Basis of International Law
Definitions and nature of international law
There are two main opinions regarding the basis of international law-
- Theory as to Nature
- Positivism
1. Theory as to Nature
- Supporters of Theory as to Nature – Vattel, Thomasius, Pufendorf etc. Jurists who believe in the Theory as to Nature believe that international law is a part of natural law. Jurists of the sixteenth and seventeenth centuries presented a secular form of natural law. According to them, international law is based on the rules of natural law which originate from God, reason or morality.
- Grotius is credited with presenting the secular form of natural law. According to Grotius, natural law is the reasonable reasoning of man (dlctati of right reason). Grotius’ followers used natural law as an ideal method.
- Vattel described natural law as the basis of international law in the 18th century.
Criticism of theory as to nature
- Natural law is criticized on the basis that each of its followers explains its meaning differently. Its meaning is said to be logic, justice, utility etc.
- A major drawback of this opinion is that it is not based on international relations and realities and the actual behaviour of states.
- A major flaw of this theory is that international law is not morality. Therefore, the binding force of international law cannot be the result of any moral quality.
2. Positivism
- Supporters of Positivism theory – Biker Shoyenk, Martens and Angelotti etc. According to positivism theory International Law is based on mutual consent of states. The rules which do not obtain the consent of the state are not binding on that state.
- Hegel first introduced the concept of the will of states. The name of Angelotti is a notable one among the existentialists.
- A notable name in positivism is Angelotti. According to him, the basis of the binding power of international law is the high fundamental principle which is called pacta sunt servanda. According to positivism, the main sources of international law are treaties and conventions.
The International Court of Justice has adopted an Positivism approach in relation to the customary rules of international law in a number of cases, including the Anglo-Norwegian Fisheries Case, the Asylum Case, and in Morocco Case related to the Americans’ Right (Right of the U.S. Nationals in Morocco Case) is particularly notable.
In (The Asylum Case), the International Court of Justice had said that if a party cites a custom, then it is necessary for him to prove that the said custom is so established that it is binding on the other party.
Criticism of Positivism
- The concept of the will of the states presented by this view is entirely based on metaphor and does not explain the real facts.
- The notion that international law is based on the consent of states is at odds with reality.
- Even in practice, it is not necessary to make it clear that states have agreed to any rule of international law.
- There are also some principles that are binding on states even if they have not agreed to them. Article 2(6) of the Charter is an example of this. Undoubtedly, consensus has an important place in international law, but how can it be believed that these principles themselves are binding?
According to Starf, “No opinion is able to explain the complete basis of international law.”
According to Cecil Hurst, “No state can escape the influence of international law. International law is actually binding on states because they are states.
Other Theories of Basis of International Law
- Theory of Consent
- Autolimitation Theory
- Pacta Sant Servanda
- Theory of Fundamental Rights
- Morality as the basis of Law
- Sociological Basis
Theory of Consent-
According to this opinion, states follow the rules of international law because they have agreed to follow its rules. Jurists who believe in this theory include Angelotti, Trepel and Oppenheim etc.
According to Oppenheim, international law has developed only through the general consent of states.
Criticism
Jurists who criticized this theory include Starke, Brierley, Kelson, Fenvic etc.
According to Kelson, the state is bound to obey international law even if it is against its wishes. According to Fenvic, the principle of consent is not appropriate because it is against what the state government has been accepting since the beginning of international law.
According to Brierley, even if we distort the facts, this opinion does not seem to be justified. This theory seems to be completely wrong in the matters of international law related to customs and recognition of nations etc.
Auto-limitation Theory-
According to this theory, international law is binding on the states because the states have accepted international law by reducing their powers themselves, this theory was supported by Jelink. This theory is also based on positivism like the theory of consent. This principle is based on the independence and sovereignty of states.
Criticism –
This principle is criticized on the basis that self-regulation or self-imposed control is not really any control. If this principle is accepted as appropriate, it would also mean that the state can free itself from the control imposed by itself whenever it wants. The main critics of this theory are Brierley and Friedman.
Pacta Sant Servanda –
This Theory was propounded by Italian jurist Angelotti. According to this principle, the binding power of international law is based on a higher fundamental principle or rule and this higher principle is Pacta Sunt Servanda. Pacta Sunt Servanda means that the treaties made by States, they will respect them and will fulfill them in good faith. In Angelotti’s opinion, this principle is the foundation of international law. This principle is also based on the principle of positivism.
Criticism –
Although this is the basic principle of international law, it is not true to say that this principle is the only basis of international law. Pacta Santu Servanda does not shed light on international law. International practices have great importance in international law and Pacta Sant Servanda itself is a rule of international practice. Therefore, it cannot be considered the basis of international law.
According to Kelson, this principle is now more valid in place of Pacta Sunt Servanda that states should behave as they have in practice.
Theory of fundamental rights
The theory of fundamental rights is actually based on theory as to nature, according to this theory- Before the existence of political community or states, man lived in his natural state and even in that state he had some fundamental rights. Just as man had these rights, similarly states also had these rights. Because till now there is no such thing in the world. There was no controlling power that could bind the states together. Thus, every state had some rights like freedom, right to equality, right to security etc. According to this principle, if the state enters the community of states, then it comes with itself certain fundamental rights which are inherent in.
Criticism-
It has been strongly criticized. It has been criticized on the grounds that inherent rights are meaningless unless there is a legal system to enforce them. Because this principle is in favor of giving too much freedom to the states, It pays very little attention to social bonds and cooperation, due to which it has also been criticized. The third flaw of this theory is that it considers fundamental rights as natural rights, but the truth is that such fundamental rights have emerged as a result of historical development. Therefore, it is clear that this principle does not seem appropriate. If this principle is given recognition then a weak law like international law will become even weaker.
Morality as the Basis of Law –
According to Brierley, the basis of law is morality. Responsibility to follow the law is a moral duty and this responsibility is the basis of the binding power of law.
Sociological Basis
Social basis – Some jurists believe in the social basis of law. They say that like other laws, this should also be the basis of the binding power of international law. The main promoter of this opinion is Dugit.
References – Book
Dr. S.K. Kapoor, Human Rights & International Law, Central Law Agency.