Nature and Origin of Public International Law

Nature:
The system of public international law may be described as
consisting of a body of laws, rules and legal principles that are
based on custom, treaties or legislation and define, control,
constrain or affect the rights and duties of states in their
relations with each other. Public international law has increased
in use and importance vastly over the twentieth century, due to the
increase in global trade, armed conflict, environmental
deterioration on a worldwide scale, awareness of human
rights violations, rapid and vast increases in international
transportation and a boom in global communications.

Public international law has three principal sources: international

treaties, custom, and general principles of law. In addition,
judicial decisions and teachings may be applied as "subsidiary means
for the determination of rules of law". International treaty law
comprises obligations, states expressly and voluntarily accept
between themselves in treaties. Attempts to codify customary
international law picked up momentum after theSecond World War with
the formation of the International Law Commission (ILC), under the
aegis of the United Nations. Codified customary law is made the
binding interpretation of the underlying custom by agreement through
treaty. For states not party to such treaties, the work of the ILC
may still be accepted as custom applying to those states.

Public international law establishes the framework and the criteria

for identifying states as the principal actors in the international
legal system. International law is concerned with the treatment of
individuals within state boundaries. There is thus a comprehensive
regime dealing with group rights, the treatment of aliens, the
rights of refugees, international crimes, nationalityproblems,
and human rights generally. It further includes the important
functions of the maintenance of international peace and security,
arms control, the pacific settlement of disputes and the regulation
of theuse of force in international relations. Even when the law is
not able to stop the outbreak of war, it has developed principles to
govern the conduct of hostilities and the treatment of prisoners.
International law is also used to govern issues relating to the
global environment, the global commons such as global
communications, andworld trade.

According to international law, all states are sovereignand

theoretically equal. As a result of the notion of sovereignty, the
value and authority of international law is dependent upon the
voluntary participation of states in its formulation, observance,
and enforcement. Although there may be exceptions, it is thought by
many international academics that most states enter into legal
commitments with other states out of enlightened self-interest
rather than adherence to a body of law that is higher than their
own.
Breaches of international law raise difficult questions for lawyers.
Since international law has no established compulsory judicial
system for the settlement of disputes or a coercive penal system, it
is not as straightforward as managing breaches within a domestic
legal system. However, there are means by which breaches are brought
to the attention of the international community and some means for
resolution. For example, there are judicial or quasi-judicial
tribunals in international law in certain areas such as trade and
human rights. The formation of the United Nations, for example,
created a means for the world community to enforce international law
upon members that violate its charter through the Security Council.

Origin:
International law has developed historically and philosophically
over many centuries, in many cultures and a rudimentary system of
international law existed even in ancient societies. Persons from
even the most diverse historical cultures sought to relate to one
another in a peaceful, predictable, and mutually beneficial way.

On this viewpoint one can refer to Neffs A short history of

International Law in Evans (2006), which traces the development of
international law in many historical traditions.
Neff persuasively contends that persons from even the most diverse
historical cultures sought to relate to one another in a peaceful,
predictable, and mutually beneficial way. He points out that
Mesopotamia, northern India and classical Greece had three areas of
international law: diplomatic relations, treaty-making, and rules
governing the conduct of war. As these are still three major areas
of international law, it establishes the view that international law
has long historical roots.

During the medieval period, throughout Europe, customs began to be

accepted, founded on the Rhodian sea law and which was a Byzantine
work. In addition, there was a continental law merchant, which was
a series of regulations and practices governing trade. The area of
diplomatic relations developed in this period and the European
states began to conclude bilateral treaties which spelled out
reciprocal guarantees of fair treatment.

The sixteenth and seventeenth centuries constituted the classical

age of public international law. The major scholar of that era was
Hugo Grotius whose main work was On the Law of War and Peace,
published in 1625, and in which he further developed the just-war
theory and argued that the law of nations was distinct from the law
of nature. The purpose of the law of nations was to regulate the
external conduct of rulers. Up to the nineteenth century,
international law had developed over centuries, with its flowering
in the classical age. Although Grotius might be known as the chief
architect of our modern international legal philosophy, the roots of
his scholarship are in the ancient natural law texts and
developments of mercantile law in the Middle Ages.

In the eighteenth and nineteenth centuries another philosophical

tradition developed in contrast to Grotius natural law theory which
has also influenced modern international law: positivism. It is
important to note that modern international law has also been
profoundly influenced by developments in the nineteenth and
twentieth centuries which until the end of the Second World War was
dominated by positivist thinking and the development of a plethora
of bilateral and multilateral treaties, such as the treaties that
constituted the results of the Hague Conferences, the establishment
of the League of Nations, and, finally, the United Nations (UN).
Recently in the late-twentieth and early twenty-first centuries, in
addition to the staggering developments in international legal
instruments (multilateral law-making conventions) and international
institutions (the UN, World Trade Organization (WTO), International
Criminal Court) we have seen the rise of a diverse range of
international law theories, even though, there is a argument that
there is a continuation of natural law and positivism. One recent
example, as embodied by Martii Koskenniemi in his writings, What is
international law for? seeks to deconstruct the language used in
international law and analyses the basic meaning. Juxtaposed with
this philosophy, are writers on liberal internationalism, such as
Teson and Slaughter and the New Haven school which examines the
process of international law-making as expounded by Myers McDougall
and Michael Reisman. All of these theorists examine international
law through the lens of philosophical thinking that might influence
the development of international law into the future.

In this brief historical review, it can be seen that international

law was developed over many centuries and that the classical age of
Grotius and the Spanish philosophers might only be one stage in the
continuing development of public international law that continues
into the twenty-first century. There continue to be divergent
theories of international law, which will inform future development
of the subject.