BASIS OF

INTERNATIONAL LAW
 Introduction

• There are two main theories regarding

basis of international law
– Natural law theory or theories as to the
law of nature
– Positivism
 Natural Law Theory
• This theory can be traced back to the
Greek civilization.
• According to naturalists what is law is
based on a higher law dictated by reason.

• States submit to IL because their relations

are regulated by the higher law – the law
of nature.
• The concept of law of nature was
promoted in the 16th and 17th century.

• Grotius rationalized the natural law and

applied it in International law.

• Grotius took a bold step to secularise

natural law.
• Natural law is based on the idea that
individuals “possess…the knowledge of
good and evil”—conditioning for right and
wrong is not necessary as the conscience of
every individual has an innate idea of what
is right and what is wrong.

• Natural law would “still have a degree of

validity even if…there is no God;” it should
be noted that despite Grotius’ belief that
natural law can be affirmed through reason
in the absence of God.
• Grotius argued that states must recognize
that there are inherent in each state, rights
which can give birth to a system of law.
• Vattel (1714-1767) said that application of
natural law results in the law of nations. He
says that nations are absolutely bound to
observe natural law.
• There cannot be rights without
corresponding duties. So what is required is
duties and rights would follow.
 Criticism of Natural Law

• It is differently interpreted

• It is subjective rather than objective

• Not based on realities and actual practices

of the states
 Positivism
• Positivism is based on law of positivism,
that is, law which is in fact in comparison to
law which ought to be.
• As per positivist theory, international law
consists of rules which the states have
consented to observe.
• The consent may be express or implied.
• The validity of law is based on the will of
the state and the rules of international law
and municipal law are issued by the will
of the state are binding on both

• Bynkershock, a Dutch jurist is the main

exponent of this theory.
Other Theories regarding basis
of IL
• Some of the other theories regarding basis
of IL are as follows:
• Theory of Consent
• Auto-limitation theory
• Pact sunt servanda
• Theory of fundamental right
• Dworkin’s theory of international law
 Theory of consent
• As per this theory consent is the basis of
IL.
• IL is treated as binding because the states
have given their consent for its
implementation.
• Main exponent of this theory are Anzilotti
Triepel and Oppenheim
• According to Oppenheim common consent
of the family of nations is the basis of
international law.
 Criticism
• Fails to explain the basis of customary law
• It does not explain the recognition of a new
state as it is fallacious to say that there is
implied consent on the part of recognized
state.
• Acc. to Starke it is not necessary to prove
that the other state or states have given their
consent in regard to the specific rule of
international law
• Smith criticizes that all states are bound by
IL and irrespective of whether they
consent or not
• Hans Kelsen view is that States are bound
by the general international law even
against their will
• A state is bound by IL for the simple
reason that they are a state.
 Auto Limitation Theory
• According to this theory, international law
is binding upon states because they have
restricted their powers through the
process of auto-limitation and have agreed
to abide by the IL.
• Jellick is the chief exponent of this theory.
This theory has its basis in positivism.
• It lays emphasis on independence and
sovereignty of the states.
• Each state has a will which is completely
independent and free from external
influences.
• Through the process of auto-limitation,
States can restrict its powers and thereby
limit its will.
• Some of the criticisms of this theory is that
state does not have a will but it is the
people who have it.
• Auto limitation implies that state can free
itself from self-imposed restriction at its
will which is not possible.
 Pacta Sunt Servanda
• It is a doctrine borrowed from the Roman
law.
• According to this doctrine, the parties to a
treaty are bound to observe, its terms in
good faith.
• It means that the agreements entered into by
States will be respected and followed by
them in good faith.
• It is a recognized custom of international
law which finds mention in Article 26 of
the Vienna Convention on the Law of
Treaties, 1969.
• Anzilotti terms this as the foundation of the
binding force of international law.
• The binding force maintains order in the
international field or else it would result in
anarchy and disorder.
• However, the binding force of international
law is not only based on pacta sunt
servanda.
 Theory of Fundamental Rights
• This theory is based on the naturalistic
view point.
• Prior to the existence of state, man used to
live in natural state and even in that state
he possessed some fundamental rights
like independence, equality and self
preservation. Like man, state also possess
fundamental rights.
 Criticism
• Brierly criticized this theory stating that
the fundamental rights which the state
bring with it when it is admitted to a
family of nations is meaningless unless
there is a legal system which confers
validity to them.
Dworkin’s theory of international
law
• IL is not based on consent but on the
obligation of states to improve their political
legitimacy.
• International law can help to do so by
correcting the shortcomings of the state
sovereignty system.
• Criticism – State will be less willing to
negotiate deep international agreements in
future.
 True Basis of IL
• Brierly was on the binding principle of
law is that man believes that order and not
chaos is the guiding principle of the world
that he lives in.
• Sir Cecil Hurt observes that the modern
concept of state is itself a creation of
international law and it is by the canons of
IL that the rights and duties of a state is
defined.
• No state can live in isolation and IL is a
need and concomitant of statehood.
• State is not a person with life and will.
• It is an organization of men for attaining
certain objectives.
• Order is sine qua non for the state as an
organistion and IL prevents chaos among
nations and provides rules for order and
peace.
• Hence, States obey IL and consider it
binding