Nature, Origin and Historical Development of International Law:

Introduction
Every society, irrespective of its size or population, creates a system of laws to regulate the conduct of its
people and to maintain order and stability. These laws operating within a state are known as municipal laws.
However, as interactions between different states increased through trade, diplomacy, and political relations,
the need for a separate legal framework to regulate such relations became essential. This gave rise to
International Law, which governs the conduct of states and other international entities at the global level.
The term “International Law”, also known as the Law of Nations, was first coined by Jeremy Bentham in 1780.
International Law is a system of rules and principles that governs the relations between sovereign states and
other international entities. Its origin can be traced back to ancient civilizations such as Egypt, India, Greece,
and Rome, where rules of conduct were followed in matters like war, peace, and diplomacy.
Over time, with the growth of trade, communication, and political relations, the need for a more structured
and uniform system became essential. The emergence of independent nation-states and the development of
diplomacy further strengthened these rules. Initially based on customs, traditions, and moral principles,
International Law has gradually evolved into a well-organized system of rules and principles aimed at
maintaining peace, promoting cooperation, and ensuring stability among nations in the international
community.

1. Nature and Definition of International Law

International Law is a system of rules and principles that governs the conduct of states and other
international entities in their mutual relations. Unlike municipal law, which is enforced within a state by a
sovereign authority, International Law operates at the international level where no single supreme authority
exists. Still, it is considered binding because states follow it out of mutual consent, necessity, and fear of
consequences such as loss of reputation and international isolation. Whenever disputes arise between states,
International Law provides peaceful methods of settlement, such as negotiation, arbitration, and adjudication
by international courts. Its main aim is to maintain peace, security, cooperation, and orderly relations among
nations.
Different jurists have defined International Law in various ways:
• Lassa Oppenheim defined it as “a body of customary and conventional rules considered legally
binding by civilized states.”
• James L Brierly described it as “a body of rules and principles binding upon states in their mutual
dealings, both in peace and war.”
• Hackworth stated that it is “a system that has evolved from the experience and necessities of states.”
• Fenwick emphasized that “it includes general principles and specific rules governing relations between
members of the international community.”
Key Point: Though definitions differ, all agree that International Law governs relations between states and is
binding in nature.
2. Origin and Historical Development of International Law
(a) Ancient Period
The origin of International Law can be traced back to ancient civilizations, where certain rules and practices
governed relations between territories. Early examples include treaties such as the agreement between
Lagash and Umma (2100 B.C.), which fixed boundaries, and the treaty between Ramses II of Egypt and the
Hittite king (1258 B.C.), which established peace and brotherhood.
Greeks
Ancient civilizations like India and China emphasized principles of morality, justice, and peaceful coexistence.
In Greece, independent city-states developed rules for interaction and entered into treaties for political and
commercial purposes, although these rules applied only among Greek states. There were numerous city states
in Greece who prescribed certain rules and regulations for interaction so as to minimize conflict amongst them
and acquire peace; to some extent it depicts glimpse of modern International Law.
The Romans made a major contribution through Jus Gentium (Law of Nations), which governed relations
between foreigners and Roman citizens and was based on natural law principles. It was considered universal
in nature and has influenced modern International Law.

Key Understanding: International Law in this period was based on customs, religion, and morality, but it
was not universal.
(b) Medieval Period
During the Middle Ages, International Law was heavily influenced by the Church. The Pope acted as a
mediator in disputes between rulers, and ecclesiastical law was widely followed across Europe.
At the same time, the growth of trade and commerce led to the development of rules such as the Law
Merchant, which governed relations between traders of different countries and was accepted universally.

Key Understanding: International Law during this period was shaped mainly by religion and commercial
needs.
(c) Renaissance and Rise of Sovereign States (15th–16th Century)
A major transformation occurred during the Renaissance, Reformation, and discovery of the New World.
These events weakened the authority of the Church and led to the rise of independent sovereign states.
Thinkers like Bodin, Machiavelli, and Hobbes developed the concept of state sovereignty, meaning that each
state is independent and equal. As the number of sovereign states increased, they began interacting more
frequently, which led to the development of customary rules of International Law based on their practices.
Early jurists like Gentili and Suarez contributed to developing rules related to war and peace, especially
focusing on regulating conduct during warfare.

Key Understanding: This period marked the beginning of modern International Law.

(d) Classical Period – Contribution of Grotius (17th Century)

The most important contribution to International Law was made by Hugo Grotius, who is known as the Father
of International Law. His famous book De Jure Belli ac Pacis (1625) laid the foundation of modern
International Law.
He introduced several important principles:
• Distinction between just and unjust wars
• Concept of freedom of the seas
• Doctrine of neutrality
• Importance of peaceful settlement of disputes
• Recognition of rights of individuals

Key Understanding: Grotius gave a systematic and scientific structure to International Law.
(e) 17th–18th Century Development
After Grotius, International Law developed further through customs, treaties, and writings of jurists such as
Vattel, Pufendorf, and Bynkershoek.
During this time, the modern state system became well established in Europe, and a large number of
customary rules were formed based on consistent state practice.

Key Understanding: Development through practice and scholarly writings.

(f) 19th Century Development (Positivist Era)
The 19th century saw rapid growth in International Law due to the Industrial Revolution, technological
advancements, and increased international interaction.
New international institutions and conferences emerged, and laws relating to war, neutrality, and diplomacy
were further developed. Congress of Vienna, 1815 formulated rules relating to international rivers,
Declaration of Paris 1856 was a law making treaty where rules relating to naval warfare were laid down. The
Permanent Court of Arbitration (1899) was established to settle disputes peacefully.

Key Understanding: Period of expansion, codification, and institutional growth.

g) 20th Century and Modern Development
After World War I, the League of Nations was established to maintain peace but was later replaced by the
United Nations in 1945 after World War II.
The International Court of Justice was established for judicial settlement of disputes. The International Law
Commission (1947) was created to codify and develop International Law.
International Monetary Fund was established to curb the great depression of 1930s and the World Bank to
promote international investment for economic development. International Trade Organization was also
established to govern trade amongst nations. The aim behind establishing such organizations was to create
rules binding universally and form a global community.
There has also been a rise in multilateral treaties, arbitration, and global institutions, making International
Law more effective and widely accepted.
 Key Understanding: International Law today is well-developed, institutionalized, and essential for global
peace.

1. S.S. Lotus Case (1927)

Facts: A collision occurred on the high seas between a French ship (Lotus) and a Turkish ship. Turkey arrested
the French officer when the ship reached its port, which France objected to.
Held: The Court held that Turkey had jurisdiction and could try the case. It was established that states are free
to act unless there is a prohibiting rule in International Law. This case emphasized the principle of state
sovereignty and freedom of action.
Relevance: Shows the development of state sovereignty and independence, which is a key feature of modern
International Law.
2. North Sea Continental Shelf Cases (1969)
Facts: A dispute arose between Germany, Denmark, and the Netherlands regarding the delimitation of the
continental shelf in the North Sea. Germany argued that the equidistance principle was not binding.
Held: The Court held that customary international law requires consistent state practice and acceptance as
law (opinio juris). It ruled that the equidistance principle was not automatically binding, thus recognizing the
importance of custom as a source of International Law.
Relevance: Shows how International Law gradually develops through consistent state practice.
3. Nicaragua v United States Case (1986)
Facts: Nicaragua brought a case against the USA for supporting rebels (Contras) and interfering in its internal
affairs. The USA argued that it was not bound by certain treaty obligations.
Held: The Court held that the USA had violated customary international law, including the principle of non-
intervention. It confirmed that customary rules are binding even without treaty obligations, reinforcing their
importance in International Law.
Relevance: Shows that International Law has evolved into a strong and binding legal system over time.

Conclusion
International Law has developed gradually over centuries from ancient customs, moral principles, and
treaties into a well-structured and organized system of law. Although its roots can be traced to early
civilizations, its modern form has been largely shaped by the rise of sovereign states, European influence, and
international institutions. It has not evolved through a single source but through a continuous process of state
practice, judicial decisions, and scholarly contributions.
Today, International Law plays a crucial role in maintaining peace, security, and cooperation among nations. It
has become an indispensable part of the international system, ensuring that relations between states are
conducted in an orderly and just manner, and continues to evolve with changing global needs.
 Sources of International Law:
Introduction:
Sources of International Law refer to the materials and processes from which the rules and principles
governing international relations are developed. These sources determine how International Law is created,
applied, and recognized among states, international organizations, and other entities. In the absence of a
central legislative authority at the international level, these sources play a crucial role in ensuring order,
consistency, and predictability in international relations.
According to jurists like Lassa Oppenheim, the ultimate basis of International Law is the consent of states,
while James Leslie Brierly emphasizes custom and reason as the primary sources.
The most authoritative statement regarding the sources of International Law is provided under Article 38(1) of
the Statute of the International Court of Justice, which identifies the main sources as treaties, customs,
general principles of law, judicial decisions, and juristic writings, along with reason and equity. These sources
together form the foundation of International Law and guide the peaceful conduct of relations between
nations.

Main Content:
1. International Conventions / Treaties
Treaties are the most important and primary source of International Law. They are formal written
agreements between two or more states by which the parties agree to be legally bound. Treaties are
expressly recognized as a source of international law under Article 38(1)(a) of the Statute of the International
Court of Justice, which authorizes the Court to apply international conventions and agreements while deciding
disputes. Since there is no central legislative authority in International Law, treaties perform a function
similar to legislation in municipal law. They clearly define the rights and obligations of states and are based on
the consent of parties, which is the foundation of International Law. The legal framework governing treaties
was further strengthened by the Vienna Convention on the Law of Treaties, 1969, which lays down detailed
rules regarding the formation, interpretation, application and termination of treaties.
Types of Treaties:
(a) Law-Making Treaties:
These are treaties entered into by a large number of states and are intended to create general rules of
International Law applicable to many countries. They are also called multilateral treaties and are considered a
direct source of International Law, as they lay down rules similar to legislation at the international level.
Examples include the United Nations Charter and the Vienna Convention on Diplomatic Relations, 1961.
(b) Treaty Contracts:
These are treaties entered into between two or more specific states and are binding only on the contracting
parties. They deal with specific matters such as trade, boundary disputes, or cooperation agreements.
Although they apply only to the parties, repeated use of similar treaty provisions by many states may lead to
the development of customary international law.
BINDING EFFECT OF TREATIES
The binding force of a treaty is based entirely on the consent of States. A treaty creates legal obligations only
for those States that have agreed to it through signature, ratification or accession. Once a State has consented
to be bound, the treaty becomes a source of international law for that State and must be performed in good
faith according to the principle of pacta sunt servanda. States that are not parties to a treaty are generally not
bound by its provisions.
1. North Sea Continental Shelf Cases (1969)
Facts: A dispute arose between Germany, Denmark, and the Netherlands regarding the delimitation of the
continental shelf. Germany argued that it was not bound by the equidistance principle as it had not accepted
the relevant treaty.
Held: The Court held that a treaty is binding only on those states which have signed and ratified it. It further
stated that non-parties are not bound unless the rule has become customary international law. This showed
that treaty obligations are based on consent, and rules apply to non-parties only if they become customary
law.
2. Nicaragua v United States Case (1986)
Facts: Nicaragua filed a case before the ICJ alleging that the United States supported rebel groups (Contras)
and mined its ports, thereby violating its sovereignty and a treaty between them. The USA challenged the
jurisdiction, but the case proceeded.
Held: The Court held that the United States had violated International Law by using force and interfering in
Nicaragua’s internal affairs. It also held that the USA had breached its treaty obligations and must stop its
actions and pay compensation. This showed that treaties create binding legal obligations, and their violation
results in international responsibility.

2. International Custom
Custom is the oldest and original source of International Law. In international law, there is no precise
statutory definition of custom. The most authoritative description is contained in Article 38(1)(b) of the
Statute of the International Court of Justice. It is generally described as a “general practice accepted as law”.
Customs develop gradually from the repeated conduct of states over a long period of time. When such
practices are followed by states out of a sense of legal obligation, they become binding rules of International
Law. Thus, custom reflects the natural and continuous development of law in the international sphere.
Essential Elements of Custom:
1. State Practice (Material Element): There must be a consistent, uniform, and general practice followed
by a large number of states over time.
The material test requires that the practice must be followed by a majority of States in the
international community. This means that the practice should be general, consistent, and uniform
among different countries. Occasional or isolated acts are not sufficient; there must be a regular
pattern of conduct indicating that States actually follow the rule in their international dealings.
2. Opinio Juris (Psychological Element): States must follow the practice because they believe it is legally
binding, and not merely out of habit or convenience.
The psychological test means that States must follow the practice because they believe they are legally
bound to do so. Mere convenience, habit, or courtesy is not enough. The practice must be
 accompanied by a sense of legal obligation. This requirement is expressed through the Latin maxim
“Opinio Juris et Necessitatis,” which means that States act out of a belief in legal duty and necessity.
If either of these elements is missing, the rule cannot be regarded as a binding custom under international law.

Development of Custom
Customary international law evolves gradually from various sources. The most important of these are:
1. State Practice – State practice is one of the most important foundations for the creation of customary
law. When a particular practice is followed consistently by many States, it gradually acquires the status
of law. Including acts of governments, national legislation, court decisions, and official conduct.
2. Diplomatic Relations Between States – Customary rules also develop from the long-standing
diplomatic practices and agreements between States such as treaties, negotiations, official
communications, and diplomatic correspondence.
3. Behaviour of International Organisations – The conduct and activities of international organisations
also contribute to the formation of customary international law. Including resolutions, declarations,
and consistent practices of bodies like the United Nations.
Through these processes, repeated practices acquire legal recognition and eventually develop into binding
rules of customary international law.

Types of Customs:
Customary international law is generally classified into two main types – General (Universal) Custom and
Local or Regional Custom.
1. GENERAL OR UNIVERSAL CUSTOM
General or universal customs are those rules of international law which are followed by a large number of
States across the world. Such customs become binding on almost all members of the international
community. Universal customs mainly develop through three important factors – State Practice, Diplomatic
Relations between States, and Behaviour of International Organisations.

2. LOCAL OR REGIONAL CUSTOM

Local or regional customs are those customs which are binding only on a particular region or between specific
States, and not on the entire international community. Such customs must be strictly proved by the party
relying on them.
1. The Scotia Case (1871)
Facts: Great Britain made it compulsory for ships to carry lights at night. This rule was later adopted by many
maritime countries, including the USA. A British ship (Scotia) collided with an American ship (Berkshire), which
did not have lights.
Held: The Court held the American ship liable and recognized that the rule had become binding international
custom due to widespread and consistent state practice. This Showed that repeated and consistent state
practice can develop into customary International Law.
2. Reparation for Injuries Case (1949)
Facts: A UN official (Swedish national) was killed during a peacekeeping mission in Jerusalem. The United
Nations claimed compensation, raising the issue whether it had legal personality to bring a claim.
Held: The Court held that the United Nations has international legal personality and can bring claims, based
on its past conduct such as entering treaties and performing functions. This Showed that the behaviour of
international organizations also contributes to the development of International Law.
[Link] of Passage over Indian Territory Case (1960)
Facts: Portugal claimed a right of passage through Indian territory to access its enclaves within India. India
objected, arguing that no such right or custom existed.
Held: The Court held that there was a constant and uniform practice of allowing such passage, which was
accepted by India over a long period, thereby creating a valid local custom. This showed that custom can
develop even between two states (local custom) if it is consistent and accepted as law.

3. General Principles of Law

General principles of law are those principles recognized by civilized nations and are common to most
domestic legal systems of the world. They are considered an important source of International Law under
Article 38(1)(c) of the Statute of the International Court of Justice.
These principles are applied when there is no treaty or custom available to resolve a dispute. Thus, they help
in filling gaps in International Law and ensure that justice is not denied due to absence of specific rules. These
principles are not created specifically for International Law but are derived from domestic legal systems and
then applied internationally. They are based on fairness, justice, equity, and natural law, and are derived
from general legal concepts followed by nations worldwide.
Examples of General Principles of Law:
1. Reparation and remedies: Reparation means giving compensation for damage caused by a wrongful act.
The aim is to bring the situation back to what it was before the harm.

In AMCO Asia Corporation & Ors. v. The Republic of Indonesia, AMCO Asia Corporation, a US company, invested
in a hotel in Indonesia, but the government cancelled its license and took over the hotel. So, the company asked
for compensation. The court held that Indonesia was wrong and must pay damages, and it said that giving
compensation is a basic principle and part of international law.

2. Prescription: Prescription means getting ownership of a territory by using and controlling it peacefully for a
long time without any objection.

In the Island of Palmas Case (United States v. Netherlands), The United States said that the island was theirs
based on a treaty with Spain, but the Netherlands said they had been controlling the island for a long time. The
court held that long and peaceful control is more important than just a claim. Since the Netherlands had control
for many years without any objection, the island was given to them.

3. Res Judicata: Res judicata means once a case is decided by a court, it cannot be reopened again. The decision
is final. In the Chorzow Factory Case, (Germany v. Poland), Germany brought a case against Poland for taking
over a factory, and the issue was already decided earlier by the court. Poland tried to raise the same issue
again, but the court refused to reconsider it. The court held that once a matter is finally decided, it cannot
be reopened between the same parties.
4. Estoppel: Estoppel means a person cannot go back on what they said or did earlier if it harms another
person. It ensures fairness.

In the Temple of Preah Vihear Case, (Cambodia v. Thailand), There was a dispute between Cambodia and
Thailand over ownership of a temple located on their border. A map showed the temple in Cambodia, and
Thailand had accepted and used this map for many years without objection. Later, Thailand claimed the temple.
The court held that Thailand had already accepted the map and could not deny it later, so the temple belongs
to Cambodia.

5. Equity (Clean Hands Principle): This principle means a person must come to court with clean hands. If a
person has done the same wrong, they cannot complain.

In the case of Diversion of Water of the River Meuse (Netherlands v. Belgium), Belgium and the Netherlands
had an agreement about using water from the River Meuse. Later, both countries built canals and dams, and
each complained that the other had broken the agreement. The court held that both countries had done similar
acts, so neither could complain against the other, and both claims were rejected.

6. Subrogation / Diplomatic Protection: This means a state can take up the case on behalf of its citizens.

4. Judicial Decisions (as a Source of International Law)

Judicial decisions are recognized as a subsidiary source of International Law under Article 38(1)(d) of the
Statute of the International Court of Justice. They include decisions of international courts and tribunals, such
as the ICJ, Permanent Court of International Justice (PCIJ), arbitral tribunals, and even national courts.
Nature of Judicial Decisions
Judicial decisions do not create law directly but help in interpreting, clarifying, and developing existing rules
of International Law. According to Article 59 of the ICJ Statute, the decisions of the Court are binding only on
the parties to the dispute and only in that particular case. Therefore, the doctrine of precedent (stare decisis)
is not strictly applicable in International Law. According to Article 38 of the Statute of the International Court
of Justice, Judicial Decisions are subsidiary sources of International Law. They are not the automatic sources of
law. Judicial Decisions by International Court of Justice, Permanent Court of Justice, International Arbitral
Tribunal and Municipal Courts are subsidiary sources of International Law.
However, in practice, judicial decisions have great persuasive value. Courts often rely on earlier decisions to
ensure consistency and certainty, and repeated application of certain principles may gradually lead to the
development of new rules of International Law.
Importance of Judicial Decisions
• They help in interpreting treaties and customs.
• They clarify uncertain or ambiguous rules.
• They contribute to the progressive development of International Law.
• They ensure uniformity and consistency in legal interpretation.
Corfu Channel Case – This was the first case taken up by the ICJ and it shows how judicial decisions help in
clarifying principles of international law. In 1946, British warships hit mines in the Corfu Channel, causing
damage and deaths. The UK claimed Albania knew about the mines and failed to warn them. The ICJ held Albania
responsible and recognised the right of innocent passage, awarding compensation to the UK.

Alabama Claims Arbitration (1872)

Facts: During the American Civil War, Great Britain supplied ships (like the Alabama) to the Confederate forces,
which were used to attack and destroy United States vessels. The United States claimed that Britain had
violated its duty of neutrality and demanded compensation for the losses suffered.
Held: The arbitral tribunal held that Great Britain had failed to maintain neutrality and was therefore
internationally responsible for the damage caused. It was ordered to pay compensation to the United States.
This Showed how judicial decisions establish state responsibility and clarify International Law.
In many arbitral cases, arbitrators act more like mediators or diplomats rather than strict judges. Their aim is
often to satisfy both parties. Because of this, some jurists argue that arbitral decisions are not strong sources
of law.

Kutch Award 1968 – India and Pakistan had a dispute over the Rann of Kutch border. Both countries agreed to
settle the dispute through arbitration. The tribunal examined the claims and divided the disputed territory
between them, giving a larger share to India and a smaller portion to Pakistan.

5. Juristic Works (Writings of Publicists)

Juristic works refer to the writings of highly qualified scholars and jurists on International Law. They are
recognized as a subsidiary source under Article 38(1)(d) of the Statute of the International Court of Justice.
These writings are not binding in nature but are used as a means for determining and understanding rules of
International Law.
Nature of Juristic Works
Juristic writings do not create law directly. However, they play an important role in:
• Explaining and systematizing legal principles
• Clarifying doubtful or uncertain areas of law
• Influencing the development of new rules
In many situations where there is no treaty, custom, or judicial decision, courts may rely on the opinions of
jurists to arrive at a just decision. Thus, juristic works act as a guiding and persuasive source.
Important Jurists: Several scholars have contributed significantly to the development of International Law,
such as:
• Hugo Grotius
• Gentili
• Vattel
• Oppenheim
Their writings have helped transform customs and practices into well-defined legal rules.
Re Piracy Jure Gentium Case
A group of armed men attacked another ship on the high seas but were caught before committing any robbery.
The issue was whether piracy requires actual robbery.

The court held that actual robbery is not necessary and that even an attempt to commit robbery is piracy under
international law.

6. Decisions of International Organizations (Modern Source)

In the modern era, the decisions and resolutions of international organizations have become an important
source for the development of International Law. Although they are not expressly mentioned in Article 38 of
the Statute of the International Court of Justice, they play a significant role in shaping international legal rules.
Meaning and Nature
International organizations such as the United Nations make decisions, resolutions, declarations, and
recommendations which influence the conduct of states. These decisions are generally not legally binding
(except in certain cases like Security Council resolutions), but they have strong persuasive value.
Some decisions (like UN Security Council resolutions) may be binding on member states.
Others (like UN General Assembly resolutions) are not legally binding, but they carry strong moral and
persuasive value.
These decisions reflect the collective will of the international community and often lead to the development
of customary international law when states follow them consistently.
They contribute to International Law by:
• Helping in the formation of customary law
• Reflecting the collective opinion of the international community
• Guiding states in their behaviour and policies
Examples
• Universal Declaration of Human Rights (UDHR)
• UN General Assembly resolutions
• Decisions of specialized agencies
Reparation for Injuries Case (1949)
Facts: A United Nations official was killed while performing duties in Jerusalem. The UN claimed compensation
and raised the issue whether it had legal personality to bring a claim.
Held: The Court held that the United Nations has international legal personality and the capacity to bring
claims, based on its functions and conduct.
Conclusion
Sources of International Law form the foundation of the entire international legal system, as they determine
how rules are created, recognized, and applied among states. Among these, treaties and customs are the
primary sources, while general principles, judicial decisions, juristic works, and equity act as supporting
sources that help in interpretation and development of law.
In the absence of a central legislative authority, these sources ensure that International Law remains
systematic, flexible, and adaptable to changing global conditions. The growing role of international
organizations has further strengthened and expanded these sources. Thus, the various sources of
International Law collectively ensure peace, cooperation, and orderly relations among nations and contribute
to the continuous evolution of the international legal system.