Origins of International Law
The peaceful regulation of international relations between human societies, particularly between kings and kingdoms, has been a difficult task from the very beginning. From time immemorial, jurists and philosophers have been trying to develop legal and/or moral principles that could be effective in controlling the use of force and in regulating relations between rulers and states in accordance with principles of justice and fair play. A major challenge to the protagonists of such principles was identifying the rational basis on which such laws could be founded. In the earlier efforts recorded by historians, this basis for international law was drawn from the scriptures of ancient religions, which contained frequent admonitions against misuse of force. However, these moral exhortations could not become the basis of any legal discipline or international jurisprudence.
The oldest foundation discussed by the Western jurists in their effort to develop viable and logical international jurisprudence was the natural law theory. This theory, which was based on God, nature, universal reason and pure reason as the possible bases and sources of international law, engaged the Western jurists for several centuries.
These “sources” were regarded as the producers of law, or the fundamental sources from which all laws should proceed. This law could be determined on the basis of what was considered to be the right reason. Thus, the natural law theory presumed that the ultimate source and final basis of international law was metaphysical.
However, notwithstanding the philosophical worth and academic value of the natural law theory, it failed to give rise to an agreed universal law of international discourse. Its failure led to the positive law theory, which was based on the actual practices of states and rulers. This approach was more in keeping with the rising trend of secularism in the West, with its indefatigable efforts to divest not only law but all public life from religions or spiritual attire. The positive law theory was value-neutral and rejected normative overtones of law and other social disciplines. It also refused to accept any non-state basis of the law, such as God, morality or reason.
Despite such academic efforts, most of the protagonists of the positive law theory appeared to be pessimistic or disappointed about human capability to develop such a law. An ancient Roman ruler is reported to have said that laws fail, or at least become silent, in the company of weapons. History too has shown that, during the interplay of weapons, laws either fail or choose to exit from the scene. The statement of the Roman ruler had indicated long before the fact that the experiments made by different societies and civilizations in the past to regulate inter-state relationships and avoid use of force have failed miserably. Despite these failures and attendant difficulties, the efforts to regulate human relationship, particularly in warlike situations, are perhaps as old as human society itself.
The first such effort recorded by history took place in Mesopotamia around 2000BC. Some of its details have come down to us. It was an agreement between two principalities of the region that had mutually decided not to resort to war and to resolve their border difficulties and other mutual and bilateral problems with negotiations and peaceful means. This document can rightly be considered the oldest agreement or treaty made with a view to resolving international disputes.
In this regard, efforts of the Indian and Chinese philosophers and thinkers are also important. They tried to develop such rules and principles as may be relied upon to regulate international relations.
In addition to these comparatively advanced communities, there were, in antiquity, rules of conduct to regulate relations between independent kings and communities, which had emerged out of their own usages and practices. The Egyptians were aware of such set rules and usages several centuries before the rise of Christianity.
Apart from these scattered examples, both in the East as well as in the West, attempts were made by the Greeks and the Romans to develop a law to regulate the use of force during an armed conflict. For instance the law of the Romans in this regard was known as jus gentium or the law of the people. Other societies had similar laws to provide a peaceful basis for solving mutual disputes and differences.
Mahmood Ahmad Ghazi
Source: Essays on Muslims and the Challenges of Globalisation, Institute of Policy Studies, Islamabad. Republished with permission.