During a visit to Tokyo in 2007, India’s then External Affairs Minister Pranab Mukherjee said ‘If India did not sign the Non-Proliferation Treaty(NPT), it is not because of its lack of commitment for non-proliferation, but because we consider NPT as a flawed treaty and it did not recognize the need for universal, non-discriminatory verification and treatment’. This was a display of discontent feeling of an aspiring regional power regarding the existing system of nuclear proliferation. This was also an eloquent expression of being discriminated against in an existing system.
Inequities do exist in international law. The paramount example of such inequity is the permanence of just 5 members in the United Nations Security Council, that too based on a war fought and won by the states 75 years ago, and the veto power they enjoy and exploit. No matter how much a state complains about it, the reality is that these rules have been made on contemporary customs, practices, existing laws and so on. Wars, technology, trade, economic activities, philosophical works, religious practices etc. moulded the existing practices to give shape to laws that are currently in practice. These equities are not unfounded but have a long history behind them. That is no justification for the discriminatory nature of international law. It is just an explanation – that all existing laws have their foundations in history.
History as a Foundation for International Law
The principal foundation that governs international law is a treaty. Treaties have a long history behind them. Around 2100 BC, for instance, the rulers of Lagash and Umma- city-states in the Mesopotamia region in today’s Iraq, signed a treaty defining boundaries which was to be respected by both sides under the pain of alienating several Sumerian gods.1 Around 1000 BC, an agreement was signed between Ramses II of Egypt and the king of the Hittites establishing “eternal peace and brotherhood” between their two nations: dealing with respect for each other’s territory and establishing a form of defensive alliance.2
The necessary push towards a code of laws that would govern relationships internationally was in ancient Greece. The city-states formulated their laws and treaties more subtly. The most rudimentary form of international agreement for the bestowal of special grants to a foreigner was those recognizing a Xenos during times of war or conflict. Accepted as a direct outgrowth of the institution of hospitality and ritual friendship, the philia or xenia rank was granted as a sign of respect and devotion between the leaders of allied military contingents.3 According to one research, nearly 400 treaties of ancient Greece are extant 4 Religion, it turns out, was one of the most important sources of ancient international law. Religion brought ancient nations together and separated them.
The concept of nationalism in antiquity invariably embraced national religions, while multinational empires were typically governed by universal sects. Although some Enlightenment writers bemoaned the fact that ancient societies came too early to embrace the most universal of creeds, Christianity, later publicists realized that inherent in a common religion was a common political order, and thus the extinction of international law itself.5 For instance, the present-day concept of the Islamic world isn’t, as Cemil Aydin in his book The Idea of The Muslim World calls it, a conceptual shortcut, but is based on a common political ideology that is propagated by a few political entities.
Thus how international politics and law operate in the Islamic world is unique from the rest of the world, with the Cairo Declaration on Human Rights in Islam of 1990 being an appropriate example. Nationalism and Religion were inalienable in ancient times, be it the Israelites whose God was the only god of a tribe of people or Ancient Greece who created somewhat of a religious federation, used to call non-Greeks as barbarians and loathed foreigners. Diplomacy also had a religious angle to it. The ambassadors were not only recognized as envoys of a nation but also of their respective gods. However, the predominant approach of ancient civilisations was geographically and culturally restricted. There was no conception of an international community of states co-existing within a defined framework.6
The Romans continued this Greek policy of differentiating between the polities within the national boundary and those living outside it. However, the differentiation was pragmatic for a constantly expanding empire. There was the early Roman law of jus civile, which was the domestic code of laws, and the later code of law jus gentium for foreigners. Later jus gentium became the common law of the Roman Empire and was deemed to be of universal application. But the most influential of Greek concepts taken up by Romans was the idea of Natural Law.7
Greek philosophers had earlier emphasized the distinction between Nature and Law. “What the law commanded would be expected to vary from place to place, but what was by nature should be the same everywhere”. A “law of nature” would therefore have the flavor more of a paradox than something that existed.8 Thus Natural Law was something that would transcend the borders, much like contemporary Human Rights. This was an important point in history where a law was deemed to be universal.
Aristotle notes that, aside from the “particular” laws that each person has set up for themselves, there is a “common” law that is according to nature.9 Natural Law was a law derived from rationality and was meant to provide ‘the safety of citizens, the preservation of states, and the tranquillity and happiness of human life’.
The Evolution of Modern International Law
As discussed above the religion of a religious federation provided the basis of international law that was limited geographically, as it had the minimum commonalities that are required to be accepted by a majority of nation-states. The Middle Ages in Europe were also characterized by basic religion-based international law. After the collapse of the Roman Empire and the subsequent warring period of nearly 500 years, nation-states emerged in Europe.
Interstate relations between these states were governed by a set of rules including canon law, law merchant and various kinds of maritime laws. Law Merchant was a body of customary rules and principles relating to merchants and mercantile transactions. It was mostly administered in specially established quasi-judicial courts, similar to the guilds in Italy. The maritime laws were founded upon the Rhodian Sea Law.
Modern International Law emerged from the developments after the fall of Constantinople in 1453 when the philosophical works of ancient Greeks went back into the hands of Europeans. The printing press, beginning in the fifteenth century, industrialised the distribution of knowledge, and the undermining of feudalism in the wake of economic growth and the rise of the merchant classes provided the background to the new inquiring attitudes taking shape.10 The period coincided with the ousting of Arabs from the Siberian Peninsula. Spain, whose global empire spurred a golden age of economic and intellectual development in the 16th and 17th centuries, produced major contributors to international law.
Francisco de Vitoria, who was particularly concerned with the treatment of the indigenous peoples of South America by the conquering Spanish forces, invoked the law of nations as a basis for their innate dignity and rights, articulating an early version of sovereign equality between peoples. These forces led to the formation of proto-International Law which was to be followed by separate but competing states.
The Renaissance bequeathed the prerequisites of independent, critical thought and a humanistic, secular approach to life as well as the political framework for the future.11 The ambience that the Renaissance had created influenced many contemporary academicians. One of them, Alberico Gentili was the first person in Western Europe to separate secular law from Roman Catholic theology and canon law. He authored Three Books on the Law of War. In his view, the code of law governing relations between states should be based on actual practices and should be moral(not necessarily religious). Later, the Dutch jurist Hugo Grotius who wrote his famous book On the Law War and Peace, derived much of the input from Gentili’s work.
Grotius emphasized the freedom of the high seas12, a notion that rapidly gained acceptance among the northern European powers that were embarking upon extensive missions of exploration and colonization around the world. His notion of ‘innocent passage of the sea’ gained traction in the 20th century. The United Nations Convention on The Law of the Sea is based upon the same principle. He retained the theological distinction between a just and an unjust war, a notion that was soon to disappear from treatises on international law, but which in some way underpins modern approaches to aggression, self-defence and liberation. Both Gentili and Grotius are regarded as Founders of International Law.
Two new schools of thought emerged from Grotius’s work, namely Naturalism and Positivism. The naturalist school, exemplified by Samuel Pufendorf, attempted to identify international law completely with the law of nature. Pufendorf challenged the Hobbesian notion that the state of nature was one of war and conflict, arguing that the natural state of the world is peaceful but weak and uncertain without adherence to the law of nations. The other, the exponents of positivism, distinguished between international law and Natural Law and emphasised practical problems and current state practices. The positivist writers, such as Richard Zouche in England and Cornelis van Bynkershoek in the Netherlands, emphasized the actual practice of contemporary states over concepts derived from biblical sources, Greek thought, or Roman law.
These new writings also focused greater attention on the law of peace and the conduct of interstate relations than on the law of war, as the focus of international law shifted away from the conditions necessary to justify the resort to force to deal with increasingly sophisticated interstate relations in areas such as the law of the sea and commercial treaties. Just like Modern Thought, the positivist approach was also a result of the empirical method adopted by people during the Renaissance. It was concerned not with an edifice of theory structured upon deductions from absolute principles, but rather with viewing events as they occurred and discussing actual problems that had arisen. The empiricism of Locke and Hume denied the presence of innate principles, as espoused by Jean-Jacques Rousseau. Instead, empiricism relied upon experience as a source of ideas The scientific method of experiment and verification of hypotheses emphasised this approach.13
Formulation of Modern International Law
The modern international law is substantially derived from the developments in pre-modern and modern Europe. Be it trade, disease, war, or technology, all had their part to play in this development. War was one of the most important factors that is responsible for our present-day state of international law. The outcome of wars, both in materialistic and non-materialistic terms, was to immensely affect inter-state relations and subsequently international law. In the 16th century CE, Europe was catapulted into religious wars.
The first instance which was decisive for international law was the Peace of Augsburg of 1555. It ended the religious wars between the two groups and made Christianity permanent within the Holy Roman Empire, allowing rulers to choose either Lutheranism or Roman Catholicism as the official religion of the state. The Peace established the principle Cuius regio, eius religio (“whose realm, his religion”), thus laying the basis of the concept of Sovereignty in the international lexicon, and for the important treaty Peace of Westphalia.
The Peace of Westphalia of 1648 largely ended the European War of Religion, including the Thirty Years’ War, after it had already caused the deaths of Eight Million people 14. The Peace of Westphalia established the precedent of peace established by the diplomatic congress. A new system of political order came into being in Europe, which was based upon peaceful coexistence among sovereign states. Aggression between the states within the empire was to be prevented by a balance of power, and interference in other states’ internal affairs was to be prohibited. As European influence spread across the globe, these Westphalian principles, especially the concept of sovereign states became central to international law and the prevailing world order15.
The bane of Colonialism came at its peak in the Eighteenth century. Many parts of the world were now ruled by a handful of empires. Technology has helped the nations, that used to be poor, to conquer other countries and alleviate their poverty by enhancing other’s. Wars such as the Seven Year’s War, which were fought based on historic rivalries saw a Diplomatic Revolution in which the alliances kept on changing with needs. Many philosophical writings on the rule of law, social contracts etc emerged during the same time.
The idea of the social contract, that an agreement between individuals pre-dated and justified civil society, emphasised the crucial role of the will of an individual. The theory was interpreted in two ways: pessimistically resulting in a demand for an absolute sovereign, as Hobbes declared, or optimistically, as Locke presented in its reluctant acceptance of the sovereign. However, it changed the discourse over society and the sovereign forever.16 Moreover, the American Revolution and the French Revolution that gave the people equal rights and status in the eyes of the law impacted the thinking of philosophers worldwide.
The Napoleonic Wars ended with the Congress Of Vienna in 1848. The order established at the Congress of Vienna was the closest that Europe had come to universal governance since the collapse of Charlemagne’s empire. Henry Kissinger puts it this way: “The Congress of Vienna produced a consensus that peaceful evolutions within the existing order were preferable to alternatives; that the preservation of the system was more important than any single dispute within it; and that differences should be settled by consultation rather than by war”.17
But the most important events that are the foundations of modern international law took place in the 20th century. It began with the First World War. Also called the Great War, its catastrophic result irrespective of victory or loss, and the tremendous loss of human lives made leaders of the world realize the need for cooperation between the states. The Formation and ultimate dissolution of The League of Nations taught people about the need for enforcement in the international arena. WW1 was followed by The October Revolution in Russia, where the world’s first-ever government of labour and workers was constituted. Socialism became the talk of the time.
World War 2 was the final major determining event as far as International Law is concerned. The even more catastrophic result in all terms (when compared to WW1) made leaders realize the necessity of peace. The present order of the world which comprises human rights, welfare of the poor, economic development of poor nations and so on are direct results of this war.
Citations
1 Nussbaum, Laws of Nations, pp, 1-2
2 ibid.
3 See 3 Herodotus, supra note 17, at 341 (passage vii.27–29 and 39)
4 See Everett L. Wheeler, Sophistic Interpretations and Greek Treaties, 25 GRBS 253, 255–56 (1984) 5 Biederman, David J., International law in Antiquity, pg-59
6 Shaw, Malcolm N, International Law, pg 15
7 ibid, pg 17
8 Strauss, Leo, Natural Law, International Encyclopedia for Social Sciences
9 Aristotle, Rhetoric
10 Shaw, Malcolm N, International Law
11 ibid
12 Grotius, Hugo, Freedom of the Seas
13 Shaw, Malcolm N, International Law,
14 Clodfelter, Michael, Warfare and Armed Conflicts
15 Henry Kissinger, World Order
16 Shaw, Malcolm N, International Law
17 Henry Kissinger, World Order
