Study on the history of international Law

Term Paper in the Subject Public International Law

B.A.LL.B. 3rd Year

10th April 2020

No. of Words: 2546

Submitted by:

Alina KC

BALLB 3rd Year

Submitted to:

Professor Amritha Vishwanath shenoy

Kathmandu School of Law

Purbanchal University

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Table of contents
Chapter 1
1. Introduction
1.1 background
1.2 objectives
1.3 methodology
1.4 limitation
1.5 Research question
Chapter 2
2.1 History of international law
Chapter 3
Finding and analysis
Chapter 4
Conclusion

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 Chapter 1

1. Introduction
1.1 Background
The law of nations, known as public International Law, developed out of the tradition of
the late medieval Jus gentium1 Thomas Aquinas reinforced the idea that law could
structure or at least moderate the relation between kingdoms, principalities and republics.
Law, a set of rules is necessary in every states whether it be monarchy, democratic
republic state or it be large small, powerful or weak. Individuals or state have adopted a
set of rules to maintain a just and stable existence of state. John Austin rightly point out
that an individual cannot cope in society without any laws backed by sanction. For
instance, if there is no rules on how individual should behave then every individual might
threatens the liberty of others. Then peaceful society is not even imaginable. Therefore,
there is paradox whether law shapes society or society shapes law. Whatever the
functioning of either terms but law is essential factor in peaceful co-existence of society.
And every society have assumes that there is strong law guiding them. Many states
practices certain norms and values and abide by them which later become sources and
establishes as international law. The sources of international laws include international
custom (general state practice accepted as laws), treaties and general principles of law
recognized by most legal systems.2 International law may also be reflected in
international comity, the practices and customs adopted by states to maintain good
relations and mutual recognition, such as saluting the flag of foreign ship. 3 However, are
those sources only a foundation of international law or there is something else in making
the law international that we study it in domain of public international law and
international instruments. International law has distinguished between public and private
whereas former governs the relation of states and this paper basically talks about the
public international law and its history. While tracing back the original concept of
international law, many philosophers like Hugo Grotius, known as father of international
law, Jeremy Bentham, John Austin, Thomas Aquinas cannot be outlined from the credit.
Also many theories has one or other way helped to determine the foundation of
international law.

Therefore, this paper basically analyzes the factors which makes the international law
international and the significance of history of international law. Along with this, this
paper also address whether or not International law is European in origin as claimed, and
only limited within the ideas of civilized nation. If it is purely western thought then the

1
Brownlie’s Principle of public international law
2
https://en.wikipedia.org/wiki/International_lawaccess on 6thapril2020
3
Ibid

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 country like Nepal which has also signed or parties to international law treaties, has
embrace or reflect their principles in international law or not is also argued.

1.2 Objectives
The main objectives of this paper is to study about
 The history of international law
 Significance of the history of international law
 Whether international law embrace the Nepalese legal history in international law
or not

1.3 Methodology
This paper is descriptive and analytical in nature. It is the product of doctrinal
work and is based on the collection of information from the secondary and primary
sources of authority.

1.4 Limitation
This paper is based on the history of international law and its significance.
This paper only compares international law with Nepalese legal history.

1.5 Research questions

Chapter 2
2.1History of international law
The Intellectual history of international law has been claimed to be European in origin.
The idea of law evolves out since civilization and international law is known as the
foremost work of civilized nation. The phrase civilized nation also known as civilized
peoples, civilized countries or collectively as the civilized world has long served to
distinguish European Christian states from states not thought to possess similar legal
systems or values.4 Some people define international law as anarchic system of inter-state
relations used by states and for some it is a promise of peace, justice, and global society
4
https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1748accesson6th
april2020

4
 which can alleviate poverty and persecution. Though lately modern history of
international law is recognized but international law is far from the modern construct.

While looking back at the ancient roots of international law the Roman Empire is seen as
one of the most significant civilization in the development of international law as we
understand it today. Rome was the one to developed ambassadorial missions having a
system of rights and privileges. Ambassadorial immunities were systematized as
evidence of Cicero, “the inviolability of ambassadors is protected by divine and human
laws; their person is sacred and inviolable not only between allies but also during their
sojourn among enemies.5 Roman developed a system through agreements and treaties like
private contracts in trade and commerce in international law which is presented in the
‘jus-gentium’. Jus gentium or law of nation originally formed part of Roman civil law
applied to special circumstances concerning Rome’s dealing with foreigners distinct from
the narrower system of law applicable only to Roman citizens (jus civile).6 Rome though
they make a law only for Rome citizens in the then time but in modern days Rome
civilization can be in profound ways considered as the root of modern public
international law.

Another crucial area in the development of the international law of nations throughout the
ages has been the rules relating to recourse to and the conduct of war. 7 The concept of
just war occupied much of literature on war and the law of nature, the wok of St.
Augustine during the middle -ages and renaissance. Furthermore, the ancient root
covered the code of Hammurabi of Iraq and the Cyrus cylinder. There work has one or
other way helped in the development of international law.

17th century was also important for the development of modern international law. In the
early 1600’s the conception of international law was developed by the practitioner and
scholar Hugo Grotius in his famous work on the law of war and peace. 8 He formulated
his own ideas on the law of nation that he saw as a system of mutual legal restraints based
on the belief that law enumerated both from human reason or nature of law and from
custom.9 The modern structure and form of the international system can largely be traced
back to the peace of Westphalia in 1648, bringing about the end of vicious thirty years
war.10 The religious war between the Catholic Church and the head of the Roman Empire
developed the door to the concept of international law, international organization and
state sovereignty. And the concept existed permanently which helps for the boarder
5
Cicero quoted in Baron korff, “An introduction to the history of international law”,
6
Malcolm N. Shaw, “International law, sixth edition”
7
International law: History, theory and purpose, pdf , university of oslo

8
Stephen.C. Nelff,A short history of international law’
9
https://www.quora.com/What-are-Hugo-Grotius-contributions-in-the-development-of-international-
lawaccesson7th april2020
10
https://en.wikipedia.org/wiki/Peace_of_Westphaliaaccesson 8thapril2020

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 discipline of international law. One of the key concept to come out of the development of
the nation state was that law of nation only governed inter-state relations, and the rulers
were force to ‘govern as they please’ within their state. 11 This brings the concept of state
sovereignty. The principle of state sovereignty was and remains the fundamental
principle upon which modern international law is based, reflected in the UN charter. 12
However, the concept of equality has been quite wiped away in the 19th century because
of the hegemony of the great powers but the international law, today is solely depends
upon the equality of states and state sovereignty.

International law does not exist through intellectual history only. These principles must
be understood in context of the theoretical aspect as well. Two theories regarding
international law helps to create a norms values and establish it as an international law.
The basic proposition of international law lies on the Natural law theory and positivism.
Natural law was invented and advocate by European theologians and philosopher, and
recognized and accepted by later Naturalists and eclecticisms. Basically, Natural law
theorist’s advocate about the Divine law i.e. body of legal norms and principles created
by god. The notion of jus naturae was propounded by stoicism in Ancient Greek in 3 rd
century which states that “man was a reasonable being and the basis of natural law was
the reason of the man.” Ancient Roman developed a notion of jus gentium notion which
viewed natural law as the law derived from the nature of human beings, and as law
expressive of the basic idea of justice. The natural law diversified into two key schools of
thoughts. First viewed as it is created by God, and discoverable by humans. The second,
more popular and enduring school of thought was the rationalistic approach, articulated
by Thomas Aquinas, holding that natural law could be discovered and applied through
human reason and analysis, as opposed to religious revelation. 13 Hugo Grotius Further
developed the concept seeing natural law as basic elements and sources of international
law which has been discussed above.

While talking about the rise of positivism, the positivist school which developed so
rapidly in the pragmatic optimistic world of the 19 th century, declared that law as it exists
should be analyzed empirically, shorn of all ethical elements. 14 This school argued that
the moral values belief should be examined through legal science. The meta- physics,
man -made law is vague in itself therefore, it must be examined and made precise then
only it becomes well and good. Positivism grew as a reaction of natural law theory.
Originally, conceived by French philosopher Augusta Comte, positivism ‘promised to
bring the true and final liberation of the human mind from the superstitions and dogmas
of past.15 Positivist theory views law not as a set of pre-existing or pre-ordained legal

11
International law; History, theory and purposes; pdf; Via university of oslo
12
United Nations, Charter of the united nations, XVI; Article 2
13
International law: History, theory and purpose, pdf , university of oslo
14
Malcolm N. Shaw, international law, fifth edition
15
International law: History, theory and purpose, pdf , university of oslo

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 rules derived from some mystical source; rather, positivism views international law as
discoverable through scientific, objective, or empirical process.16

Chapter 3
Finding and analysis
Law of nation or public international law was recognized as the system of exchange of
diplomatic relations, recognition, international organization, treaties and customary
international law.17 International law was widely dependent on consent i.e. law of nations
is based on the common consent of individual states but not individual. 18 Since the
international law is solely depends upon the principles of equality and consent it is
necessary for a state to know about its origin practices. International law has developed in
number of ways either it be an intellectual prospects or war and conflict. So, studying
about the history of international law has many advantages for the individuals and state
actors. First, the law basically arises from often the international agreements, and treaties
between states. Also the customary rules ought to be recognized in international law.
Furthermore, the general principles recognized by the civilized nation can become the
corpus of international law. Moreover, the law arises from legal scholars, theories often
accepted in the law. Therefore, we have to study about the history of international law to
know about the actual originality of codified laws that we applied.

Also, states emerged as material, independent entities and international law was one of
the ways they developed of managing their relation, every state is one or other way have
been influenced by international law.19 Many countries have ratified international law
regarding human rights, law of sea and other fragments of international law. We the
citizen of our state is indirectly influenced by international law therefore, it is necessary
to study legal history regarding the structures involving the jurisdiction of states, the
agreements of states and various. Therefore, international law has the characteristics of a
system not just a random collection of rules; the basic construct of personality sources
concluding treaties, interpretation and responsibility prove a framework within which
rules may be generated, applied and increasingly adjudicated upon. So, every state
whether big or small in size has to know about the history for better performance to
promote peace and stability around the world especially when one state has to be abide
within the domain of international law.

The intellectual history of international law claimed it to be of European in origin. Many

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regarding equality and sovereignty was already there before the international law
documented it as a western thoughts. And talking about Nepal, and Nepalese legal
system, It is based on Hindu philosophy and its growth and development is largely
influenced by Hindu religious text. The concept of jus gentium can be seen in the history
of Nepal as well which states that everyone is born equal and must be treated equally.
However, the concept of jus gentium is boarder than that of equality and justice. Though
Nepalese legal history is vocal about the equality but it lacks in practice. Nepal has its
own laws on rules of war, treaty making and diplomacy but rather implementing this
concept and making it somehow boarder it impersonate the ideas of western philosophy.
Nepal since long decade follow the diplomatic relations, recognition, also parties to
international organizations, and follow customary international law so that the principle
of international law can be situated in Nepalese legal history For instance Nepal is
member state to UN in 1955. Nepal is also parties to humanitarian treaties and trade and
commerce and Nepal is also influenced by the international law principle in number of
ways.

Chapter 4

4. Conclusion
The international law we study today has been developed in number ways. Whatever the
theoretical lens through which one views international law it is essential to ask how it is
be conceptualized and applied to real problems. There are many theories and principles
which states about what is international law. International law is acknowledges in terms
of peace, security, and justice which is purpose of international law as well. International
law though is debated subjects of not being universal but the application of international
law in world is significant regarding the needs and interests of every states.

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Bibliography

1. Baron, Koff, “an introduction to the history of international law”

2. Brownlie, Public international law, eighth edition

3. https://en.wikipedia.org/wiki/International_lawaccess on 6thapril2020

4. https://en.wikipedia.org/wiki/Peace_of_Westphaliaaccesson 8thapril2020

5. https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-
9780199231690-e1748accesson6th april2020

6. https://www.quora.com/What-are-Hugo-Grotius-contributions-in-the-
development-of-international-lawaccesson7th april2020

7. Malcolm N. Shaw , international law, Fifth edition

8. Stephen . C. Nelff, “A history of international law”