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INTERNATIONAL LAW AS A LAW

SUBMITTED BY:

SHUBHAM KASHYAP KALITA

UID: SM0117048

3rd Semester, 2nd Year

SUBJECT: Jurisprudence 3.6

FACULTY INCHARGE:

Mr. Saheb Choudhary

NATIONAL LAW UNIVERSITY AND JUDICIAL ACADEMY, ASSAM

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TABLE OF CONTENTS

1. Abstract……………………………………………………………………………….. 3.

2. Introduction…………………………………………………………………………… 4.

3. International Law: Origin and Development…………………………………………. 4-7.

3.1 Sources of International Law…………………………………………………….. 5-7.

4. Theories on international law…………………………………………………………. 7-9.

5. Different philosophies on international law…………………………………………… 9-15.

6. Conclusion……………………………………………………………………………... 15.

References ………………………………………………………………………………... 15-16.

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ABSTRACT

“International Law is the vanishing point of Jurisprudence.”

- Holland

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.

This article will basically try to contextualize the jurisprudential aspect as to whether
international law can be considered as a law in a true sense. It will discuss the origin and
development of international law along with various theories given by prominent jurists namely
Hugo Grotius, John Austin, and H.L.A Hart in this domain. It will also discuss about the related
schools of law which will led us to a conclusion of considering international law as a law or as
an international legal morality.

Keywords: International law, Law, Enforceability.

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2. INTRODUCTION

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 heavy
weight. 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. We will see all the
interpretations, theories and justifications on whether international law is a law or not in this
paper.

3. INTERNATIONAL LAW: ORIGIN AND DEVELOPMENT

In general, International Law is the law which is recognized by the nations and is binding on
their 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 of
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, all
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the laws are subjugated to natural law and the other is the law governing the nations. 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 of
the natural world so as the laws of the nations are derivations of natural law.1

In the middle ages, the Jus gentium was seen as an application of natural law to human
government. 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. 2

3.1 Sources of International Law:

There are various sources of international law which give it a binding force. Some of that are-

a) International Conventions or Treaties: This is the most important form of international law.
As international law don’t have any legislation to who can put binding force to all the states, the
states entered into treaties or conventions which laid down certain rules for their mutual conduct.

1
Malcolm D. Evans, International Law, Pg No. 42-44, Oxford University Press, 1st edition, 2003.
2
Ibid.
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They mutually agreed upon the rules laid down in the treaty which put an obligation on the
contracting parties to follow the rules.

b) Custom: It is considered to be the oldest and the original source of law. Custom is something
which is more than habit or usage. It is that code of conduct which the particular community or
society has consented to regard it as obligatory. The privilege offered to foreign diplomats is a
form of custom. There is a case called Columbian Peruvian Asylum Case3 where the
international court of justice put forward that the party who is relying on custom must prove the
binding force of the custom.

c) The General Principles of Law: The civilized nations had made certain general principles of
law to be followed by them which is recognized through international conventions and custom. It
makes the legal systems of the nations as a basic source of law for the creation of international
law. In Reg v. Keyn 4it was held that the law of nations is recognized by justice, equity,
convenience and the reason of the thing and by using it for a long term, it insert the binding
force.

d) Judicial Decisions: It is considered as subsidiary means to determine the rule of law. The
decisions are taken as a precedent to put a binding force of the rules of international law laid
down in particular cases.

e) Text-writers, Works of Jurists and Commentators: It is also considered as a subsidiary means

to determine the rule of law. The works of highly reputed and qualified Text-writers, Jurists and
Commentators help to determine or scrutinize the practice of states through the application of
legal principles. It also helped in establishing various conceptual theories and meanings which
help the court to interpret in particular cases.

f) International Comity: According to Oppenheim, the growth of the international law is the so-
called binding rules and these rules are considered as rules of politeness, convenience, and
goodwill. Such rules are not rules of law rather of comity.

3
1950 ICJ REP. 266 (1950).
4
(1876) 2 EX D 63.
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g) Position of “reason” in the modern system: Previously, the judicial reasoning is based on
precedents, establishing the rule of law or finding certain analogies. Now in the absence of all
these or in the absence of a universally accepted rule, it is the reason which will apply.

h) The United Nations: The United Nations has been a key model in the development of the
international law. The organization has constantly involved in developing the arena of
international law by continuous interpretation of existing rules and modifying them according to
the demands of the countries and has been the supreme authority for the regulation of
international law. 5

4. THEORIES ON INTERNATIONAL LAW

To understand international law in its true sense, we need to look after various theories related to
it. There are three prominent theories related to international law: 1) Naturalist; 2) Positivist; 3)
Grotians. The two most prominent schools of thought among these are Naturalist and Positivist.

1) Naturalist: This school of thought developed in the 18th and 19th centuries who believed in the
laws of nature under the influence of theology. During that period, the study of international law
was dominated by the naturalist school of thought. This school argued that the validity of
international law was totally based upon the will of God; the sovereigns of the nations are subject
to the laws of nature. The view of the naturalist was such that God is the sole creator of
everything in the world and he gives meaning to everything. The naturalist basically denied the
existence of any positive law or any other kind of law apart from the laws of nature. All laws
including the international law derive its origin and its validity from the will of the God. Well
known naturalists such as Francisco de Vitoria (1486-1546) and Francisco Suarez (1548-1617)
who defined international law based on naturalist thought. Vitoria defined international law as
the law of nations which is founded on the universal laws of nature. On the other hand, Suarez
defined international law as the derivation from or extension of natural law which is the basis for

5
M.P. Tandon and V.K. Anand, International Law and Human Rights, Pg- 16-21, Allahabad Law Agency, 7th edition,
2012.
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international law. Another 17th century German Jurist Samuel Pufendorf argued that international
law derived its binding force from the laws of nature as according to him only laws of nature
have legally binding norms. He also maintained that as the states have no common superior or
sovereign therefore they were bound to regulate their conduct towards each other. 6

2) Positivist: Positivism is another form of school of thought which is fundamentally different

from Naturalist. The positivists recognized the growth of international law to custom and
treaties. The practice of the states to the positive rules to which the states have mutually
consented to be bound is the true source of international law. For the positivists, there is no law
among states without the existence of consent. The positivist had the view that the will of the
state is the source of the validity of all the laws. The rules of international law are consonant to
the domestic law as both derive their binding force from the will of the state. The positivists
regarded customs and treaties as sources of international law. Alberico Gentilis and Richard
Zouche are considered as the founders of the school of positive law. Zouche believed that
international law is the law of the law of the states and is recognized by the states itself with
sovereign authority. There was another Dutch Jurist Cornelis van Bynkershoek who highlighted
the “principle of bona fides” and maintained that it is the theoretical foundation of all agreements
entered into by states and also gave importance to reason. Bynkershoek also forecast the
importance of customs and treaties and held that: 1) the rules of international law were inscribed
through the consent of the states; and 2) all agreements entered into by the states were nothing
but the product of their sovereign wills. International law has undergone a substantial
development under positivism. Many international conferences were held and various
international conventions and institutions arise in the nineteenth century. The whole system of
international law had developed to a new stage under positivism. The difference between the
domestic law and international law is that the former depends on the sovereign will of the state
while the later depends on the collective wills of all sovereign states. 7

The Doctrine of Pacta Sunt Servanda:

This doctrine was established by the Italian jurist Dionisio Anzilotti which describes the very
basis of the validity of international law. He believed that the rules of international law arises

6
Dr. S.K. Kapoor, International Law and Human Rights, Central Law Agency, 18 th Edition.
7
Ibid.
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either out of customary rules or rules arising out of treaties or agreements among states. The
states are bound to follow the rules who have agreed upon it or who have made a treaty to follow
those rules or abide by those rules.

3) The Grotians: The Grotians bridged a distinction between the Naturalist and the positivist
school of thought. They maintained that both the natural law and the positive law of the nations
are the bases of international law. They are highly influenced in the eighteenth and the nineteenth
century. The two major exponent of this school of thought were Christian Wolf and Emerich De
Vattel. Wolf, who was a German philosopher, had a view that the international community was a
civitas maximas, a super state above all the member states. While Vattel was a Swiss Jurist who
had a view that the law of the nations was nothing other than the law of nature applied to the
nations. 8

5. DIFFERENT PHILOSOPHIES ON INTERNATIONAL LAW

There are multiple philosophies on international law. Different jurist had distinctive views on
whether 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 to
designate the international rules as law? All this will be discussed in relation to different
philosophies laid down by the jurists.

1) Hugo Grotius: 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

8
Ibid.
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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 war
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.9

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

9
Hugo Grotius (1583-1645), Internet Encyclopedia of Philosophy, https://www.iep.utm.edu/grotius/. (Accessed on
15th October 2018, 8:30 PM).
 P a g e | 11

assent 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. 10

2) H.L.A Hart: Hart was an English philosopher and one of the leading political philosophers of
the 20th century. He was basically a legal positivist and totally criticized the normative dimension
of law. He had a positivist approach on the separability of law and morality. His approach
basically developed in “The Conception of Law”. His influential exponent where he says that
different types of norms get combined to form the basic structure of a legal system. According to
H.L.A Hart, there is a necessary rather than a contingent connection between law and morality.
All human laws must be in consonant to the natural law principles. According to natural law
theory, a law will ceases to be called as a law if is not morally justified. Hart had laid down two
types of rules: one is primary rules of conduct and the other is secondary rules. He stated that law
is nothing but a union of primary rules of obligation with such secondary rules. So what are
primary rules? Primary rules are the duty imposing rules. They impose certain specific duties
upon the people to act in a particular manner otherwise they will be subject to certain specific
legal sanctions. These rules basically formulate what a individual can do and what cannot
according to law. These rules are something which is regarded as “the law”. Then what are
secondary rules? These rules are not duty imposing rules as like primary rules. Hart stated that
the secondary rules are basically the power conferring rules. These rules are the basis of
recognition, change and adjudication of primary rules.

Now the question what Hart will say about international law should it be recognized as a law in
true sense? He had put his justification on international law in his book “The Concept of Law”.
Hart was of the view that international law can be considered as a law though it possesses certain
problems but it cannot be considered as a legal system. If it is a law then it has to be obligatory.
So the question arises here whether international law can be obligatory or not. Hart compares
international law with the municipal law to answer it. A law will not cease to be law just because
it is violated, international law has been subject to continuous violations by core countries but it

10
Ibid.
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would not suffice to deny it as a law. Municipal law is also violated by the citizens of a state but
it is still a law. Though international law lack the binding force as it has no organized sanctions.
But international law has been helpful in resolving international disputes, international
aggression and other international issues.11

According to Hart, international law basically consists of primary rules and there is no secondary
rule of obligation. Also the legal quality of international law is in question as it has no
international legislature to legislate, no international courts with compulsory jurisdiction and no
organized sanctions. It has no rules of recognition. Hart has put his philosophy very limited.

3) John Austin: John Austin was an English philosopher who regards law as a command. He
was the intellectual successor of Jeremy Bentham. Some consider him as the father of legal
positivism. He had sought the difference between “is” and “ought”. His theory is also known as
command theory. What is law according to Austin? According to Austin, Law is a command or a
set of commands that is backed by sanctions conferred by an uncommanded sovereign. Austin
stated that “We have to confine law into its pure domain.” What is legislated by the sovereign is
called the positive law. He talked about different kinds of laws such as laws of morality, God
given laws, societal morality, Household laws, Constitutional laws, International laws etc. he
categorizes all these into two parts: 1) Law properly so called; 2) Laws not so properly called.
Laws properly so called are those laws that are derived from an authority. Laws commanded by a
sovereign, someone who has the capacity to authoritative over the laws. For example;
Punishment for disobedience. On the other hand, Laws not so properly called are those laws
which are based on opinions. There is no authority there. He also talks about laws of metaphor
which are basically the laws of nature like the laws of gravity and thermodynamics. It includes
laws of morality, social expectations, and particular laws at home.

Austin also talks about sovereignty, who is a sovereign according to Austin? He defined
sovereignty that if a determinate human superior not in a obedience of a superior; received
habitual obedience from the bulk of the society, that determinate human superior is the sovereign
in the political society along with the people in it. That’s why he considered customary law is not
a law as it cannot trace to the determinate human superior. Sovereign is not in the habit of

11
Meherdad Payandeh, The Concept of International Law in the Jurisprudence of H.L.A Hart, Vol.no. 21, The
European Journal of International Law, 2011.
 P a g e | 13

paying obedience to other human superior. He also says that sovereignty is indivisible. Austin
indentified certain laws which are not imperative in character, but they are laws. These are often
called as imperfect obligation such as the laws of limitation.12

Now according to Austin’s philosophy, can we conclude that he will consider international law
as a law? Austin would say that international laws are not law but simply a positive international
morality. He maintained that international laws are laws not so properly called as it is based on
opinion. International treaties are based on the maxim “pacta sunt servanda”

Sanctions: Austin had put the idea of sanctions who states that the legal rules are nothing but the
severe commands of a political superior to a political inferior backed by sanctions. The sanctions
imposed might be coercive but the legal obligation to follow it depends on the effectiveness of
the political superior without concerning to morality, justice or social convention. This idea of
Austin clearly changes the nature of sanctions which separates the moral obligation from the
positive law. Therefore he considered international law as a “positive morality”, a command
imposed by those who have no political superiority over other sovereign powers at all.

Hart’s Criticism of Austin’s Theory of Law:

Hart had developed his philosophy on the basis of his contention on Austin’s Theory which says
that law consists of a set of rules issued by a sovereign. Hart had rejected his own theory of
sovereignty as well as Austin’s Theory of law. Hart stated that not all the legal rules can be
considered as coercive orders. Further criticizing Austin’s theory of sovereignty, he stated that
the conception of a individual or a group of individuals whose command are habitually obeyed
as well as who does not obey any other person. The command theory of Austin also focuses on
13
the persistence of law. He argued that if law can be considered as a command by a person
habitually obeyed similar to his predecessors then the legal validity of a law issued by a
legislature will be in question. As one of the most important characteristic of a legal system is
that even after the legislature get dissolved, the laws enacted by the legislature remain in force.
Also Austin had stipulated that sovereign is the source of legal obligation. If so, then it is putting
a limitation on the legislature. Under Austin’s theory the legal limitation of the legislature can be

12
Suri Ratnapala, Jurisprudence, Cambridge University Press, 2009.
13
Ibid.
 P a g e | 14

imagined only if the sovereign is under the obligation of the legislature. But in this scenario, the
definition of sovereign would be forfeiteted as he would habitually obeyed another sovereign.

There are many other philosophers who had propounded their theory on international law such as
Hans Kelsen, Pufendorf, and Oppenheim etc. as the topic of international law is a never ending
debate. Different philosophers have distinctive views. According to Kelsen, International law
consist of primitive legal order which is valid because it empowers decentralized coercive
sanctions of various wars and requitals that ought to be applied to international wrongs. Kelsen’s
theory has been successful in unifying all the national legal orders into one normative
international system which the Austin had failed to do.14

Does international law can be considered as a law? Do individuals comply with

international law? Why comply with international law?

These are the non-ending questions that have been prevailing since the establishment of
international law. Now if we see most of the nations and individuals follow the international
rules and have an obligation to follow those rules. Though international law has not any proper
set up to govern but it has strengthened a lot recently. Nations who are the signatories of the
various treaties or conventions are obliged to follow with the international law prescribed by
those conventions and treaties. There are punishment and sanctions for non compliance with the
law.15 Though there is a continuous violation of international law but it is not sufficient to deny it
as a law. When there is a law, there will be violations and when there will be violations then only
law will show its effectiveness. Various international firms setting up in different countries doing
diverse business comply with the international law, whose violation would lead them to various
sanctions. The recent cases like face book has been sued and ordered for compensation for not
complying with the international advertising rules. Various sanctions have been put on countries
who carry out activities that will destabilize the international peace and security. International
law has become a broad field covering a large jurisdiction over various areas such as sea,
aviation, space, crime, civil, corporate, finance, extradition etc. international law is a new field

14
Ibid.
15
Diane Marie Amann, Benchbook on International Law, American Society of International Law, 2014.
 P a g e | 15

and is at a developing stage. It is a law as it has rules and command which are backed by
sanctions though not that much effective like the positive law but it has a structure similar to the
positive law.

CONCLUSION

International Law can be considered as an effective process and as effective for the international
system. We have seen the whole philosophy of international law which tells us about what the
law is and what it is for. We have seen many issues and doubts on the tag of law in international
law. We have seen that international law is not the product of any single state. It is a law binding
on every state. It is a universal conglomeration of rules prevailing in many jurisdictions with an
international community consisting of various independent states. International law set the
boundaries within which the states may act upon their jurisdiction. It puts a limitation on the
jurisdiction of the states. Individuals or states will occasionally break laws despite the presence
of the enforcement system, but that is not a sufficient condition to deny it as a law. Even the
national laws of the state are being frequently violated even after having effective enforcement
machinery. It is all up to how we behave towards the rules laid down by the law. The law will
always say you are entitled to it but it is you who will decide whether you will follow the
entitlement or refrain from following it. Therefore it can be concluded that international law can
be considered as a law.

References:

1. Malcolm D. Evans, International Law, Pg No. 42-44, Oxford University Press, 1st edition,
2003.

2. Suri Ratnapala, Jurisprudence, Cambridge University Press, 2009.

 P a g e | 16

3. M.P. Tandon and V.K. Anand, International Law and Human Rights, Pg- 16-21, Allahabad
Law Agency, 7th edition, 2012.

4. Diane Marie Amann, Benchbook on International Law, American Society of International

Law, 2014.

5. Meherdad Payandeh, The Concept of International Law in the Jurisprudence of H.L.A Hart,
Vol.no. 21, The European Journal of International Law, 2011.

6. Milena Sterio, The Evolution of International Law, Vol.31, Issue 2, Boston College
International and Comparative Law Review, 2008.

7. Edward Dumbauld, The Place of Philosophy in International Law, University of Pennsylvania

Law Review.

8. Anthony D’Amato, Is International Law really “Law”?, 79, Northwestern University Law
Review, 1984.

9. William C. Starr, Law and Morality in H.L.A Hart’s Legal Philosophy, Vol.67, Issue 4,
Marquette Law Review, 1984.

10. J.E.R Stephens, International Law, Vol.45, No.11, The University of Pennsylvania Law
Review, 1897.

11. Jianming Shen, The Basis of International Law: Why Nations Observe, Vol.17, No.2, Penn
State International Law Review, 1999.

12. John Austin, Stanford Encyclopedia of Philosophy, https://plato.stanford.edu/entries/austin-

john/. ( Accessed on 20th October 2018, 8:47 PM).

13. Jim Gilliam, Hart and International Law, Swamp, https://theswamp.media/hart-and-

international-law. (Accessed on 20th October 2018, 9:15 PM).

14. Hugo Grotius (1583-1645), Internet Encyclopedia of Philosophy,

https://www.iep.utm.edu/grotius/. (Accessed on 15th October 2018).