General Introduction to Public International Law
Public international law
Introduction of public
international law
Generally,
we know that law is the set of rules which are binding in nature. Law itself is
one complicated issue. Simply we can understand in this living planet there are
many states or countries which have their own laws and its sources are also
different. But the general principle is that the customs plays the vital role for
forming the law. While we had to distinguish the law we can distinguish as
National law or Municipal law and International law. As necessity has been found
out why domestic law or national law is needed. In same way the necessity of international
law has been seen for many purposes.
In
simple understanding for regulating the human behavior the nation makes the laws,
rules etc as well as to solve the dispute. As we know that world has been
closely related and co-related no one state can exist in isolation. There is an
international relation in various forms as the diplomatic envoy leads the
initiation of forwarding the relation among the sovereign states. As the
relation began to take place there also arise the difficulty when the dispute
arises. Therefore to settle conflict the international law got the important
part. It is also said in the ancient history the sovereign state have to follow
the principle of Pacta sun survanda which means the promise should be made in
each agreement to flow the right and obligation. When the promise is not been performed
then the international law came into existence to bind the respective states
who do not maintain the promise which they have made.
There
are many views regarding the international law. In the views of European
scholars, modern international law is determined by the modern European system.
This view is criticized because there are several such principles and rules of international
as law existed in their developed from in the ancient period. In the view of
Professor L. Oppenheim, International law was in a developed state in the
Ramayana and Mahabharata period. He cited the example of International law
relating to Diplomatic agents etc. Thus, the birth of international law can be
traced back to ancient times.
However,
it cannot be denied that the word “International Law” was used for the
first time by eminent British Jurist, Jermy Bentham in 1780. Since then
these words have been used to denote the body of rules which regulates the
relations among the states. As well as the Houge Gortious is also known as the
Father of modern international law. He have contributed for the development of international
law. In his view that the concept of law given by naturalist and positivist
should go hand in hand. As he said that Law is the dictate of right reason, and
the positivist says the customs and treaty are the sources of international law.
But he emphasize that both are equally important and needed for the formation
of international law.
As
international law is known as laws of nations, which regulate the behavior of
the sovereign states. In recently growing trend, the international law became
the important tool for not only for the states but also for individual
personals. As law must be dynamic in same regard international law is also
dynamic. It cannot be static in this changing world. It must be change
according to the change of time and consequences.
Definition of International Law
While
discussing about the definition of international law, there are several definition
given by different jurist but it is very hard work to give accurate definition.
Although there are some definitions regarding international laws which are discuss
below:
According
to Professor L.Oppenheim,
“Law of Nations on International law is a name for the body of customary
and treaty rules which are considered legally binding by civilized states in
their intercourse with each other.”
According
to Philips jessup,
“Law of Nations and international law must be defined as law applicable
to to states in their mutul reaction with states.”
According
to Edward Collins,[ the Author of International law in a changing world]
“International law is constantly evolving body of norms that are
commonly observed by the members of international community in their relation
with one another. These norms confer rights and impose obligation upon the
states and to a lesser extent upon international organization and individuals.”
As
the definition given by professor L.Oppenheim is not adequate and sufficient. It
might have been good and adequate at one time but now it has become obsolete
and inadequate. But the definition given by the Edward Collins is very adequate
and appropriate definition of international law.
Thus an endeavor has been mad e to
show that international law like any other law is a dynamic concept. Law changes
with the change of time and circumstances. A law which does not change with the
change of time and circumstances has already outlived its utility and is
approaching towards its death. A law, to be living must be flexible, adaptable
any changeable.
Origin and Importance
Origin
Contribution
of Jews, Greeks Romans and Hindus
Development
of international law during 16th and 17th centuries
Development
of international law during 18th century : contribution of
Naturalist and Positivists
Development
of international law during 19th and 20th century
A. Origin
International
law as we find today is the product of the experience of the civilized countries
of the world and the continuous growth of many centuries.
European
scholar claim that the credit of giving birth to international law goes to
European countries. But Sir S.S Dhawan argued that it is not correct and he has
rightly observed;
“The
claim of western jurists, Oppenheim and other that international law originated
in Europe and is the creation of western civilization is falsified by the study
of original text of the Ramayan and to the Mahabharata period.”
According
to Sir S.S Dhawan, In Ramayan period relations of the sovereign rulers were
based on the definite rules of international law and these rules were recognized
by all sovereign rulers. These very principles are the foundation of modern international
law.
So far as the origin of the
international law is concerned almost all the civilized states have made their
contribution in development. As regarding the contribution made by Jews, Greeks
Romans and Hindus deserves special mentions. Here is the brief discussion of
their contribution:-
B. Contribution of Jews, Greeks,
Romans and Hindus
Jews:-
When
we study the ancient history it reveals that the Jews had relations with other countries.
Their relation with other countries were regulated or governed by certain
rules. There was a famous Slogan of Jew, “Love the Stranger: for ye were stranger in
the land of Egypt” from this slogan it is clear that they believed in
internationalism.
But
when they began to believe in monism under religion, they do not treat those
nations on the basis of equality which believed in dualism and plurality of
Gods. In other part Jews strictly followed the treaties entered by them with other
countries and conferred privileges and immunities upon diplomatic envoy.
Any
way the Jews made some contribution in the development of internationla law.
Greeks:-
Greeks
civilization was quite advanced then other state. Socrates, Plato, Aristotle
and other Greece Philosophers enlightened the world through their ideas and
philosophies.
Greeks
lived in small city-states. The mutual relations of these states were regulated
and governed by some definite rule and principles. They had formulated definite
“Laws
of war and Peace”. Mostly they used to resolve their dispute through
arbitration.
The
Greeks had formulated many laws relating to war. Oppenheim has rightly remarked
that the,” Greeks had shown to the world how sovereign states could live in
mutual co-operation with each other like single community.”
nevertheless, the Greek philosophy, ideas and their practices indirectly
contributes to the development of international law.
Romans:-
Although
modern international law is ordinarily regarded as dating from 16th
and 17th centuries; it cannot be denied that the Romans contributed
much to the development of modern international law. In its early period, Rome
was a small city state and had relation with other states. These relations were
based on the rules of international law.
Romans
deserved the credit for developing the Law of War. According to them, there
were two
types of war – Just and Unjust war. Similarly they
had divided
the treaties into following three categories:-
Treaty
of Friendship
Treaty
of Alliance
Treaty
of Hospitality
The
Romans strictly adhered to the provisions of the treaty and in their view prior
intimation (hint or warning) was necessary for termination of treaties. Thus
the Roman made important contribution in the development of international law.
Hindus:-
As
we already know that through the study of the Ramayana, Mahabharata,
Manusmriti, Kautilay’s Arthashastra helps to identify the development of
international law. Bhagavat Gita,
which is regarded a pious religious text book by Hindus, has not only
classified Just and Unjust wars but also made a vivid discussion of them.
It also reveals that the declaration of war before its commencement was
essential.
Kautilya’s
Arthashastra vividly discussed about the duties of the stae in administrative
and external matters.
At
the period of Ramayan and Mahabharata diplomatic agents enjoyed many privileges
and immunities.
Manu
had propounded many principle and rules in his codes popularly known as Manu’s
Code. He says, “War could be either just or unjust, to fight and die in a just
war was a good deed indeed.”
Thus,
the hindus sastra made contribution to develop the international law.
C. Development of international
law during 16th and 17th centuries
In
the middle ages there are two main obstacles in growth of strong centralized
government they are, Feudalism and The Church.
Feudalism
was a difficult obstacle to growth of the national states. The strong influence
of the Church retarded the growth of states in Middle ages. However, a great
landmark work is done by introducing “Treaty of Westphalia of 1648”. After this
treaty there was the end of thirty years war of religion and acceptance of new
order in European political development. From this the state is lead to
intimate and constant relation of states with one another.
D. Development of international
law during 18th century: Contribution of Naturalists and positivists
In
17th and 18th century are noticeable for giving birth to
three different schools of international law, namely:-
The
Naturalists
The
Positivists
The
Grotians
The
naturalist’s jurist view that,
international law is a part of the law of Nature. In their view, states follow international
law, because it is a part of the law of nature. Vattek a famous jurist of 18th
century also expressed the view that natural law was the basis of internationla
law.
The
positivists base their views on the
actual practice of the states. In their view, treaties and customs are the main
sources of international law. According to them, “International law is a body of
rules which has been consented by way of voluntary restriction or auto-limitation.”
Grotius
contributed much to develop modern international law. The credit goes to him
for secularizing the concept of natural law. He define, law is the dictate of
right reason. He is well known as Father of modern international law. According
to him, international law has originated not only form natural law but customs
and treaties are also its sources. Therefore, it give the ideas that the
concept of naturalist and positivist should go hand in hand.
E. Development
of international law during 19th and 20th centuries
There
are many factors which led to the development of international law, in 19th
and 20th centuries. The relations of the states and their mutual
contacts had greatly increased during many period and many rules and principles
of states and the need and requirement of the changing times and circumstances.
Some are discussed below.
Hague
Conferences of 1899 and1907
The
league of Nation
Hague
Conferences of 1899 and 1907
These
conferences are rightly considered as great landmarks relating to the
development of international law. These conferences emphasized the settlement
of international dispute thorough peaceful means. Many rules
of international law relating to land warfare and naval
warfare were formulated.
The
league of Nations
After
the First World War the nations of world felt the need of and international
organization, which may not only be able to regulate amicably the mutual relations
among nation but may also prevent future wars.
The
League of Nations was established under the Treaty of Versailles 1919. It
firstly imposes certain restriction upon the nations’ right to resort to war at
their will and also provided that before resorting to war they shall first
settle their dispute through arbitration, judicial settlement or enquiry by
council. It seems that this organization work for maintaining peace through
avoiding war.
Another
great achievement made by League of Nation was the establishment of the
permanent Court of International Justice which helps in progressive development
of international law.
Kellogg-
Briand or Paris Pact of 1928
This
pact was a very significant international event for legal regulation over war.
The parties to it renounced war as an instrument of their policy for the settlement
of international dispute.
Second
World War 1939- 1945
All
most all above mention rules of international law were violated during Second
World War in result there was the devastating effects and bad experiences of
the war once more compelled nation of world to make fresh establishment of
international organization. Consequently the Second World War was responsible
for the establishment of the United Nations.
The
United Nations
The
United Nation Charter came into force on October 24, 1945 and thus the United
Nations was established. The United Nations charter is an international treaty
which regulates the mutual relations of its members. Article 13 of United
Nations Charter provides General Assembly for Encouraging the progressive
development of International Law and its codification. For this purpose
it also established International Law Commission, which conduct study and research
in different aspect of international law and submits its reports to the General
Assembly.
Thus
after the establishment of the United Nations the development of international
law has been effected mainly through multilateral-law-making treaties.
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