CSS International Law Solved Paper 2019 Question 2

Why is it difficult to render accurately a historical account of the origin of International law? What should be the focus of any account as to how and why International law began?

Introduction

The history of international law examines the evolution and development of public international law in both state practice and conceptual understanding. Modern international law developed out of Renaissance Europe and is strongly entwined with the development of western political organization at that time. The development of European notions of sovereignty and nation states would necessitate the development of methods for interstate relations and standards of behavior, and these would lay the foundations of what would become international law.

However, while the origins of the modern system of international law can be traced back 400 years, the development of the concepts and practices that would underpin that system can be traced back to ancient historical politics and relationships thousands of years old. Important concepts are derived from the practice between Greek city-states and the Roman law concept of ius gentium (which regulated contacts between Roman citizens and non-Roman people).

These principles were not universal however. In East Asia, political theory was based not on the equality of states, but rather the cosmological supremacy of the Emperor of China. Since there have been so many civilizations before the last 400 years, and each civilization interacted with foreign countries, therefore it is very difficult to render an accurate historical account of international law.

Historical Account of Origin of International Law

Origin of Treaties

Basic concepts of international law such as treaties can be traced back thousands of years. Early examples of treaties include around 2100 BC an agreement between the rulers of the city-states of Lagash and Umma in Mesopotamia, inscribed on a stone block, setting a prescribed boundary between their two states.

Around 1000 BC, an agreement was signed between Ramses Il 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. The Ancient Greeks before Alexander the Great formed many small states that constantly interacted. In peace and in war, an inter-state culture evolved that prescribed certain rules for how these states would interact. These rules did not apply to interactions with non-Greek states, but among themselves the Greek inter-state community resembled in some respects the modern international community.

Origin of International Humanitarian Law

Early Islamic Law's principles concerning military conduct, and the treatment of prisoners of war under the early Caliphate are considered precursors to international humanitarian law. The many requirements on how prisoners of war should be treated included, for example, providing shelter, food and clothing, respecting their cultures, and preventing any acts of execution, rape or revenge. Some of these principles were not codified in Western international law, until modern times. Islamic law under the early Caliphate institutionalized humanitarian limitations on military conduct, including attempts to limit the severity of war, guidelines for ceasing hostilities, distinguishing between civilians and combatants, preventing unnecessary destruction, and caring for the sick and wounded.

Origin of Nation-States

After the fall of Roman Empire and the collapse of the Holy Roman Empire into independent cities, principalities, kingdoms and nations, for the first time there was a real need for rules of conduct between a large international community. International trade was the real catalyst for the development of objective rules of behavior between states. Without a code of conduct, there was little to guarantee trade or protect the merchants of one state from the actions of another. Economic self-interest drove the evolution of common international trade rules, and most importantly the rules and customs of maritime law.

As international trade, exploration and warfare became more involved and complex, the need for common international customs and practices became even more important.

The Hanseatic League of the more than 150 entities in what is now Germany, Scandinavia, and the Baltic States developed many useful international customs, which facilitated trade and communication among other things. The Italian city-states developed diplomatic rules, as they began sending ambassadors to foreign capitals.

Treaties, agreements between governments intended to be binding, became a useful tool to protect commerce.

Origin of Scholars on International Law; Hugo Grotius

International practices, customs, rules and treaties proliferated to the point of complexity. Several scholars sought to compile them all into organized treatises. The most important of these was Hugo Grotius, whose treatise De Jure Belli Ac Pacis Libri Tres is considered the starting point for modern international law. Before Hugo Grotius, most European thinkers treated law as something independent of mankind, with its own existence. Some laws were invented by men, but ultimately they reflected the essential natural law. Grotius was no different, except in one important respect: Unlike the earlier thinkers, who believed that the natural law was imposed by a deity, Grotius believed that the natural law came from an essential universal reason, common to all men.

This rationalist perspective enabled Grotius to posit several rational principles underlying law. Law was not imposed from above, but rather derived from principles. Foundation principles included the axioms that promises must be kept, and that harming another requires restitution. These two principles have served as the basis for much of subsequent international law. Apart from natural-law principles, Grotius also dealt with international custom, or voluntary law.

Grotius emphasized the importance of actual practices, customs and treaties, what "is" done, as opposed to normative rules of what "ought to be" done. This positivist approach to international law strengthened over time. As nations became the predominant form of state in Europe, and their man- made laws became more important than religious doctrines and philosophies, the law of what "is" similarly became more important than the law of what "ought to be.

Conclusion

This discussion attempts to trace the origins of important concepts in international law. These aforementioned concepts form the basis of modern international law. However, the origins of international law can be traced to around 400 years ago. However, it is also a fact that some of these concepts also have origins in some of the earlies civilizations of the world. Therefore, it is very difficult to render an accurate historical account of the origins of international law.