Historical Development of International Law

Overview

The rules of International law have been developed in a systematic and codified way only a last five centuries ago. Greeks, whose civilization was considerably progressive, set a symbol to the future that independent states can survive in the society in which their international relations are conducted by certain rules and customs based on the journal approval of the members of that society.

Ancient India and International Law

During the ancient time (i.e. Ancient India) India was divided into large number of states commonly known as Kingdoms[1]. “Ancient Indian literature, notably, Manusamriti, Kautilaya’s Arthashastra, Ramayana and Mahabharata has set down numerous laws, guidelines which are similar to present-day international law.”

The rules of war were also established in the ancient Indian literature. The war could be of two types either just or unjust.

“According to Manu, the just war was called as Dharma Yudh while the unjust war was called as Aadharam Yudh and he further says to fight and die in a just war was called as a good deed indeed.”

Thus we can say that certain rules of modern international law exist in ancient India. For instance, King Rama advised his brother Laxman not to use the weapons of mass eradication. In ancient India the prisoners of wars were treated with humanity and same has been done in present day International Laws.

International Law in Middle Ages

The time of Middle Ages, international law started to develop in Europe due to its decentralization into great number of states due to the “breakup of the Roman Empire.” But then also they carried out trade and commerce with each other and due to this reason they evolve the rules relating to the sea. As most of the states have their own maritime rules, laws guidelines, etc. so after the few time these laws, rules and guidelines gained the international recognition.” In order to perform the uniformity and protecting the trade, trading citizens many leagues and associations were settled. The main function of these associations is to resolve the conflicts and controversies between their members by the help of arbitration.

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Three schools of International Law

Later three schools relating to the science of international law has been evolved. They were “Naturalist”, “Positivist” and “Grotians”.

(i) Naturalists – They are the one who believes that international law is based on the nature were came to be known as naturalist. According to them the law is based on the human rules, morals which have been evolved at all the times and at all places[2].

The authors of this school say that “these laws are not purely of humans but these laws are laws of God or nature clothed with human sanctions.” They have a view that the only source of International Law is the natural law.

Later the view of the naturalist were criticized on the ground that “natural” is too vague and therefore it is practically meaningless but it must be concluded that naturalist school has let down the foundations of the law of the nations.

(ii) Positivists – The jurists belonging to the Positivist school were of the contrary opinion then of the naturalist. “According to the positivist jurist the international law is derived from the customs and international treaties.” Hence they conclude that law of the nation is not the creation of natural law and it is based on the approval of the state by the help of treaty or any customary rule.

Later the positivist were also criticized on various grounds as they said that rules of international law based is only based on the consent of the state which is falsified as there are certain rules which are binding on the state if they haven’t given their consent[3].

(iii) Grotians – The author belonging to the schools were of the view that rules of international law are evolved from positive law as well as from the natural law. These authors believed that importance should be given to naturalist and positivist therefore they stood “midway” among them.

The jurists of this school have adopted a middle position they have accepted both the theories of naturalist and positivist and according to them both are the sources of international law.

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International law in the 19th Century

If we see the timeline of the development of international law we can see that international law has been developed rapidly in the 19 century. “Earlier the international probe was only confined to Europe and to Christian states but afterwards it started to extend to the other parts of the world due to the emergence of number of states.” Modernization, transportation and communication help the states to contact with each other very easily in a lesser period of time and it give assistance in development of international law.

Some of the common and main factors which contributed to the development of international law in the 19 century are as follows:-

  1. States began to negotiate with each other on the conflicts of international community which are arising between them. “Congress of Vienna” was very important event in this regard.
  2. New methods of welfare were introduced due to “scientific developments”and multilateral treaties were concluded in this regard in order to protect the human beings from the heart which is likely to cause them. For instance, “Geneva Convention (1864) provided the rules relating to the wounded and sick members of the armed forces during the land welfare.”
  3. Arbitration method was started for resolving the conflict between the states and“arbitral award” was regarded as binding upon the states.
  4. The work of numerous jurists belonging to the different nation added undoubtedly in the improvement of international law.

International Law in the 20th Century

In the 20th century rules of international law started to derive from the “treaties and customs.” International courts and tribunals admit justice, equity reasons and fair play as important factors. Hence it can be rightly said that “the growth in school comes to the nearest in expressing correctly the present position of international legal system.”

Some of the factors which largely contributed in the 20th century for the development and improvement of international law are as follows:-

  1. Organizations were given the universal character. For instance, “League of Nation, United Nations Organization” which were established with the motive of promoting peace and harmony in the world[4].
  2. “International courts”were set up.
  3. Supervising social, cultural and economic problems of the state by international organization were also done. Many specialized agencies and functional organizations are trying to improve the conditions of human beings all around the world.
  4. “Codification”of international law[5] was done.
  5. The scope of international law has been widened and it includes the “individuals, multinational corporations and much international organization as the subject of international law.”
  6. Individual have been given a “right to make petition” in the international Court of Justice and other international forums[6].
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Conclusion

Now we can conclude that international law has been approached to a different stage from the time where it originated. At this present time the international communities have its own legislation, court and the binding decisions. The sanctions were also imposed on the state which violates the law or rules of the international law. But in the end we should not forget that the effectiveness of the international law is still limited. One must have hope that one day international law would developed in such a manner that it will become strong and effective and it will not only reduces the violation by the state but it will also promote the peace and harmony in the society.

Bibliography and References

Dr.H.O.Agarwal,International Law and Human Rights (Central Law Publications, Allahabad, 20th edn.,2014)

[1] After the Vedic period there were eighty two republics in India, (see K.P Jaiswal, Hindu Policy, Edition III (1955) pp.361-63)

[2] Austin “The Province Of Jurisprudence, Indian Economy Reprint (2008)p.129

[3] See Article 2 Para 6 of the U.N charter. For detail see chapter “United Nation Organization”

[4] For detail see Chapter ‘United Nations Organization’

[5] For detail see Chapter ‘Codification of International Law’

[6] For detail see Chapter ‘Place of Individuals in International Law’

Author: Umang Bhatla,
Delhi Metropolitan Education,3rd Yr. Affiliated to GGSIPU

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