NATURE, ORIGIN AND DEVELOPMENT OF INTERNATIONAL LAW.pptx

These slides helps the student of international law to understand what is the nature of international law? and how international law was originated and developed?.

The slides was well structured along with the highlighted points for better understanding .

1. NATURE OF INTERNATIONAL LAW [ Is ‘International law’ a true law? / Is International law a law or not?] There has always been a controversy as to the nature of IL. It is argued that IL is not a true law – there is no machinery to implement and enforce IL. Question raised as whether IL is really a law ? One view: IL is not a true law . It is just a code of rules of conduct of moral force only. Another view : IL is a true law . Because of its binding nature. [only based on definition of ‘LAW’ this question can be resolved]

2. [A] Austin’s view 19 th C – Austin, Hobbes, Bentham and Pufendorf view – IL is not legally binding on States . Austin’s view – Law is the Command of Sovereign [Law should be limited to rules of conduct enacted by a determinates legislative authority and enforced by physical sanctions]. According to him the superior is the real sovereign . Two important elements of definition Any rule which is not enacted by sovereign or superior cannot be regarded as law. Command must be enforced by the sovereign authority. [According to him the existence of these two elements is essential to call a rule as a ‘ Proper law ’, otherwise it is a improper law] Hence, Austin view – IL cannot be called as proper law in true sense. [ it has neither sovereign legislative authority, no enactment, no sanction, no enforcement agency ] Hence, Austin called IL as ‘ Positive International morality ’.

3. [B] Oppenheim’s View He says – ‘Law is a body of rules for human conduct within a community which by common consent of this community shall be enforced by external power’. Essential elements are: There must be community There must be body of rules There must be common consent

4. [C] Positivist’s View (Positive School of Law) – IL is not a law . IL is not issued as a command of Sovereign. IL is purely based on the consent of the States. Hence, it is not a law. [D] Holland’s view – vanishing points of jurisprudence [because there is no sovereign authority and no sanctions] [E] Natural Law School’s View – IL is a supreme Law [F] Historical and Sociological Jurisprudence’s view – [differs from Austinian’s view] Many communities were existed in the past without any formal legislative authority. Law is enforced by its observance. IL is a weak law : no enforcement, no court, no state legislative machinery, frequently violated by States, effectiveness of Municipal Law lies in the fact IL is a strong law

5. ORIGIN AND DEVELOPMENT OF INTERNATIONAL LAW [ Briefly explain the origin and development of International Law?] IL as we find today is the product of the experience of the civilized countries and continuous growth . Rules of IL are to be found in the history of both ancient and medieval worlds [Political communities and inter-community relations] IL exists from time immorial.

6. [A] Ancient Period and International Law: According to Prof. Oppenheim – IL is a product of Christian civilization According to European scholars – The credit of giving a birth to IL goes to European countries. Western jurists – IL is a creation of western civilisation. Indian jurists – During 4 th C only, during ancient period, India had IL principles in the form of ‘ Rajyas ’ or States, ‘ Desha Dharma’, ‘ dhootas ’ or ambassadors, Acquisition of territory, mergers of kingdoms, rules of war. [although we had IL principles in ancient period itself, the modern perspective of IL been developed during 16 th & 17 th Century].

7. [B] Primitive period and International law: Traces of IL can be seen in the pre-Christian era (treaties, immunities for ambassadors were found in Egypt and India) Instances of recourse to arbitration and mediation were not unknown in China and the Islamic world. During the period of Rome’s Supremacy, there was a relations with other nations and had legal character. During Renaissance period - new laws were drawn. The contributions of Jews – they had relations with other countries ( treaty rule and diplomatic envoys ), The contributions of Greeks – The mutual relations of small city states, formulation of definite laws of war and peace, Arbitration resolution method . The contribution of Romans – they deserve the credit of developing the Law of War .

8. [C] Middle ages and International law: The hallmark of this period was the domination of the ancient world by the Romans. (there were no independent states, hence no need of IL) 15 th & 16 th C – Trade and Commerce between States . Rules relating to Sea was introduced such as maritime rules and customary rules . (got international recognition), leagues and associations were established, it became customary by that time to send and receive diplomatic agents. 16 th & 17 th C – Law of War was established . Hugo Grotius ’s work ‘De Jure Belli ac Pacis ’ (Law of War and Peace) was published in 1625. [this is the first systematic work on modern international law and for which he is called as the ‘ Father of Law of Nations ’] Prof. Zouche , who was second father of Law of Nations and his book has been called the ‘ first manual of the positive law of nations ’. [ Juris et Judicii Fecialis  (1650)]

9. 17 th & 18 th C – final evolution of the concept of the modern State system in Europe. The process was influenced by ‘ Treaty of Westphalia in 1648 ’. 3 different schools of International law Naturalists – IL is based on the law of nature . Positivists – are the antipodes of the naturalists. According to them IL derives from customs and International treaties [thus, the law of nations is not the creation of natural law, it is based on the consent of the States [doctrine of positivism – States have consented to be bound and that nothing can be law to which they have not consented to be bound] Grotians – [midway between both positivists and naturalists – ‘ ecclectics ’]

10. 19 th C – witnessed the rise of powerful new States, - negotiation between states [ Congress of Vienna – rules relate to classifications of diplomatic agents and international rivers had emerged] [ https://study.com/academy/lesson/congress-of-vienna-members-objectives-results.html ] - new methods of warfare [multi-lateral treaties – Declaration of Paris 1856 (rules relate to naval warfare) [ https://www.youtube.com/watch?v=fVsmETgoEvw ], - Geneva Convention 1864 (rules relate to wounded and sick members of the armed forces) [ https://www.youtube.com/watch?v=mqCVYJvKG2Q ], - Hague conventions 1899, 1907 (rules of Warfare and neutrality) [ https://www.coursera.org/lecture/international-law-in-action/the-history-of-international-dispute-settlement-in-the-hague-g6KpH ], - spirit of adjudication by international arbitral tribunals ( Alabama Claims Award 1872 ) [ https://www.coursera.org/lecture/arbitration-international-disputes/a-historical-perspective-on-international-arbitration-qWIp8].

11. 20 th C – major developments in the interest of peace and human welfare . - permanent international organisations [ League of nations 1919, UNO 1945] . - Permanent Court of International Justice 1921 [ PCIJ ] - International Labour Organisation [ ILO ] - PCIJ was succeeded by International Court of Justice 1946 [ ICJ ] - War Crimes Tribunal at Nuremberg and Tokyo 1946 - International Civil Aviation organisation [ ICAO ] - International Law Commission ( ILC ) [adopted Vienna Convention on the Law of Treaties 1969 , Law of the Sea Convention 1982 ]