International law can be understood as the law that governs the relations between two states. While there are conflicts over the origin of international law, some argue that the modern international system can be traced to about 400 years ago, while others argue that the earliest man also would have interacted with each other over issues like hunting grounds and bringing an end to battles, implying that laws governing such relationships could be instance giving rise to the first examples of inter-territorial law like inviolability of the messenger or negotiator (a modern form of it being diplomatic immunity). But such examples are restricted to geographical and culturally, and their validity as a source of origin for modern international law can’t be conclusively argued.
Historians, though, do argue that law was developed at a time of colonialism which dates back to the Greek, Chinese and Roman empires. In the Roman empire, for example, Jus Civile applied only to Roman citizens and was unable to provide a framework that extended to the expansion undertaken by sovereigns. To provide such a legal framework Jus Gentium was developed which governed the relationship between Roman citizens and foreigners. Malcolm Shaw, in his book International Law, explains that “the instrument through which this particular system evolved was the officially known as the Praetor Peregrinus, whose function it was to oversee all legal relationships, including bureaucratic and commercial matters, within the empire”. But Jus Gentium was not accepted by other nations on basis of universality, therefore Jus Gentium was practised as a domestic law for colonies under the rule of the Roman Empire. So, these empires did develop import axioms and theories of law, which have become integral to international law. However, they did not establish international law, as they did act with disregard to the external rules in their actions towards those territories, which were not already a part of their own territory.
Natural law was an influential Greek concept that the Romans had adopted. The premise of the idea was that there is a body of rules and laws that are of universal relevance. Grotius, who laid the foundations for international law based on natural law, was of the opinion that laws are constructed by men but still reflected the essential natural law. He argued that natural law originated from essential universal reason that was common to all man and that law was not opposed from “above” rather it was derived from principles. This argument formed the basis of his opinion, that as the law of nature finds its roots in human intelligence, therefore they can’t be restricted to any country or group of nations, rather they had a worldwide relevance. Therefore, the advocates of international law do argue that international law is based on natural law and hence, applicable to everyone universally. Principally, this does make a strong case that law exists in all men. However, but accepting this notion would be accepting the premise as the fact. This would lead to the dominance of western thought and principles as a fact and not a socially constructed view, perpetuating a form of colonialism, as western thought and principles are forced upon third world countries.
Criticism of Natural law
A criticism associated with natural law is the ambiguity over “who decides what natural law is?” If the putative theory as a basis of law is referred to, then it implies that law will be interpreted via one’s self-interest. It is intrinsic to the very nature of natural law to interpret it and the subjectivity in its interpretation has led to arguments that “natural law will be constantly found to be aimed at a particular state or group of states; and for this reason, if for no other, the power element is obvious in international law”. In this case, favouring western thoughts and ideologies. This is corroborated by criticism of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights on the ground of being too heavily based on the importance accorded to liberalism and individualism by the West. Acceptance of these agreements as intrinsic rights instead of regarding them as western social constructions is a risk that undermines alternatives to these agreements.
For the states to commit to a single international law declaration would imply giving up their “diverse culture and unique way of viewing the world”. This would mean that this commitment would lead to loss of culture and in a sense, commitment to a law which “supports imperialism, militarism, male supremacy, racism and other pathologies of human history”. International law, therefore, has allowed and even furthered, subjugation of people and suppression of distinct cultures in a way that is similar to that of colonialism. It can be, therefore, inferred that international law is not based on natural law and universal in nature, rather it is subjected to the manipulation and interpretation of the dominant states and “perpetuates current power structure”.
The practice of International Law
Concrete rules of international law are actually derived from the practice the state follows and precedents they set, contrary to natural law suggesting what they ought to do. Most of the countries observe the majority of the rules as it serves their personal interests to observe those. A realist perspective is that when the action for national self-interest is in contradiction to the international law, then the states are to act in their own self-interest, implying that only if costs of war, economic sanctions or trade embargo fails to outweigh compliance with international law, only then will countries comply with international law. Such enforcement results in selective enforcement, with smaller countries suffering the most. For example, the United States enforced a trade embargo against Iran, over its illicit nuclear activities, under international law however no sanctions have ever been imposed against the United States over its human rights violations in Guantanamo Bay. This reveals the double standards in enforcement of international law and Western dominance in international law. International law, despite being universally applicable, is selectively enforced and “international law is used by the already powerful to protect that power”.
Colonial nature of International Law
If colonialism is defined as a “practice of domination, which involves the subjugation of one people to another” and results in removal of the subject’s sovereignty, then international law, no doubt, is of colonial nature. In De Republica, Bodin argued that in order to be sovereign, a “prince must be freed from laws”, but by consenting to international law, it appears like states are ceding their sovereignty. West’s socially construed values are forced on weaker states, via international law, who are not powerful enough to contest international law. The threat of being an outcast in the global system looms over their head, and means “the strong do what they can and the weak suffer what they must”.
International law, either originating in the ancient civilizations or originating in the medieval and renaissance period with its root in natural law, finds its roots in colonialism. The application of modern international law also corroborates how the principle of natural law actually perpetuates a form of colonialism, with the economically, socially and politically weaker countries suffering the most. There is now a need to acknowledge that international law and its application needs to be re-evaluated, because otherwise, we will be pushing vulnerable countries towards the trauma of colonialism again, under the guise of ‘protecting them’ and destruction of their culture, history and identity. Effectively making them lose their status as sovereign.
Author(s) Name: Avisha Dhiman (Maharashtra National Law University, Mumbai)