Development of Modem International Law in the West
Towards the close of seventeenth century, the Western civilization was finally able to lay the foundations of a law that eventually came to be known as international law. The foundations for modem international law have undergone quick changes from custom, treaties and eventually to quasi legislative attempts made by international bodies. A fuller discussion of this development here will divert our attention from the main theme. However suffices here to say that the modem international law was primarily intended to regulate relations among the Christian states of Europe, and these nations considered it obligatory only in their mutual relations. Non- Christians were not considered to be entitled to any benefit or privilege under this law for quite some time. Thus, international law as developed in the West is, by definition, a Christian law. Indeed, this definition is given in several standard textbooks of international law, including the masterpiece of Oppenheim, which is taught almost universally in all leading universities and law schools that teach the Anglo-Saxon legal tradition, including those in Pakistan, India and Bangladesh.
Different people have interpreted this aspect of the law differently. Among the more extreme views, there are at least two papal decrees that were issued at different times to the effect that the Christian world is not religiously allowed to enter into any peaceful agreement with any Muslim country: Pope Nicholas IV and Pope Urban VI declared that any pact with non-Christians was null and void and that the Christians were not bound by their pacts with Muslims.7 When they ruled this, the Popes probably had in mind the Ottoman Empire. It was Turkey of 1856 which was admitted to be a member of international community having privileges and entitlement to receive its benefits for the first time in the history of international law in Europe. Turkey was followed by Japan, which was accorded this status in 1905.
These were transitional phases of the development of Western international law; European nations and countries were primarily concerned with regulating relations within their own continent and within one religious tradition. The time had not yet come in the West to expand the application of that law to other civilizations and countries. As application of the law has expanded, the West’s previous attitude has undoubtedly acquired more objectivity and balance. It has to be acknowledged, however, that remnants of the old attitude remain embedded in the thinking of some of those who deal with international law and international matters today. This pains Muslims, who often bear its brunt, who are thus denied the full rights and privileges guaranteed to them under various instruments of international law, and who are therefore forced to acknowledge that they are not even yet treated as equal members of the international community. This perception is the natural corollary of the initial character of international law as developed in the West.
Western international law was conceived as something distinct from the municipal law of different countries. As such, for a long time, it dealt only with the states. The admittance of international organizations and international bodies as subjects of international law took place much later, i.e. by the middle of the twentieth century.
It took even longer for international law to take notice of groups of individuals and communities who did not represent a state or who were not represented by any state were taken notice of under international law. Indeed, the phenomenon of individuals and communities being recognized as subjects of international law is very recent, perhaps not more than three decades old. Insurgents, belligerents and such other communities, who may appear to be distinct and separate from the main community of a country, were not initially considered subjects of international law. Now, they constitute an important subject. Likewise, it took a long while for national liberation movements to be considered a subject of interest for international law. The liberation movements were not represented by any member state of the United Nations (UN). Therefore, neither the need was felt to take them into consideration, nor was the fabric of international law itself fit to extend any benefit and privilege to them as subjects.
The second half of the twentieth century witnessed a major change in international law and legal thinking in the Western world. The horrific experience of the Second World War led the world community to explore new dimensions of international law to protect and safeguard the interests of innocent civilians affected by armed conflicts. This period saw unparalleled expansion and deepening of the science of international law, which have admitted new areas and raised new issues in international law over the past few decades. Most of these new developments do not find mention in the classical works on international law.
Some of the new areas of international law include regulation of space enterprises, use and division of beds of the high seas, management of the international financial system, and international communications. But the most important area that has found its way into international jurisprudence, and which has already extended its benefit to a large number of people, is the law of international human rights.
Human rights is an issue that was not included in many constitutions of the world at the beginning of the twentieth century. Before too long, however, a time came when the question of human rights acquired a position of prime importance in the context of legal thought, particularly in the field of constitutional law. This was soon followed by similar developments in international law.
It must be acknowledged that the credit for this innovative and positive change goes, to a large extent, to the Western tradition, which took the lead in providing constitutional guarantees to its citizens. One must also admit that the question of fundamental rights, the concept of rule of law, the mechanism of defending fundamental rights through constitutional means, and the idea of having a superior court to defend and protect the fundamental rights of the citizens as practiced in some modem Muslim countries are the results of the Western, and particularly the American, experience. This is why many American authors have boastfully - and rightly - claimed that the American constitutional tradition and principles were the most valuable and significant export of the United States. The Americans were justified in making this claim until about 20 years ago; unfortunately, their policies towards particularly the Muslim World during the past quarter a century have been such that the Americans are no more in a position to lay unqualified claim to such principles. .
Some Western scholars of international law regard the incorporation of human rights in the ambit of international law as a major feat. Martin Dixon considers it an achievement of considerable significance that, now, the individual is also counted in the jurisdiction of international law, even if there is no practical effect of this recognition."
It is a new trend for human rights have become a major, if not the most important, component of international law. Works written before the Second World War hardly made any mention of this issue. Not only did the books not mention this aspect, but institutions dealing with international law also refused to take any notice of the human rights of the individual before the middle of the twentieth century. For example, in 1927, in the well-known Lotus case, the Permanent Court of International Justice had ruled that “international law governs relations between independent states.”
This seems to have changed in the aftermath of the horrifying experiences of the Second World War, which led people to develop this subject as an important branch of international law. The UN and its subsidiary bodies have played a tremendous role in giving this new dimension to international jurisprudence. Today, the question of human rights is considered an important factor in international relations. Several Western countries have adopted the objective of protection, preservation and defense of human rights as a cornerstone of their foreign policy and international relations.
Here, it may be pointed out that what has been achieved in the Western world after the terrible experiences of the two world wars, i.e. recognition of individuals and non-state entities as subjects of international law, and regard for the fundamental human rights of those who are affected by wars, had been an important subject of Muslim international law from the very beginning. This is explained in the next section of this article.
A key source of the law on human rights are international agreements. However, it is now generally acknowledged that the law of international relations, particularly insofar as it relates to human rights, has its primary basis on contractual obligations of the states. International agreements and contractual obligations of states are, however, formal sources only, and by no means the only reasons for the sanctity and importance of this branch of international law. Indeed, it is primarily the concern for justice in the hearts and minds of people, and their belief in the dignity of man, that guarantees the protection of these rights. If the concern for the dignity of human beings is not deep-rooted in the hearts and minds of a people, mere contractual obligations cannot deliver. This has been made amply evident by experiences of the last two decades. The examples of human rights violations in regions like Palestine, Bosnia and Kashmir and more recently Guantanamo Bay are too well known to need any citation.
The concern of Western international law and jurisprudence for the rights and privileges of individuals has led to the emergence of a new branch of international law known as international humanitarian law. This special branch of international law seeks to protect the individual and collective rights of non-combatant civilian groups during war. For example, it tries to prevent genocide and discrimination on any ground, and provides special protection to minorities. “The law of human rights,” according to a writer on international law, “cannot be explained solely by reference to the traditional positivist approach to international law.”'4 This statement simply means that the traditional Western international law has been ineffective in dealing with these important issues and that it should now be the primary concern of international law and international institutions to ensure the protection of the rights and privileges of human beings. Now, the international law should transcend the traditional positivist approach and its limited, narrow perspective.
The international humanitarian law is a new branch of international law that seeks to limit the use of violence in international conflicts, firstly, by sparing those who do not or no longer directly participate in the hostilities, and secondly, by limiting the violence to the bare minimum needed to achieve the aims of the conflict. The law requires that the aims of any conflict should only be to weaken the military potential of the enemy rather than totally and physically eliminating him.
The basic principles of humanitarian law are:
- Distinction between civilians and combatants;
- Prohibition of attack on those of the combatants who are no more engaged in the war;
- Prohibition of infliction of unnecessary suffering on the people;
- Principle of necessity; and
- Principle of proportionality.
These are considered to be the five basic principles of international humanitarian law as it is being developed in the Western world. This law assumes that a conflict-free world does not exist and, therefore, does not aim at total elimination of violence. It does not seek to provide total protection to those affected by armed conflict between two countries and nations. It does not differentiate between combatants on the basis of their respective aims, objectives or motives in the conflict. Those with legitimate motives and those with illegitimate motives, those with moral considerations and those without moral considerations have been virtually and practically equated. The law presupposes or presumes that the parties have a rational basis for the conflict they are entering upon.
This is the intellectual context in which we will discuss the Muslim contribution to international law.
Mahmood Ahmad Ghazi
Source: Essays on Muslims and the Challenges of Globalisation, Institute of Policy Studies, Islamabad. Republished with permission.