International Law: Historical Development, Theories and Sources

Presented to
Atty. Fretti G. Ganchoon
College of Law, University of the East

By

Sebastian Gabriel M. Elardo

July, 2019
 “International politics, like all politics, is a struggle for power1”. Hans
Morgenthau wrote this in his renowned work, Politics among Nations: the Struggle for
Power and Peace. Concepts like international relations and politics, power, peace, and
war are dictated by international law. Morgenthau, as well as many other sociologists
and political scientists, attempt to analyze international law and draw from it the
theoretical frameworks which aim to establish its precepts.

To manifest a thorough understanding of international law, a theoretical

overview is needed to determine how it became what it is now. Before international
law was established, international relations among states relied heavily on theories
which dictate their interaction among one another; the protagonists of these theories
being liberalism and realism. These theories on international relations are based
primarily on the social contract theorists, Thomas Hobbes, Niccolo Machiavelli, and
the liberal theorist Emmanuel Kant.

The stark contrast of realism and liberalism in terms of international relations

lies in both of their frameworks. A quick look on Hobbes and Machiavelli’s social
contracts pertaining to realism highlights that men and nations gravitate towards power
and that they will do everything to isolate it from their fellow men and nations2. E. H.
Carr and Hans Morgenthau give a clear discussion on what realism entails and how
its Hobbesian characteristics affect international political life and the power struggle
pervading the arena of international relations3. They state that many meaningful
hypotheses about state behavior could be deduced from the fact of anarchy, a key
characteristic in Hobbesian politics. Hobbes’ social contract entails an original state of
anarchy in which power is grabbed by the strongest or in other words, survival of the
fittest.

Liberalism; on the other hand, is a political theory wherein protecting and

enhancing the freedom of the individual man takes center stage. This theoretical
approach pales in contrast to realism which ascribes an animalistic, nasty, short, and

1
Morgenthau, H. J., & Thompson, K. W. (1993). Politics among nations: The struggle
for power and peace. New York: McGraw-Hill.
2
Ruggie, J. (1998). What Makes the World Hang Together? Neo-Utilitarianism and
the Social Constructivist Challenge. The MIT Press, 855-885.
3
Blyth, Mark. (2009). Routledge Handbook of International Political Economy (IPE).
Abingdon, Oxon: Routledge.
brutish attribute to human and international relations. Unlike Hobbesian realism which
ascribes to it an anarchic political landscape leading to a state formation which only
aims to consolidate power and establish order among its people, liberalism, sees the
state as a “necessary evil”, which aims to limit the freedom of man4. This; however, is
a classical view of liberalism. A neoclassical view on liberalism, a theoretical
framework adopted in the late 19th century, purports that the main task of the state is
to promote and protect the freedom of the individual in society. The government must
vanquish poverty, disease, and discrimination; major factors in inhibiting genuine
individual freedom to grant genuine freedom to its constituents. This liberal theory
redounds to international law and how it leads to an ideal view of world order5.

Liberal theories such as the neo-classical liberal view focus on the state and
society, their interdependence, and has been increasingly important in understanding
international law. As nations grow more interdependent with one another, the struggle
to maintain cooperation in the midst of diverse economic interests, local government
institutions, and ideals of legitimate world order, international law will be dependent on
the answers liberal theories will pose. There has been liberal explanations for the
depth of international law and why instrumental local governments would take part into
binding international laws and legal norms.

The focus of international law, in this regard, can be comparatively analyzed to

determine the advantage of each theory. Explaining the substantial focus of law is a
task wherein few international relations theories excel. Liberal theory has a particular
comparative advantage as opposed to realism in this regard. Realism seeks to
pronounce on the results of strategic interaction, bargaining, and power-plays to
overcome or attain substantive matters. Constructivists; on the other hand, only seek
to explain substantive matters on international relations, but they do so not to realize
material interests and legitimate ideals6.

4
Ibid.
5
Carty, A. (1991). Critical International Law: Recent Trends in the Theory of
International Law. European journal of International Law, 1-27/
6
Moravcsik, A. (2012). Liberal Theories of International Law. International Law and
International Relations: The State of the Art, 1-96.
 For liberal theory, the start of explaining why an instrumental local government
would engage into binding international laws and legal norms, and comply with them
afterwards, is that it possesses a substantive reason for doing so. From the view of
liberal theory, this entails a domestic coalition of social interests which benefits the
state from particular regulation that caters to the social needs of the people and to the
social interdependence of the state. This is more powerfully represented in local
decision making rather than the prevalent coalition of losers from cooperation and
compromise7. This is sometimes misunderstood as a realist claim, yet it ascribes more
to a system of state preferences as opposed to state power.

After the establishment of liberal theory as what makes international law binding
to states, a question of what is international law and what is its source arises. As
international law is held binding to a coalition of states, a query as to the binding power
of these laws come into mind and how they play an important role in conflict resolution
among the various states. International law devotes much of its attention to its sources.
Scholars, sociologists, and political scientists have gathered a large body of work and
research about the conditions under which international law and legal norms as well
as treaties, customs, or general principles of law bind international state actors into
submission.

Discussion about what are the sources of international law are so well
developed and widely received that further commentary seems unnecessary. This
type of discussion usually revolves around the four classic sources of international law
found in Article 38 of the Statute of the International Court of Justice8.

Article 38 of the said statute is addressed to the International Court of Justice

justices and thereafter enumerates the different sources that exists in international law
to examine in finding a law necessary to resolve a certain case. It has been regarded
as a convenient option for international legal sources and has generally been the
starting point of discussion in this area of international law.

7
Ibid.
8
Kennedy, D. (1987). The Sources of International Law. American University
International Law Review.
Article 38 reads:

1. The Court, whose function it is to decide in accordance with international law such
disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules
expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of
the most highly qualified publicists of the various nations, as subsidiary means
for the determination of rules of law.
2. This provision shall not prejudice the power of the Court to decide a case ex aequo
et bono, if the parties agree thereto9.

A contemporary analyses of these source doctrines generally start with abstract

definitions of each of the sources enumerated in Art. 38 of the statute. This allows the
boundary of each category to develop. Treaty law, for example, considers the
hypothetical prerequisites for including words under the meaning of a “treaty”. Thus
sociologists who discuss treaties feels that such would issue a sort of capacity,
competence, and the requirement of effect of a signature or ratification among states.

The importance of these inquiries for the scope and meaning of the sources
considered is the attempt to delimit boundary conditions for international law in an
abstract way, independent of the norms whose source is being considered. It is
important to elaborate a theoretical boundary which reflects the shared understanding
of those involved in category delimitation, in which these abstract categories will
dictate the content of the norms, rather than merely registering them in a piece of
paper. Modern treatises acknowledge this through partnering their abstract
discussions of sources with the distinct discussion of force and effect of such10.

In addition to abstractly defining the boundaries of the sources under

consideration of international law, some literature considers limits to the delimitation
of these sources. For example, scholars consider the local effects of these
international laws and legal norms or the force of the treaties to non-signatories. These

Ibid.
9

Ibid.
10
delimitations found in the sources of international law create a distinction as to what is
binding among states and as to what states belong to a treaty or other forms of
international law and legal norms.

A stern and active review of various theoretical frameworks which interlink with
the different sources of international law create a causal link of social interdependence
and abstract delimitations for hierarchical relations among states and their
international relation to international law and legal norms. Liberal theory and its role in
shaping the modern international landscape for state players not primarily focused in
consolidation of power, but in individual and social decision making which cater to
social needs as well as interdependence, create a bridge to international law and its
sources patterned after abstract definitions which delimit the source of international
law in an internationally binding statute.

The evolution of international law is illustrated by clashing theories and

international relations saturated by economic, political, and social interests for each
state-player. Its history is rich in landmark turning points that changed the status quo
for both domestic and international life; thereby, changing the theories that perceive
international relations and international law11. This broadening horizon in international
relations entailed an in-depth review of the sources of international law and their
abstract definitions which creates a link between theory and practical application of
laws in the international landscape.

11
Foster, J. W. (1909). The Evolution of International Law. The Yale Law Journal,
149-164.