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Dynamic Nature of International Law

One of my favourite adages in respect to life, that also shares an analogy with the nature of law, is given by Heraclitus ¹“No man ever steps in the same river twice, for it is not the same river and he is not the same man”. The core message is that life is dynamic and every human being experiences it differently and uniquely. This applies mutatis mutandis to law itself.

This dynamic nature of law is due to several factors viz. experiences of the past, happenings of the present and the need of the future. Therefore, it is to be noted that every state knits its law around the circumstances by which they are bound and by which they will tend to garner maximum gain.

It can also be safely stated that public policy/law is also framed keeping in mind philosophical theories viz. Utilitarianism², that is, the greatest happiness of the greatest number which serves as the foundation of morals and legislations, as propounded by Jeremy Bentham. 

Note-The term “International law” was coined by eminent British jurist/philosopher Jeremy Bentham³ in 1780.⁴

Natural Law⁵ and International Law (aka The Horizontal System)

1. The theological concept of natural law was introduced by St. Thomas Aquinas.

2. According to him, being a good and moral person is a very vital part of God’s plan for us.

3. God has pre-loaded in every one of us 7 Basic Goods and from them we can derive the natural law.

4. The tools required to derive it are viz. Reason and Instinct.

5. This is known as the Natural law theory.

Against Natural Law	7 Basic Goods	Promoting Natural Law
Killing any living life.	Life	Healthcare, Food Services (PDS)
Lax Abortion laws	Reproduction	Stringent Anti-Abortion laws
Not educating a particular sex, that is, practicing discrimination.	Educate one’s offspring	Compulsory Primary Education
Atheism	Seek God	Promoting Theism
Living in a State of Nature	Live in Society	Formation of State, community, etc.
Lax laws with lacunae	Avoid Offence	Stringent laws and Punishments.
Being Indifferent	Shun Ignorance	Being Inquisitive

6. It is to be noted that man-made laws can be unjust and must be checked on by Natural law, which should act as the very touchstone.

Contributions of Natural Law

1. It has established moral concepts such as “Pacta Sunt Servanda⁶”, that is, Agreements are to be honoured. It is the core principle on which International law stands.

2. Principle of Equity ⁷is also derived from Natural Law.

3. It has aided in the development of Natural Justice Concept (Audi Alteram Partem⁸).

4. Universal Declaration of Human rights (UDHR)⁹, 1948 also finds its source from Natural Law.

5. It also aided in the formation of democratic Constitutions viz. India, USA.

Crisis in International Law

As stated by Roscoe Pound¹⁰, “Law must be stable, and yet it cannot stand still”¹¹. Therefore the “central problem of law” is to reconcile the conflicting needs of stability and change.

This crisis has been exacerbated especially in the 21^st century due to the following factors viz. rapid globalization, rapid political change, new technological innovation, rise of new ideologies, terrorism, decolonisation (formation of new States), rising demand for social reform, growing selfishness of the developed states to protect their interest by coercive means and the increase in number and functions of multilateral international entities.¹²

Therefore the law must react and adapt to the changes according to the need of the hour, sometimes the skeleton will remain the same and only minuscule tweaks will be needed to conform with the specific demands and sometimes on the other extreme the whole framework has to be restructured.

Issues of Adaptability and Change in the Horizontal System

According to Brierly, one of the major lacunas of international law is that it has aimed to stabilize rather than to provide for the growth of international society, and to maintain existing values rather than to create new ones.¹³

It is to be noted that there is an absence of a “world legislative body”, like we have in our nation viz. India (Indian Parliament). The laws made by our Parliament apply vertically to our State Legislatures which they are bound to follow.

But in the International scenario, there is no such world legislative body which can make such laws and thereby which are applied to every nation vertically (akin to State legislatures).

The next question that comes to mind is why not establish such a body, the answer is cumbersome, the succinct version is that the International Law System is a “horizontal system”, that is, its members are states/nations, and all nations are sovereign, therefore they have an equal standing at the international citadel, and no nation is subordinate to another nation due to its sovereign characteristic. It is also to be noted that no state willingly wants to give up even a part of their sovereignty in order to establish such world legislative body because it might prove detrimental to their interest in future.(Because some nations are advanced and power and some others not so.)

Due to the absence of such world legislative body, treaty making is the next best alternative in order to make rules and laws at the international plane. (In treaty making also states’ have to give up a part of their sovereignty but they do so for their selfish/best interests.)

It is to be noted that customs (a source of international law) is an inadequate instrument for bringing timely changes at the international plane because customs take a long time to achieve a concrete form and there are some conditions that must be fulfilled in order to convert customs into universally acceptable customary international law. Therefore treaty making process remains the most effective process to effect and to adapt to changes.

Therefore it can be concretely asserted that international law/ horizontal system is not entirely static but it is dynamic and organic in nature adapting slowly but steadily.

Some Positive Changes regarding the Issue of Sovereignty

It is now (21^st century) generally recognized that sovereignty is neither absolute nor indivisible. In fact, ‘Sovereignty¹⁴’ now has a much restricted meaning today than in the 18^th, 19^th and 20^th centuries. In the earlier times when there were powerful nationalised states, there were few limits on State’s autonomy. But with the changing times and converging interests of all the states including the powerful ones, the Indian concept of Vasudhaiva Kutumbakam (A Sanskrit phrase meaningà the world is one family) has taken roots. (Global Village)

The polarising tendencies of the erstwhile nations are diminishing and they also have accepted the fact of a multilateral co-existence which is more in line of their interests and in the in the interest of the whole earth.

Nowadays from every international fora, one term has been greatly accentuated, that is, multilateralism. Multilateralism denotes cooperation and coordination between nations where interests converge and majority rule is the norm.¹⁵

Therefore it can be concluded that there is hardly any State which in the interests of the international community has not accepted restrictions on its liberty of action¹⁶. It means that every nation has voluntarily submitted a part of their sovereignty to achieve global good and of course to promote self-interest.

Note– In Treaty making and after its ratification, some part of nation’s sovereignty has been submitted voluntarily to meet their self-interest.

1. https://plato.stanford.edu/entries/heraclitus/ (last visited December 20th, 2021) ↩︎
2. Sen, A., Williams, B.A.O. and Williams, B. eds., 1982. Utilitarianism and beyond. Cambridge University Press. ↩︎
3. https://plato.stanford.edu/entries/bentham/ (last visited December 20th, 2021) ↩︎
4. Oppenheim, International Law, Vol.1, 8^th edition, p.94 ↩︎
5. Goyette, J., Latkovic, M.S. and Myers, R.S. eds., 2004. St. Thomas Aquinas and the natural law tradition: Contemporary perspectives. CUA Press. ↩︎
6. https://www.oxfordreference.com/view/10.1093/oi/authority.20110803100300496 (last visited December 20th, 2021) ↩︎
7. https://oxford.universitypressscholarship.com/view/10.1093/oso/9780198868002.001.0001/oso-9780198868002-chapter-2 ((last visited December 20th, 2021) ↩︎
8. https://nios.ac.in/media/documents/SrSec338New/338_Introduction_To_Law_Eng/338_Introduction_To_Law_Eng_L6.pdf (last visited December 20th, 2021) ↩︎
9. https://www.un.org/sites/un2.un.org/files/udhr.pdf ((last visited December 20th, 2021) ↩︎
10. https://www.britannica.com/biography/Roscoe-Pound (last visited December 20th, 2021) ↩︎
11. Interpretation of Legal History, Cambridge, Mass, (1923) p.1 ↩︎
12. Oliver. J. Lissitzyn, International Law Today and Tomorrow, (Oceana Publications Inc. Dobbs Ferry, Newyork, 1965), p.102. ↩︎
13. J.L.A. Brierly, The Basis of Obligation in International Law, (Oxford, 1958), p.58 ↩︎
14. As aptly observed by Sir H. Lauterpacht, “International law, whether codified or not, implies essentially a restriction on the sovereignty of states’ whose relation it governs. It is in the nature of things that states’ wedded to an uncompromising maintenance of their sovereignty cannot view with favour attempts at effective codification”, AJIL. Vol. 49 (1955), p.16 ↩︎
15. Philip C. Jessup, A Modern Law of Nations, p.40 ↩︎
16. J.G. Starke: Introduction to International Law, Tenth Edition (Butterworths, Singapore, 1989) p.100 ↩︎