Origin and Development of International Law | Public International Law - CLAT PG PDF Download

Definitions of International Law

Traditional Definitions of International Law

• International Law governs the relationships between states, which are the only subjects of this law.
• Exponents: Oppenheim, J.L. Brierly, and Hackworth
• Oppenheim's Definition: International Law is the body of customary and treaty rules considered legally binding by civilized states in their interactions with each other.
• Key components:
  • Body of rules governing relations between states.
  • States regard these rules as binding.
  • Rules derived from customs and treaties.
• Criticism: Oppenheim's definition is criticized for excluding international organizations and individuals as subjects of international law.
• P.E. Corbett argues that international law includes the future of international organizations and the rights and duties of individuals and private persons.
• Modern definitions recognize that international law regulates relations not only between states but also involving international organizations, individuals, and non-state entities.

Modern Definitions of International Law

• International Law now encompasses regulations involving not just states but also international organizations, individuals, and non-state entities.
• Definition by J.G. Starke:International Law is primarily composed of principles and rules of conduct that states feel bound to observe in their relations with each other. It also includes:
  • Rules governing the functioning of international institutions or organizations and their relations with each other, states, and individuals.
  • Rules concerning individuals and non-state entities as far as their rights or duties are of concern to the international community.
• The emergence of new definitions is driven by the establishment of numerous permanent international institutions, the protection of human rights and fundamental freedoms, and the creation of new rules for the punishment of individuals committing international crimes.

Nature of International Law

• There are two perspectives on the nature of International Law:
  • International Law is not a true law: This view, held by figures like John Austin, Hobbes, Holland, Pufendorf, and Bentham, argues that International Law is not genuine law but a set of moral rules. Austin contends that law is a command from a sovereign authority, and since International Law lacks a determinate sovereign, it is not legal but moral.
  • International Law is a true law: Proponents of this view, such as Luis Henkin and Sir Henry Maine, argue that International Law is indeed law. Henkin emphasizes that nations generally observe International Law principles, while Maine points out that laws existed in primitive societies without a sovereign authority. International Law is binding, and decisions from the International Court of Justice have legal force.
• Influence of Natural Law Theory: Natural law theory significantly impacts the character and binding force of International Law. It posits that ideal law is based on human nature, and states adhere to International Law because it is rooted in higher, natural law principles. Since states are composed of individuals subject to natural law, International Law is as binding on them as it is on individuals.
• Theory of Positivism: Positivism views International Law as similar to municipal law, deriving from the will of states. International Law is a system of rules validated by state consent, with the state viewed as a metaphysical entity with its own will. International Law is binding because states have voluntarily accepted these rules, making it an external public law. Consent can be explicit or implicit.
• Views of Anzilotti: Anzilotti argues that the binding force of International Law stems from the principle of 'pacta sunt servanda,' meaning agreements between states must be respected. This principle is the foundation of legal norms, and every legal order is based on a complex of norms derived from this fundamental principle.

Origin and Development of International Law

History of Early International Law

• Rules governing relations between nations trace back to ancient times and were based on customary practices.
• Treaties and the concept of ambassadorial immunities were present in ancient civilizations like Egypt and India, even before the advent of Christianity.
• Instances of arbitration and mediation can be found in ancient China and the early Islamic world.
• In Greek city-states, inter-municipal laws emerged from long-standing customs, addressing issues like the declaration of war and the treatment of prisoners of war.
• Religious beliefs significantly influenced legal practices, with no clear separation between law, morality, justice, and religion.

Influence of Roman Law

• During the period of Roman dominance, a distinction was made between legal rules and religious practices.
• Roman law, which made this distinction, was later revived and became influential in medieval and modern Europe.

Evolution of Legal Distinctions

• Over time, especially during the Roman era, the differentiation between legal frameworks and religious doctrines became more pronounced.
• This evolution laid the groundwork for the development of secular legal systems in Europe.

Contributions of Early Jurists

• Early jurists and legal scholars played a crucial role in shaping the foundations of international law through their writings and interpretations.
• Their work helped to formalize and systematize the customs and practices that governed inter-state relations.

Impact of European State System

• The modern European state system, characterized by principles such as national and territorial sovereignty, equality, and independence of states, formed the bedrock of contemporary international law.
• This system not only influenced European states but also had a significant impact on newly emerging non-European states.

Role of Customary Practices

• Customary practices among European nations during the sixteenth to eighteenth centuries were pivotal in shaping the norms and rules of international law.
• These practices were often codified and expanded upon by later jurists, contributing to the evolution of a more structured legal framework.

Codification and Systematization

• The efforts of jurists to codify and systematize international law principles led to greater clarity and coherence in the legal framework governing inter-state relations.
• This process was instrumental in addressing the complexities of international interactions and conflicts.

Influence of Historical Treatises

• Historical treatises and legal writings from the early modern period continue to be referenced and studied for their insights into the development of international law.
• Their relevance underscores the ongoing dialogue between past legal principles and contemporary legal challenges.