NATURE AND DEVELOPMENT OF

INTERNATIONAL LAW
 NATURE OF INTERNATIONAL LAW
• International relations International Law (regulation
of relations b/w States, and of I.O.s)
• Universal/regional
• Does International Law fit the model of a legal order?
(legis./exec./jud.)
• No uniform system of sanctions
– Sanctions (economic, military etc); use of force (allowed in
exceptional cases like self-defense)
• Austin- International law is merely ‘positive morality’
(moral customs actually practiced by a given society)
• Legal structure – horizontal (all States equal,
theoretically); law exists between States; individuals
are non-participants in law-making; States themselves
make and obey/disobey laws
 How is International law really law?
States generally observe International law
whether from a consideration of reciprocity or
for gaining advantages. Violations are few.
What makes the States feel obliged to obey
Int’l law?
- ‘Theory of consent’/ ‘Theory of auto-
limitation’
- Subjected to criticism
- Theory/doctrine of consensus
 HISTORICAL DEVELOPMENT OF INT’L LAW
• 2550 BC- Treaty of Mesilim (boundary dispute b/w
Lagash and Umma): world’s oldest known legal
agreement inscribed in ‘cuneiform’ script on a stone
pillar
• 1269 BC- ‘Eternal Treaty’ b/w Rameses II (Egypt) and
Hattusili III of the Hittites after the Battle of Kadesh:
‘peace and brotherhood for all time’
• Influence of Judaism- Jewish laws of war
(obligatory/optional/pre-emptive)
• Influence of Hinduism- emergence of Mahajanapadas (16
republics) during 6th c.B.C.
• Influence of Chinese civilisation- tributary-states system
• Influence of Islam: concept of ‘Dar al-Islam’, unity
between Muslim countries
 HISTORICAL DEVELOPMENT OF INT’L LAW (contd.)
• Greeks
– Presence of city-states governed by rules; rights
granted to citizens; customs and practices prevalent
– Concept of ‘Natural Law’ by Stoic philosophers (3rd c.
B.C.): rational and logical rules rooted in human
intelligence, were of worldwide relevance; influenced
the concept of human rights in Int’l law
• Romans
– ‘jus civile’ applied to only Roman citizens
– Influenced by Greeks ‘jus gentium’ (governed
relations between foreigners, and b/w foreigners and
citizens); gradually began to be considered of
universal application
 HISTORICAL DEVELOPMENT OF INT’L LAW (contd.)
• Middle Ages
– Authority of the Church/Holy Roman Empire/canon
law/ecclesiastical law (applied to all; All Europe was of
religion)
– Developments initially restricted to national boundaries,
but influenced later developments in Int’l law
• Development of commercial law (‘Law Merchant’)
• Development of maritime law (Rhodian Sea Law)
• Renaissance period
– Undermining of feudalism
– Decline of the Church and rise of supremacy of the State
– Emergence of ‘free thinking’, enquiry
– Reformation and European religious wars
– Introduction of printing (1439)
 HISTORICAL DEVELOPMENT OF INT’L LAW (contd.)
• Rise of the modern State and betterment of International
relations doctrine of sovereignty (first analysed by Jean
Bodin in 1576) : sovereign as the supreme legislator led to
formation of the notion of ‘positivism’
• Peace of Westphalia (1648) also contributed to
development of ‘positivism’
• Proponents of Natural Law- St. Thomas Acquinas, Samuel
Pufendorf
• Proponents of Positivism (16th-18th centuries)- Richard
Zouche, Bynkershoek, Hobbes, Locke, Bodin, Vattel
• Founders of modern Int’l Law- Vitoria, Suarez, Gentili (De Jure
Belli), Hugo Grotius (De Jure Belli ac Pacis (Law of War and
Peace); Mare Liberum (freedom of the seas))
 HISTORICAL DEVELOPMENT OF INT’L LAW (contd.)
• 19th Century
– Napoleonic Wars
– Congress of Vienna (1814-15)
– Unification of Germany (1871) and Italy (1815-71)
– Industrial Revolution
– Commissions for rivers like Rhine, Danube etc
– Formation of organisations like ICRC (1863), Int’l Telegraphic
Union (1865) and Universal Postal Union (1874)
– Conferences that helped develop rules of war, dispute
settlement etc: Geneva Conventions (1864-1949), Hague
Conferences (1899, 1907) est. PCA
– Transformation of the doctrine of sovereignty State as a
metaphysical, abstract entity doctrine of the will of the state
(Hegel)
– Monists (Kelsen) v. Dualists (Triepel)
 HISTORICAL DEVELOPMENT OF INT’L LAW (contd.)
• 20th Century
– WW I
– Treaty of Versailles, 1919 (‘Peace Treaty’)
– Creation of League of Nations
– PCIJ (1921)
– Int’l Labour Organisation (ILO) founded in 1919
– Mandate System
– Failure of League of Nations
– WW II
– Est. of UN
 HISTORICAL DEVELOPMENT OF INT’L LAW (contd.)
• Communist approaches to Int’l Law
– Korovin and Pashukanis (int’l law was an interclass law in which
different class systems could be accommodated till socialist
system emerged victorious)
– Stalinism- ‘Socialism in one country’
– Soviet Union bound only by those rules to which it had
consented (Leninist-Stalinist foreign policy)
– Principles of socialist internationalism, equality, self-
determination, peaceful co-existence (Prof. Tunkin); Tunkin
recognised presence of a single system of Int’l law rather than
different branches for socialist/capitalist countries
– Decline of narrow approaches after the collapse of Soviet Union
(onset of Perestroika and Glasnost)
– Chinese concepts (Confucianism, Marxist-Leninist Philosophies,
emphasis on class warfare, emphasis on universalism to be
achieved only because of socialism)
 HISTORICAL DEVELOPMENT OF INT’L LAW (contd.)
• Third World Approach to Int’l Law (TWAIL)
– Bandung Conference (1955) considered as birthplace
of TWAIL
– Promotion of ideals of independence, self-
determination, decolonisation
• Declaration on the Granting of Independence to Colonial
Countries (1960)
– Against a ‘Eurocentric’ concept of International law
dominated by ‘Imperialist’ countries
– New International Economic Order (NIEO)
– G-77 (1964)
– B.S. Chimni, Makau Mutua, Antony Anghie, other
Latin American, Asian and African scholars
MODERN THEORIES OF
INTERNATIONAL LAW
 A. Positivist School
• Law as it exists; analysis to be done empirically; devoid of ethical elements; practical realities given more weightage as
opposed to Natural Law
• 1. Kelsen’s ‘Pure Theory of Law’
– Law as separate from justice (considered ‘justice to be discipline of pol.sc.)
– Law as normative science (based upon rules which laid down patterns of
behaviour); validation of rules through ‘grund norm’
– International Law context: Importance of custom (States ought to behave
as they customarily behaved; pacta sunt servanda) Treaties and
Conventions Rules laid down by international insti. and organs (eg-ICJ)
– Monist stance [Int’l law+ Municipal law =1; Int’l Law > Municipal Law]
– Criticism:
• Dependence on non-legal issues (eg-supremacy of parliament)
• Fails to answer why custom is binding
• Monist stance shows many loopholes when applied to Int’l Law
• 2. Hart
– Law= system of rules based on Primary (standards of
behaviour) and Secondary rules (means for
identification, development of procedures for change)
– International Law context: Lack of centralised
legislature, network of recognised courts with
compulsory juris., organised means of enforcement. No
presence of a ‘rule of recognition’
• Acc. to Hart, Int’l law is not a ‘system’ but a set of rules
– Criticism
• Too much reliance on rules (excludes principles, foreign policies
etc)
• Difference between ‘system’ and ‘set of rules’?
 B. Influence of Sociological School
• 1. Roscoe Pound
– Social engineering
• Law = method of social control; rejection of conceptual approaches in favour of
functional analyses
• Emphasis on ‘what was happening within the legal system’, claims and satisfaction of
claims
• Empirical investigations; development of sociology/anthropology/psychology
• Rejection of legal rules, ethical and historical factors as part of legal system
– Led to theories of Realism
• Law as an institution functioning as part of a community
• Emphasis on understanding of behaviour of courts and legal officials
– Criticism
• Rejection of conceptual nature of analysis
• Rejection of rules and other factors
 C. Revival of Natural Law
• Revival of principles given by Thomas Acquinas and adopted by the Catholic
Church supremacy of reason; dignity of man; immoral law contrary to right
reason and eternal law of God
• 1. Stammler (formal idealist school)
– ‘Natural law with a changing content’
– ‘Concept’ of law (abstract) is different from ‘idea’ of
law (purpose and direction to legal system)
• 2. Geny and Duguit (sociologically inspired approach)
– Focussed on defining Natural law in terms of
physical/psycho./socio./hist. factors
– Emergence of new institutions + influence of
Natural Law relevance of non-aggression, human
rights etc.
 New Approaches to International Law (NAIL)
• Traditional view- focussed on actions of ‘independent States’; new approaches focussed on expansion of international
order and change in behaviour of States
• Also known as ‘wave of advance’
– Factors such as WW1 and WW2; rise of the concept of ‘balance of power’
• Behaviouralist movement (more a method, less a theory)
– Introd. of elements of psycho./anthro./socio./ to IR emergence of
interdisciplinary nature of studies
– Brought forth the dynamic nature of law
– Reasons for development- change in roles and responsibilities of States
(from earlier non-intervention to greater responsibility and human rights)
– Decision-making in this approach different from ‘fight’ approach and
‘debate’ approaches in IR
– Resultant division of IR into 2 studies
• Consideration of foreign policy techniques
• International systems approach
 1. Behaviouralist theory (Application of Behavioural
Movement to Int’l Law)
• a. Prof. McDougal
– ‘policy-orientated’ movement = law as a process of decision-making than
just a set of defined rules (thus, Int’l law is a dynamic system)
– Evolution of Int’l Law depends on knowledge and insight of decision-maker
– Listed 8 values through which Int’l law evolves (not exhaustive): power,
wealth, enlightenment, skill, well-being, affection, respect and rectitude
– Int’l Law = process of authoritative decision-making involving concepts of
authority and control
– Criticism
• Less emphasis on legal content of subject
• Ignores importance of rules
• Element of subjectivity (human dignity, welfare etc.)
• b. Prof. Falk
– Balanced approach
– Combine emphasis on both welfare and regard for rules
• c. Prof. Franck
– Brings back focus on why States obey Int’l Law and why the system works
despite its unstructured condition and lack of strict enforcement
– Brings in the concept of ‘legitimacy’ to answer the question-
“A property of a rule or rule-making institution which itself exerts a pull
towards compliance on those addressed and operates in accordance with
generally accepted principles of right process”
– Legitimacy dependent on verifiable criteria: 1) determinacy/transparency,
2) authority approval, 3) consistency and coherence, 4) adherence
– Laid emphasis on ‘fairness’ which is linked to legitimacy and justice as
morality
– Emphasis on ‘individuality’ role of HR law, etc
 2. Critical Legal Studies Approach [post-Realism theory]
• Instead of a general theory of Int’l law, focusses on particular
aspects and particular procedures of dispute settlement
• Rejects adoption of liberal principles onto international arena
• Criticism of Liberalism:
– Liberalism tries to balance indiv. freedom and social order, but ends
up inclining towards one of them
• Equal emphasis on legal as well as political concepts
• Koskenniemi- theory answers questions regarding relation of
law and society and legitimacy of constraints/limitations; focus
on specific problems; analyses policy-oriented approach
• No proper international order actually exists
• Takes into account competing norms and States’ choices
between them