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DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE

INTERNATIONAL LAW AND ANCIENT INDIAN TRADITION

SUBJECT

HISTORY

NAME OF THE FACULTY

VISWACHANDRANATH SIR

NAME OF THE CANDIDATE:T . LAKSHAMAN SRAVAN

ROLL NO : &SEMESTER :2016054 & Ist SEMESTER

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ACKNOWLEDGEMNT:-

I would like to express my special thanks of gratitude to our lecturer

VISWACHANDRANATH SIR whom have given me the golden opportunity to do this
wonderful project on the topic 'INTERNATIONAL LAW AND ANCIENT INDIAN
TRADITION’ which also helped me in doing a lot of research and through which WE came
to know so many new things. we are really thankful to him.
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TABLE OF CONTENTS

A) INTRODUCTION
B) HISTORICAL DEVELOPMENT OF INTERNATIONAL LAW
C) SOURCES OF INTERNATIONAL LAW
D) WAR RELATING TO ENEMY PERSONS
E) LAW IN ANCIENT INDIA.
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INTERNATIONAL LAW AND ANCIENT INDIA TRADITION

INTERNATIONAL LAW :

RESEARCH PROBLEM: INTERNATIONAL LAW AND ANCIENT INDIA

TRADITION

RESEARCH STUDY/ LITERATURE REVIEW:

INTERNATIONAL LAW

The word international law was used for the first Time by
JEREMY BENTHAM in 1780. It is the law which Administers and regulates relation
between the countries.

ANCIENT INDIA :

The first civilizations are around (3500 – 3000 B.C.)Historians and archaeologists do
not always agree about the details, such as which civilization came first, weather the idea of
civilization spread from a common Center of origin or weather it was independently invented
In different places at about same time.

RESEARCH DESIGN: The method of research is doctrinal study.

IDENTIFICATION OF VARIABLE: International law is independent variable and it is

depends on the behaviour of the countries.

COLLECTION OF DATA: A researcher uses the secondary sources like books, journals
and also the web sources

I WANT TO DISCUSS THE SOURCES OF INTERNATIONAL LAW :

SOURCES :

a) Treaties
b) Custom
c) General principles and
d) Other sources.
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I WANT TO DISCUSS THE FOLLOWING REGARDING ANCIENT INDIA

a) Early Vedic age

b) Later Vedic age

c) Mauryan’s empire.

d) Guptas empire.
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INTERNATIONAL LAW AND ANCIENT INDIAN TRADITION

INTRODUCTION:

International law is also called as public international law or law of

nations. The rules and regulations in the international law has to accept by all the nations,
who are the members of united national organisation. As per Bentham’s international law is a
collection of rules governing relations between the states. It is a situation of how the
international law has developed by omitting the individuals. The main element of modern
international law is no longer to collect and view the international law is simply a collection
of rules, it is gradually developing rules and influence on the countries not directly by
providing in the form of normative guidelines, methods of mechanisms and also a common
conceptual language to primarily sovereign states, and also to the international organisations.
The scope of international law was gradually widening and moving beyond the concepts of
war, peace, and diplomacy to include human rights, economic and trade issues, and space
law. International law is a legal order and has been influenced significantly by the ethical
principles and concerns particularly related to human rights. International law is completely
differ from the international comity which explains that one state has to recognise the
legislative, executive and judiciary of another state to the extent possible.1

International law is an independent system of law existing outside

the legal orders of particular states. It is differ from the local laws of the different countries
where the foreign elements are involved. International law is the distinctive part of the
general structure of the international relations in looking to a response for particular
international situation countries will use the considerable relevant laws. Countries will take
care and restricted to the rules and principles of international law while performing an action
and also they focused on the violations of the international law, because if they are not focus
on the violations those countries will be marked negatively by the international community.
The rules of international law are rarely enforced by military means or in the form of
economic sanctions. This states that breach of international rules suffer a decline in
credibility that may reduce the future relations with other states, thus a violation of treaty by

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one country to its advantage may influence the other country to breach of other treaties may
cause harm to the international peace.

As above said international law does an independent system of law

exist outside the legal orders of a particular states, it is completely different to the internal
laws of all the countries.

EX: The united nation general assembly contains of 190 countries, has the outward
appearance of a legislature. The united nation has no power to issue binding laws, rather it
solves the problem and serve the recommendations and in few cases and for certain purposes
like in determining the united nation budget and admitting the new countries as a member of
the united nation and this process is done with the involvement of security council and for
electing new judges to the international court of justice (I.C.J).

There is no system of courts with comprehensive jurisdiction

regarding international law, the international court jurisdiction is involved in controversy
cases is agreed upon the consent of the particular countries involved. There is no international
police force to enforcement of the law and also there is no supreme executive authority. The
united national Security Council may authorise the use of force to compel the countries to
agree with its decision but only confined to specific and limited situations especially there
must be a prior act of aggression or the threat of such an act in this case the action should can
be voted by the any of the member of the council of the permanent members i.e security
council.

HISTORICAL DEVELOPMENT OF INTERNATIONAL LAW:

International law shows the establishment and further changes of

a world system founded almost exclusively on the nations of independent sovereign
countries, the essential structure of international law was mapped out during the revival of
European art and literature though its origins lay deep in history and can be traced to
cooperative agreements between peoples in the ancient Middle East.2 Among these
agreements the earlier agreement was between the rulers of Lagash and Umma ( in the area of
Mesopotamia) around the 2100 B.C and also the many agreements negotiated by many
middle eastern empires. The Indian subcontinent and china play a vital role in the

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development of the international law, in addition to basic nations of governance of political

relations and the interaction of independent units provided by the ancient Greek philosophy
and also the relations between the Greek city states constitute a important source for the
evolution of the international law. Many of the concepts that today under the international
law was established during the period of roman empire. The word jus gentium( law of
nations) is a Latin word was invented by the romans to govern the status of foreigners and
maintain the good relations between the foreigners and the roman citizens in accordance with
the help of Greek natural law which they adopted from the Greek the romans conceived the
law of nations is having universal application in the middle ages the concept of natural law
was allowed with the religious principles through the writings of Jewish philosopher ‘Moses
Maimonides’(1135-1204) and the S.t Thomas Aquinas(1224-1274) became the intellectual
foundation of the new discipline of the law of nations regarding the part of natural law that is
applicable to the relation between the sovereign states. After the collapse of the roman empire
in the 5th century, Europe has faced frequent wars for nearly 500 years and finally a group of
nations was emerged and finally set of laws were developed to rule the interstate relations
including the canon law, and the merchant law to maintain the trade activities. In the 15 th
century the arrival of Greek scholars in Europe by defeating the Byzantine empire and the
introduction of printing press gave way for the development if scientific, humanistic and for
individual thought, by the expansion of travelling in various ways mainly through the oceans
by the European explorers spread the European norms throughout the world and broadened
the intellectual and geographical boundaries of western Europe. The subsequent of
consolidation of states with increasing wealth and also increase in the growth of trade leads to
implementation of new laws to control the relations. In 16th century the concept of
sovereignty provides a basis for the extension of power to the king and was later transformed
into a principle of collective sovereignty as the right of kings gave way constitutionally to
parliamentary or representative forms of government, sovereignty refers to the independence
with in a system of competing nation states. In the earlier period who dealt with the questions
of governance and relation between the nations included the Italian lawyers Bartolo da
sassoferrrato (1313-1357) was regarded as the founder of the modern study of private
international law and ‘Baldo degli ubaldi’(1327-1400) a famed teacher and the adviser of
authority on roman and feudal law the essence of new approach can be directly traced to the
philosophers of Spanish golden age of 16th and 17th centuries ‘Francisco de Vitoria’ (1486-
1546) who was particularly concerned with treatment of people of south America by the
conquering of Spanish force and Francisco Suarez (1548-1617) said that international law is
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mainly based on the law of nature considered the originator of secular school of thought in
international law published a book called ‘Three books on the law of war’ in 1598 which
contained a brief discussion of the laws if war and treaties. Gentil’s work leads to
transformation of the law of nature from a theological concept to a concept of secular
philosophy founded on the reason. The Dutch jurist Hugo Grotius (1583-1645) has
influenced a development the field to an extent unequalled by another theorist, though his
reputation as the father of international law has perhaps been extracted. Grotius worked on
the theology of international law was organised into a comprehensive system.

The scholars who followed Grotius can be divided into two groups namely Naturalists
and positivists, the naturalist camp includes German jurist ‘Samuel von pufenodorf’ (1632-
1694) who stressed the supremacy is the law of nature, in contrast with the positivist writers
such as ‘Richard Zouche’ (1590-1661) in England said that actual practice of contemporary
states over the periods were divided from Biblical sources, like Greek thoughts and roman
law. these new writings are also focussed greater attention on the law of peace and the
conduct of interstate relations then on the law of war, as the focus of international law shifted
away from the conditions necessary to justify the resort to force in order to deal with
increasingly interstate relationship in the areas such as law of the sea and the commercial
treaties

The group of positivists made use of new scientific methods and was in that respect
consistent with the new approach to philosophy that was the gaining and acceptance approach
to the Europe, elements of both positivism and natural law appear in the works of the German
philosopher Christian wolff (1679-1754) and the Swiss jurist ‘Emerich de Vattel’ (1714-
1767) both of them made an attempt to develop an approach that avoided the extremes of
each group. During the period of 18th century the natural group was lighted by the positivist
tradition though at the same time the concepts of natural law which played a prominent role
in the American and French revolutions was played an important role in the international
politics in the international law, however the concept of natural law will had only marginal
significance till the 20th century.

Positivism group was highly influenced during the expansionist and industrial in
19th century, when the nations of sovergnity was structured by the ideas of domestic
jurisdiction and non-intervention of other countries affairs and ideas that had been spread
throughout the world of European continental nations. In the 20th century the concept of
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positivism was dominated in the international law by the impact of the two world wars,
resulting the growth of international organisations.

E.X: a) League of Nations - 1919

b) united national organisation- 1945

By the formation of these groups leads increase the importance of human

Rights; international law becomes truly international after the world war – II.

The development of international law both its rules and its institutions is
inevitably shaped by the international political events, from the end of world war – II until
the 1990’s. Most of the events that threatened to international peace and security were
connected to the Cold war between the soviet union and its U.S alliance. The united national
Security Council is unable to function as intended because resolutions proposed by one side
were likely to be voted on the other, the us alliance prompted the development of regional
organisations.

Ex :

a) Warsaw pact --- organised by Soviet Union.

b) North Atlantic treaty Organisation---- organised by U.S. Alliance.

By establishing the NATO by the United States encouraged the

proliferation of conflicts on the two blocks including Korea, Vietnam, and Berlin. They also
developed some norms and regulations to protect the human rights. The cold war also gave
rise to the group of nonaligned and for the formation of independent countries so called as
third world, whose support was eagerly waiting by both the Soviet Union and the United
States. The development of nations increased the prominence and the importance of the two
groups because they are related to racial discrimination and economic aid.

The International court of justice statute declared that the organisation

of court must reflect the main form of civilisation and the principal legal systems of the
world, similarly an informal agreement between the United Nations requires that non-
permanent seats in the Security Council can be apportioned to acquire regional representation
out of 10 seats --- 5 seats regularly gone to Africa or Asia; 2 seats to Latin America and the
remaining 3 seats to Europe or other states, and the other united national organs are also
structured in the same way.
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The collapse of soviet union in and the end of cold war in the early
1990s increased the political cooperation between the Russia and the United States across the
northern hemisphere and also the tensions also increased between the states of north and
states of south especially on the issues such as Trade, human rights and the law of sea.
Growth of technology and globalization in the international movement of goods, services,
and also in currency, and in the information.

Since from the 1980s the globalisation has increased the influence on
the international and regional organisations required the expansion of international law and
cover the rights and obligations of the countries. Now international law is created through the
process that require near the universal acceptance like in the area of environment. Bilateral
negotiations have been supplemented and in some case replaced by multilateral ones,
transmitting the process of individual consent into community acceptance. Various
environment agreements and the law of sea treaty 1982 have been negotiated though this
consensus building process. International law as a system is complex.

SOURCES OF INTERNATIONAL LAW:

As per article 38(1) of international court of justice statute identifies three

sources of international law.

a) TREATIES
b) CUSTOM AND
c) GENERAL PRINCIPLES.
d) OTHER SOURCES.

Because the international law is horizontal and decentralised, the creation of international
laws is inevitably more complicated than the creation of laws in domestic nations.
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TREATIES:

Treaties are also called as conventions, agreements, pacts, general acts,

charters, and covenants. All which signify written instruments in which the participants
agreed to bound by the negotiated terms. Some agreements are governed by the municipal
law in the cases in which international law is not applicable. Informal, nonbinding, political
statements or declarations are excluded from the category of treaties.3

Treaties may be bilateral or multilateral. Treaties with a number of parties

are more likely to have international significance, though many of the most important treaties
are bilateral. A number of contemporary treaties, such as the GENEVA CONVENTIONS
(1949) and the Law of sea treaty (1982) formally the united nation convention having more
than 150 parties to them, reflecting both their importance and the evolution of the treaty as a
method of general legislation in international law, other treaties include the convention on the
prevention and punishment of crime of genocide (1948); the Vienna convention on
diplomatic relations (1961); the Antarctic treaty (1959); and the statute establishing for
international criminal court (1998), whereas some treaties create international organisations
and provide their constitutions ( the U.N charter of 1945) other treaties deals with the issues
like visa regulations, travel arrangements, and bilateral economic assistance.

Countries which do not sign and agreed the treaties are not bound by the
provisions unless the treaty provisions may form the basis of an international custom in
certain circumstances. A treaty is based on the consent of the parties to it, is binding, and
must be executed in good faith. The concept of pacta sunt servanda (agreement must be kept)
it is the oldest principle of the international law. Without this rule no international agreement
would be binding or enforceable. It is directly referred to many agreements for governing
treaties, including the Vienna convention on the law of treaties (1969). This states that the
treaty between the nations and Vienna convention on the law of treaties is treated as a treaty
between the nation and internal organisations (1986).

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There is no procedure form or prescribed format for making or

concluding the treaties. They may be drafted between the heads of state or between the
government departments. The most crucial element in the conclusion of a treaty is the
signalling of the nation consent which may be done by signature, an exchange of instruments,
ratification or accession. Ratification is the usual method of declaring the consent unless the
agreement is a low level one in which signature is sufficient, ratification procedure is
completely different and depend on the country’s constitutional structure.

A set of rules has evolved to interpret the treaties and a treaty is

expected to interpret in good faith and in accordance with the ordinary meanings of its terms,
given in the context, object and purpose of the treaty. Where the treaty is also an
constitutional document of an international organisation. A purpose oriented approach also
has been deemed appropriate for what have been described as ‘living instruments’ such as
human right treaties that establish an implementation system in the case of European
convention of human rights of 1950. This approach has allowed the criminalization of
homosexuality to be regarded as violation of human right in the period despite the fact that it
was the norm when the treaty itself was signed.

A treaty may be terminated or suspended in accordance with one of its

provisions or by the consent of the parties if neither in the case, other provisions may become
relevant. If a material breach of a bilateral duty occurs the innocent party may invoke that
breach as a ground for terminating the treaty or suspending its operation. The termination
multilateral treaties is more complex, by unanimous agreement all the parties may terminate
or suspend the treaty in whole or in part, and a party specially effected by the breach may
suspend the agreement between itself and defaulting state. Any other party may suspend
either the entire agreement or part of it in cases where the treaty is such that a material breach
will suddenly change the position of every party with regards to its obligation under the
treaty. The international court of justice for example issued an advisory opinion in 1971 that
regard as legitimate the general assembly termination of south West Africa. A breach of
treaty is generally regarded as material if there is an impermissible repudiation of the treaty
or if there is violation of the provision essential to the treaty’s object or purpose.
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CUSTOM:

The international court of justice refers to international custom, as evidence of

general practice accepted by law and it is a second source for international law. custom,
whose importance reflects the decentralised nature of the international system, involves two
fundamental elements: the actual practice of nations and acceptance of nations of that
practice as law, the actual practice of state covers various elements including the duration,
consistency, repetition, and generality of a particular kind of behaviour of all states. All such
elements are determining whether a practice may form the basis of a binding international
custom, the international court of justice has required that practices amount to a constant and
uniform usage or be extensive uniform and virtually uniform to be considered binding.
Although all states may contribute to the development of a new or modified custom, they are
not equal in the process. The major states generally possess a greater significance in the
establishment of customs. During the 1960’s the united State and Soviet Union play a crucial
role in development of customs relating to the space law. once a practice become custom all
states in the international community are bound by it whether or not individual state have
expressly consented except in cases where a state has objected from the start of the custom. A
particular practice may be restricted to the specific group of states or even to the states, in
which cases the standard of acceptance as a custom is generally high. Customs can develop
from a treaty provision and a binding customary rule and a multilateral treaty provision on
the same subject matter may exist at the same time.

GENERAL PRINCIPLES OFF INTERNATIONAL LAW:

A third source of international law is identified by the international court of

justice statute is “is the general principles of law recognised by civilized nations”. These
principals essentially provide a mechanism to address international issues not already subject
either to treaty provisions or to binding customary rules. Such general principals may arise
either through municipal law or through international law, and many are in fact procedural or
evidential principals or those that deal with machinery of judicial process.

E.X; the principle established in Chorzow factory (1927-1928), that the breach of an
engagement involves an obligation to make reparation. Accordingly, in the Chorzow factory
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case, Poland was obliged to pay compensation to Germany for the illegal expiation of the
factory.

The most important principle of international law is that Good Faith. It

governs the creation and performance of legal obligations and is the foundation of treaty law.
Another important general principle is that of equity, which permits international law to have
a degree of flexibility in its application and enforcement. The law of the sea treaty called for
the delimitation on the basis of exclusive economic zone and continental shelf between states
with opposing or adjacent coasts4.

OTHER SOURCES:

Article 38(1) of the international court of justice statute also recognises

judicial decisions and scholar writings as subsidiary means for the determination of the law.
Both municipal and international and judicial decisions can serve to establish new principals
and rules. In municipal cases, international legal rules can become clear through their
consistent application by the courts of a number of states. A clear method of law
determination however is constituted by the international judicial decisions of bodies such as
international court of justice at the Hague, the united nation international tribunal for the law
of the sea at Hamburg (Germany) and international arbitration tribunals.

International law can arise indirectly through the other mechanisms.

United nation general assembly resolutions are not binding except with respect to certain
organisational procedures but they can be extremely influential. Resolutions may assist in the
creation of new customary rules both in terms of state practice and in the process of
establishing a custom by demonstrating the acceptance by the states of the practice as law. for
this to occur a resolution must contain generalizable provisions and attract substantial support
from countries with diverse ideological, cultural, and political perceptive. Such resolutions
includes the

a) Declaration on the granting of independence to colonial countries and peoples (1960).

b) Declaration on the legal principles governing activities of state in the exploration and
use of outer space (1963).

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c) Declaration on principles of international law concerning friendly relations and co-

operation among states (1970).

Unilateral actions by a state may give rise to legal obligations when it is clear that the state
intends to be bound by the obligation and when its intention is publicly announced.

E.X.

France decision to stop atmospheric nuclear testing during the litigation of

international court of justice between the France, Australia and New Zealand in 1974,
concerning the legality of such testing.

Unilateral statements also may constitute evidence of a state’s view on a particular issue,
even when a document does not entail a legal obligation, it may be influential with in the
international community. The Helsinki Accords (1975) which attempted to reduce the
tensions between the Soviet Union and the United States during the cold war, was expressly
not binding but had immense political effects. In certain areas, such as environmental law
and economic law, a range of recommendations, economic guidelines, code of practice, and
standards may produce what is termed as soft law- that is an instrument that has no strict
legal value but constitutes an important statement.

As observed before, international law in ancient India was largely based upon the
religion and tacit consent but due to many treaties and alliances entered by various
states and we have to balance the power in developed situation. We have to accept the
sanctions of the International law and we have an idea of international law regarding the
kautilya’s arthasastra.
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WAR LAW RELATING TO ENEMY PERSONS :

A) The ancient Indians regarded war as a necessary evil to be taken recourse to as a

latest expedient.
B) Certain well defined rules guided all wars and rules which were agreed by
religion and common humanity and were carried out by men enrolled by a sense
of noble men.
C) International usage in ancient India made a distinction between combatants and
non-combatants and recognised the modern principle of various grades in enemy
character5.
D) The ancient Indians recognised war as a relation between states.

EX:
The Agni purana defines war as the direct result of injuries done to each
other by two kings, and the modern theory of the identity of the interests of the
state with those of individuals held good only in the case of a virtuous prince,
this was said by kamandaka

The same fact was forcefully said by the kautilya when he speaks about
the various grounds of the defection of an entire people.

“When the people become poor they become greedy, when they are
greedy, they become disaffected, when the people disaffected, they voluntarily
go to the side of enemy or destroy their own king.

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International law in ancient india.
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LAW FOLLOWED IN ANCIENT INDIA:

I want to discuss the law related to:

a) Early Vedic age

b) Later Vedic age.

a) Early Vedic age:

The main source for the people in the early Vedic age was
RIG VEDA.
In this age the people used to their work without interfering into the work
of others and there is no disturbances till the end of 1000B.C and in this age there was
no law in the India because the people don’t know about the trade activities and they
dedicated to their work.

b) Later Vedic age:

The main source for the people in later Vedic age was

1) Soma Veda
2) Yajur Veda
3) Atharvana Veda
After 1000B.C people lost their responsibilities and position in the society and they
started to change their profession and this leads to increase the conflicts in the society.

At this time MANU around 1000B.C was the first law giver proposed the law in the
India and he said that every division has to perform their duties and not allowed to
change their responsibilities.

c) MAURYAN EMPIRE:

Mauryans used the Manu dharma sastra as a source of law, to finalising

the issues. Under the Mauryans administration they were different laws for different
religions
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1) Hindus – Hindu law

2) Jains - Jain law ( 12 angas)

d) GUPTA’S EMPIRE:

Gupta’s used Dharmasastras and dharma sutras as a source of law.

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Conclusion:

After study of history of international law is that international law was

mapped out during the revival of European art and literature though its origins lay deep
in history and can be traced to cooperative agreements between peoples in the ancient
Middle East. This international law helped in solving the disputes between the nations
and also this helps the country to enter into an agreement between the other countries for
development and various reasons. From this law united national organisation was formed
in 1943 to maintain peace among the countries by giving importance to human rights and
also this international law was started from the Mauryans empire, before that there was no
law till the end of early vedic age and around 1000 B.C Manu was the first law giver in
India.
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BIBLOGRAPHY:

www. Britanica.com

International law in ancient India.