CONCEPT OF INTERNATIONAL LAW BY HUGO GROTIOUS

INTRODUCTION

International Law has always been a controversial area as to whether it can be considered as a law or not. Different scholars and philosophers have distinct perspectives and theories on international law. Some prominent thinkers such as Thomas Hobbes and Jeremy Bentham believe that since international law is not binding and enforceable, therefore, it cannot be considered as a law. On the other hand scholars like Oppenheim and Starke, believe that international law can be considered as a law as it could be implemented or enforced. A major question arises here: Can we enforce a rule of law against an entire nation, especially when it comes to superpowers like USA or Soviet Union. Is there a proper international order for the implementation of international law? To answer these questions we need to look after its enforceability and binding nature.

We have seen that International Law has developed considerably in recent decades. Now in this vast independent world, the question arises whether international law matters? There are several criticisms at the effectiveness of international law and whether it should be considered as a law or not, there are various challenges to its enforcement but still international law put a heavyweight. There are numerous interpretations on the compliance of international law. Many questions arises why do individuals comply with international law? Does it have the obligatory force like the other laws? There are various theories on international law but the problem with the theories is that they concentrate on the state rather than individuals. The effectiveness of international law hugely depends on the actions of the individuals[1]

The modern-day UN Charter relies on the rule of international law to bind states to accept the will of the Security Council. As a multilateral convention, the charter imposes a treaty obligation on its members but although sovereign governments still get to decide whether to execute UN resolutions or not, their basis in international law is not often challenged.[2] The UN relies on two kinds of dispute resolution—the International Court of Justice, of which 65 states have accepted compulsory jurisdiction; and the arbitration powers given under the charter to the Security Council.1 The roots of this twofold division date back to antiquity and this chapter traces the emergence of the first forms of international law and the way that a key thinker in this field, Hugo Grotius, helped organize an inchoate mass of legal precedents that flowed from the courts of arbitration and shaped them into a body of international law capable of serving as the binding force behind the United Nations (UN).[3]

ORIGIN AND DEVELOPMENT

In general, International Law is the law which is recognized by the nations and is binding ontheir relation to each other. Now when this grand law began? There is an ambiguity in tracing the origin and development of the international law. Some scholars thought that international law originated during the First World War to control the nation’s activities and maintain peace and stability in the world. Some historians believe that international law has been in practice since ancient times as there were trade relations between kingdoms of various countries. Some other scholars regarded it as a substantial code of conduct guiding the nations which originated in classical period and middle ages. Some scholars claim that international law is originated in Rome as certain principles of international law have been adopted from the philosophical concepts of Greece. The idea of an universal set of principles of justice, the idea of a substantial code of conduct found in the writings of the Aristotle, the idea of state governed by the laws o f nature that can be found in the stoic philosophy. The stoic philosopher Cicero regarded this law of nature as eternal and unchangeable. This concept later inspired the roman and canon law and became a supreme law in the medieval period. There develops two concepts:

 Jus naturale

 (Natural law) and

 Jus gentium

 (Law of nations). One is the law governing the whole universe the laws are subjugated to natural law and the other is the law governing the nations[4]. But there is an interconnection between the two. The natural law is a broader concept which includes all the peoples and animal kingdom while the other is confined to the people. One is universal to the natural world while the other is universal to the human world. But the human world is a part ofthe natural world so as the laws of the nations are derivations of natural law.

 In the middle ages, the Jus gentium was seen as an application of natural law to  . The jus gentium was basically a collection of laws that are common to all nations governing all aspects of individual’s life.

 In the classical period, the Jus gentium is basically confined to the set of principles governing the relations between nations. Hugo Grotius and Jeremy Bentham would label this as international law. According to Grotius, international law has received its obligatory force from the will of the nations. In 19th and 20th century,international law developed a lot. During the inter-war period from 1914-18, there was a transition from ancient  Jus gentium  to medieval natural law philosophy to the setting up of League of Nations, an agreement made in the Versailles treaty of 1919. The League of Nations was set up for the sole purpose of international peace and security and also to strengthen the international co-operation. The codification of international law had started since the establishment of League of Nations. Many international institutions have also been set up as part of the United Nations to regulate the workings of the organization. A permanent court of international justice was set up in 1921 at Hague, Netherlands. Many tribunals have been set up and numerous conventions and treaties came up to maintain peace and security in the world

BY HUGO GROTIOUS

There are multiple philosophies on international law. Different jurist had distinctive views onwhether international law is a law in its true sense. To understand this we need to understand the philosophy behind law. What constitute a law? What are the sources of law? Is it right todesignate the international rules as law? All this will be discussed in relation to different philosophies laid down by the jurists.[5]

HIS VIEW :

“Grotius laid the foundations for international law, based on natural law. A teenage intellectual prodigy, he was imprisoned for his involvement in the intra-Calvinist disputes of the Dutch Republic, but escaped hidden in a chest of books. He wrote most of his major works in exile in France.[6]

It is thought that Hugo Grotius was not the first to formulate the international society doctrine, but he was one of the first to define expressly the idea of one society of states, governed not by force or warfare but by actual laws and mutual agreement to enforce those laws. As Hedley Bull declared in 1990: “The idea of international society which Grotius propounded was given concrete expression in the Peace of Westphalia, and Grotius may be considered the intellectual father of this first general peace settlement of modern times.”

Hugo Grotius was basically a Dutch philosopher and Jurist whose philosophy of natural law put a new dimension to the development of seventeenth century political thought and is considered as the father of international law. He had shared his views on various issues such as sovereignty, international rights and the norms of just war and theories of international legal order. His major work is De Jure Belli ac Pacis (The Rights of War and Peace) where he talks about just war is notable. Grotius was highly influenced by classical philosophy, mostly by Aristotle and the Stoics and later by the humanistic tradition.

SOVEREIGNTY:

According to Grotius, the supreme right of governing cannot be made void by any other human will. The sovereign power is the highest authority within a state. And when it comes to international arena, it comes up with other sovereign powers where none has the superior  authority. According to Grotius, it is up to the people how they treat the sovereignty, what rights they want to confer to the sovereign and what they want to dispose of and this will vary societies widely in how they organize the powers of sovereignty. Grotius argued against the view of the royalists who defined sovereignty as an indivisible package of entitlement that can be vested in a singular will. He argued that indivisibility is totally a conceptual point, the induction of civil power in a society consist of certain governmental rights and the choosing of a sovereign who will hold those rights. To better understand the Grotius’ view on sovereignty; we can take up the example of the Dutch war against the rule of the king of Spain. According to Grotius, the warm doesn’t originate as a revolt for the rights of the people to outrage a tyrannical ruler rather as a war between sovereign powers. In the Dutch case, the people did not transfer all the governing rights to the king but reserved some particular rights such as the right to levy taxes to the state.The king had the supreme power over many areas which the king had tried to take over a further supreme power from the state which gave the people a just cause to wage war in protection of their rights. Now Grotius would say the king had no right to render void the will of the state, just as the state couldn’t render void the will of the king, each one was supreme within the scope of its own authority. Grotius basic argument was that the rights basically originated from the people; so it is up to their discretion if they want to alienate some rights or subjugate their rights to others.[7]

NATURAL RIGHT AND THE LAW OF NATIONS:

Grotius conception of just war is based on two sources: one is the norms of the natural justice and the customary law of nations. Grotius talked about the obligations received form nature and custom. He argued that natural law is binding upon the humans in virtue of the divine will that commands them. Later Grotius take up the intellectual position by arguing that natural law binds us by understanding what both humans and God can recognize as necessary for human life. Grotius made a basic distinction between obligations that is derived from nature and that is derived from an authoritative will. He maintained that the sovereign and his people give their ssent to the law of nations not by positive agreement but through custom. And if they abide by the norm for a long time give it the force of law. Grotius had an enormous contribution to the international legal theory and his efforts to institutionalize the norms of international law.

Hugo Grotius (Huig De Groot) was a Dutch wunderkind of the 17th Century. He was a child prodigy who entered university at age 11, a member of an important diplomatic delegation from his native Holland to France at age 15, awarded a French doctor of laws at age 16, an Attorney General of The Netherlands at age 24. He is now remembered as the “father of international law.” Adam Smith described him in 1762 as “the first…to give the world anything like a regular system of natural jurisprudence.”

Grotius was born in Delft, Holland in 1583. After matriculating at Leiden University in 1594, he was chosen to accompany a Dutch diplomatic mission to the court of King Henry IV of France in 1598. The following year the University of Orléans awarded him a degree of doctor of laws.

When Grotius returned to Holland, he began a career in politics. While serving as the Advocate-Fiscal (Attorney General) of Holland, he became involved in a theological controversy between the Arminian Remonstrants and the conservative Gomarists, (a religious controversy that would puzzle most persons living today) which ultimately led to his imprisonment for life in 1619. After a legendary escape (he was smuggled out of his cell in a trunk thought to be filled with books), he lived the remainder of his life (except for one brief period) in political exile in France, Germany and Sweden. He was at one time Sweden’s ambassador to France.

During these periods of personal and political turmoil in Europe, Grotius began to formulate his own ideas on the law of nations that he saw as a system of mutual legal restraints, based on the belief that the law emanated both from human reason, or natural law, and from custom. He authored numerous essays and treatises and 60 books, among which were De Jure Praedae (On the Law of Prize) and Mare Liberum (Freedom of the Seas). However, it is De Jure Belli ac Pacis (On the Law of War and Peace), published in 1625, that had the most profound impact on the development of international law.[8]

Grotius sought in this latter book to produce a work that effectively addressed the idea of international society, asserting the identity of individual states within the context of a larger community bound together by a body of laws. This formed the basis of the “Grotian tradition” of international society – the idea that while states are the primary actors, both individuals and non-state entities have rights and duties that give them a place in a “great society of all mankind.”

Among the issues addressed by Grotius in his various writings were:

(1) Jus ad Bellum (right to war)Grotius represented a divergence from the ancient just war theory, which gave little attention to the doctrine of self-defense. He believed that actions taken in self-defense fell within the realm of just war. While Grotius’ other views on the justification of resort to war, namely for punishment or for recovery of property are inconsistent with modern interpretations of the jus ad bellum, his main contribution lies in the fact that he put forth strict limitations on the resort to war.

(2) Jus in Bello: Greatly disturbed by the brutality of war, Grotius centralized the notion of jus in bello (rights in war) by making it part of the obligations found under just war theory. He believed states were not unlimited in the ways in which they could pursue war, and that they were obligated to act justly and prudently when conducting and concluding war. Most notably the Hague Conventions of 1899 and 1907 embraced his notion of a prohibition on unnecessary suffering.

(3) Rights of Individuals: Because Grotius endorsed a society of mankind and considered individuals to be actors in international society, he wrote extensively on human law, a precursor of what is today known as international human rights law. He presupposed certain fundamental human rights, such as the right to life, food, and medicine. More importantly though, he argued for the protection of non-combatants during times of war (part of international humanitarian law), an idea that foreshadowed the “protected persons” found in the current discourse on international relations.

(4) Humanitarian Intervention: In general, Grotius was a non-interventionist. However, he did argue that states might be able to act on behalf of individuals who were victims “of injuries which…excessively violate the law of nature or of nations in regards to any person.” Many scholars view this as an implicit justification for humanitarian intervention in certain instances.

(5) Freedom of the Seas: Grotius firmly believed that no state could claim exclusive ownership over any part of the seas, although he did acknowledge the sovereignty of coastal states. In his view, freedom of the seas meant freedom of navigation. There is a direct link between Grotius’ concept of freedom of the seas and the 1982 UN Convention on the Law of the Sea. Although the UN Convention places spatial limitations on the high seas, it built upon Grotius’ ideas and expanded freedom of the high seas to include, in addition to basic navigation, overflight, scientific research, and clearer responsibilities of jurisdiction, protection, and enforcement.[9]

CONCLUSION

Hugo Grotius crafted his work in direct response to the political situations facing Europe during his lifetime, but which transcended and had important implications beyond his time and geographical place. His thoughts and ideas were clearly discerning as they foreshadowed modern dialogue on international law.

It is thus appropriate that Hugo Grotius, the “father of international law,” be recognized today as a “leading figure in international law.”

Contemporary international lawyers sympathize with Grotius’s eclectic use of sources (nowadays under the rubric of inter-disciplinarity), but too often “appear both ashamed of their inability to propound doctrine in the imperious tone of traditional texts” and “proud of having avoided the [methodological] difficulties plaguing each traditional scheme of authority.”109 While international law should by no means lose sight of the lessons and (partial) victories against oppression (whether that was expressed as child labor, homophobia, racism, sexism, and so on), too often the condition of accepting any principle only when methodologically defensible leads to a retreat into some politics not simply of humility, but deferral.


[1] https://iep.utm.edu/grotius/

[2] https://www.oxfordbibliographies.com/view/document/obo-9780199796953/obo-9780199796953-0139.xml

[3] https://link.springer.com/chapter/10.1007%2F978-1-137-52866-7_5

[4] https://iep.utm.edu/grotius/

[5] https://iep.utm.edu/grotius/

 

[7] http://www.judicialmonitor.org/archive_1007/leadingfigures.html

[8] http://www.judicialmonitor.org/archive_1007/leadingfigures.html

[9] https://iep.utm.edu/grotius/

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