NATURE AND BASIS OF

INTERNATIONAL LAW
Dr. Manzoor A. Naazer
 1. NATURE OF INT. LAW
• It has been a topic of discussion and
controversies among the jurists since the
development of international law in the
modern era,
whether the international law is true law or
just a collection of ethical rules.
There are two opinions among the jurists.
1. No, it is not a law 2), Yes, it is a law proper.
• This division is based on the view taken by
different schools of thought or jurisprudence,
on very idea and definition of the law itself.
• According to Positivist, Classical or Analytical
school of thought, law is a) only the command
of the sovereign or command given by a
superior to an inferior, i.e. made by the
legislative authority b) and it must be backed
by the coercive power of the state.
• The jurists from Historical School of thought view
that law is a result of long historical growth in
the society, and it evolves through the social
customs, religious precepts and practices of
the people. People observe them due to their
sense of righteousness, conscience, & habits.
• According to jurists from Sociological School of
thought, social and economic needs of the people
are the true sources and sanction of rules or law in
societies.
 International Law is not a proper law:
Positivist View
• Hobbes, Bentham, Punfendorf, Holland, Austin
and Brown etc. view that International Law is not
a proper law. For them, it is just an positive
international morality or ethics or “quasi-law”
• They make following objections:
1. Law is a command of sovereign.
But there is no sovereign above the states. They
possess sovereign equality, international system
is anarchic; & there is no authority above the
states.
2. Law is always formulated by the legislative
authority / body. There exist no such authority
/ body at the international level.
3. Law must be backed by the coercive power of
the state. If it lacks sanction, then it is no law.
There is no authority (executive) at the
international level which can enforce
international law and punish those who
disobey or violate it.
4. There are no judicial organs which can
interpret international law OR
• The jurisdiction of international courts is not
compulsory.
5. The States frequently violate international
law.
 International Law is a Proper Law:
Modern View
• Several jurists such as Oppenheim, Brierly,
Hart, Maine, Starke, and Westlake besides
others strongly reject the notion that
international law is not a proper law.
• They hold that international law is a proper
law in every respect.
 Summary of their arguments:

sources
1. Law comes out of the established habits,
practices and customs of the people.
International Law is based on the practices
and customs of the states.
2. Multilateral treaties and conventions at
international level occupy the same status
and significance as legislation made by the
law-making body of a state.
 Sanction
3. People obey law, not because of fear of the state,
but due to their sense of righteousness,
conscience, habits, concern for public opinion
and their own material benefits (socio-economic
needs).
Similarly, states observes rules of international
law because they perceive it a right behaviour, as
well as due to the fear of public opinion, and for
their own national interests.
4. Sanction also exist at the international level, i.e.
victim states can retaliate according to
international law. International bodies such as
the UN under chapter VII of its charter, can take
action against violator of its charter, e.g. against
North Korea in 1950, Iraq in 1990.
adjudication
5. International courts such as ICJ, ECJ, ECHR etc.
can interpret rules of International law and
adjudicate in case of conflict among states etc.
 Binding nature of court’s decision
• Some of these courts, such as ECJ and ECHR
have compulsory jurisdiction and their
decisions are bindings on member states.
• In case of ICJ, disputant states pledge in
writing in advance to accept its decision.
According to the UN charter, security council
can suggest measures if a state does not
implement the decision of ICJ.
 violation
6. Violation of a law does not mean that law does not
exist. Even people violate national laws.
Most of the time, most of states observe most of the
rules of international law. Even when some states
violate the rules, they try to justify their actions
according to int. law which means they accept its
existence.
States through their actions and announcements and
international organizations in their charters refer to int.
law. It means that they accept its reality.
 Weaknesses of International Law
• 1. International law is weak in terms of the mechanism
for its formulation, interpretation, adjudication and
implementation at global level.
• 2. Its pace for development and codification is slow.
• 3. The scope of International Court of Justice (ICJ) is
limited. It has no authority to interfere in the domestic
affairs of the states and to solve the conflicting issues
until states themselves ask ICJ to solve the issue.
• 4. International law cannot make great powers
accountable.
• 5. It is a weak law and needs several measures to be
made effective.
 2. BASIS OF INTERNATIONAL LAW
• There are two main schools of the thought with
regard to as: what is the basis of International Law;
Naturalists and Positivists.
• 1. The leading naturalist writers include:
Hugo Grotius, Vitoria, Suarez, Gentili, Zouche, Pufendorf,
Vattel etc.
• These writers, despite several disagreements on different
points, agreed that the basic principles of all law (national as
well as international) were derived, not from any deliberate
human choice or decision, but from principles of justice
which had a universal and eternal validity and which could
be discovered by pure reason; law was to be found, not
made.
• These basic principles of law were called
natural law.
• Natural law was originally regarded as having
a divine origin, but Grotius wrote that natural
law would still have existed even if God had
not existed; instead, Grotius considered that
the existence of natural law was the automatic
consequence of the fact that men lived
together in society and were capable of
understanding that certain rules were
necessary for the preservation of society.
• According to this line of argument, the
prohibition of murder, for instance, was a rule
of natural law, independently of any
legislation forbidding murder, because every
intelligent man would realize that such a rule
was just and necessary for the preservation of
human society.
• The essence of the theory was that law was
derived from justice, and, although lawyers
and judges often appeal to justice in order to
fill gaps or to resolve uncertainties in the law,
the theory of natural law must logically lead to
a much more radical conclusion, namely that
an unjust rule is not law at all and can be
disregarded by the judge; but this is a
conclusion which no modern legal system
would accept.
• Naturalists claim that states observe rules of
international law, because it is a part of the
natural law, which is a superior law based on
human reasoning and sense of justice. For
them, the rules of international law must be
based on justice, therefore, they emphasized
what the rules ought to be, as contrast to the
positivists who focused on the actual practices
of the states.
• The Positivists, such as Austin, Cornelius,
Moser, and Martens etc. rejected this notion.
They believe the law which has been enacted
by states is the only law. They focused on the
law what it is, i.e. the actual practices or
customs of the states.
• They believe that the states observed rules of
law because they have given a consent
(expressively or implicitly) to that effect.
• The states give their consent expressively in
the shape of written agreement.
• They give implicit (silent) consent (implied
consent) in the shape of customs / practices.
• Eclectic Theory / Third Perspective:
• Jurists such as Vattel and Westlake etc. have
taken a middle course.
• They believe that international law is based on
both the natural law as well as the voluntary
law i.e., law made by the consent of the
states.
• THE END