea laws were widespread across the naval power The Renaissance brought a major change in the case of both intellectual and cultural aspects, concerning the Greek scholar incursion from the collapse of the Byzantine Empire. In the aftermath of the collapse of the Byzantine there was a rise in the nation-state like England, France, and Spain, and that led to the need for regulating interactions between the sovereign states which gave a major contribution to the emergence of international law. The reformation and the religious struggle further shaped the concept of the international community of sovereign states. The Renaissance rediscovered the idea of Greco-Roman ideas of natural law (law of nations) and that led to the ultimate development of international laws. Jean Bodin’s theory of sovereignty established the state as supreme vis-à-vis and this theory was the basis for positivism in international law.
Early theorists of international law majorly focused on Natural law principles, including the merging of the Christian and Natural laws ideas by St. Thomas Aquinas. Thomas Aquinas believed that the Natural law formed a part of the law of god and participated by the rational creatures of the eternal law. The birth of modern international laws was the root of the law of nature and the principles evolved through the natural law, which later emerged into a separate issue based on the Principles of the Natural law.
The foundation of modern international law:
The new approach to international law was traced back from the Spanish philosophers of the Golden Age where Francisco Victoria was an important figure who was a professor of theology. He held progressive thoughts which was ahead of the time. He expressed that South American Indiana people should be regarded as a nation with legitimate interests, and the war could only be justified on the grounds of a just cause. He argued that international law was founded based on universal law and that non-Europeans should be included in the ambit of international law. Suarez another influential figure believed that the international law’s prescribed character was based on the Natural law and its substance is derived from the Natural law and its role in carrying out the agreements. Albercio Gentili a significant figure from a different background apart from theology contributed his works to the secular school of thought in international law. He discussed the law of war and treaties in his works De Jure Belli. At last Hugo Grotius, a Dutch scholar who is often celebrated as the father of international law. His work, De Jure Belli ac Pacis, emphasized reason over theology making the past theological influences questionable or departure. Grotius proposed a comprehensive system of international and proclaimed the freedom of seas and opposed the idea of a closed sea. Therefore, it was important to acknowledge the theories used for the formulation of law are shaped due to social and cultural environment. To understand the real evolution of international laws, we need to understand the two schools of thought: natural and positive schools of jurisprudence.
Key milestones in the evolution of international law:
In the history of international law, two schools played a major role that is the Naturalis School and the Positivist School of Jurisprudence. Natural law is the philosophical theory that states that certain rights, moral values, and responsibilities that inherit human nature. It is quite different from the customary laws. The Naturalis School is represented by Samuel Pufendorf aligning international law with the law of nature, whereas the positivist school is led by Richard Zouche and Bynkershoek who emphasize practical state practices and the current issues. Pufendorf Naturalis School viewed international law as a system having a moralistic approach having absolute values and disregarding the state practices and denying the relevance of the treaties. Whereas the positivist approach which was led by Zouche and Bynkershoek focused on the state actions and recognized that the customs and the agreements are the integral part shaping the international law. With the rise in the nation-state system positive approach has gained prominence, concurring with theories of sovereignty and drawing attention to the importance of state action in shaping and formulating international law. The concept of natural rights merged stressing individual and political supremacy and becoming central aspects in shaping the democratic societies while preserving the sovereign and private matters on the other hand.
To understand international law in a broader sense we need to understand how these schools developed some of the most important aspects of modern international law that is, for example, the natural law developed the concept the Human rights which is the base of modern international law. Natural law focuses on the rights and duties of individual human beings in the changing contemporary world. In the modern political arena and doctrine centered on the state and the particular ethnicity, these natural law theories prioritize the rights of the individuals, making it a concept of the universal society or a community.
Human rights are the rights that belong to an individual as a result of being human. This term of human rights came into worldwide use after World War 2, replacing the concept of natural rights, the concept which was associated with Greco-Roman natural law. As of today in the modern world, human rights are devised with the universal application to all human beings referring to it as the basic human need. Human Rights notion was brought up in many generations, since the adoption of the universal declaration of human rights in 1948, many treaties and agreements have been signed for the protection of human rights. The United Nations General Assembly in Paris proclaimed the Declaration on 10 December 1948 (General Assembly resolution 217 A). International human rights lay down the rules which the countries are bound to respect. When a country becomes a party to international treaties then it is bound to respect the obligation to refrain from interfering and curtailing the enjoyment of human rights. While domestic legal proceeding fails to address human right abuses in depth, even though countries have civil criminal prosecution to safeguard people’s rights. International human rights give a holistic and wide approach to those people those countries whose countries’ laws are against their freedom.
Jus Cogens which is also typically associated with the natural law school of thought. It is also known as the peremptory norm, which is a fundamental and overriding principle of international law. It is a Latin phrase known as compelling law. It is absolute in nature as there is no defence for the commission of the act which is prohibited by international lawmakers. Jus Cogens is a norm that is widely accepted and often recognise in the international community and has the liberty to be modified only by a subsequent norm of the general international law. These laws are often limited and are not classified. The origin of jus Cogens was defined in Article 53 of the Vienna Convention on the Law of Treaties 1969, but later termed a customary principle, and scrapped from Article 53 of the Vienna Convention. There is no universal norm as such that gives a particular status to Jus Cogens but it is generally accepted notion is that it bans genocide, maritime piracy, wars of aggression, and slavery and is modified through cultural and social changes. As Jus Cogens is peremptory law which is quite different from customary laws. Coming to the customary law which originally requires consent to be altered and should be obliged between the states through treaties and conventions, the peremptory laws may not be violated by any state and any act or any treaty. Any treaty or law made which affects the peremptory laws is recognized to be void. There were several proposals made by policymakers to take Jus Cogens seriously and any state violation should be taken as serious accountability.
Customary laws played an important role in formation of the international law. In primitive societies, often rules or laws are emerged from social behavior and are maintained through societal burden. As legal machinery and change in social norms happened the change in laws occurred. Custom within a contemporary legal system is often termed as cumbersome and complicated. However, in the modern arena of international laws customs are active due to the lack of a centralized system in the government organs. Customary laws depend on the behavior of the state, making it a little difficult to bring out the rules and laws as a whole. Some policy maker’s views customs as an outdated approach to modern international laws due to the pace and variety of the different state activities whereas other policymakers think it is as valuable as its emphasis on contemporary issues. Customary laws are democratic in nature allowing all the states in the active participation of other states in formulation of new laws and policies. It offers ambiguity and flexibility allowing one to adapt to various situations. The soul of the customary laws lies in the evidence of the general practice accepted as a law, compromising the actual behavior that is the state behavior and the psychological beliefs i.e., opinion Juris. In the case of The Anglo-Norwegian Fisheries Case, a landmark decision before the International Court of Justice (C) in 1951, centered on a dispute between the United Kingdom and Norway regarding fishing rights in the North Sea. The main issues were the extent of Norway’s coastal line and its responsibility for arresting British fishermen, demanding compensation
The ICJ’s ruling was based on key principles of international law. Firstly, it relied on the natural prolongation of the continental shelf, enabling coastal states to exercise jurisdiction over resources in their extended shelf areas. The court upheld Norway’s claim to jurisdiction over fisheries up to twelve nautical miles from its coastline based on this principle. This notion became a cornerstone of modem maritime law and was later integrated into the United Nations Convention on the Law of the Sea. Secondly, the ICJ emphasized the importance of interpreting historic rights in light of contemporary international law. Although the United Kingdom claimed ancient fishing rights in the area, the court held that these rights did not grant exclusive fishing privileges in the disputed waters and had to be evaluated in the context of current international legal norms. Additionally, the case highlighted the evolving nature of customary international law. The court recognized the significance of interpreting customary law in line with contemporary international law, acknowledging that state practices and opinion Juris could modify customary law. This approach had far-reaching implications, influencing subsequent cases such as the Nicaragua Case The UK contended that Norway should delimit the maritime boundary in the low water grounds at 4 miles instead of the claimed 10 miles Furthermore, the UK demanded compensation for the arrest of British fishermen by Norway worldwide.
Coming to the treaties a treaty is a formal agreement between two or more subjects of international law such as states or international organizations. It is an established organization that is governed by the Vienna Convention on the Law of Treaties (1969) for the treaties between the states and the Vienna Convention between the states and the international organization (1986). Treaties can take various forms such as conventions, agreements, protocols, and charters but the feature which is very prominent is the binding nature of it. They are typically negotiated through plenipotentiaries having full power to close the treaty on behalf of the governments. Whereas in bilateral treaties a country’s signature usually indicates its intention being formed while the multilateral treaties need ratification from the government. Multilateral treaties have more prevalent in today’s world, especially in response to emerging issues or changing circumstances. They only bind to the states which are parties to them and become effective after the specified number of ratifications. Treaties can cover a wide range of subjects such as political, commercial, constitutional, criminal justice, civil justice, and international law codification. Termination of the treaty can happen through treaty provisions or with the consent of the parties.
In the case of Jurisdictional Immunities of the State (Germany vs. Italy) decided in 2012 by the International Court of Justice (ICJ), Italy violated Germany’s customary international law right of jurisdictional immunity. Italian courts allowed civil claims against Germany for violations of international humanitarian law committed by the German Reich during 1943-1945. They also enforced a Greek court judgment against Germany and took measures of constraint against German property in Italy. The ICJ ruled that jurisdictional immunity is available to a state for acts committed by its armed forces during armed conflict. Italy’s actions violated Germany’s immunity under international law, and Italy was ordered to cease the effect of decisions infringing on Germany’s immunity and respect its jurisdictional immunities.
Conclusion:
The principles of the international have always been changing according to social and cultural norms, every cultural change has a significant contribution to the new principles in the international law arena. Perhaps the most lacking thing in international law is that there is no unified system of sanctions and sometimes its resolutions are not legally binding and are often compromised by the veto power of the powerful nations. International law faces challenges in enforcement and compliance. The absence of a central global authority and the principle of state sovereignty make it challenging to ensure compliance with international norms and decisions. Nevertheless, international law continues to evolve and adapt to new challenges, striving to create a more just, peaceful, and cooperative international community.
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