CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

NAYANAGAR, MITHAPUR, 800001

FINAL DRAFT SUBMITTED IN THE PARTIAL

FULFILMENT OF THE COURSE TITLED-
INTERNATIONAL LAW
INTERNATIONAL LAW AND POSITIVISM

SUBMITED TO:
Ms.SUGANDHA SINHA

SUBMITTED BY:
ABHISHEK KAUSHAL
FIFTH SEMESTER
ROLLNO. = 1703
B.A.LL.B (Hons)
SESSON-2017-2022

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 ACKNOWLEDGEMENT

I would like to thank my guide, mentor, SUGANDHA SINHA

without whose constant support and guidance this project would have
been a distant reality.
This work is an outcome of an unparalleled infrastructural support
that I have received from Chanakya National Law University, Patna.
I owe my deepest gratitude to the library staff of the college.
It would never have been possible to complete this study without an
untiring support from my family, specially my parents.
This study bears testimony to the active encouragement and guidance
of a host of friends and well-wishers.

THANK YOU
NAME-ABHISHEK KAUSHAL
B.A.LL.B (HONS)
ROLL NO.=1703
FIFTH SEMESTER
SESSION=2017-2022

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 CONTENT

S.NO CHAPTER PAGE

. NO.
1 INTRODUCTION
*DEFINITION OF
INTERNATIONAL LAW AND
POSITIVISM
2 AUSTINE’S VIEW ON
INTERNATIONAL
LAW

3
H.L.A HART AND
INTERNATIONAL
LAW
4 KELSON’S THEORY
ON INTERNATIONAL
LAW
5 CONCLUSION

6 BIBLIOGRAPHY

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 INTRODUCTION
International law, also known as public international law and law of nations,1is the set of rules,
norms, and standards generally accepted in relations between nations. It establishes normative
guidelines and a common conceptual framework for states to follow across a broad range of
domains, including war, diplomacy, trade, and human rights. International law thus provides a
mean for states to practice more stable, consistent, and organized international relations. 2The
sources of international law include international custom (general state practice accepted as
law), treaties, and general principles of law recognised by most national legal systems.
International law may also be reflected in international comity, the practices and customs
adopted by states to maintain good relations and mutual recognition, such as saluting the flag
of a foreign ship or enforcing a foreign judgment. International law differs from state-based
legal systems in that it is primarily though not exclusively applicable to countries, rather than
to individuals, and operates largely through consent, since there is no universally accepted
authority to enforce it upon sovereign states. Consequently, states may choose to not abide by
international law, and even to break a treaty.3 However, such violations, particularly of
customary international law and peremptory norms (jus cogens), can be met with coercive
action, ranging from military intervention to diplomatic and economic pressure.The
relationship and interaction between a national legal system (municipal law) and international
law is complex and variable. National law may become international law when treaties permit
national jurisdiction to supranational tribunals such as the European Court of Human Rights or
the International Criminal Court. Treaties such as the Geneva Conventions may require
national law to conform to treaty provisions. National laws or constitutions may also provide
for the implementation or integration of international legal obligations into domestic law.
Positivism is a philosophical theory stating that certain ("positive") knowledge is based on
natural phenomena and their properties and relations. Thus, information derived from sensory
experience, interpreted through reason and logic, forms the exclusive source of all certain
knowledge.4 Positivism holds that valid knowledge (certitude or truth) is found only in this a
posteriori knowledge.Verified data (positive facts) received from the senses are known as
empirical evidence; thus positivism is based on empiricism.Positivism also holds that society,

1
"International law". Encyclopedia Britannica. Retrieved 2019-04-26.
2
Slomanson, William (2011). Fundamental Perspectives on International Law. Boston, USA: Wadsworth. pp.
4–5
3
Slomanson, William (2011). Fundamental Perspectives on International Law. Boston, USA: Wadsworth. p. 4
4
John J. Macionis, Linda M. Gerber, Sociology, Seventh Canadian Edition, Pearson Canada

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like the physical world, operates according to general laws. Introspective and intuitive
knowledge is rejected, as are metaphysics and theology because metaphysical and theological
claims cannot be verified by sense experience. Although the positivist approach has been a
recurrent theme in the history of western thought,5 the modern approach was formulated by the
philosopher Auguste Comte in the early 19th century.6 Comte argued that, much as the physical
world operates according to gravity and other absolute laws, so does society,7 and further
developed positivism into a Religion of Humanity.

5
Cohen, Louis; Maldonado, Antonio (2007). "Research Methods In Education". British Journal of Educational
Studies. 55 (4): 9. doi:10.1111/j.1467-8527.2007.00388_4.x
6
"Auguste Comte". Sociology Guide. Archived from the original on 7 September 2008. Retrieved 2 October
2008
7
Macionis, John J. (2012). Sociology 14th Edition. Boston: Pearson. p. 11. ISBN 978-0-205-11671-3.

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 AUSTIN’S VIEW ON INTERNATIONAL LAW
The new-fangled term ‘international law’ was invented at a time when men’s minds were
obsessed by theories of national sovereignty and it is not surprising therefore, that there came
to be attached to it a stigma and a contempt which have never attached to the traditional ‘law
of nations’.8 The controversy whether international law is law or not revolves on the divergent
definition of the word ‘law’ given by the jurist. If we subscribe to the view of Hobbes,Austin
and Pufendort that law is a command of sovereign, enforced by a superior political authority,
then international law cannot be include in the category of law. On the other hand , if we
subscribe to the view that the term law cannot be limited to the rules enacted by superior
political authority ,then international law an be included in the category of law.
Hobbes,pufendorf and Austin subscribe to the view that law “properly so called” is a command
of the sovereign and is enforced by a superior political authority.Since law is the command of
a determined superior, no law can exist where there is no supreme law giver and no coercive
enforcement agency. According to Austin , law is given is the command of the political superior
to the political inferior and is backed by the coercive enforcement agency. Thus in the view of
Austin sanction plays an important role in enforcement of the law. People follow law because
they have fear on injury or fear of the sanction or evil or pain and also they will be compelled
to follow the law.

According to Hobbes man is by nature nasty, brutish, violent and fear or sanction inherent in
law is necessary to maintain order in society. In his view men needs for their security a common
power to keep them in awe and to direct their action for common benefit.

In support of the Austine view of international law that it is not a law many jurists put forward
the following arguments:

1. There is no political superior authority in international law as in municipal law

2. International law lacks effective legislative machinsry as compared to the municipal
law
3. It lacks sanction which is necessary according to the writters of this persuasion.
4. There is no such any executive power in international law as may enforce the decision
of the ICJ and ensure the observance of the provisions of the treaties.
5. International law lacks a potent judiciary.

8
See Martin Dixon and Robert McCorqudole,international Law {Lawman (india) pvt.Ltd.,New Delhi,1995},p.7.

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 6. Some writters says international law as quasi law.9

9
See for example,D.J.Lathan Brown,Public international law,(London, sweet and Maxwell,(1970),p.274.

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 H.L.A HART AND INTERNATIONAL LAW
In chapter 10 of his The Concept of Law, Hart asks whether International Law is genuinely law
or is it better seen as international morality? He argues that international law is law, but
different in some important aspects from state law. Why are there arguments that international
law is not law not successful? What are the arguments for asserting that it is law? Hart’s main
sources of doubt concerning the legal quality of international law appear to be: that there is an
absence of an international legislature, of courts with compulsory jurisdiction, and centrally
organized sanctions. According to Hart, international law resembles a "simple form of social
structure" found in primitive societies. For Hart, international law consists mainly of primary
rules, and he expresses doubts whether any secondary rules exist on the international level.

What is International Law According to Hart? International law threatens the account of law
as Hart has theorized. There is no legislature and no compulsory jurisdiction and its rules [of
states] seem only to consist of primary rules with no secondary rules. And international law
appears to have no rules of recognition—so we must ask whether international law is really
law?

Two problems arise:

Attempts to analyze international law as rules backed by threats; and

Problems that arise from believing that states cannot be the subjects of international law.

The first question is whether international law can be obligating. This is not a question of
applicability but a question of whether international law is law at all. Thus the question is not
analogous to the question of whether municipal law is really law and Hart denies that we can
claim that international law is not binding because it has no organized sanctions because to do
so would be to accept Austin's view. However, we might ground law in the need for such law
to resolve international disputes, as international aggression is the most dangerous sort. Under
international law, many world nations have rights and duties and are subjects of the law.

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Some skeptics feel that this is meaningful because sovereignty only denotes that someone is
sovereign over a territory and those who live within it; the definition does not rule out
sovereignty over it with respect to other sets of matters. Another difficulty with this view is
that we cannot define state sovereignty without first knowing what international laws they are
subject to and some may argue that real international obligations do not exist except by
voluntary agreement. International law and morality are tied in complex ways; since
international law is like a system of primary rules, we might use moral rules of recognition to
identify it since legal secondary rules do not exist. However, Hart resists this view on the
grounds that different states recognize different moralities and are often hypocritical in their
advocacy of moral demands. Many rules of international law are not obviously moral but
practical. International law also must specify details that are non-moral, such as how long a
treaty is binding. Hart argues that it is unclear whether international law, to exist, must rest on
moral obligation and resists some analogies of form and content between international law and
other forms of legal rules. Accordingly, Hart encourages us to liberate ourselves from requiring
that international law must contain a basic rule because the rules of international law fit very
different social situations and so it is hard to see that they can allow a simple analysis or simple
analogy with other forms of law. He sums it up by stating: Until basic rules of recognition are
formulated, international law can be seen as at most a system of transition to secondary rules,
although it seems clear that it exists as a set of primary rules—the only analogy between
international law and other law is of content and in content the rules are closest to international
law than any other form of law.

Are International Laws Moral?

Hart rejects the argument that international law is understood as international morality. Arguing
that states distinguish between moral and legal appraisal in evaluating each other’s conduct and
that rules of municipal law and those of international law are often times morally mediocre.
There are, however, arbitrary differences which cannot be explained by moral standards given
that legal formalism is a characteristic of international law that does not agree with
characteristics of morality and unlike rules of morality—rules of international law are subject
to deliberate change. A moral foundation is not necessary to explain the binding force and
obligatory character of international law. It is necessary; however, that the rules of international
law are generally followed—there are a variety of reasons why states obey their obligations. A
moral obligation to abide by international law may be one of the reasons—but there is no
gripping reason why it has to be a necessary feature of international law.

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An International Justice System?

Hart’s insistence that international law does not constitute a legal system seems almost as
problematic as Austin’s insistence that international law is not law at all. Although, Hart
emphasizes that international law is law—one is tempted to form the impression that Hart, like
Austin, did not believe there was any such thing as international law. Hart, does not pretend to
develop a comprehensive theory of international law but concedes that the integration of
international law—and other "borderline cases"—into his jurisprudence is of only secondary
concern to him. He does not analyze the structure of international law in great depth—limiting
him to general remarks about the peculiarities of the international system. In view of Hart’s
general concept of law, the concept of international law as a legal system, consisting of
secondary rules of recognition, change, and adjudication, does justice to the term "international
law" as we know it. Hart claims that international law cannot be regarded as a legal system
because of the differences between municipal law and international law, to include: the lack of
an international legislature, judiciary, with central sanction power, and absence of a uniform
rule of recognition. Differences between the two legal systems justify a conceptual distinction.
However, they do not disprove the conception that international order is founded on an
international legal system, just as the national form or constitution—as in the U.K.—is
governed by a municipal legal system, exemplified by Acts of Parliament, Delegated
Legislation, and Rules of Local Authorities.

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 KELSEN’S THEORY ON INTERNATIONAL LAW
Kelsen started his theory from certain premises. According to him, a theory of law must deal
with law as it is actually laid down and not as it ought to be. According to kelsen a theory of
law should be uniform. It should be applicable to all time and all places. Kelsen writes that a
theory of law must be free from ethics, history, politics, sociology etc. To kelsen knowledge of
law is a knowledge of norms. The view of kelsen is that every system no matter with what
propositions of law we start an hierarchy of oughts is traceable to some initial or fundamental
ought from which all other emanate. This is called by him the GRUNDNORM or basic norm.
This norm may not be same in the every legal system but it is always there. GRUNDNORM is
the initial hypothesis upon which the whole system rests.

Kelsen also applied his theory to the system commonly known as international law. His earliest
work did not touch on this field. It was only after Verdross had started to adapt his approach to
international law that Kelsen himself took interest in it. However, his theory, when applied to
international law, revealed many limitations. The Pure Theory demands that Grundnorm be
discovered. However, if there are conflicting possibilities, his theory provides no guidance in
choosing between them. What Kelsen said was that the Gundnorm should command a
minimum of support. In the international sphere, there are two possible Grundnormen, the
supremacy of each municipal system or the supremacy of international law. Every national
legal order cannot recognise any norm superior to its own Grundnorm. The English legal order
does not apply in France and the vice versa is also correct. However, the English legal order
recognises the validity of the French legal order in France. If the only Grundnorm known to
English law is its own, it follows that the English legal order regards the validity of the French
legal order France as being in some way delegated normative order from the English
Grundnorm.

The view of Prof. Dias is that the theory of pure law requires a Grundnorm for international
order but that is not clear. It may be the principal of pacta sunt sevanda, or “coercion of State
against State ought to be exercised under the conditions and in the manner that conforms with
the custom constituted by the actual behaviour of the States.” Prof. Dias is of the view that with
reference to the international law, the Grundnorm is a pure supposition unlike that of municipal
law. Assuming that a monist legal theory has to be offered to account for the present state of
international society, one way of explaining the assertion of equality by States would be by
hypothesising a norm superior to that of each national order form which equality might be said

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to derive. One can ask the question whether there is any Grundnorm which commands the
necessary minimum of effectiveness demand by Kelsen’s theory. There is not answer to it. It
is not easy to reconcile a monistic theory of the primacy of international law over municipal
law in the fact of conflict between the two.

Kelsen says that sanctions of international law are war and reprisal, but nobody would agree to
the proposition that war and reprisal are a sanction in the legal sense. International law has not
completely outlawed war as an instrument of national policy. International organisations also
have no tribunal to decide with a binding effect whether war is under sanction or not. A no. of
wars have taken place not as does not fit in the “pure theory of law” and it should be taken as
a limitation of the theory. His arguments are based on natural law principles.

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 CONCLUSION
International law, also known as public international law and law of nations, is the set of rules,
norms, and standards generally accepted in relations between nations. It establishes normative
guidelines and a common conceptual framework for states to follow across a broad range of
domains, including war, diplomacy, trade, and human rights. International law thus provides a
mean for states to practice more stable, consistent, and organized international relations.
Positivism is the school of thought of analytical jurisprudence largely developed by the legal
thinkers in 18th century and 19th century such as Jeremy Bentham and john Austin. Austin said
municipal law fulfil the principles of command theory but international law does not follow
the command theory. Therefore he says international law is not a law. Bentham justified the
international law as law and he believes that soverign can command and negotiate on set of
rules to regulate themselves. Hart said there is primary rules in the international law but there
is not a clear cut secondary rule.

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 BIBLIOGRAPHY
1. JURISPRUDENCE AND LEGAL THEORY – V.D. MAHAJAN’S
2. INTERNATIONAL LAW AND HUMAN RIGHTS – DR. S.K.KAPOOR

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