Origin and development of International Law

Definitions of International Law –

Traditional Definitions of International Law

International Law regulates the relations between or among states. States and only
states are subjects of International Law
Exponents: Oppenheim, J.L. Brierly and Hackworth
Oppenheim’s Definition:
“Law of Nations or International Law is “the name for the body of customary and
treaty rules which are considered legally binding by civilized states in their inter
Course with each other”
Key components in this definition are (a) It is a body of rules governing the relations
between states; (b) States regard these rules as binding on them in their relation with one another.
and (c) those rules are derived from customs and treaties.
Criticism of Oppenheim’s definition:
Not only states but also international organization is subjects of international law
P.E.Corbett: “The future of International law is one with the future of International
Organizations. Individuals and other private persons have rights and duties in International Law.
Not only customary and conventional International Law but it also includes general principles of
Law.
Modern Definitions of International Law
International Law not only regulates the relations between states but also deals with
International organizations, individuals and non – state entities.
Definition of J.G.Starke
“ International Law may be defined as that body of law which is 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 organizations, their
relations with each other, and their relations with states and individuals; and
(b) Certain rules of relating to individuals and non-states entities so far as the rights or duties of such
individuals and non-state entities are the concern of the international community.”
 Reasons for emergence of new definition includes, eestablishment of a large number of
permanent international institutions or organisations, protection of human rights and fundamental
freedoms and creation of new rules for the punishment of persons committing international crime

Nature of International Law (Theories of basis of International Law)

There are two views as to the nature of International Law. The first view is that
‘International Law is not a true law.’ The chief exponents of this view are John Austin, Hobbes,
Holland, Pufendorf, and Bentham. The second view is that ‘International law is a true law.’ And
the chief exponents of this view are from Natural school of Law.

‘International Law is not a true law.’

Austin’s Views -
According to Austin, Law is a Command of Sovereign given by political superior to
political inferiors. International law is not true law, but a code of rules of conduct of moral force
only. Law in strict sense is the result of edicts issuing from a determinate sovereign legislative
authority this authority is politically superior if rules are not issued by a sovereign authority or if
there is no sovereign authority then rules are not legal rules. Such rules are moral or ethical rules
only, therefore international law is not a true law but positive international morality.
International laws are opinions or sentiments current among nations generally.
‘International law is a true law.’
The chief exponents of the second view that International law is a true law are Luis
Henkin and Sir, Henry Maine:
According to Luis Henkin generally all the nations observe the principles of
International Law and their obligations. According to him Objective of any law ands its
implementation is most important and not the means and methods.
Sir Henry Maine considers that in primitive societies there was no sovereign political
authority yet there were laws. Austin’s concept of law denied customary rules of international
law, the status of law. Treaty and conventions are like legislation of international law. States do
not deny the existence of international law. Some states like U.K. and USA treat International
Law as part of their laws. International law does not completely lack sanctions. Decisions of
International Court of Justice are binding upon parties to the dispute
Influence of Natural law theory on the nature of International Law
It has significant influence on international Law. Several characters and binding force of
international law is founded on the theories of law of nature Important contentions of this theory
are that ideal law founded on the nature of man as a reasonable being, the body of rules which
nature dictates to human reasons is law. States submitted to international law because their
relations were regulated by the higher law that is law of nature. International law is a part of the
law of nature. Natural law contains those principles which natural law dictates to states. It is no
less binding upon them than it is upon individuals because, states are composed of men, their
policies are determined by men and these men are subject to the natural law

Theory of Positivism on the basis of International Law

International laws have same characters as Municipal law. International laws are issued from
the will of the state. International law can be reduced to a system of rules depending for their
validity only on the fact that states have consented to them. For positivists state is a metaphysical
reality. It has a value and significance and this significance makes the state to have will of its
own and this will is considered as the sovereign authority. International law consists of those
rules which. Various state-wills have accepted by a voluntary self restriction. Without such
manifestation of such consent, the international law would not be binding on the society of
states. Thus international law is a branch of state law, an external public law. Only for this reason
they are binding on the state. Consent for the state may be express or implied(tacit).

Views of Aanzilotti

Binding force of international law can be traced back to one supreme, fundamental principle
or norm i.e. ‘The agreements between states are to be respected.’ this principle is known as
‘pacta sunt servanda.’ Every legal order consists of a complex of norms. They derive their
obligatory character from a fundamental norm to which they relate to. Pacta sunt servanda is
the supreme norm.

Origin and development of international Law

 History of modern system of international law is only of the last four hundred years. It
grew from the usages and practices of modern European states in their intercourse and
communications. Writings of jurists of sixteenth century, seventeenth and eighteenth centuries
had a profound impact on the modern international law. Fundamental tenets of modern
international law are national and territorial sovereignty, perfect equality and independence of
states. They are based on the modern European state system. This system influenced the newly
emerged non-European states.

History of early international law

Rules of conduct to regulate relations between nations emerged from the usages in the
period of antiquity. Treaties and immunities of ambassadors, and are found before the dawn of
Christianity in ancient Egypt and India. There were historical cases of recourse to arbitration and
mediation and in ancient China and Early Islamic world. In Greek city states there were inter-
municipal laws composed of customary rules which crystallised into law from long-standing
usages followed by city states. They are connected with need for prior declaration of war,
enslavement of prisoners of war etc. There were deep religious influences and there were no
distinctions made between law, morality, justice and religion. During Rome’s dominance,
distinction was made between legal rules and religious aspects. This Roman law was later
revived later in Europe

Instructions: For detailed discussion on the origin and development of International law,
students can refer to the Text book ‘Starke’s Public International Law, by S.H. Shearer, Eleventh
edition, International student’s edition, from Page no.7 to Page no.16