International Law : Historical Development and Future

Amit Jain, Advocate
Punjab & Haryana High Court, Chandigarh
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Date : 17/06/2020 Location : House No. 714 Sector 8-B, Chandigarh
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International Law : Historical Development and Future

Public International law also known as "The Law of the Nations" finds its genesis from the Roman Law applicable between the Roman Republic and the tribes and kingdoms of the rest of the world, called "jus gentium". One of the oldest recorded treaties is the Peace Treaty of Kadesh between Hittities and the Egyptians around 1259 BC. However, the modern International Law as we know today was born in 1648 out of the Peace Treaty of Osnabruck and Munster which put an end to the 30 years of war within the Roman Empire and parts of Europe. The new understanding was based on equal sovereignty of the states on its own territory and equal to one another. Under the model of equal sovereignty, the states were free to enact their own laws and eventually enter into contracts with other states, creating obligations between them. This basic structure of International law has not changed much over the centuries and is still prevalent today. Article 2, Paragraph 1, of the United Nations Charter proclaims that "The Organization is based on the principle of the sovereign equality of all its Members",while Paragraph 7 protects what is called the "domestic jurisdiction" of States from outside interference.

Under the Peace Treaty of Versailles in 1919, for the first time, an international body was set up for maintaining peace and security between the nations known as "The League of Nations". However, despite being a symbol of maintaining peace and order between the nations, it failed to prevent the World War II. Nevertheless, this was the first step towards the establishment of the principles of international law as we know today.

International organisations are a very important feature of modern international law. There are a few hundred international organisations governing various aspects amongst states,ranging from river disputes to universal organisations entrusted with crucial political tasks, like the United Nations. The name "United Nations", coined by United States President Franklin D. Roosevelt, was first used in the Declaration by the United Nations on 1 January 1942, during the Second World War. In 1945, representatives of 50 countries met in San Francisco at the United Nations Conference on International Organization to draw up the United Nations Charter. The Charter was signed on 26 June 1945 by the representatives of the 50 countries. Poland, which was not represented at the Conference, signed it later and became one of the original 51 Member States. The United Nations officially came into existence on 24 October 1945, when the Charter had been ratified by China, France, the Soviet Union, the United Kingdom, the United States and by a majority of the other signatories. According to Article 1 of the UN Charter, the purposes of the Organization are as follows:

"To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;

To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;

To achieve international co-operation in solving international problems of an economic, social,cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and

To be a center for harmonizing the actions of nations in the attainment of these common ends."

Now the question arises as to how it is possible to have `rule of law' in a system of sovereign states. The rule of international law originates from the consent and will of the states. The necessity to have in place a mechanism in the form of International law arises from the desire of the states to be able to engage in international relations, having a common set of rules that ensure and protect their rights and obligations. There is no higher authority, as in case of domestic laws, because states are sovereign and equal to one another. In 1927, The Permanent Court of Justice, by laying down the foundation of modern international law, in a case famously known as "The Lotus Case" between France and Turkey, held that:

"International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed.

Now the first and foremost restriction imposed by international law upon a State is that -- failing the existence of a permissive rule to the contrary -- it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention."

Amongst the important sources of international law are international conventions, international customs, general law and unilateral acts recognised by civilized nations and the judicial decisions and teachings of eminent jurists. Another important source of international law is the international treaties entered into by the states amongst each other. The most important of these treaties include the Vienna Convention of 1969,Geneva Convention of 1949 and the Universal declaration of Human rights of 1948. This is,however, subject to the principle of "jus cogens" i.e. a pre-emptory norm generally accepted and recognised by the international community of states (for example, prohibition of slavery, prohibition of racial discrimination, etc.). Thus, the international law being a result of the `will of the states', the various sources of international law are also a result of processes which are somehow and ultimately controlled by the states themselves. The next step would be the interpretation of the international law, as there can be no application of international rules without interpretation. The general principles of interpretation of international law are provided in Article 31-33 of the 1969 Vienna Convention.

Performance of international obligations is another essential aspect of International law. The International Law Commission has written in its 2001 final report on the Draft Articles on the responsibility of States for internationally wrongful acts as under:

"In some cases precisely defined conduct is expected from the State concerned; in others the obligation only sets a minimum standard above which the State is free to act. Conduct proscribed by an international obligation may involve an act or an omission or a combination of acts and omissions; it may involve the passage of legislation, or specific administrative or other action in a given case, or even a threat of such action, whether or not the threat is carried out, or a final judicial decision. It may require the provision of facilities, or the taking of precautions or the enforcement of a prohibition. That obligation is also an obligation of due diligence, as the International Tribunal for the Law of the Sea has ruled in April 2015. As the ICJ has put it in the case between Bosnia-Herzegovina and Serbia concerning the application of the Convention on the prevention and punishment of the crime of genocide, responsibility for breach of the obligation to prevent genocide "is incurred if the State manifestly failed to take all measures to prevent genocide which were within its power, and which might have contributed to preventing the genocide."

The use of force is regulated by the rules and principles of International humanitarian law. The Geneva Conventions and their additional protocols deal with, among other topics, prisoners of war, the sick and wounded, war at sea, occupied territories, and the treatment of civilians. In addition, a number of conventions and declarations detail the types of weapons that may and may not be used in warfare.

The States are required to enact domestic legislation in order to comply with their international obligations. A State is free to accept that international law prevails over its own laws, or in some cases, such as in case of conflict, the State may prefer that its own rules prevail. The enforcement of responsibility in case of breach of obligation is most significant in order to ascertain the effectiveness of international law. In the Nicaragua v. United States case, the International Court of Justice observed that-

"The principle that the parties to any dispute, particularly any dispute the continuance of which is likely to endanger the maintenance of international peace and security, should seek a solution by peaceful means [...] is a principle that has [...] the status of customary law."

The settlement of disputes in international law can be done by way of political negotiations and treaties, through conciliation, or through the judicial process of the International Court of Justice, the International Criminal Court or other allied organisations. The judicial organ of the United Nations is called the International Court of Justice (ICJ). The ICJ replaced the Permanent Court of Justice founded at the time of the establishment of the League of Nations. The seat of the International Court of Justice is established in The Hague in the Netherlands. The international judicial process depends upon the consent of the parties as there is no compulsory jurisdiction of international law. Arbitration is an old institution of international law and in its modern form, it is usually traced back to the Jay Treaty of 1794, a treaty concluded in London between the young Unites States of America and Great Britain. It is a treaty of amity, commerce and navigation which established mixed commissions of arbitrations to solve certain pending disputes that existed between the two parties. The Permanent Court of Arbitration,also having its seat at The Hague, provides administrative support to arbitration tribunals and also holds international arbitrations. However there is no effective mechanism to implement the decisions of the ICJ, though the same are final and binding on the participating states

On most occasions,international law is subjected to the valid criticism of being ineffective. International law is facing its biggest challenge today in view of the emerging assertive behavior of non-state actors, misplaced nationalism and aggressive economic aspirations of the states. International law has succeeded in matters like punishment for international war crimes and protection of environment in general and European Union in particular which represents the new legal order of International Law. On the other hand, it has struggled in matters of international peace and security, like in Iraq and Syria, and more recently,the global pandemic and standoff between India and China on borders issues. Although obligation to settle the dispute peacefully is a well accepted doctrine of International Law, the absence of farsightedness has resulted in the casual disregard of global interests and giving undue importance to domestic compulsions in the name of security has become a norm. The way the international law is created, implemented and controlled is very complex as there is no democratic system involved, thereby resulting in a greater distance between the law makers and the subjects of law in the international arena. Achieving consensus has become increasingly difficult and complicated amongst member states. The traditionally influential states have failed to reach consensus on various issues, more particularly due to their own notable breaches. Mrs. Maria Fernanda Espinosa Garces, President of the 73rd Session of the UN General Assembly stated:

"We are witnessing the rise of nationalist populism and extremist ideologies, as the world becomes more multipolar but also more polarized. We have seen the impact of this trend on hard-won multilateral agreements and institutions: the Paris climate agreement; the global compact on migration; the Human Rights Council, the WTO, arms control instruments - these are just a few examples that I'd like to mention.

We are seeing long-established international laws and multilateral practices - which have delivered so much for the world since 1945 - devalued by geopolitical tensions, unilateralism, and ad hocery.

And we are seeing a growing disconnect between people, governments and institutions. People expect us to keep the promises we have made, through the 2030 Agenda for Sustainable Development, for example. But they are losing faith in our capacity to deliver for them.

Unless we reverse these trends, we risk damaging the values, principles, laws and systems that have been the bedrock of the international community for more than seven decades. And the irony is that these trends are occurring at precisely the moment when we need global cooperation more than ever."

However, it would be a fallacy to treat International law as fiction, as it has, to a large degree, replaced armed conflict by peaceful negotiation and conciliation as a way of settling international disputes. The effectiveness of international law cannot merely be brushed aside in as much as international law has proven itself to be resilient in the face of global political disputes. The future evolution of international law depends upon the political will of the states towards international policies. States must, in unison,fundamentally recognise and acknowledge their responsibility towards world peace and better global governance, with due respect to the sovereignty of others and work towards the reform and development of international law in accordance with the UN Charter. Contemporary international law is not without its shortcomings, but it still remains exceedingly unique and significant for global harmony.

Credits: UN website, Prof. Pierre d'Argent, Universite catholique de Louvain

(The Author is a practicing advocate in the High Court of Punjab and Haryana at Chandigarh and the views and opinions expressed are personal only)

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