Project Report

PIL
Morality in International Law

Name: ADITI INDRANI

2013004

TABLE OF CONTENT
1.
2.
3.
4.
5.
6.
7.

Introduction
International law- problem and solution
Formulation of international law
International Trade and Morality
International Law and Morality: The Alternative Approach
Conclusions
Bibliography

INTRODUCTION

This project Morality and International Law is an endeavor to scrutinize the influence of
morality in the development of international law. Analysis of the existing jurisprudence suggests
that very little material is available on the subject and same is in its nebulous stage. One of the
reasons behind this may be that doubts still exist about the validity of international law i.e.
whether it is a law or not? This doubt led Austin to tag international law as positive
international morality. He wrote that:
Grotius, Puffendorf, and the other writers on the so-called law of nations, have
fallen into confusion of ideas: they have confounded positive international
morality, or the rules which actually obtain among civilized nations with their own
vague conceptions of international morality as it ought to be1.
Many believe that until there is an objective affirmation among the scholars about the true nature
of international law, the role of morality in international law may not be discussed. However, I
believe that this approach is completely wrong. The validity of international law and the
significance of morality in its development are two intertwining topics and the study of one,
independently of other does not serve any purpose.
The aim of this project is to show that the concept of international law has changed since the
term international law was first coined by Bentham and morality played a very significant role
in its fruition. In fact, it is because of the moral concepts associated with it, that, certain
important concepts of international law today are considered to be legally binding at all. Since
the subjects of international law are very, I will take up few important ones among them and will
show with their help as to how and to what extent does morality play a role in international
law. The project is divided into five chapters. The first chapter will introduce the topic and will
put forth the problems which arise when one attempts to study the role that the morality plays
in relation to international law. Chapter II, III and IV will provide a case-study of various fields
of international law where morality (both subjective and objective) comes in contact with
international law and influences it. The final chapter will sum-up the topic and provide the
1 Austin, The Province of Jurisprudence Determined, 1861 at p. 187.

authors conclusions about the same.

International law- problem and solution
Man is a social being. He does not live his life in isolation. He interacts with other members of
society so as to earn the basic necessities that sustain life on the planet. This interaction of men is
governed by law which is laid down by the State. Moreover, these laws also define and govern
the manner in which the State interacts with its subjects. Since centuries man has understood law
to be rules which are laid down by a proper legislature and executed by an executive.
Moreover, men have always perceived a legal society to have a judicial body that will provide
for interpretation of laws and settlement of their disputes. As has been stated, in systems of
municipal law the concept of formal source refers to the constitutional machinery of law-making
and the status of the rule is established by constitutional law 2. For this reason it is considered to
be valid. However, such a formal structure is absent in the international arena. Largely, as a
result of its very nature (that is, the fact that it is comprised of many sovereign States co-existing)
the international community is characterized by the absence of any defined sovereign or formal
structure comparable to that present within national jurisdictions. This issue has been a subject of
debate for a very long time and I believe that to understand the role of morality in international
law, and it is not necessary to debate it here as well. As such, for the purpose of this project I am
assuming that international law is a valid law.
It is clear that States have become more and more dependent on each other, a phenomenon
perhaps largely attributable to the growing institutionalization of the international community3.
This so-called interdependence requires regulation.
Although this is sometimes achieved by way of agreements reached between individual States
the lacuna is also filled through the recognition by individual States of a so-called international
conscience which imposes legal regulation on the actions of States and in doing so ensures

2 I. Brownlie, Principles of Public International Law (Fifth Edition, 1998), p. 1.

3 J. Sztucki, Jus Cogens and the Vienna Convention on the Law of Treaties, (1974), pp. 35, 165.
[Mentioned in Rafael Nieto-Navia, International Peremptory Norms (Jus Cogens) And International
Humanitarian Law
4

international respect for basic social values 4. Similarly this is reflected in the so-called
international moral infrastructure which itself is subject to normative disciplines 5. The provisions
of international law develop or are created not by an international legislator or sovereign, but
very generally through the consensus of States which have recognized that certain values
amount to valid legal norms which must be respected as between States In this regard, it is
possible to talk of the validity of international law. However, sometimes it becomes very
difficult for countries to reach such consensus, mainly because the definition of values in some
cases may come in conflict with each other. Even, then it is clear that moral obligations play a
very vital role in solving issues of international importance.
Formulation of International Law
A very suitable approach to prove my hypothesis is to understand the nature in which
international law is formulated. The sources of international law as enshrined in Article 38 of the
Statute of International Court of Justice provide international treaties and conventions 6 and
customary international law7

as the primary sources of international law 8. In order to

understand the role of morality in international law it is very vital to discuss both these sources
hand in hand. I will first of all speak about the international Custom and then will move on to
treaties and conventions. Article 38(1)(b) of the Statute of ICJ provides international customary
law to be a source of international law. Thus, if a state is able to show that the states have
developed a practice to govern their relation in a particular way then such a practice is binding
4 Based on this moral code international recogniti on and respect for certain basic social values can
mean that particular agreements reached between a limited number of States become valid for all.
Sometimes, it is called customary international law and sometimes higher principles of international
law known as jus cogens.
5 According to F. Hauriou the best way an institution can express itself is not legal but moral and
intellectual
6 Article 38(1)(b) of Statute of ICJ.
7 Article 38(1)(a) of Statute of ICJ.
8 The other two sources of law provided in Article 38 are General principles of law recognized by civi
lized states and writings of eminent jurists etc..
5

upon them. The two basic elements of this source are (1) State Practice, and (2) opinion juries.
The second condition provides that to become a customary international law, the states must
show that they consider themselves to be legally bound by the provisions of such practice. This is
where morality comes in picture. The best example of this being the customary laws about
conducting a war. The states feel themselves to b e bound by these principles even if such
principles have not been codified in a Treaty or a Convention.
Treaties and Conventions come into existence when the nations agree to create an obligation
which they are ready to abide by. Thus, the member-states of a particular treaty or a Convention
have a consensus upon a certain obligation which all of them are ready to undertake. However,
the states enter into a treaty only when such treaty does not have an adverse impact on their
national interest. The national interest of a State is affected by the culture and social-strata of
such state. So, while initiating or conducting their relations with other nations through treaties,
the states keep in mind the moral standards existent within their respective jurisdictions.
International Trade and Morality
Under international law, nations are required to provide a free trade market to other countries so
as to ensure free flow of goods and services. The World Trade Organisation provides in its rules
that the member-states cannot make laws which prevent other nations from carrying out trade
within the territory of such member-state. So the one important question that any free trade
system must resolve is the manner and degree of regulatory autonomy which it can retain despite
a commitment to the free flow of goods and services 9. One such instance under WTO trade
system where nations have retained legal authority to impose trade-restrictive measures is that
relating to measures necessary to protect public morals. The nations have time and again used
this exemption clause to free itself from international liability. What is important to note is the
manner in which the nations have interpreted the meaning of the term public morals. The
reason being that every nation follows different moral standards which are determined by their
own culture etc. A nation can thus circumvent its international obligation to protect the public
morals by imposing restriction on free trade.
9 An example of this being the case of Wyoming v. Oklahoma, 502 U.S. 437, 461 (1992). In this case the
Sate of Oklahoma passed a legislation which required the in-state power plants to burn at-least 10 percent
Okhlama coal. This was held to be unconstitutional as it adversely affected USAs commitment to ensure
free trade.
6

Thus there is a clash between trade and morality which continues to rattle international economic
relations. At issue is whether trade restrictions may be used to promote moral goals.
An important consideration in this debate is whether morality-driven trade measures conflict
with international trade rules. The General Agreement on Tariffs and Trade (GATT) contains an
exception to its rules prohibiting trade restrictions for measures "necessary to protect public
morals." Questions of morality are implicated in numerous contemporary international trade law
debates. Should trade to pariah regimes like Serbia or Cuba be embargoed? Should international
traffic in products made by child labor be halted? Should local morals be able to trump economic
globalization? Should international morals be able to trump the exercise of power by local elites?
There are several ways that morally-based trade restrictions can be employed. First, they may
seek to "protect" the morality of the individual engaged in the trade. For example, sale of liquor
from A to B can be halted to protect the buyer B's morality (or seller A's morality).
Second, trade restrictions can be used to safeguard the morality of a participant in production.
Thus, photos of a child C might be banned in international trade in order to protect C even
though A and B want to trade the photos. Third, trade restrictions can be used to give moral
support to a class of individuals. For example, Country E might ban trade with Country F as a
means of protest against immoral acts by F's government against citizens of F.
Other morality-based trade bans focus on animal welfare. For example, in 1983, the European
Commission barred the importation of skins of certain seal pups because of public outrage at the
killing of baby seals by Canadians. Some animal welfare bans are linked to the method of
production. For example, the Commission has forbidden the importation of animal pelts unless
the country of origin has banned leg-hold traps or unless the trapping methods used for the
species meet "internationally agreed humane trapping standards 10." U.S. law forbids the
importation of meat products unless the livestock from which they were produced was
slaughtered in accordance with U.S. statutory requirements 11. Among these requirements is that
10 Council Decision 97/602, 1997 O.J. (L 242); Commission Regulation 3254/91, art. 3, 1991 O.J. (L
308). See generally Gillian Dale, Comment, The European Union's Steel Leghold Trap Ban: Animal
Cruelty Legislation in Conflict with International Trade, 7 Colo. J. Int'l Envtl. L. & Pol'y 441 (1996)
[Retrieved from http://www.lexisnexis.com/hottopics/lnacademic/Default.asp on 10.09.2014]
11 21 U.S.C. 620(a) (1972). [Available at http://us-code.vlex.com/vid/sec-imports-19200627. Last accessed
on10.09.2014.]

the slaughtering be "humane12." The U.S. Marine Mammal Protection Act bans the importation
of any marine mammal if such mammal is captured in a manner the Secretary of Commerce
deems inhumane.
Other morality-based trade bans are linked to the method of transportation. For example, since
1949, U.S. law has prohibited the importation of any wild animal or bird "under inhumane or
unhealthful conditions." The Convention on International Trade in Endangered Species of Wild
Fauna and Flora directs exporting nations to "minimize the risk of injury, damage to health or
cruel treatment" to animals. Recently, non-governmental organizations in Europe have sought
Community-wide rules prescribing better conditions for transporting live animals across borders.
International Law and Morality: The Alternative Approach
The focus of this chapter is the notion that world politics can be conducted with a greater
emphasis on following international law and attempting to ensure justice. This is an alternative
approach to national diplomacy and its power-based pursuit of self-interest discussed in the last
chapter. It would be naive to think that the actors in any system would not be motivated in
significant part by what is good for them. Most individuals and groups in domestic political
systems emphasize their own welfare, just as states do in the international system. There are
differences, however, in how domestic and international systems work. What is of interest here is
the way domestic systems, compared to the international system, restrain the pursuit of selfinterest13.
Legal systems are one thing that helps limit the role of pure power in a domestic system. The
Fourteenth Amendment to the U.S. Constitution, for example, establishes "the equal protection
of the laws" as a fundamental principle. Certainly, powerful individuals and groups have distinct
advantages in every domestic system. Rules are broken and the guilty, especially if they can
afford a high-priced attorney, sometimes escape punishment. Still, in the United States, laws
cannot overtly discriminate and an attorney is provided to indigent defendants in criminal cases.
Thus, the law evens the playing field, at least sometimes.
12 7 U.S.C. 1902(a) (1988). [Available at http://www.animallaw.info/statutes/stusfd7usca1901.htm. Last
accessed on 10.09.2014.
13 http://highered.mcgraw-hill.com/sites/0072890363/student_view0/chapter9/ accessed on 15.09.2014
8

Morality is a second thing that restrains the role of power in domestic systems. We are discussing
what is "right" here, not just what is legal. Whether the word is moral, ethical, fair, or just, there
is a greater sense in domestic systems than there is in the international system that appropriate
codes of conduct exist, that the ends do not always justify the means, and that those who violate
the norms should suffer penalties. Surely, there is no domestic system in which everyone acts
morally toward everyone else. Yet the sense of morality and justice that citizens in stable
domestic systems have does have an impact on their behavior14.
Most importantly, what all this means is that politics does not have to work just one way. There
are alternatives. Idealists envision and prescribe a system of international law that covers more
and more aspects of international interchange and that contains strong mechanisms to resolve
disputes and enforce the law. Realists do not believe that this goal is attainable and suspect that
national states will follow the dictates of national interest, ignore the law, and act in a selfserving way, especially on national security and other vital matters15.

14 http://www.uefap.com/reading/exercise/ess1/brierly.htm accessed on 15.09.2014

15 http://www.uefap.com/reading/exercise/ess1/brierly.htm accessed on 15.09.2014

Conclusion
This project has been an attempt to capture within these pages, the role which morality plays in
International Law. The project provides us with the insight about the manner in which morality
affects international law. It affects both international law-making as well as at the application
level. We have seen that since international law is based upon the consent of states, the moral
standards of each nation are taken into consideration before international law comes into being.
Based upon the research I have done for preparing this project, I have come to following
conclusions. However, it must be noted that these conclusions are restricted to only those aspects
of International law which have been discussed above.
1.The only way that a war can be justified against a nation is when it can be proved that a higher
moral obligation exists for such war. So technically speaking, wars as such cannot be justified on
legal grounds. Because both ad bellum and ad bello conditions are basically moral grounds.
2.

An important conclusion that I have come to here is that domestic issues of morality

affect international law i.e. the states while interacting with other states keep in mind the moral
standards that exist within their local jurisdictions.
3.

The principles which govern the initiation and conduct of war are morally-oriented rules.

4.

The moral principles governing the relations of states may be codified in a treaty or

convention. However, it is not necessary that for the application of these principles there is a
need for a codified law.
10

5.

The manner of application of morality to international law works at two stages. First at

the time of making such law as well as at the time of its execution.

Bibliography
Books

Primary sources

1. Anthony E. Cassimatis, Human Rights Related Trade Measures under International

Law, Martinus Nijhoff Publishers, Leiden, Boston, 200 7.
2. Eve La haye, War Crimes in Internal Armed Conflicts, Cambridge University Press,
2008.
3. Hilaire McBoubrey & Nigel D. White, Textbook on Jurisprudence, Oxford University
Press, 1999.
4. Jean-Marie Henckaerts & Louise Doswald-Beck (editors), Customary International
Humanitarian Law, Cambridge University Press, Vol. II, Part 1, 2005.
5. Ian Brownlie, Principles of Public International Law, Seventh Edition, Oxford
University Press, 2008.
6. Malcolm N. Shaw, International Law, Fifth Edition, Cambridge University Press,
2003.
7. Sally J. Cummins (Editor), Digest of United States Practice in International Law,
Oxford University Press, 2005.
Articles
1. CRS Report for Congress, Foreign Aid: An introduct ion to U.S. Program and Policy,
11

April 9, 2009 at p. 1. [Retrieved from on 26.10.2013]

2. Dale Jamieson, Duties to the distant: Aid, Assistance, and Intervention in the
Developing World, The Journal of Ethics, (2005) Vol 9 at p. 151. R etrieved from on
27.10.2013.
3. Jeff MacMahan, Morality of War and Law of War, Journal of Political Philosophy ,
February 2007, at p. 1 [Available at Retrieved on 1st October 2014.]
4. Thomas Hurka, Proportionality in the Morality of War, Philosophy & Public Affairs, Vol.

33, Blackwell Publishers, 2005 at p. 34.

12