Introduction
International law reflects the establishment and subsequent modification of a world
system founded almost exclusively on the notion that independent sovereign states are the
only relevant actors in the international system.
International Law
International law is the set of rules generally regarded and accepted as binding in
relations between states and between nations. It serves as a framework for the practice of
stable and organized international relations. It is the body of legal rules, norms, and
standards that apply between sovereign states and other entities that are legally
recognized as international actors. It governs relations between states, international
organizations, individuals and non-governmental organization hem selves and among
themselves.
Categories of International law
There are two types of international law. These are public international law and private
international law.
Private international law is the law which governs the relationship between individuals of
different states. It deals with controversies between private persons, natural or juridical,
arising out of situations having significant relationship to more than one nation.
Public international law is the law that regulate relations between and among independent
states. It concerns itself only with questions of rights between several nations or nations
and the citizens or subjects of other nations.
Functions of International law
There are several functions of public international law. These are: -
It regulates relations between and among states.
It prevents continuity of conflict of state interests among themselves.
It allows existences f multiple political units and their relations.
It and prescribes standards in use of force and protection of human rights.
It facilitates and supports daily business of international law relations and politics.
It provides framework for stable and organized international relations
History of International law
The essential structure of international law was mapped out during the European
Renaissance, though its origins lay deep in history and can be traced to cooperative
agreements between peoples in the ancient Middle East.
Among the earliest of these agreements were a treaty between the rulers of Lagash and
Umma (in the area of Mesopotamia) in approximately 2100 BC and an agreement
between the Egyptian pharaoh Ramses II and Hattusilis III, the king of the Hittites,
concluded in 1258 BC.
Many pacts were subsequently negotiated by various Middle Eastern empires. The long
and rich cultural traditions of ancient Israel, the Indian subcontinent, and China were also
vital in the development of international law.
In addition, basic notions of governance, of political relations, and of the interaction of
independent units provided by ancient Greek political philosophy and the relations
between the Greek city-states constituted important sources for the evolution of the
international legal system.
International law in the modern form was coined mostly by Hugo Grotius in the 16th
century. This was seen through his books of the Law of War and Peace and Freedom of
Seas. These books contain the founding principles of international law such as preference
of peace rather than war, rules of wars such as protect civilians, fight in organized army,
non-use of human shield, do not kill civilians, non-use of children in the force etc.
In the 19th century, international law grew through development of international relations.
This was featured during scramble and partition for colonies which led to Berlin
conference to avoid conflicts and divide the areas of influence peacefully. It facilitated to
formation of various treaties binding the powerful countries (colonial masters) such as
Anglo-German Treaty of 1886 and Delimitation Treaty of 1890, Helgoland Treaty of
1896 which are great contributors to gaining momentum of international law.
In 20th century, international law developed highly due to outbreak of world wars which
led to formation of League of Nations later succeeded by the United Nations in 1945. It paved the
way for formation of various treaties prohibiting breach against peace, security
and order in the world such as Versailles Peace Treaty of 1919, UN charter of 1945.
Also, human rights treaties were made such as UDHR in 1948 followed by many such as
ICCPR, CEDAW, CRC, and ICSECR hence growth of human rights regime which is one
of central theme of international law.
EVOLUTION OF INTERNATIONAL LAW
There was little scope for an international law in the period of ancient and
medieval empires, and
its modern beginnings coincide, therefore, with the rise of national states
after the Middle Ages.
Rules of maritime intercourse and rules respecting diplomatic agents (see
diplomatic service)
soon came into existence. At the beginning of the 17th cent., the great
multitude of small
independent states, which were finding international lawlessness intolerable,
prepared the way
for the favorable reception given to the De jure belli ac pacis [concerning the
law of war and
peace] (1625) of Hugo Grotius, the first comprehensive formulation of
international law. Though
not formally accepted by any nation, his opinions and observations were
afterward regularly
consulted, and they often served as a basis for reaching agreement in
international disputes. The
most significant principle he enunciated was the notion of sovereignty and
legal equality of all
states. Other important writers on international law were Cornelius van
Bynkershoek, Georg F.
von Martens, Christian von Wolff, and Emerich Vattel.
Theories of international law
There are two major theories which describe the origin of the international law. These are
natural law theory and legal positivist theory.
Natural Law Theory
International law as other law originated independent of human being. International law
existed even in accent societies when they were relating to each other in a peaceful
perdurable and naturally beneficial way. Therefore, international law existed naturally but
human being found it and started to apply in relations between societies/states of different
history and culture. It was pioneered by Hugo Grotius in the 16th century.
Legal Positivism Theory
International law is made by the will of states. States create rules that regulate their
relations. Since states are the ones that make international laws and international laws
derive their authority from the will of state, this makes international law obligatory. It
was advocated by Lasso Oppenheim in the 18th century.
EARLY ORIGINS, MIDDLE AGES, TREATY OF WESTPHALIA, 1648 IN PUBLIC INTER
Public international law originated in ancient times with early treaties and agreements,
evolved during the Middle Ages through concepts like natural law and merchant law, and
was fundamentally transformed by the Treaty of Westphalia in 1648, which established the
modern principles of state sovereignty and equality that form the cornerstone of today's
international legal order.
Early Origins
The earliest examples of international law trace back to antiquity, such as treaties
between city-states like Lagash and Umma in Mesopotamia around 2100 BCE, and
between Egypt and the Hittites in 1258 BCE.
Ancient Greece and Rome contributed key concepts: the Romans created the jus
gentium (law of nations), a legal framework to govern foreigners and inter-state
relations, conceived as universally applicable.
Middle Ages
In the Medieval period, public international law was not formalized as an autonomous
discipline, but elements such as canon law provided some legal principles which
influenced cross-border relations.
Lex Mercatoria (Law Merchant) and maritime customary law emerged to address the
needs of expanding trade, underlining the growing importance of commercial and
maritime norms across regions.
The discipline was influenced by natural law philosophies, notably through thinkers
like St. Thomas Aquinas, merging religious and rational foundations.
Treaty of Westphalia, 1648
The Treaty of Westphalia was a series of agreements that ended the Thirty Years' War
and the Eighty Years' War in Europe.
It established three fundamental principles: state sovereignty, legal equality of
states, and non-intervention, which are considered the foundation for modern
international law.
Westphalia marked the shift from medieval universal authority (such as the Church)
to a system where independent states became the primary actors in international
relations, leading to the codification and reciprocity of international legal rules.
India’s contribution in development of international law: modern international law
A brief reference may also be made here of India's position in regard to the rules and
principles of international law. Like other new states, India has also sought to reject
or modify some of the rules and principles of the traditional international law. India
has neither accepted the whole nor has rejected the entire fabric of the traditional
international law. "India, like many other new nations, has expressed dissatisfaction
with some of the rules of international law as developed in the West. This, however, does not mean
that India's challenge of some of the rules of international law is motivated by any desire to subvert
the international legal order. Nor is India's opposition of the same kind as that of the Soviet
Challenge."
Further, 'In fact, India's argument would seem to indicate that it is far more
influenced by the Western rather than Soviet concepts of international law.
This should not be surprising. However, It must not be supposed that India would
agree to all the rules and principles that are identified as international law in the
West. Rather, it does not challenge the doctrine of international law in the same way
as the Soviets challenge it." Since her emergence as new state after the attainment of
independence,
India Constitution of India and International Law:
The ties of India’s Constitution with international law date back to the preindependence
days. India was the separate member of the League of Nations. It is also the founding-member of the
United Nations. In this section, we will see the general scheme of the Constitution with reference to
international law and further proceed to analyse other provisions and aspects.
Article 51 is considered the concrete provision dealing with the relation of Indian
Constitution and international law. But before we go into detailed analysis of it, we
should look at the Preamble, Part III and Part IV of the Constitution. The Preamble
enumerated certain basic values that India guarantees to its citizens and strives to
achieve. These values are accepted as universal and basic by most nations
throughout the world. The fundamental rights in Part III and the positive mandates
to the State in form of Directive Principles can be compared with the Universal
Declaration of Human Rights and commonalities can be traced. Shri Subhash C
Kashyap has prepared a detailed chart on the common principles in these two parts
as well as certain other laws of India
General Principles of International Law: India’s position and contribution on
the general principles and major issues of contemporary international law such as
recognition, self-determination, principles of non-use of force and nonintervention,
state responsibility, prohibition of use of nuclear weapons, terrorism,
legislative role of the UN Security Council, judicial review of the decisions of the
UN organs, terrorism, legislative role of the UN Security Council, judicial review
of the decisions of the UN organs, terrorism, jus cogens and erga omnes
obligations, the jurisdiction of the International Criminal Court, emerging system
of multilateral order and the United Nations and peaceful settlement of disputes,
illustrates the importance and consistency of the role India has been playing in the
pre-colonial era and in the post-independent phase in promoting rule of law in
international relations.
World Trade Organisation: With regards to the trade in services, it is clear that
services are subject to a number of non-tariff barriers, which mostly remain invisible. This, most
of the time, makes it difficult to quantify the exchange of concessions. There is a need to have
total transparency, along with a legally binding international code on restrictive business
practices. It is pertinent that developing countries should have a proper legislative framework on
restrictive practices. India has already adopted the Competition Act, 2002 (partly in force),
which, though not service specific legislation, will address the anti-competitive practices of the
enterprises.