INTRODUCTION

For proper maintenance international relations, International Law is of

prime importance. By International Law we infer, a set of rules which
regulate the conduct of nation states and nations of the world feel
obliged to them. Whenever any situation or conflict arises between two
nation states, International Law is considered for its redressal, thus the
states have to obey the rules enshrined in it. These rules are enforced
in order to obtain peace and harmony in the world and for enlightening
nation’s self interest. At times Nation States tend to act in
contradiction to International Law, such act prejudices their credibility
amongst other states and such violations jeopardize in the eye of
citizens, the value of the system.
The basic tenets of International Law can be traced back thousands of
years ago; even at that time treaties were formed for peaceful
settlement and avoidance of disputes between different territories. An
instance of such treaty could be the one around 2100 B.C. in the
Mesopotamian region between the rulers of Lagash and Umma;
another instance would be the treaty between Egyptian pharaoh
Ramses II and Hattusilis III, which took place around 1258 B.C. Such
various other agreements took place in the Middle East region, India,
China, Greek[1].
Greek acted as an important source in the evolution of International
Law. There were numerous city states in Greek who prescribed certain
rules and regulations for interaction so as to minimize conflict amongst
them and acquire peace; to some extent it depicts glimpse of modern
International Law. But these rules were not applicable for interaction
with non-Greek states. On the other hand, Roman Empire felt that
there was no need of developing any International Law because they
did not abide by the rules while dealing with foreign territories [2]. But
they did enact municipal laws, called jus gentium, for interaction of
Roman citizens with foreigners and was based on the principles of
Natural Law and even today it can be found in modern International
Law.
The Middle Ages were predominantly based on the authority of the
Church; since the whole Europe was one religion therefore the
Church’s command and authority was binding on all irrespective of
their tribe and religion. In this Era the authority of Holy Roman Empire
along with ecclesiastical law was of prime importance; however,
commercial law and maritime law developed and various mercantile
courts were set up to resolve dispute between tradesmen. Since the
law was applicable in the whole of Europe, it formed International
Trade Law; not only mercantile law but also maritime law was soon
applicable on the whole of European continent. These laws formed
National Legal Systems and are considered to be one of the
predecessors of International Law since they dealt with international
circumstances.
Earlier theorists’ philosophies on International Law were based on
Natural Law, i.e., law of God or divine law [3]. Afterwards there was
emergence of two different schools of thought, i.e., Naturalist School
illustrated by Samuel Pufendorf according to whom, International Law
was based on Law of Nature and Positivist School, according to whom
International Law was distinct from Natural Law and mostly derived
from the same method as the one adopted by the Renaissance, i.e.
empirical method.
19th century was practical positivist era. The Industrial Revolution
mechanized Europe, created the economic dichotomy of capital and
labour and propelled western influence throughout the world. Also the
wave of concept of democracy caused a great influence politically and
people then had a say in it, war became everyone’s concern, large
national armies were replaced by small professional forces. These
various factors led to the emergence of various public and private
international institutions, thereby causing growth of international law
to oblige them.
After the Second World War, International Law gained much more
importance than before and the significant step taken to achieve the
same was the replacement of League of Nations by United Nations in
1945, which further led to the establishment of new World Court, i.e.,
International Court of Justice[4]. UN took strict action against the
offenders as compared to the League of Nations. Also the International
Monetary Fund was established to curb the great depression of 1930s
and the World Bank to promote international investment for economic
development. International Trade organization was also established to
govern trade amongst nations. The aim behind establishing such
organizations was to create rules binding universally and form a global
community.
DEFINITIONS OF INTERNATIONAL LAW
Earlier, instead of International Law, the term used was “Law of
Nations”. The term International Law was first coined by Jeremy
Bentham in 1780. Various definitions of International Law were given
by Oppenheim, Brierly, Torsten Gill, Hackworth, Fenwick,
Schwarzenberger; since, time and again, International Law has been
defined by focusing on different factors, so there can be no single
universally acceptable definition to the same. Some of the definitions
are mentioned below:
Oppenheim defined international law as the name for the body of
customary and conventional rules which are considered legally binding
by the civilised states in their intercourse with each other. [5]
Brierly defined it as the body of rules and principles of action which are
binding upon civilised states in their mutual dealings, maybe when
they are in hostility or in peace.[6]
According to Hackworth, international law consists of a body of rules
governing the relations between the states. It is a system of
jurisprudence which, for the most part, has evolved out of the
experiences and the necessities of situations that have arisen from
time to time.[7]
Fenwick defined it as the body of general principles and specific rules
which are binding upon the members of the international community in
their mutual relations.[8]
The definitions mentioned above are not the only ones and there exists
many more, which depict the expansive nature of the law and a
distinct definition would tend to restrict the scope of the subject. In the
puritan form, International Law can be defined as the sum of the rules
accepted by the nation states as to determine their code of conduct
towards each other’s and to their subjects also; in its broadest sense it
can be said that this law governs people of the world irrespective of
the political and geographical constraints and colour, creed, religion.
International Law deals with States as entities irrespective of their size
or power. It provides with rules and regulations to the nation states
and expects that the states abide by the same. As the scope and
nature of International is dynamic, now these rules are not only
applicable to states but to International Institutions, non-State entities
and individuals also.
NATURE OF INTERNATIONAL LAW
Earlier, the basis of international law was based totally on municipal
law and for the same reason was considered to be law of nature. The
controversy on its nature emerged with the advent of 19 th century i.e.,
due to positivists, that whether international law is true law or not and
the answer to this question varies with the definition of law as given by
various jurists. Thus there are two distinct thoughts on this view. The
positivists are of the view that international law is no law and consists
merely of rules of positive morality and stated that there cannot be no
international law since there is no international legislature to make it,
no international executive to enforce it, and no effective international
judiciary to develop it or to resolve disputes about it. [9] According to
them as there is no superior authority to enforce the law therefore the
states do not have much respect for it and thus has lack of intent to
obey it and they obey it only if there is some personal interest in it.
But the modern jurists are of a different view and state that
international law is not a set of rules of positive morality, but it is as
much a legal system as any other municipal legal system. The
international law is very much considered law by the international
communities and those who conduct international business in various
capacities. Even the State which wishes to escape from an
inconvenient rule of international law would not deny the existence of
international law as such, but would justify its action either by
challenging the existence of such a rule or by invoking another rule
applicable to its case or claiming that the rule should be modified to
meet a new situation.
The above mentioned schools of law have different views regarding the
nature of international law due to difference of view in the definition of
the word “law”.
LEGALITY OF INTERNATIONAL LAW
It would be wrong to state that International Law is not a true law. No
doubt, international law is less imperative and less explicit than the
state law but nevertheless it is law inasmuch as it is enforced partly by
the conviction that it is good and partly by those subtle influences
which make it difficult for a man or body of men to act in defiance of
strongly held views of those with whom they associate. [10] The
element of compulsion cannot be sole criteria to determine a rule as
law, rather law is enforced by the consideration of justice along with
force. The thing that matters the most is that international law must be
reflected in the treaties amongst the nation states and in their own
policies.
According to Austin, international law was positive morality. A rule of
morality is a rule which applies to conscience only and cannot be
enforced by external power while a rule of law can be enforced by
external power.[11] International morality or international ethics can be
defined as standards set out for the right behaviour of an individual
based on personal judgements. Although attitudes about morality
when widely shared, influence the development of international law,
there is no recognised legal obligation to obey the norms of morality
until they are accepted by authoritative decision-makers as
international law.[12] Now the nation states have mutually agreed to
follow the international law thereby giving it a binding nature which is
absent in case of morality. The agencies which are responsible for
maintaining international law do not consider it merely a moral code
and consider that the questions arising on international law are legal
questions.
There are various nations which consider that the international law has
a binding force on its citizens similar to that of municipal law. The
Courts have time and again accepted the relationship between
international law and morality. In the Continental Shelf Case[13] of
1966, the Court observed that whatever might be the reasoning of
Court of Justice but it should be just. Thus, it cannot be said that
international law is mere positive morality. Time and again it has been
reiterated in various international conferences that international law
has a legally binding force. Thus, international law is real law and not
mere positive morality.
THEORIES AS TO THE BASIS OF INTERNATIONAL LAW
There are mainly two theories as to the basis of international law due
to difference in opinion as to where does the international law derive
its binding authority, which are mentioned below:
 NATURALIST THEORY: Most of the jurists of 16th and 17th century
were of the view that the basis of any law is law of nature and
international law being part of law has the same basis and for the
same reason is binding on the states. At a point of time, Natural
Law was regarded to be Divine Law connected with religion, but
later this definition changes and Natural Law was considered to
be an ideal law which dictated as to what is right and wrong
behaviour of human. Thus, all States, as members of universal
community, are obliged in order to conserve peace and security
to act always in accordance with the principle that the common
good of mankind is paramount to their individual interest.
[14] Thus, international law was considered to be binding in
nature by this school of thought because its basis was natural
law.
In the 18th and 19th century, naturalists faced severe criticism and
declined and led to rise of positivists.
 POSITIVIST THEORY: This school of thought was in vogue in the
19th century and was of the view that people would be bound to
obey law if it was created by appropriate legislative authority or
sovereign irrespective of its being reasonable or unreasonable.
[15] According to them, law must be analysed empirically,
irrespective of its ethical elements, i.e., law must be studied as it
exists and law is the command of the sovereign having sanction.
The rules of international law and municipal law are equally
binding, since both are issued by the will of the state, which is the
 source of validity of law.[16] Thus, it is the will of State, which
commands obedience and is the basis of international law.
The two above mentioned schools of thoughts are extreme and the
true basis of international law, vests neither solely with natural law nor
with will or consent of the state, rather there are varieties of factors
due to which States obey international law. International law is the
necessary concomitant of statehood, and is binding on states because
they are states and with the canons of international law, the rights and
duties of states are defined.
DEVELOPMENT OF INTERNATIONAL LAW
The position occupied by International Law and International
Organizations has varied from time to time. Earlier there was no
universal law binding on all the nation states but now they have to
abide by laws. The law was once restricted to one’s region, slowly and
steadily, it included in its arena such laws as would help in maintaining
peace in the neighbouring land. The enactment of International Law
was always essential and will be essential in the time to come provided
amendments take place according to the world scenario. As earlier
none would have imagined that restricting the use of nuclear plants
would be important but now, the scenario is such that if it is not
forbidden then nation states would not think twice to have a nuclear
war. International Law has always acted in the promotion of peace and
security, as with the establishment of International Court of Justice,
various nations’ disputes have been resolved, if there would have been
no International Law then the scenario would be such that the nation
states would be waging war even for trivial disputes. International Law
has always been and will be one of the most essential laws, without
which the world could even come to an end.

[1] Milena Sterio, The Evolution of International Law, 31 Boston College

International and Comparative Law Review 213, 216 (2008).
[2] Ibid
[3] Ibid
[4] Supra Note 10
[5] Roland R. Foulke, Defintion and Nature of International Law, 19
Columbia Law Review 429, 431 (1919).
[6] Rajib Raunak, International Law: Nature, Scope and Subjects: A
Bird’s eye view, Legal Service India (December 25, 2020, 10:04 AM),
http://www.legalservicesindia.com/article/1249/International-Law:-
Bird.html
[7] Aqib Aslam, International Law: Definitions, Nature and Basis, Legal
Service India (December 25, 2020, 10:34 AM),
http://www.legalserviceindia.com/legal/article-2167-international-law-
definitions-nature-and-basis.html
[8] Ibid
[9] Mehrdad Payandeh, The Concept of International Law in the
Jurisprudence of H.L.A. Hart, 21 The European Journal of International
Law 967, 969.
[10] Supra Note 1
[11] Sumanth Gowda, Morality in Rule of Law, Legal Service India
(December 25, 2020, 12:38 PM),
http://www.legalserviceindia.com/legal/article-3528-morality-in-rule-of-
law.html
[12] Ibid
[13] Germany v. Denmark, (1969) ICJ Rep 3.
[14] Holly Barrington, Legal Approaches to Public International Law and
the Nature of International Affairs, E-International Relations (December
25, 2020, 6:10 PM), https://www.e-ir.info/2013/08/13/the-nature-of-
global-affairs-from-legal-approaches-to-il-sources/
[15] Ibid
[16] Ibid

Two main approaches to

international law: positivism and
naturalism
Historically, there are two main approaches to
international law:

– Natural law, which can be thought of as the idea

that power of law does not come from voice of
authority. In contrast positivisim says the authority is
what makes the law the law. Natural law says there is
a higher reason why the law is the law (e.g morality,
universal principles, religious, etc.). Under natural law,
horrific immoral laws would not be valid even if they
came from a legitimate authority.

The application of these approaches goes back 2000

years. Natural law finds its origins in ancient Rome and
Cicero the philosopher. Thomas Aquinas examined
source of the aw’s legitimacy; according to him natural
law is God’s natural law.

A modern definition explores how natural law is

universally applicable with rules derived from reason; a
doctrine that human affairs should be governed by
ethical principles understood by reason.

Other notable contributors to the historical

development of ‘natural law’ include Hugo Grotius –
philosopher from Dutch Republic, who is often
regarded as the father of international law. His view
was that source of international law is oriented
towards natural law. He argued that even if we reject
theological basis of natural law, the ideas are
sufficiently evident from reason to allow us to follow
them. In the formation of natural law in the early years,
states were not exclusive subject of international law
and non state actors were able to participate. The later
positivist doctrine removed the rights and obligations
of individuals from international law.

In the early 20th century positivism grew and

naturalist law shrunk.
– Contributions from Jeremy Bentham, 1800s and the
principles of moral and legislation. His work ushers in
end to natural law. He defined international law as
concerned transactions between sovereigns and
divided international law into two categories: public
and private, the former referring to states and the
latter to individuals.

We can describe positivism in general as: paradigm

holds international law based on state consent. This
would be created in contractual like fashion between
states. For many years a related idea was popular: that
only states are subjects of international law. After
WWII, individuals were decided to have rights and
obligations under international law (e.g. Nuremberg
trials, crimes against humanity, genocide, etc.).

There are 3 key assumptions of positivism as

explanation for law’s legitimacy: positive declaration
i.e. law must be expressed; IL is created by sovereign
states which are the subject of international law; it
holds that law is effective even if it is unjust when
measured against some moral standard ie there is no
necessary conformity of international law to morality.

Some additional thoughts to consider:

-jus cogens. A peremptory norm. Is a fundamental

principle of international law which is accepted by the
international community of states as a norm from
which no derogation is ever permitted.
-how can jus cogens exist in the context of positivism.
States are bound by jus cogens norms, but positivism
suggests laws can only exist pursuant to some sort of
authoritative body. There is an apparent disconnect.
– Establishment of UN a new era of multilateral law
making began.

Natural law would understand international law as the

source being a validity that comes from a system of
norms such as reason or morality. A natural law
understanding would say that a law cannot be created
by states that contravenes jus cogens norms.

A positivist approach would say that its state consent

that creates international law. Law does not have to be
consistent with morality or a higher state of reason.