T
Tnlroductioll
Ori gin of International Law
IlIlemntionllllaw is gencrally defined u: L, Ihlll h(1rJy of law which is composed for its
grcmer prutof lhc pJinciple ' untll'ules of conduct which ~tates leelthemselvcs bound
10 observe, and therefore. do observe in their relations with c},ch othcr.'d It is an
undeniable sucioltlgical factthul wherever there is society, national or intemalional.
there is law hecause law. like lungu(lge. is <In Olllgrowth of lit l1L"Cds of man in II
society. Law is surely lin historical growth . "Ii r it i. an expn:ssion of customary
morulity which devel ps silently ~lIld ullcoru;ciously from one ug to another."2. Thi.
is tI grealtnllh of hislOi ical Jurisprudence Ollrl Savigny's theory or its origin.
But despite the veracity Ilnd trUlhfulne.~s of tJ1jS theory, aod althollgh
international society ill one form (lr another is. to say the least. thollsand. of
years old, we [Ire told that the present ~ystcm ofinternutionallaw is only afrecent
origin. There is lillie doubt I.h~1I io some form or another, rules of inter-state
conduct, or what we now cull illlernatiOllllllllw, can bc traced in sam' of the most
IIncient civilizations. like China, India Egypt and A~syria. Apart from ju t and
humane rules of war and peace. one c n find numerou, rules and regulation n
the law of treaties, right of asylum. [remment of aliens ,md foreign nationals, the
immunllies and privileges of ambassadors. m.odes of ucquiring territory. lind even
ru les relating La navigalion and trade on the se'l. There is !l certoin degree of
par.lltellsm, if not . imilarity. between many of these instjllliions familiar to the
eurlier world and corresponding institutions of our times. 1 But alt these rules and
institutions arc dillmissed a. of no consequence and merely us "religiow;
precepts" or moral obligatiol}. . In any case. it is insisted thut Ihese eartier
systems of China, India. Egypt, Tlllam, or even Greece. were conti ned \0 their own
civilizutions, were not unjv rsal. HIlU in any cilse "have lef! no truce of continuity
in history" . It is pointed out Ihat "there ill no evidence of ony historical linking
with internutional Inw of later ages" and modern lime, which is said to have
emerged after the disintegration of the spiritual-political unity of western Europe
into a hierarchy of political entities in the ,tifteenth century. 4
I Starke ·.I' IlItenlllliol1al I1lW, t:le venlh 1" lItloll /I)' 1. 11 Shearer (London , 1994), p. 3.
2 Benjamin N. Cardozo, 111(' Natllre (If Jlltffdlll P"/)ce~·.~ (New Haven, 192t), pp. 104-105.
3 See Majid Khadduri (Tr.), Th e Is ltlmle WII' of Nati(}lI.f of Shaybain 's Siyar (B altimore,
1966), pp. 2-3; M. Khadduri and H.l. Lichesney. UIII' //' Ilrr Middle East (Washington, D. c.,
1955), pp. 349- 350.
4 See Arthur Nussbaum, II Concise History of the Law I!f Natiol1s (New York , 1962), pp. 3- 5;
w.
J. !"t .. Verzijl , Imernatiollal ww ill Hi.l'loriL'lll f'ersp eclive. vot 1, (Leyden , 1968), pp. 443- 444 .
2 hllr"ltll~ I ion
Westnll , especia ll y EIII"Opeall, wrilCl's haw 110 dOllill i1lal 1l1()(1! ~ 11I illll'lIlaiiollal
law is Illl Illore. lh'lI1 fOllr or IIV!' hllnch'!'d ye;I I'S old :Inrl is ;1 prmhH'1 or Ihe
EIIJ'()p!~all 01' W.;"tCIII ( 'hlisliall civili/.alioll. I ,egal Spl~('lIlalion as well a,'; the
grow lh or ('lIslolliary and cmlVt'lilional LIW in liJi:; 11<"ld , wc: ill'C told . an' Ihe
produe[ of "European mind" and "European heliefs" and "wholly lhl~ olllconh: of
or ... dOlllinateel by Western r~lIropl~an inf'iucnc(;". " Pracli ca lly :lIllhe Ellropean
writers endorse or SUppOl t lhis view." Thus, in one of thL' lllost authoritative and
leading international law lrcalise ill lhe IWl~ntielh century, Oppenheim's Illter-
ltuliOlwl uw,; il is slaled:
"International Jaw as a law hetween sovereign and equal states based Oil the
comlllon consent or these states is a prmluct of the modem Christian civilization.,, -I
"The necessity or
a Law or Nations did not arise until a Illultitude of states
iudependent of one another had successfully established tIJenlselvcs ,,,H
"Tlw s~vl:.nt<;~nth Cl'lltllry round a mnltitude or inciepcmlent states established and
crowded on the cllmpar'atively small contincnt or
Europe. Many interests and aims
knitted these states together into a community of'states. Intcrnational lawlessness
was henceforth an impossihility ." Since a Law of Nations was now a necessity,
since many such principles or
such a law were already more or less recognised and
appeared again among the doctrines of Grotius, since the system of Grotius
supplied a legal basis to most of those international relalions which were at the
lime considered as wanling such basis, the hook of Grotius obtained such a world-
wide influence that he is correctly styled as the 'Father of Law of Nations.' .. 'I
Even the latest ninth edition of Oppenheim's Inlemaliol1al Law, published in
1997, contirms this opinion but adds some later developments. Asserting that
international law flOW "does not recognize any distinction in the membership of
the international community based on religious, geographical or cultural
differences", it points out:
"Nevertheless, the predominant strain of modem international law was in its
origins largely a product of Wcstern European Christian civilization during the
16th and 17th centuries. The old Christian states of Western Europe constituted the
original international community within which international law grew up gradually
through custom and treaty. Whenever a new Christian state made its appearance in
Europe, it was received into the existing European community of states, GUI,
during its formative period, this internatiOlwl law was conti ned to those states. In
5 Verzijl, n, 4. pp. 43S-435.
Sec several writers quoted in R. p, Anand, N~w Siaies lind Inlallalio/lllll.(l1V (New Delhi,
I>
[972). pp. 6- 7.
7 Lassa Oppenheim, Illtemationll/ Law (London, 1905), p. 44,
R Ihid, p. 54.
~ Ihid, 11. SR.
Introduction .1
former times European states had only very limited intercourse with states outside
Europe, and even that was not always regarded as being govemed by the same rules
of international conduct as prevailed between European states:' \0
But gradually, Oppenheim goes on to record, the international community
expanded by the inclusion of Christian states outside Europe, like the United
States of America, which became independent in 1776, and in the nineteenth
century, by inclusion of non-Christian states, like Turkey, which was admitted as
a member of the international community by Peace Treaty of Paris of 1856,
However, "there were numerous states outside the international community" and
"international law was not as such regarded as containing ruks concerning
relations with such states, although it was accepted that those relations should be
regulated by the principles of morality,"!!
As late as the First World War, we are told, "the position of such states as
Persia, Siam, China, Abyssinia, and the like, was to some extent anomalous,"
There was considerable international intercourse between these states and states
of the Western civilization - treaties had been concluded, full diplomatic
relations had been established, China, Japan, Persia and Siam had even taken
part in the Hague Peace Conferences, But since they belonged to "ancient but
different civilizations there was a question how far relations with their govern-
ments could usefully be based upon the rules of international law,,,!2
International Law in Historical perspective
As we approach international law from historical perspective, especially in the
context of the role of Asian and African countries in its origin and development,
there are several questions which have been raised, but which have not been
satisfactorily answered, If present system of international law is indeed only four
or five hundred years old, what kind of rules of inter-state conduct applied in their
intercourse among the Asian states themselves for centuries? These relations
could not be based entirely' on religious precepts or moral principles because
these Asian states, which had very intimate trade, commercial and even political
relations, belonged to different religions and different societies, Even more
important, what law applied to the intercourse between Asian states and
European countries, with which they had had trade and commercial relations
since time immemorial? It is just not possible to either ignore those relations or be
told that they were held in a legal vacuum without any rules of conduct. Even if
we ignore rules of inter-state conduct in ancient times in old countries, like India
10 Oppenheim's Inlerna/ioM/ Law, Nln/h Edi/ion (Ed, Sir Robert Jennings and Sir Arthur
Watts), (London, 1997), pp, 87- 88,
II Ibid, p. 88.
12 Oppenheim's InlemalionaILAw.ibid. p, 89.
