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EVOLUTION OF INTERNATIONAL LAW

In the Hebrew Bible and in other ancient records and inscriptions, there are evidences of
the observance of certain usages as to international intercourse, such as embassies and rules of
warfare. But in those remote ages it was the struggle of one warlike people to dominate all the
rest, and consequently rights of nations were little respected. Two events in the first half of the
seventeenth century had an important influence in promoting this condition of international
relations. The first was the publication of the great work of Grotius, De Jure Belli ac Pacis, in
1625, and the second, the Congress and Treaty of Westphalia, 1648.

17​th​ Century

Thirty Years’ War, (1618–48), in European history, a series of wars fought by various
nations for various reasons, including religious, dynastic, territorial, and commercial rivalries. Its
destructive campaigns and battles occurred over most of Europe, and, when it ended with the
Treaty of Westphalia in 1648. The important provisions of the Treaty were the recognition of the
independent sovereignty of the States of Europe; their right to exercise exclusive jurisdiction
within their own territory; the regulation of the intercourse of these States; the right of each State
to negotiate its own treaties; and the establishment, nominally at least, of religious toleration.
The Congress of Westphalia in this treaty demonstrated the possibility of adjusting great disputes
among nations by means of mutual discussion. During the Thirty Years' War and inspired by its
terrible ravages came Grotius' great work, De Jure Belli ac Pacis in 1625, to which he had given
twenty years of study and research. It was largely a compilation from the works of others who
had essayed to advocate or establish certain rules for the conduct.

Following the Treaty of Westphalia great reforms were introduced into the practices of
war; prisoners began to be exchanged; the lawlessness of the soldiery was restrained; the sack of
cities and the indiscriminate destruction of private property diminished; and through the
eighteenth and nineteenth centuries steady progress was made in the amelioration of war.

18​th​ Century

The most important events in the international relations of the eighteenth century were:
the admission of Russia under Peter the Great, to full membership in the circle of European
states; the rise of Prussia under Frederick the Great as a first-rate Power; the (declaration and
achievement of American independence; and the outbreak of the French Revolution. The
colonization of America by the leading nations of Europe was begun on a large and effective
scale during the seventeenth and continued till the eighteenth century. The outbreak of the
French Revolution and the successful inauguration of the American Union, based on principles
of democracy, nationality and federalism, m-ark a new epoch in the history of international
relations, as of civilisation in general.
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Napolean era

France entered upon a career of aggression and conquest which culminated in the
short-lived Napoleonic empire (1804-14), embracing the greater part of central and southern
Europe. Great Britain headed a series of coalitions against Napoleon I which ended in his
downfall and the reduction of France to her former boundaries at the end of battle of Waterloo.
The Congress of Vienna, also called Vienna Congress, was a meeting of ambassadors of
European held in Vienna from November 1814 to June 1815. The objective of the Congress was
to provide a long-term peace plan for Europe by settling critical issues arising from the French
Revolutionary Wars and the Napoleonic Wars. The balance of power in Europe was once more
restored at the reactionary Congress of Vienna in 1815 upon the principle of legitimacy. It
defined the relative rank of ministers, envoys and ambassadors; declared in favor of abolition of
the African slave trade; and agreed upon general principles intended to secure freedom of
navigation on great international rivers.

Treaties – 19​th​ Century

A major European conflict of the 19th century, the Crimean War (1853–56) saw an
alliance led by Britain and France challenge Russian expansion. Russia lost and battle and
Declaration of Paris in 1856 was signed.

In 1871 the Conference of London solemnly proclaimed "that it is an essential principle

of the law of nations that no Power can liberate itself from the engagements of a treaty, or
modify the stipulations thereof, unless with the consent of the contracting Powers by means of an
amicable agreement.”

The First Hague Peace Conference

With a view of "seeking, by means of international discussion, the most effectual means
of insuring to all peoples the benefits of a real and durable peace, and above all, of putting an end
to the progressive development of the present armaments," the First International Peace
Conference was convened at The Hague on May 18, 1899. The First Hague Peace Conference
soon realized that even a limitation of the increase of military and naval expenditures was
impracticable at that time, and devoted its chief energies to the secondary purpose for which it
had been called, viz., to devise means of securing "the maintenance of general peace.” The
British and American plan of a so-called "Permanent Court of Arbitration was adopted in spite of
the objections of the German Government.

20​th​ Century

The First World War marked the close of a dynamic and optimistic century. European
empires ruled the world and European ideologies reigned supreme, but the1914–18 Great War
undermined the foundations of European civilisation. The most important legacy of the 1919
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Peace Treaty from the point of view of international relations was the creation of the League of
Nations. The old anarchic system had failed and it was felt that new institutions to preserve and
secure peace were necessary. The League consisted of an Assembly and an executive Council,
but was crippled from the start by the absence of the United States and the Soviet Union for most
of its life and remained a basically European organisation.

After the trauma of the Second World War the League was succeeded in 1946 by the
United Nations Organisation, which tried to remedy many of the defects of its predecessor. It
established its seat at NewYork, reecting the realities of the shift of power away from Europe,
and determined to become a truly universal institution. The advent of decolonization satisfied
this expectation.

Many of the trends which came to prominence in the nineteenth century have continued
to this day. The vast increase in the number of international agreements and customs, the
strengthening of the system of arbitration and the development of international organisations
have established the essence of international law as it exists today.

DEFINITION OF PUBLIC INTERNATIONAL LAW

According to Dias, “International Law is obeyed and complied with by the states because
it is in the interests of states themselves.”

According to Bentham “International law is a collection of rules governing relations

between states.” The term International Law was coined by the English philosopher Jeremy
Bentham

According to Gray "International Law or the Law of Nations is the name of body of rules
which according to the usual definitions regulate the conduct of the States in their intercourse
with one another.”

Oppenheim defined of Public International Law as "The Law of Nations or International

Law is the name for the body of customary and conventional rules which are considered legally
binding by civilised States in their intercourse with each other".

CRITICISMS – The following are ignored as subjects of international law by

Oppenheim;

1. International Organisations

2. Individuals

3. General Principles of Law

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New Definition of International Law in Latest Edition of Oppenheim's Book - The editors of
the ninth edition of Oppenheim's book (1992), ​Sir Robert Jennings ​and ​Sir Arthur Watts​,
have revised Oppenheim's definition of International Law in the following words :

"International Law is the ​body of rules ​which are legally binding on states in their intercourse
with each other. These rules are primarily those which govern the relation of States, but States
are not the only subject of International Law. International organisations, and to some extent,
also individuals may be subjects of rights conferred and duties imposed by international law."

● MOST ACCEPTED DEFINITION

In the words of J G Starke : “ International law may be defined as that body of law which
composed for its greater part of the principles and rules of conduct which states feel
themselves bound to observe, and therefore, do commonly observe in their relations with
each other, and which includes also :

(a) The rules of law relating to the functioning of international institutions or organisations,
their relations with each other, and their relations with states and individuals; and

(b) certain rules of law relating to individuals and non-state entities so far as the rights or
duties of such individuals and non-state entities are the concern of the international
community.

DIFFERENCES BETWEEN PUBLIC INTERNATIONAL LAW AND MUNICIPAL OR

DOMESTIC LAW

PUBLIC INTERNATIONAL LAW MUNICIPAL OR DOMESTIC LAW

Laws of Nations or International Law is the The national, domestic, or internal law of a
name for the body of customary and treat sovereign state defined in opposition to
rules which are considered legally binding by International law is known as Municipal law.
the states in their intercourse with each other. It also includes law at national level, state
level, and provincial level, and territorial
level, regional or local levels.
No sovereign authority Existence of sovereign authority
All the states are equally sovereign State is Sovereign
No direct sanctions In case of violation of law, direct sancations
shall be imposed.
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DIFFERENCES BETWEEN PUBLIC INTERNATIONAL LAW AND PRIVATE

INTERNATIONAL LAW

PUBLIC INTERNATIONAL LAW PRIVATE INTERNATIONAL LAW

Followed by Nations to regulate their When there is a foreign element

relations
Law of Nations
Public International law rules are
outcome of International custom and
treaties.
In public International Law there is
no Predetermined Court.
Public International Law is same for
all the States.
Jurisdiction – applicable to all states
who have consented
Conflict of Laws
Private International law rules are
framed by the State legislature.
In private International Law courts are
predetermined.
Private International Law differ from
state to state.
Jurisdiction – Choice as to which Court
or which law to apply.

SCHOLARS AND THEIR CONTRIBUTION TOWARDS INTERNATIONAL LAW /

TRUE BASIS OF INTERNATIONAL LAW/
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The following notes upto positive law can be also written for WHETHER
INTERNATIONAL LAW IS TRULY A LAW?

Various doctrines exist regarding the basis for the binding authority of international law. The two
most prominent schools of thought are naturalism and positivism. Many other doctrines are
either derived from or founded upon these two doctrines.

NATURALIST SCHOOL - In the 17th and 18th centuries and earlier times, under the influence
of theology and the "law of nature," the science and study of international law was dominated by
the naturalist school. This school maintained that the validity of international law was based
upon the will of God and that sovereigns were subject not only to divine law, but also to the laws
of nature established by God. The naturalist school generally negates the necessity, and denies
the existence, of positive law. It proposes that besides natural law (jus naturae), there is no room
for any other law and that international law and other systems of law all belong to the system of
the law of nature. They also advocated that jus cogens are to followed in public international law.
Any public international law that is in violation of jus cogens are held to be null and void,
according to the naturalists.

Early writers that can be labeled as "naturalists" include the two well-known Spanish
theologians and jurists, Francisco de Vitoria and Francisco Suirez. For Vitoria, the law of nations
"was founded on the universal law of nature."' Similarly, Sudrez believed that international law
was the derivation from or extension of natural law, and that natural law was the basis of
international law. Pufendorf denied the existence of any positive rule, holding that only natural
law contained legally binding norms. Pufendorf and his followers not only considered that the
basis of international law was the law of nature, but also viewed international law as part of
natural law or completely identified the two as the same.

CRITICISMS

1. First, each naturalist uses the "law of nature" as "a metaphor for some more concrete
conception such as reason, justice, utility, the general interests of the international
community.
2. A second criticism of naturalism involves it's disconnection with reality. By denying the
existence of rules of positive law, extreme naturalists espouse a doctrine that many
modern scholars view as simply not being supported by reality.
3. Critics contend that the so-called notions of ''natural law,' ''inherent human rights" and the
like are purely artificial creations of theoreticians and that such concepts do not exist in
the absence of positive law-making.

Hugo Grotius – Natural Law

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Hugo Grotius (1583-1645) was a Dutch scholar and jurist whose legal masterpiece, ​De
Jure Belli ac Pacis (​On the law of war and peace [1625]), contributed significantly to the
formation of international law as a distinct discipline. Grotius's primary contribution to
international law is his suggestion that a rational system governs international relations. He
began his analysis with natural law. Unlike brute creation, he reasoned, human nature is
characterized by the desire for a peaceful and orderly society. From this foundation he developed
his system of international law. Grotius claimed that just as the desire for community
necessitates certain laws and principles to hold society together for mutual benefit, so the
community of nations is held together by certain natural principles.

Among the issues addressed by Grotius in his various writings were:

(1) Jus ad Bellum (right to war): Grotius represented a divergence from the ancient just war
theory, which gave little attention to the doctrine of self-defense. He believed that actions taken
in self-defense fell within the realm of just war.

(2) Jus in Bello: Greatly disturbed by the brutality of war, Grotius centralized the notion of jus in
bello (rights in war) by making it part of the obligations found under just war theory. He believed
states were not unlimited in the ways in which they could pursue war, and that they were
obligated to act justly and prudently when conducting and concluding war. Most notably the
Hague Conventions of 1899 and 1907 embraced his notion of a prohibition on unnecessary
suffering.

(3) Rights of Individuals: Because Grotius endorsed a society of mankind and considered
individuals to be actors in international society, he wrote extensively on human law, a precursor
of what is today known as international human rights law. He presupposed certain fundamental
human rights, such as the right to life, food, and medicine.

(4) Humanitarian Intervention: In general, Grotius was a non-interventionist. However, he did

argue that states might be able to act on behalf of individuals who were victims “of injuries
which…excessively violate the law of nature or of nations in regards to any person.”

(5) Freedom of the Seas: Grotius firmly believed that no state could claim exclusive ownership
over any part of the seas, although he did acknowledge the sovereignty of coastal states. In his
view, freedom of the seas meant freedom of navigation. There is a direct link between Grotius’
concept of freedom of the seas and the 1982 UN Convention on the upon Grotius’ ideas and
expanded freedom of the high seas to include, in addition to basic navigation, scientific research,
and clearer responsibilities of jurisdiction, protection, and enforcemen

Samuel von Pufendorf – Natural Law

Samuel von Pufendorf was a seventeenth century German jurist, historian, philosopher,
and statesman renowned for his influential writings on international and natural law. He was
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born the son of a Lutheran minister in Saxony in 1632. In 1672 appeared ​De iure naturae et
gentium.​ This work took largely the theories of Grotius and many ideas from Hobbes, adding to
them Pufendorf's own ideas to develop the law of nations. Pufendorf argues that natural law does
not extend beyond the limits of this life and merely regulates only external acts. He also
challenges the Hobbesian thesis of a state of nature which is a state of war or conflict. For
Pufendorf too there is a state of nature, but it is a state of peace. This natural peace, however, is
weak and uncertain. In terms of public law, which recognizes the state (​civitas​) as a moral person
(​persona moralis)​ , Pufendorf argues that the will of the state is nevertheless nothing more than
the sum of the individual wills that are associated within it; hence the state needs to submit to a
discipline essential for human safety. This 'submission', in the sense of obedience and mutual
respect, is for Pufendorf the fundamental law of reason, which is the basis of natural law. He
adds that international law should not be limited or restricted only to the Christian nations, but
must create a common link between all peoples, since all nations are part of humanity.

NOTE – Differences between naturalist and positivist schools also can be written here.

POSITIVE SCHOOL

In direct opposition to the naturalist theories are positivism and various derivative
positivist theories. Positivism generally teaches that the law of nations is the aggregate of
positive rules by which States have consented to be bound, exclusive of any concepts of natural
law such as "reason" and "justice." For the positivists, nothing can be called "law" among States
to which they have not consented. The proponents of the positivist doctrines maintain that the
will of the State is absolutely sovereign and that it is the source of the validity of all law. The
validity of all laws, whether domestic or international, depends upon the supreme will of the
State.

According to Austin “Law is the command of the sovereign”. He considers it to be law

only if it emanates from the sovereign. Since, there is no sovereign authority in public
international law to pass laws, he calls public international law as illegitimate and also considers
it as Positive Morality. According to HLA Hart law consists of primary and secondary rules.
Primary rules are those rules which confer rights and duties to citizens and the secondary rules
are those which recognize those rules. Since, Rule of Recognition is absent in public
international law, he as well like Austin fails to consider public international law as law. Kelson
consider “Sovereignty” as grundnorm, i.e. the rest of the norms in the international dervies its
validity from the Grundnorm.

Alberico Gentilis (1552-1608), the English writer of Italian origin, and Richard Zouche
(1590-1660), another English writer, may be said to be the originators of the school of positive
law. Although Gentilis formulated the school of the so-called "jus naturae et gentium" (natural
law and international law), his doctrine had already departed from theology or naturalist
philosophy. He opposed to the idea of identifying international law with natural law, advocated
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the interpretation of international law from the perspective of reality, recognized the existence of
different nation-States, believed that every nation-State in reality had equal rights and for the
first time attributed the basis or foundation of international law to the practice (and will) of the
State, as reflected in treaties, voluntary obligations, custom and history.

Further another prominent positivist, Bynkershoek emphasized the importance of the

practice of modern States, custom and treaties, completely ignored the "law of nature" and held
(1) that the rules of international law were established through the consent of States, and (2) that
all agreements between States were the products of their sovereign wills.

CRITICISMS

The positivist doctrine of the will of the State represents a major theoretical progress in that it
recognizes the objective linkage between the basis of validity of international law and the will of
States. It is inaccurate, however, to state that the binding force of international law depends
simply on the will of the State or the common will of the States. If the will of the individual State
determined the validity of international law, then each State might have easily renounced a given
rule of international law merely on the ground that such rule was against its supreme will, thus
resulting not in the affirmation but in the very negation of the validity of international law. If
"the will of States" denoted the common wills of all States upon which the binding force of
international law were founded, then one must say every rule of the law ought to be based on
such "common wills." But this is not the case in real international life either.

THEORY OF CONSENT

The exponents of the doctrine of consent also maintain that the will of the State is the
controlling element of the binding force of international law, but their emphasis is on the
mechanism of State consent through which the will of the State is expressed. For them, the rules
of international law become positive law when the will of the State consents to being bound by
them whether expressly or impliedly. According to the consent doctrine, it is the sovereign and
supreme will of the State that commands obedience. This will of the State is said to be expressed
in the case of domestic law through State legislation and in the case of international law through
consent to international rules. Being a main theory of positivism, the doctrine of consent
generally teaches that the consent or common consent of States voluntarily entering the
international community constitutes the basis of validity of international law. States are said to
be bound by international law because they have given their consent.

An extreme faction of the consent theory, on the one hand, professes that a State is not
bound by any legal norm to which it has not explicitly consented. On the other hand, another
faction of the consent doctrine holds that if a State (especially a newly created or newly
independent State) has not openly and expressly objected to a certain norm of international
custom, it may be said to have given its implicit consent to such norm." In other words, the
consent of States to a given rule of international law may be either explicit as indicated in a
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treaty, or tacit as implied in the acquiescence in a customary rule. In the case of custom it is the
implied consent and in the case of treaties it is the express consent that is said to serve as the
basis for the validity of international law. When States exercise their wills to explicitly or
implicitly accept and consent to be bound by certain rules of law, those rules become positive
rules of international law and acquire legally binding validity.

As far back as early 18th century, Bynkershoek took the position that the basis of
obligations in international law derived from either the express consent or implied consent of
States, and that there was no room for the existence of inter-State law beyond what States had
accepted as binding by means of express or implied consent.

THEORY OF AUTO-LIMITATION

The consent theory as originally propounded was later modified in certain respects by followers
of the positivist school. It later developed into the auto-limitation or self limitation doctrine (also
known as "voluntarist positivism" or "voluntarism"). Some proponents of the auto-limitation
doctrine attribute a will to States, clothe that will with full sovereignty and authority, and
maintain that international law consists of those rules which the wills of the various States have
accepted by a process of voluntary self-restriction. The doctrine of States' auto-limitation or
self-limitation is thus another traditional theory of the positivist school. It teaches that
international law is the outcome of the exercise of self-limitation by States, and that the basis of
its validity is the wills and voluntarism of States. The self-limitation doctrine proclaims that
States are sovereigns, whose wills reject any type of external limitation, and if their sovereignty
is in any way limited, that limitation cannot be from any external force, but only be imposed by
the States themselves.

Voluntarism stemmed from the teaching of Hegel and was put forward and fully
developed by the Austrian, Georg Jellinek (1851-1911), on the basis of the main postulates of
positivism. In the view of Jellinek, the supra will of the State by consenting to be bound by
customary and conventional rules of international law places limitations on its sovereignty. The
rules of international law derive their binding force by self-limitation of the sovereign will of
States through consent. The will of the State being sovereign could not be subordinated to any
external power unless it consented to it.

Emmerich de Vattel – Theory of Automation

One of the most influential early writers on the subject of the law of nations was the
Swiss jurist and philosopher, Emmerich de Vattel. His most famous work, ​Droit des gens; ou,
Principes de la loi naturelle appliqués à la conduite et aux affaires des nations et des souverains
(in English, ​The Law of Nations or the Principles of Natural Law Applied to the Conduct and to
the Affairs of Nations and of Sovereigns)​ published in 1758, established Vattel as a major
authority on the subject.
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Vattel’s ultimate aim was to produce a treatise on international law that could provide
practical guidance. His work reflects that his goal is to apply the principles of natural law to the
conduct and affairs of nations and sovereigns. The scope of ​The Law of Nations is actually much
broader than its stated topic. It addresses both international and internal affairs of states. Vattel
states that “this political authority is the sovereignty​” a​ nd “he or they who are invested with it
are the sovereign.”

Thus, “every nation that governs itself, under what form so ever, without dependence on
any foreign power, is a sovereign state. Its rights are naturally the same as those of any other
State. He draws out the consequences of the principle of state sovereignty. Vattel argues that
“each sovereign State claims, and actually possesses an absolute independence on all the others.”
Vattel provides an analogy: “Nations being free and independent of each other, in the same
manner as men are naturally free and independent, the second general law of their society is, that
each nation should be left in the peaceable enjoyment of that liberty which she inherits from
nature. The natural society of nations cannot subsist, unless the natural rights of each be duly
respected. Vattel makes it clear that “no foreign power has a right to interfere” in the internal
affairs of other states.

TWAIL- Third World Approach to International Law

The regime of international law is illegitimate. It is a predatory system that legitimizes,

reproduces and sustains the plunder and subordination of the Third World by the West. Neither
universality nor its promise of global order and stability make international law a just, equitable,
and legitimate code of global governance for the Third World. The construction and
universalization of international law were essential to the imperial expansion that subordinated
non-European peoples and societies to European conquest and domination.

The first TWAIL meeting was held in March 1997 at Harvard University. The primary
objective – one that has marked the work of TWAILers since then – was to cross-examine
international law’s assumed neutrality and universality in light of its longstanding association
with imperialism, both historical and ongoing.

The Third World is a political reality. It describes a set of geographic, oppositional, and
political realities that distinguish it from the West. It is a historical phenomenon that has a
dialectic relationship with Europe in particular and the West in general. The Third World is more
truly a stream of similar historical experiences across virtually all non-European societies that
has given rise to a particular voice, a form of intellectual and political consciousness. The term
Third World is different from less-developed, crisis-prone, industrializing, developing,
underdeveloped, or the South because it correctly captures the oppositional dialectic between the
European and the non-European, and identifies the plunder of the latter by the former. It places
the state of crises of the world on the global order that the West has created and dominates.

Objectives of TWAIL
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1. End the domination of European Countries in the international sphere.

2. Alternate legal order wherein the Third World has a say.

3. Scholarship (research) and politics to eradicate underdevelopment.

TWAIL is not a recent phenomenon. It stretches back to the decolonization movement

that swept the globe after World War II. This confrontation has its roots in the anti-colonial
movement. TWAIL is a response to decolonization and the end of direct European colonial rule
over non-Europeans. It basically describes a response to a condition, and is both reactive and
proactive. It is reactive in the sense that it responds to international law as an imperial project.
But it is proactive because it seeks the internal transformation of conditions in the Third World.

The United Nations, formed after World War II by the dominant Western powers, aimed
to create and maintain global order through peace, security, and cooperation among states.24 The
new global order had two important legitimating features. Non-European powers were now
recognized as having the right to self-determination, which was a repudiation of direct
colonialism. Second, states were to be governed by human rights. Ostensibly, the United Nations
was the neutral, universal and fair guardian of the new order. But in reality, European hegemony
over global affairs was simply transferred to the big powers; the United States, Britain France,
the Soviet Union, and China which allotted themselves permanent seats at the Security Council,
the most powerful UN organ. The primacy of the Security Council over the UN General
Assembly, which would be dominated by Third World states, made a mockery of the notion of
sovereign equality among states.

Any TWAIL scholarship or political action must be fundamentally oppositional to an

important question in international law. Such disagreement must be related to an issue that is of
significance to, or affects in an important way, the Third World. The purpose of such scholarship
or work must be to eliminate or alleviate the harm or injury that the Third World would likely
have suffered as a result of the unjust international legal, political, and economic order. Such
scholarship or political action will be concerned with justice or the fairness of norms,
institutions, processes, and practices in the transnational arena. Its overriding purpose must be
the elimination of an aspect of Third World powerlessness.