HISTORICAL DEVELOPMENT OF INTERNATIONAL LAW

The Historical Development of International Law is a relative political phenomenon whose

roots can be found in the internal conflict between the European States. The formation of

State and an aggressive Religious war played a major part in the development of the

international Law. Following are the main steps in the development of International Law.

A) Formation of State system

B) Conflict between King and Church over power control

C) Advent of Reformation in Europe

D) Spirit of Renaissance

E) Religious wars among Europeans and its culmination in the Treaty of Westphalia.

The above mentioned steps created some of the basic assumptions of International Law

.These are as follows:

1) The sovereign equality of states.

2) The territorial integrity and political independence of states

3) Equal Rights and self determination of peoples.

4) Non intervention in the internal affairs of the states

5) Peaceful settlement of disputes

6) No threat or use of force

7) Fulfilment in good faith of international obligations

8) Co operation with other states

9) Respect for Human Rights and fundamental freedoms.1

The conflict in the European System of States led to the emergence of some of the key

concepts of International Law. It can be said that this conflict was primarily, religious in

nature, which in turn took a territorial turn. The key term, which in turn, defined the future of

the conduct of International relations, was „sovereignty.‟ Sovereign power of a State was

used a weapon against the religious power of the church. The power of sovereignty as is well

known has an internal as well as an external aspect. The creation of International law

imposed and created a reasonable restriction on the external aspect of Sovereignty. This

1 Dorothy Jones,” Declaratory Tradition in Modern International Law.” in Terry Nardin and David R. Marpel Eds

Tradition of International Ethics , ( Cambridge University Press 1992 ) pg 44.

restriction in turn created, some of the basic elements of International Law like, jus in Bello

and jus ad bellum, non intervention, independence of states, territorial integrity and

friendly relations among states. It can be said that International Law create a secular world,

a world that had to be created out of the religious upheaval of the 17th century. As far as the

predominance of the western system is concerned, it is highly probable and apparent to

conclude that the historical development of International law has taken a Euro centric

approach. In the words of Malcolm Shaw, “The foundations of International law (or the law

of nations) as it is understood today lie firmly in the development of Western Culture and

political organisation.” 2 After the conclusion of the religious wars in the European

Continent, the ground was fertile for a pacific atmosphere. International Law created a

system of co ordination among states and one of the earliest concept of International Law i.e.

pacta sund servanda (States fulfil their international obligations in good faith)

developed. For a preliminary understanding of the chronological historical development of

International Law, the following phases of history can be analyzed:

1) The Ancient Period

2) The Medieval Period of Religious Domination

3) The evolution of Modern International Law

4) International Law in 20th

Century and its subsequent development.

1) The Ancient Period: Some of the basic concepts of international comity can be found in

the classical or ancient era of history. Malcolm Shaw cites few examples of this relationship.

He gives the example of a pact signed between the sovereign of Lagash and Umma . The

treaty was inscribed on a stone block and asked that both sides should respect their territorial

boundaries .3 Next is the establishment of an international treaty between Rameses II of

Egypt and the King of Hittites for the creation of friendly relations .

An important step in the creation of International Law was the

development of Natural Law . Natural Law created an element of universality which was

relatively , an innovative thought and an approach in western culture . This thought was first

developed by the Stoics in the Greek World . The Stoics developed a critical approach

towards the self sufficient system of Greek City State and this happened because of the global

conquest of Alexander . The Stoics now imagined an integrated world united by an element

of universality . The Romans borrowed this element of universality and employed it in the

idea of jus gentium , which gave rights to foreigners , and aliens in Rome . Although the

classical era did create some important theories regarding international law , it did not create

an impact on the development of the discipline as such because the basic elements of

2 Malcolm N. Shaw, “International Law.” (Cambridge University Press), Sixth Edition, 2008, page 13.

3 Ibid page 14.

sovereignty , consolidated territory had not yet developed . In other words , a system of

consolidated territorial unit called nation state had yet not developed . The concept of city

state did not create a fertile ground for the development of international law because the there

was a very low level of interaction between city states .

2 ) The Medieval Period : This period is important because it laid the foundation of the

modern state system . This era witnessed the conflict between two formidable opponents i.e.

Church and State . Their existence was deeply related to the spiritual nature of Christian

Religion . According to George H Sabine , the Christian position implied two positions , one

secular and the other religious .4 Both were the contenders for the ultimate control of power

over citizen‟s lives .The control of the human nature by two different institutions , created a

fertile ground for battle . In order to create an amicable and harmonious situation The theory

of Two Swords was propounded by Pope Gelasius .5 The theory mentioned that the

transcendental aspect of human life was controlled by a divine power while the secular nature

was controlled by the earthly ruler . This was a temporary accord between the two

institutions . The idea of State was now being developed . State now asserted its

independence and emerged as an institution that proclaimed a monopoly over the rights of the

citizens . But before this idea developed , the concept of a secular , political entrepreneur had

to make a steady progress . This happened with the writings of Niccolo Machiavelli and Jean

Bodin . This was a time period when the concept of nation state grew strong . After the War

of Roses , England emerged as the first modern nation state . The underlying notion was the

development of a geographically consolidated concept called nation state .The concept of

nation state fostered the relationship between various actors in the International Arena . . this

was coupled with the oblique motive of monopolizing power . This lead Machaivelli to write

the Bible of Western Statecraft “ The Prince .” and Bodin explored the institutional aspect in

the concept of Sovereignty . This relationship has been explored by Malcolm n . Shaw in the

following words .

“ The Rise of nation states of England , France and Spain in particular characterised the

process of the creation of territorially consolidated independent units , in theory and doctrine

, as well as in fact . This led to a higher degree of interaction between sovereign entities and

thus the need to regulate such activities in a generally acceptable fashion . The purpose of

political power and supremacy became overt and recognized as Machiavelli’s The

Prince demonstrated .......... from these hectic struggles emerged many of the staples of

modern international life : diplomacy ,statesmanship , the theory of the balance of

power .”6 The author goes on to explain the intricate relationship between Renaissance ,

State and the concept of sovereignty :

4 George H Sabine, Thomas L Thorson, “A History of Political Theory.” Fourth Edition (New Delhi), Oxford and

IBH Publishing Co Pvt Limited, Page 181.

5 Ibid page 188

6 Supra note 2 page 20.

“ .... the evolution of the concept of an international community of separate , sovereign ,

if competing , states , that marks the beginning of what is understood by international

law .....The Reformation and the European religious wars that followed emphasised this

, as did the growing power of the nations . In many ways these marked the decline of a

continental system founded on the supremacy of the state .” 7

Now that the political base of the State had been laid

through the vision of Machiavelli , the institution now needed an institutional framework

which would legitimize the concept of State‟s claim of legitimate and legal power . This

“institutional framework” was provided by Jean Bodin in his monumental work “ Six livres

de la republique .” He framed sovereignty as an indivisible phenomenon which allowed the

State to exercise legal control over citizens . The concept of sovereignty can be considered as

a secular concept which legitimized the authority of the State as an earthly power . This was

in contrast to the ecclesiastical power exercised by the Church . Bodin defined sovereignty as

“ supreme power over citizens and subjects , unrestrained by law .”8 This meant that

sovereignty had the following characteristics.

1) PERPETUAL : The grant of power is not limited to any grant of power .

2) UNDELEGATED : Power cannot be delegated under any condition .

3) INALIENABLE : Power cannot be shared with anyone .

4) UNRESTRAINED : Power cannot be controlled by any other legal instrumentality.

In the words of George Sabine , “ The primary attribute of sovereignty is the power to

give laws to citizens collectively and severally without the consent of a superior , an

equal , or an inferior . The other attributes – the power to declare war and treat for

peace , to commission magistrates , to act as a court of last resort , to grant

dispensations , to coin money , and to tax – all are consequences of the sovereign’s p

position as legal head of the state .”9

It is important to analyze the historical basis of the doctrine of sovereignty. Its idea is

usually traced back to the 'Treaty of Westphalia'. The general perception is that the concept

of sovereignty as it is thought of today, particularly as to its 'core' of monopoly of power of

what evolved as the 'nation state' began with the 1648 Treaty of Westphalia. But in recent

7 Supra note 2 page 21

8 Supra note 4 page 377

9 Ibid page 378

times various scholars have challenged the traditional notion.10

Andreas Osiander has

written that the current system of sovereignty is receiving a set back and the trend shows a

reversal of torture. The current positivistic notion has been challenged by new concepts like

"Responsibility to Protect", "Sovereignty as Responsibility", "Principal of Subsidiarty" etc.

The idea is the there is a reversal from "International order" to "international society". In

the words of Andreas Osiander, "There is a clear de facto trend in international politics

away from classical sovereignty and toward something closer to 'landeshoheit', territoria l

jurisdiction under on external legal regime shared by actors.11

Osiander further states that the growing interdependence as a result of

industrialization has for a century or more, continuously undermined the capacity for self

reliance of international actors‟ states and will diminish it further. The author makes a

scathing attack when he says that "this development has been accompanied by an ongoing

swing of the pendulum away from near total autonomy of states and by a proliferation of

international institution trying to "get in" on the management of trans border politics. As a

result, the global system today in certain respects bears more resemblance to the type of

system exemplified by the Holy Roman Empire than to the so called Westphalian Model."12

Hendrik Spryut declares that "the peace of Westphalia formally acknowledged a

system of sovereign states.13

Mark Zacher speaks of "the Treaty of Westphalia of 1648

which recognized the state as the supreme or sovereign power within its boundaries and put

to rest the Church's Transnational claims to political authority." Andreas Osiander denies

that the idea of sovereignty dates back to the year 1648. He contends that, sovereignty is a

by product of the era of industrialization where the state actually entrenc hed its "sovereign"

functions. This was the time when state emphasised on the "external" aspect of sovereignty

i.e. independence from external control and this is the starting point of non intervention. So

if, we start with an assumption that the 'external aspect' of sovereignty' is not that old the

we strike at the rest of non intervention. If the antiquity of this concept is question on the

basis of historical facts and treaty interpretation, then it can be said that the concept of

10

Andreas Osiander, "Sovereignty, international Relations, and the Westphalian Myth, International

organization 55.2, Spring 2001 Pages 251-287

11 Ibid, page 283

12 Ibid

13 Hendrik Spryut, "The sovereign state and its competitors, Princeton, New Jersey : Princeton University Press

(1994) Page 27

sovereignty was crystallized as a legal norm only in the 20th century through the

Montevideo conference of 1933 and UN Charter.

Seyom Brown speaks of the "Westphalian Principles of interstate relations

codified in 1648 constitute the normative core of international law : 1) Th e government of

each country is unequivocally sovereign within its territorial jurisdiction, and 2) countries

shall not interfere in each other's domestic affairs.

These claims are reputed by Andreas Osiander. According to the a uthor. "Such

quotes could be multiplied almost at will. Yet the actual treaties do not corroborate any of

the claims quoted earlier : The settlement to which they refer is a figment of imagination."14

The author further states that quotations from scholars create an illusion that the treaty was

confirmation of autonomy, or sovereignty, of the various European actors. Osiander then

makes a remarkable statement. "But since, rather then propaganda, the treaties deal with

practicalities, the settlement contains nothing of the sort. It is silent on the issue of

sovereignty..... It does not refer to any corollary of sovereignty either, such as non

intervention......."15

According to the author, the treaty consisted of two treaties signed on

24 October, 1648, One - the Treaty of Munster (Instrumentum Pacis Monasterience or IPM)

- between the Holy Roman Empire and the king of France, and the other - the Treaty of

Osna brick (Instrumentum Pacis Osna brugense or IPO) between the Holy Roman Empire

and the queen of Sweden. France and Sweden were also made guarantors of the settlement,

which theoretically authorized them to intervene in the empire in certain circumstances.....16

Thus, non intervention was not the focus of the treaty.

The Peace of Westphalia did not establish the "Westphalian system" b ased on the

sovereign state. Instead, it confirmed and perfected something else : a system of mutual

relations among autonomous political units that was precisely not based on the concept of

sovereignty.17

The author has further showed the weakness of sovereignty by contrasting it with

the right of "landeshoheit" (literal meaning territorial jurisdiction). According to this

system, the autonomy of estates was limited in two ways : externally through the laws of

the empire and internally through the constitutional arrangements within the various

14

Symon Brown, "International Relations in a changing global System: Toward a theory of the World Polity,"

Boulder Cols.: West view, (1992) Page 74.

15 supra note 10, Page 261

16 Ibid Page 266

17 Ibid Page 270

territories. The estates were not free to shake off either kind of restraint unilaterally

changing the laws of the empire required the consent of the majority of at least two of the

three Reichstag councils and of the emperor.18

Hence the external aspect of sovereignty was

very much limited. Even the two supreme courts who heard complaints regarding violations

of laws of empire i.e. Imperial Cameral Tribunal (Reichskammergericht) and Imperical

Aulic Council (Reichshofret) even controlled the internal constitutional arrangements of

empire.19

Hence it further controlled the external and internal aspect of sovereignty.

Therefore, it can be concluded that the 21st century, where UN, International Criminal

Court, Crime Tribunals, WTO and various others non sate actors are exercising restraint on

the external aspect of sovereignty, there is a clear de facto trend in international politics

away from classical sovereignty and toward something closer to "landeshoheit" where

territorial jurisdiction under an external jurisdiction is restricted under an external legal

regime showed by actors.

Principle of subsidiarity : A New approach to sovereignty in International Law. The

general perception is that the concept of sovereignty as it is thought of today, particularly

as to its core of a monopoly of power for the highest authority of what evolved as the

nation state began with the 1648 treaty of Westphalia. But things are changing now. One

United States government official has succinctly defined the concept and its problems.

'Historically, sovereignty has been associated with four main characteristics :

First, a sovereign state is one that enjoys supreme political authority and monopoly over the

legitimate use of force within its territory. Second, it is capable of regulating movements

across its borders. Third, it can make its foreign policy choices treaty. Finally, it is

recognized by other governments as an independent entity entitled to freedom from external

intervention. These components of sovereignty were never absolute, but together they

offered a predictable foundation for world order. What is significant today is that each of

these components - internal authority, border control, policy autonomy and non intervention

is being challenged in unprecedented ways."20

18

Supra note 10, Page 272

19 Ibid

20 Richard N. Haas, Former ambassador and director of policy Planning staff, U.S. Department of state,

sovereignty : Existing Rights, Evolving Responsibilities, Remarks at the school of Foreign Service and the

Montana Centre for International studies, Georgetown University (Jan 14, 2003) Page 2, available at

http://www.georegtoun.edu/sfs/documents/harssovereignty_20030114.pdf last accessed on 19 Feb 2014 at

16:28 p.m.

Sovereignty has also been explored as a "social construct". According to this

view, "Numerous practices participate in the social construction of territorial state as

sovereign, including the stabilization of state boundaries, the recognition of territorial

states as sovereign, and the conferring of rights onto sovereign states".21

It means that sovereignty itself has no particular characteristics, but its nature

depends very much on the customs and practices of notion s tates and international system.

this could change over time. Professor Thomas Franck, perceiving that sovereignty was

devolving to the people, asserted in his ground breaking 1992 article.

The entitlement to democracy in international law has gone through both a

normative and a customary evolution. It has evolved both as a system of rules and in the

practice of states and organizations. This evolution has occurred in three phrases. First

came the normative entitlement to self determination. Then came the normative entitlement

to free expressions as a human right. Now we see the emergence of a normative entitlement

to a participatory electoral process.22

John. H. Jackson connects the idea of "Principle of subsidiarity with "allocation"

issues, in the modern and global context, which reference to policies that might suggest the

need for a higher or lower level allocation of power.23

The principle of subsidiarity roughly

stands for the proposition that governmental functions should be allocated, among

hierarchical governmental institutions, to those as near as possible to the most concerned

constituents, usually downward on the hierarchical scale. It attacks the "antiquated"

definition of sovereignty which could characterized as the nation state's power to kill i ts

citizens, torture citizens, and engage in all sorts of arbitrariness. The march is toward the

sovereignty of people. The idea is to have government decisions made as far down the

power ladder as possible. The idea is that a government closer to the cons tituents can better

reflect the subtleties, necessary complexity and detail embodied in its decisions in a way

that most benefits those constituents.

21

Cynthia Weber and Thomas J. Biersteker, Reconstructing the Analysis of sovereignty: concluding Reflections

and Directions for future Research in "State sovereignty as Social Construct" (Cambridge: Cambridge University

Press) 1996, Page 278.

22 Thomas M. Franck "The Emerging Right to Democratic Governance," 86 American Journal of International

Law (1992) page 46, 90

23 John H. Jackson, "Sovereignty Modern : A New Approach to An outdated Concept,, 97, America Journal of

International Law (2003) Page 785

The Responsibility to Protect is closely linked to the principle of 'subsidiarity'.

This principle implies that, if the state entertaining the strongest link to a situation does not

assume its jurisdictional responsibility, it may forfeit its right to protest against other states

jurisdictional assertions over that situation. Sovereignty should no longer be used as a

shield to tend off unwelcome jurisdictional assertion. Sovereignty entails responsibility :

the responsibility to bring their laws on internationally harmful situations. In Dworkian

terms it can be said that Human Right have 'TRUMPED' the tradit ional notion of

sovereignty.

Principle of subsidiarity : Under this principle, a state may only exercise its

jurisdiction if another state with a purportedly stronger nexus to the fails to do so in ways

that are reasonably acceptable to the would be regulating acceptable to the would be

regulating state or to the international community at large. Subsidiarity presupposes that all

states have an interest in clamping down on activities that are harmful to states, and the

international community. Its roots could be traced to Hugo Grotius in his Dejure Belli ac

pacis that the territorial state, i.e. the state with arguably the strongest nexus to a situation,

is under an obligation to prosecute offences committed within is territory and that if it fails

to live up to its obligation, other states are entitled to step on subsidiary basis, so as to

protect their interest.24

Cedric Ryngaert in his book "Jurisdiction in International Law" has used the

following passage from Grotius "Dejure belli ac pacis" to elaborate on the doctrine.

"........ But since established governments were formed it has been a settled rule,

to leave the offences of individuals, which affect their own community, to those states

themselves, or to their rulers, to punish or pardon them at the ir discretion. But they have

not the same plenary authority, or discretion respecting offences, which affect society at

large, and which other independent states or their rulers have a right to punish, in the same

manner, as in every country popular actions are followed for certain misdemeanours. Much

less is any state at liberty to pass over in any of his subjects crimes affecting other

independent states or sovereigns. On which account any sovereign state or prince has a

right to acquire another power to punish any of its subjects offending in the above named

respect a right essential to the dignity and security of all governments.25

24

Cedric Ryngaert, 'Jurisdiction in International Law" (Oxford: Oxford University Press) (2008) Page. 214

25 Ibid Page 215

This Gratian maxim based on the idea of natural law (being eclipsed with the

advent of positivism and Westphalian system of 1648) has been received in the form of

Responsibility to Protect and Francis Deng's Concept of "Sovereignty as Responsibility".

According to Cedric Ryngaert, states agree before hand, in a state of nature, to

grant the territorial state the primary responsibility to establish jurisdiction over activities

that potentially harm the interests of other nations and other harmed states as secondary or

subsidiarity responsibility. The Bystander States may assume this subsidiarity

responsibility also in respect of crimes which are violations of laws of nature and "jus

gentium". To prove this theory he has cited Hugo Grotius again.

"It is proper also to observe that kings and those who are possessed of sovereign

power have a right to exact punishment not only for injuries affecting immediately

themselves or their own subjects, but for gross violations of the law of nature and or

nations, done to other states and subjects."26

Under the subsdiarity principle, states with the strongest nexus to the case forfeit

their right to protest against the other states jurisdictional assertions over that case, if the

former states fail to adequately deal with it. Sovereignty becomes a relative notion. This

also means that state regulators and courts pass judgments to prosecute globally harmful

conduct. It responsibility to protect is to be construed strictly on financial aspect it is the

most appropriate way to enhance global welfare with Minimal Transaction Costs.

Another important aspect is the "Institutional Theory of soverei gnty" propounded

by Ryan Goodman and Derek Jinks.27

This approach is based on the constructivist idea. It

says that states are organizational entities embedded in a wider social environment. In

short, it is argued that elemental features of states derive from worldwide models

constructed and propagated through global cultural and associational processes. These

models define and legitimate purposes of state action, and they shape the organizational

structure and policy choices of states in many of their issue areas. These approaches.

1) Define the organizational form of the modern state.

2) Delimit the legitimate purposes of the state.

3) Constitute states as the principal legitimate actors in the world policy.

26

Supra note 24, Pages 215-216

27 Ryan Goodman, Derek Jinks, "Toward on Institutional theory of sovereignty, (55 Stanford Law Review May

2003) Pages 101-138

The world order behaves in a certain way and has a distinct cultural process.

Based on the distinct culture it expects other states to behave in that way. It is this process

that defines "legitimate actor hood". According to the authors the explanatory power of the

model examines the institutionalization of world models of "national security". National

security is constructed through these global cultural and associational processes.28

Once

socially defined institutional environments are in place, changes in organizational form are

driven more by considerations of legitimacy than by concern for rational adaptation or

efficiency. This causes "isomorphism" i.e. organization become more and more like one

another.29

States are defined by and legitimated through global cultural models. The authors

refer two such processes that are relevant.

a) First, world society systematically constructs state identity and purpose. The

contemporary nation state is the preferred form of sovereign responsible actor. All sorts of

collectivities have learned to organize their claims around a nation state identity.

b) World cultural elements ensure the systemic maintenance of scripted models

of action identity.30

According to the theory the substantive content of "national security" is itself

substantially shaped by global models. World polity constructs and legitimates particular

national security interests. This part is explicitly considered with humanitarian

intervention. This point discusses two points (1) expanded grounds for humanitarian

intervention and (2) conceptualization of massive human rights violations as threat to

international peace and security. It is at this point that we should bring the concept of

"failed states" and issue states. Rogue states violate their citizen human rights and failed

states are no longer able to provide for their population any protection. National militaries

have been employed not for territorial or strategic purposes but for humanitarian ends.

Powerful states have clearly undergone a transformation in the normative understandings

about which human beings merit military protection. States may now military intervene to

rescue unfamiliar people in foreign lands, bona fide efforts in this regards constitute a

legitimate interest of state power. States have come to conceive of gross human right

violation in another country as a threat to their own security. It is actually a sociological

28

Ryan Goodman, Derek Jinks, "Toward on Institutional theory of sovereignty, (55 Stanford law Review May

2003) Page 105

29 Ibid Page 107

30 Ibid Page 108

application of Kant's "Perpetual Peace" model which is now being given an aggressive

made through Responsibility to Protect.

Sovereignty as Responsibility as suggested by Francis Deng and Kofi

Annan :

One formulation has been proposed by Kofi Annan in his widely cited article in

the Economist on "Two concepts of sovereignty". In it he argued that one concept of

sovereignty is oriented around states and the other around people.31

Sovereignty as Responsibility by Francis Deng :

This doctrine stipulates that when states are unable to provide life supporting

protection and assistance for their citizens, they are expected to request and accept outside

offers of aid. Should they refuse or deliberately obstruct occures to their displaced or other

affected populations, then there is an international responsibility to respond.

Sovereignty then means accountability to two separate constituencies :

Internally, to one's own population, and internationally, to the community of

responsible states and in the form of compliance with human rights and humanitarian

agreements. It is argued that sovereignty is not absolute but contingent. When a government

massively abuses the fundamental right to survive, its sovereignty is temporarily

suspended.

Sovereignty as the supreme power of a state has always been limited, originally

by divine law, natural law and subsequently limitations have resulted from the consent

based system of the law of nations. It is appropriate here to quote Ramesh Thakur one of

the members of the International commission or intervention and state sovereignty :

"The doctrine of national sovereignty in its absolute and unqualified form which

gave rulers protection and against attack in most brutal assault on their own citizens is gone

with the wind.32

This particular era is remarkable for the following points :

31

Gareth Evans, The responsibility to protect: Ending mass atrocity crimes once and for all (Washington D.C.)

Brookings Institute Press, 2008 Page 37.

32 Ibid, Pages 35, 36

A ) Convergence of Christian theology and Secular State.

B ) Re e mergence of critical thinking through Renaissance .

C ) Conflict over ultimate control of power .

D ) Emergence of a political entrepreneur who was well versed in Statecraft

E ) Institutionalization of the power of State in the form of Sovereignty.

3) The evolution of Modern International Law: The medieval period became the precursor

of some of the important paradoxes in the history of Western European History . The conflict

of jurisdiction between religion and State laid a fertile ground for a gruesome conflict . this

conflict played a key role in the development of International Law . The interplay between

Church and State was now joined by the activist approach of the Reformation . The ferocity

of religious wars created ripples of civil wars in the European Continent . Murray Forsyth ,

cites the peculiar situations of the continent as on e of the reasons for the development of

International law The era was marred by wars and revolts . The international society had to

evolve a mechanism to deal with these situations and had to construct a new defense

mechanism . This came in the form of International Law . According to Murray Forsyth

international law was the result of new ideas that had to emerge with the new facts of

conflicts . This gave the period of Cateau Cambresis in 1559 and the Peace of Westphalia in

1648 its particular character.33

These conflicts had a peculiar nature They were :

A ) Religious and Political

B ) Domestic and International ; in nature at the same time .

During these turbulent times , International Law emerged as the external correlate of the idea

of the sovereign territorial state .34

The development of International law as in relation to

territorial sovereignty can be best explained in the following words :

“ .... At root this law was the external correlate of the idea of the sovereign territorial state .

The concept of sovereignty expressed a determination to restrain the imperatives of

individual moral conscience , anchored in religious belief and to accord priority instead to the

requirements of peaceful co existence within a given political space . It was the assertion of

a legal and secular standpoint , in the face of a moral and religious one , which had the

effect of privatizing and neutralizing the latter .” 35

This trend of moralizing the

international environment continued till 1914 . The quintessential element that was the

distinguishing feature of this era was the yearning for a peaceful society , a society burdened

with wars and religious animosity . The foundation of the modern trend of the new law was a

33

Murray Forsyth, “The Traditions of International Law.” in Terry Nardin and David R. Mapel (Eds) “Traditions

of International Ethics.” (Cambridge University Press 1992) page 24.

34 Ibid page 25.

35 Ibid

set of ethical norms set in a Contractarian model . The exponents of this era , were looking to

create a cobweb model of the society , where State actors would be bound by a seamless

thread of common morality . These peace projects were the brain child of Abbe St . Pierre ,

Sully and Immanuel Kant . Kant‟s contractarian ideas became apparent in the form of world

organizations like League of Nations and United Nations . This aspect of Kantian

contribution will be dealt later . In its initial stages , International Law was not interpreted as

a legal barrier to the external aspect of sovereignty , rather , it was a method to know the

unknowable through the application of ethical and legal doctrines . International law was

rather the reasoned extrapolation of the consequences of sovereignty for the mutual

adjustment of states . It became a non theological reference point .36

This extrapolation was

required the most in the matter related to War .It will not be an exaggeration to say that a

change from medieval to modern was synonymous with the development of the concepts

of jus in bello and jus ad bellum . The religious conflict between Catholic and Protestants

came to a head in The Thirty Years War . ( 1618 – 1648 ) . In his work , De Jure Bellis Ac

Pacis ( The Laws of War and Peace ) , often considered as the father of the Modern

International Law , called for the codification of the International Law and insisted that war

should be governed by a strict set of laws .”37

( Jeremy Bentham is generally credited with

coining the term „International Law .‟ in his book Introduction to the Principals of Morals and

Legislation . Before that the accepted expression had been „ law of nations .‟ which Bentham

regarded as insufficient since it referred to „ internal jurisprudence.‟ and had municipals

connotations attached to it .”38

The Father of International Law : Popular notion and some opinions In the words of

Malcolm Shaw “ It is , however , Hugo Grotius , a Dutch scholar , who towers over this

period and has been celebrated , if a little exaggeratedly , as the father of International

Law .... His primary work was the ‘ De jure bellis ac Pacis written during 1623 and 1624

. It is an extensive work and includes rather more devotion to the exposition of private

law notions than would seen appropriate today ....” Grotius is usually considered to be the

father of International Law but this claim has been disputed by some writers . If International

Law is interpreted from a secular point of view , the it is difficult to accept Grotius as the

father of this discipline . Murray Forsyth makes an interesting observation by asserting that

the clearest and most influential part of De Jure Bellis Ac Pacis ( BOOK III ) expressly

appeals to internal and moral justice and not to legal principles .39

He goes on to assert that

Grotius relied heavily on Bible and Classical Antiquity and misses on the legal aspect of

Sovereignty . the erudite instead gives due credit to exponents like like Jean Bodin and

36

Supra note 33 page 28

37 Vaibhav Goel ,” An Introduction to Origin , Evolution and Development of International Humanitarian Law

.”in Md Jahid Hossain Bhuiyan et al “ International Humanitarian Law – An Anthology .” ( Lexis Nexis

Publication , Butterworths ) , Nagpur , 2009 , page 9

38 Ibid page 10 .

39 Supra note 33 page 26.

Alberico Gentili . These exponents are actually credited with exorcising the concept of

theology from International Law . Their ideas were related to the institutional aspect of the

legal aspect of State i.e. Sovereignty . Bodin emphasised on the internal aspect of the

sovereignty while Gentili focussed on the external aspect of Sovereignty . Bodin actually

endowed the State with a unity , autonomy and a status . In a nutshell , he is responsible for

clothing the State with a legal personality . It was this idea of sovereignty , that actually

became the pre cursor for the concept of Equality of States , which is now an entrenched

norm in International Legal area ( Art 2 (1) of UN Charter .)

Wilhelm Grewe has given three different epochs in the development of International Law .

1 ) Spanish Epoch ( until 1648 )

2 ) French Epoch ( 1648 – 1815 )

3 ) English Epoch ( 1815 – 1914 ) 40

The first stage is related to the period which laid The period of Treaty of Westphalia ( 1648 )

, a phase which laid the foundation of modern State System . The second stage is related to

the period where the subject of International Law coincided with the spirit of French

Revolution .” French Revolution had a crusading spirit attached to it . This era created an

intense debate over the controversial topic of Intervention in International Law . Edmund

Burke and John Stuart Mill made some important contribution to the topic. The third phase

shows an intrinsic relation between International Law and European Continent . This period

carries within it the happenings of the Congress of Vienna , where balance of power was once

again reiterated in the European System after the defeat of Napoleon . The European

civilization now created a yardstick which would define some of the basic norms to which

each legal actor had to adhere to if he were to be accepted as a legitimate player in the

International Legal Arena . According to J.J. Moser‟s “ Essay on the most recent European

Law of Nations .” this European system was bound by a similar system of religion and

towards the liberal values of progress. The European values were super imposed on the entire

towards the liberal values of progress. The European values were super imposed on the entire

globe and more civilized nations assumed a right to intervene in the affairs of barbaric

nations , which did not meet the criterion of European Civilization . Some of the basic

features of the European Legal values can be summed up as follows :

A ) Government should be sufficiently stable and institutionalized if it were to enter into

international commitments .

B ) If the government was able to generate basic civil liberties for its citizens and foreigners

alike . 41

40

Supra Note 33 page 34

41 Ibid page 37

Development of International Law in the 20th

Century

The 20th

century was a curious amalgamation of various important internation al

events . It witnessed the two World Wars and the creation of the United Nations systems .

The Westphalian System was now considered to be a part of jus cogens regime that is

deeply entrenched in the Interantional legal system The creation of United Nati on system in

turn has created certain anomalies in the present legal regime . One of them is the problem

of those States who consistently violate the civil rights of its citizens . This creates a

dilemma for international legal actors , as to whether they should intervene or not .

. The failure of the League of Nations had created a good precedent for the United

Nations systems . the idea was to create an International Organization which would

discourage war in in near future and at the same time would create a viable system of

settlement of disputes between States. The traditional thinking of international law has not

considered the short coming, infrastructural in adequacy of those state who fail to come up

to an optimal level of humanity and democrat ization. These states are called failed / week

states. Legal theorists and political scientists have been grappling with the question of how

the international community should think about intervention in collapsed states. James

Fearon and David Laitin propose a model of neo trusteeship to deal with problems of

recruitment, coordination, accountability and exit in transitional administration.42

Critical to

their proposed is a cell for the recruitment of "lead states" with significant national security

or economic interests in collapsed stated to run interventions, and for an exit strategy that

focuses squarely on developing local ownerships for missions through the establishment of

taxation capacity. Stephen Krasner offers his own vision of governance for week and failed

states - One which relies on the idea of "shared sovereignty" contracts.43

These contracts

would create joint authority structures in specific issue areas, such as natural resource

management, combining international actors with domestic institu tion.

The two underlying assumptions of these models is as follows :

42 James De Fearon and David D. Laitin, "Neotrusteeship and the Problem of Weak States, "International

Security, Vol 28. No. 4, (Spins 2004) pages 5-43.

43 Stephen Krasner, "Organized Hypocrisy (Princeton, Princeton University Press, 1999) Page 9

i) Policy makers and scholars seem to agree that collapsed states will not emerge

from internal crises on their own.

ii) Intervention in the form of mediation, peacemaking and peacekeepi ng is a

necessary, instrument for reversing the political and economic declined of poorly governed

states.

The development of International law and the prohibition of the use

of force in the 20th Century :

During the 20th century the doctrine of humanitarian intervention underwent

profound changes, particularly in the period after the First World War, following the

collapse of the old European order of the 19th century. A geopolitical change of similar

magnitude occurred again at the end of the 20th Century, excatly in the years since 1989, as

a result of the collapse of the post-war order.

After the castrophe of the First World War, which forever ended the old imperial

European order, the effective abrogation of the jus ad bellum - with the banning of the use

of force in international relations - was seen as a major advancement of international law.

Although the Hague conventoins of 1899 and 1907 introduced for the first time in a

systematic legal manner - humanitarian principles into the conduct of warfare (jus in bello)

and led to the creation of the body of international humanitarian law. Foremost among

those rules figures the so-called "Martens Clause" formulated in the Preamble to the Second

Hague Convention of 1899 and restated in the Preamble to the Fourth Hague Conventoin of

1907. It established for the first time, a body of norms of jus cogens to be respected in the

course of military conflict, by stating that the civilian population as well as the combatants

"remain under the protection and empire of the principles of law, as they result from the

usages established between civilized nations, from the laws of humanity, and the

requirements of the public conscience." The right to wage war as a corollary to national

(often imperial) sovereignty, was not in itself put into question. The jus ad bellum was

merely tamed through the development of norms of jus in bello (i.e. international

humanitarian law). To have the right to declare war against another sovereign entity,

irrespective of moral or legal considerations, was still considered a basic element of

sovereign rule. In Carl Schmitt's theory, formulated after the First World War, this right

was perceived to be the constitutive element of politics (of the "political") as such.44

However, the catastrophe of the World War had woken up international public

opinion and made legal theorists realize the devastating consequences of an absolutely

posited state sovereignty. What has been aptly described, in German terminology, as

Souveränitäts-anarchie - anarchy among sovereign states as a result of unrestrained exercise

of that very sovereignty - had become the most serious threat to international peace and

security, indeed to survival of mankind, and was perceived as such by a growing number of

scholars, diplomats and politicians.

The codification of a norm banning the use or threat of the use of force in

relations between states through the Kellogg-Briand Pact of 1928 was seen as a major

achievement on the way to creating a new transnational order of peace ful co-existence

among nations. In Art. 1 of the Pact, signed at Paris on 27 August 1928, the High

Contracting Parties solemnly declared "that they condemn recourse to war for the solution

of international controversies, and renounce it, as an instrument o f national policy in their

relations with one another. This principle has not become an intrinsic part of the body of

jus cogens of general international law.

While the Third Hague Convention of 1907 limited the arbitrariness of the

conduct of warfare by introducing an obligation to formally declare war before the

commencement of hostilities. With the whole system collapsing in the conflagration of the

Second World War, the abrogation of the just ad bellum was upheld during the

reconstruction of the international system since 1945. The United Nations Charter

incorporates the principle earlier formulated in the Kellogg-Briand Pact and explicitly

stipulates in Art. 2 (4) that "(a)ll Members shall refrain in their international relations from

the threat or use of force against the territorial integrity or political independence of any

state...." In the period after World War II - as in that after World War I - the recognition of

this principle was seen as a major step towards an international order of peace and

prosperity for all nations.

The restriction of national sovereignty resulting from mutual recognition of the

in admissibility of interference in internal affairs became a generally accepted principle of

international law. The constraints to great power rule inherent in the norm of the non-use of

44

Hans Köchler, "Humanitarian Intervention in the Context of Modern Power Politics: Is the Revival of the

Doctrine of the "Just War" Compatible with the International Rule of Law?" (Vienna, International Progress

Organization, 2001) Page 9

force in relations among states were considered as basic condition for a stable balance of

power among international actors who would otherwise have tried to establish by force an

order of priority (or international hegemony) - as was usual procedure in the era of imperial

nation-states. In this normative context, other rules of International law - including the

principles of human rights - are only valid insofar as they are compatible with the basic

norm of the non-use of force and the subsequent norm of non-interference in internal

affairs.

The General Assembly of the United Nations has gone one step further in

advancing this normative order of peaceful co-existence - which is negative in its structure

in the sense of excluding aggression - towards a positive order of peaceful co-operation

among all nations (i.e. states). In the Declaration on Principles of International Law

concerning Friendly Relations and Co-operation among States in accordance with the

Charter of the United Nations,45

the General Assembly codified an elaborate set of rules of

"peaceful international behaviour" of states. This declaration can be seen as the culmination

of the efforts within the post-war (World War II) international system to create a normative

framework which would make the idea of peaceful co-operation, based on respect for one

another's sovereignty, a general trait of international law and thus would finally obligate all

states to adhere unreservedly to the non-use of force and non-interference in internal

affairs.

However, this post-war system of international law, as represented by the United

Nations Charter and the related legal instruments and resolutions, contained a basic

normative contradiction in regard to the banning of the use of force and the abrogation of

the jus ad bellum. In conformity with the iron law of power politics, they could not resist

the temptation to write into the Charter their privileged position after the end of World War

II.46

This legacy of power politics in the UN Charter becomes obvious in the

following way : The Charter's ban on the use of force in international relations (Art. 2 (4))

is related to unilateral actions of states or groups of states. Article 2(7) clearly states that

this interdiction "shall not prejudice the application of enforcement measures under Chapter

VII." According to the provisions of Chapter VII of the Charter, the United Nations

Organization, represented by the Security Council, reserves for itself the right to resort to

armed force "as may be necessary to maintain or restore international peace and security".

45

General Assembly resolution 2625 (XXV) of 24 October 1970.

46 supra note 44 page 11

(Art. 42) According to the procedural rules of the UN Charter, the collective use of force -

derived, in principle, from the existence of the elementary right of self -defense - is the only

exception to the principle of the non-use of force in international relations. This right,

however, cannot be seen in the sense of a traditional community who violate the principle

of the non-use of force. Collective defense, based on strict procedural rules, against "any

threat to the peace, breach of the peace, or act of aggression" (Art. 39), cannot be qualified

in the same normative sense as the act against which it is directed. In this sense, counter -

measures against aggression cannot be defined as acts of warfare for which a jus ad bellum

(in the sense of unrestricted sovereignty of state action) could be claimed.47

Those acts are

to be qualified as based on a right of resistance against the violation of the international

rule of law. because of their collective nature, they exclude - at least ideally - any

arbitrariness on the part of those resorting to force in acts of self -defense of the

international community.

Because of the provisions of Art. 27 of the Charter, the exercise of the right of

defense against acts of aggression - which is generally reserved for the Security Council

and not the General Assembly - is put under the exclusive control of the five permanent

members of the Council which are, more or less, identical with the victors of World War II.

According to Part. 3 of Art. 27, decisions on all matters other than those of procedural

nature require the "concurring votes of the permanent members." The obligation, also

formulated in Art. 27 (3), that "a party to a dispute shall abstain from voting" - a regulation

dictated by the principles of fairness and impartiality - relates only to decisions under

Chapter VI (Pacific Settlement of Disputes) and Art. 52 (3) (pacific settlement of local

disputes). This clause does not apply to decision under Chapter VII (including the use of

armed force), which are binding upon all member states. Excluding from the obligation to

abstain from voting exactly those cases in which a permanent member may itself be

committing breaches of the peace or acts of aggression, grants virtual impunity to the

aggressor. This is essentially what is meant when one refers to the "eternalization" of the

power balance of 1945 by means of the UN Charter and in particular the procedural rules of

the Security Council.

47

Ibid, Page 12